Agency

1. Agency The key to . . . something

2. Agency is a relationship • Consent shown to one person (agent) • Act on behalf of the other (principal) • Agent is subject to control by principal • Agreement subject to consent by agent • Principal thus agrees to be responsible for acts of agent • Contracts • Torts

3. Respondeat superior “Let the boss answer”

4. Principals act through agent • Principal may do almost anything through an agent • Some principals may only act through agents • Corporations • LLCs • Cooperatives • You get the idea

5. Relationship depends on consent • Principal’s consent • Express or implied • Lets principal have control over agent • Does not always depend on intent of parties • Motive of agent, for individual actions • Dealings with third parties

6. Consent may be inferred from conduct • Ratification by principal • Approval after the fact • Accepting benefits • Actions • Course of dealing • Circumstantial evidence

7. Principal only responsible for acts done within authority of agent • “Scope of authority” • Express • Explicit delegation of authority • Implied • To do what is necessary of express authority

8. Apparent authority • Not “real” authority • Actions outside scope of authority • Actions accepted by principal • Third parties rely on past dealings • Reliance on what looks like authority

9. Principal’s liability • Acts done within scope of authority • Intent to benefit principal • Unauthorized acts that are ratified • Not disavowed • Benefits retained

10. Employment Law

11. Issue number 1: Who is an employee?

12. Why do we care? • Employees have certain rights • Including tax withholding • Non-employees (contractors) have rights through agreement • Employers mischaracterize employees as contractors • Not just temporary vs. permanent

13. Different, but similar, definitions • State common-law • Depends on control over worker • US Department of Labor • “Is this worker’s principal source of income?” • Wage and hour laws • Pensions and benefits • Not most common test • DOL not proactive • Depends on complaints

14. The most commonly used definition is from your friends:

15. IRS tries to make sure employees are not wrongly called contractors • Unpaid withholding • “Contractors” pay too much • Proactive • Does not rely on complaints • Gets too many 1099 forms • Test developed • Series of factors looked at

16. IRS factors fall into three groups • Behavioral control • Financial control • Relationship

17. Behavioral control • When/where to work • Tools equipment to use • Where to purchase • Tools • Supplies • Who does what work • Order/sequence to follow • Whom to hire to assist

18. Financial control • Unreimbursed expenses • Extent of worker’s investment • Marketing of worker’s services • How/when worker is paid • Profit or loss

19. Relationship • Written contracts • Employee benefits • Insurance • Pension • Permanent/indefinite • Services essential part of business • What does employer sell to public?

20. All factors are considered; no one is the most important.

21. Internships

22. Rules for unpaid internships with private employers • Training similar to educational environment • Experience for benefit of intern • Intern does not displace regular employees; works under close supervision • No immediate advantage to employer • Intern not necessarily entitled to job at end of internship, and • Employer and intern understand intern is unpaid

23. Exceptions • Government agencies • Non-profits • Charitable volunteers

24. Rights of employees It’s not an oxymoron.

25. Minimum wage • State (Minnesota) • $6.15 per hour • If employer has annual receipts <$625,000, $5.25 per hour • No tip credit • Federal • $7.25 per hour • Tip credit • More than $30 per month in tips • Must pay at least $2.13 per hour

26. If there is a conflict between state and federal minimums, higher wage controls

27. Overtime pay • All “non-exempt” employees • 1 ½ times regular hourly rate for every hour over 40 in a week • Week=168 consecutive hours • No averaging for multiple week in pay period • No lump-sum payment • No waiver • 1 ½ times employee’s regular pay, not minimum

28. Non-exempt employees • Entitled to overtime • All employees presumed non-exempt • Exemptions must be proven • Any employee paid <$455 per week

29. Exempt employees • Not entitled to overtime • Not covered by minimum wage • Employee must be paid a salary • At least $455 per week • Focus on job description • Primary duties of job

30. Categories of exemptions • Executive • Administrative • Professional • Learned • Creative • Computer • Outside sales

31. Learned professional • Primary duty is work requiring advanced knowledge • Discretion and judgment • Knowledge in a field of science or learning • Knowledge acquired through advanced education

32. Creative professional • Primary work requires invention, imagination, originality, or talent • Recognized field of creative endeavor

33. Worker’s compensation • Covers all employees • Absolute liability for workplace injuries • Injury arises out of employment relationship • No showing of fault • No right to sue for injuries • No common-law defenses for employer • Schedule of benefits

34. Worker’s comp benefits • Medical expenses • Past • Future • Lost wages • Percentage • Defined period of time • Payment for loss of limb/death/disability • According to schedule • Retraining

35. OSHA • Occupational Safety and Health Act • Workplace free of identified hazards • Does not give a right to sue • Evidence of negligence

36. Unemployment insurance

37. Unemployment insurance • Funded by employers • Premium based on employer’s experience • Covers employees who lose their jobs • No fault of their own • Good cause attributable to employer • Ineligible • Voluntary quits • Fired for misconduct

38. Benefits • Percentage of wages • Based on yearly average • Paid for thirteen weeks • Other assistance • Retraining • Job search help • Employee must show good faith efforts to get a job

39. Employee leave • Time off • Unpaid • Continue insurance • Keep seniority, if possible • Certain obligations/activities • Military service • Jury duty • Voting (Minnesota, not in Wisconsin) • School activities

40. Family-medical leave State Federal Federal employees Employers with more than 50 employees at one site Birth, adoption, serious medical condition of self or family member Twelve weeks in one year • State employees • Employers with more than 21 employees • Birth or adoption of a child only • Six weeks in one year • May be added to sick time or vacation time • Cannot be combined with federal time

41. Drug-alcohol testing • Required for some jobs • Any employer may require • Written policy • Analysis done by licensed lab • Positive results confirmed by retest

42. Miscellaneous rights • No polygraph testing • Wages paid at least monthly • Paid within 24 hours of demand, if you’re fired • Rest breaks • See your personnel file • Every 6 months, or • Once after you leave • Make request in writing • Explain disagreements in writing • Disagreement must be included in file

43. Not rights

44. Contrary to what you may think, there is no absolute right to: • Holidays • Vacations • Fringe benefits • Severance pay • Notice before firing • Privacy • Employer may monitor work-related calls • May monitor other areas for security

45. Employment at Will “They can’t fire you for . . .”

46. Yes, they can. • General rule • Employees may be hired or fired for any reason or no reason • Assumed that employees are at will • Exceptions to rule are limited

47. Contract • May prevent firing except for good cause • Collective bargaining agreement • Sets out steps for discipline • Civil service jobs • Academic tenure • Employment handbooks • Older cases found handbooks were contracts • Handbooks rewritten by now

48. Public policy • Some law forbids firing for certain reasons • Policy that we want to encourage employees • Retaliation • Whistleblowers • Cooperate with investigation • Worker’s compensation claims

49. Good faith/fair dealing • Recognized in some states • Forbids firing except • Just cause • Not for spite or malice

50. Discrimination