Common Law

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Questions and Answers

What is the primary goal of common law when dealing with misrepresentation?

To prevent any form of communication from being considered misleading.

To determine legal responsibility for harm caused by misrepresentations. (correct)

To punish individuals who make false statements.

To ensure all statements made are completely accurate.

What is a consequence for an employee who misrepresents their qualifications during the hiring process?

They will be required to undertake extra training.

Their employment can be terminated with just cause. (correct)

Their employer is obligated to give them a second chance.

They will always face financial penalties.

What is the typical remedy a court will order when a person is found liable for misrepresentation?

A public service requirement.

Financial compensation to the victim (damages). (correct)

Criminal prosecution.

A formal apology to the victim.

What is the purpose of an attestation clause in a job application form?

To ensure employees understand the importance of honesty during the hiring process. (A) Signup and view all the answers

If an employer unintentionally gives a false statement to a possible new employee, what could happen?

The employer can be held legally liable for any harm caused to the employee. (D) Signup and view all the answers

What does it mean for a statement by an employer to be considered 'material' during recruitment?

The statement is important and relevant to the employee's decision to accept the job. (B) Signup and view all the answers

When is an employer justified in terminating an employee due to misrepresentation?

When misrepresentations significantly impact their decision to hire the employee. (B) Signup and view all the answers

What does an attestation clause emphasize to prospective employees?

The importance of honesty and the consequences of dishonesty during the application process. (B) Signup and view all the answers

When should an employer conduct checks on a potential employee's internet and social media presence?

Only after a conditional offer of employment has been made. (C) Signup and view all the answers

What is a core component of the employment relationship?

A mutual agreement for one party to provide payment to the other in exchange for work or services. (D) Signup and view all the answers

Why do organizations increasingly utilize independent contractors?

For simplicity, flexibility, and fewer financial and legal obligations. (C) Signup and view all the answers

What are some key advantages for individual workers or service providers who choose to be independent contractors?

Tax savings, flexible work schedules, and greater autonomy. (C) Signup and view all the answers

Which of the following is NOT a reliable indicator to definitively classify a worker as an independent contractor?

The specific type of work they do and the use of specific skills. (C) Signup and view all the answers

What is a fundamental difference in the obligations between employers and independent contractors?

The requirement to remit payroll deductions to the government for employees. (D) Signup and view all the answers

Which benefit is typically available to employees but not to independent contractors?

Paid holidays and parental leaves. (D) Signup and view all the answers

Which of the following represents the MOST accurate description of an independent contractor?

A self-employed individual who enters into a contract to perform specific work. (C) Signup and view all the answers

What is a key consideration for an employer when enforcing a restrictive covenant against a former employee?

The duration and geographic scope of the restriction. (B) Signup and view all the answers

What should an employer be aware of regarding a potential employee's existing restrictive covenants before making a hiring decision?

If those covenants could impact their ability to perform in their new job. (D) Signup and view all the answers

An employer offers a job, but later withdraws it before the start date. What legal concept does this scenario best represent?

Anticipatory breach of contract (A) Signup and view all the answers

To best avoid an action for an anticipatory breach of contract, what action should a company take during the hiring process?

Determine a candidate's suitability carefully before extending an offer. (B) Signup and view all the answers

What should an interviewer do if they don't know the answer to a candidate's question?

Offer to find the answer and contact the candidate later. (C) Signup and view all the answers

What legal concept arises when an employer fails to take due care during hiring which results in someone being harmed?

Negligent hiring (C) Signup and view all the answers

What is the purpose of an 'entire agreement' clause in an employment contract?

To ensure that all past verbal representations are void once the contract is signed. (D) Signup and view all the answers

In the context of recruitment, when might an employer be held liable for misrepresentations?

If a recruitment agency provides misleading information to a candidate. (D) Signup and view all the answers

What is a recommended procedure for employers aiming to prevent negligent hiring?

Conduct thorough background and reference checks. (B) Signup and view all the answers

What is essential for an employer to obtain before conducting background checks on a job applicant?

Written permission from the applicant to do so. (D) Signup and view all the answers

What type of clause should an employer include in their contract with a recruitment agency to protect them against the agency's misrepresentation?

An indemnity clause. (A) Signup and view all the answers

What is 'aggressive recruiting' considered to be, beyond simply advertising a position?

Repeatedly contacting and encouraging a candidate to leave their current job. (D) Signup and view all the answers

When requesting background checks, what factors should govern the type of information that an employer seeks?

Only information that is reasonably necessary for the job. (D) Signup and view all the answers

If an employee is 'induced' through inflated promises to leave a secure job and is then wrongfully dismissed, how might this affect damages?

Damages are increased above normal compensation. (D) Signup and view all the answers

What is the purpose of a restrictive covenant in an employment contract?

To protect the employer's interests by limiting the employee's activities during or after employment. (D) Signup and view all the answers

Under what condition might a restrictive covenant typically be enforced by a court?

If it is seen as entirely reasonable. (A) Signup and view all the answers

What is a potential consequence for an employer who incorrectly classifies an employee as an independent contractor?

The employer may be retroactively responsible for benefits, penalties, and interest charges. (C) Signup and view all the answers

Why is it important to properly establish an employment relationship?

Because it impacts whether the worker can sue for wrongful dismissal and their rights upon termination. (D) Signup and view all the answers

Which statement is true regarding an employer's liability for torts?

An employer is often legally liable for an employees torts that occur within the scope of their employment. (D) Signup and view all the answers

To minimize the risk of misclassification, what should be included in an independent contractor agreement?

A statement confirming the worker's independent contractor status, a fixed term, and a fair mutual-termination clause. (A) Signup and view all the answers

To ensure the worker is viewed as an independent contractor, what should an organization avoid providing?

Vacation, holiday, or overtime pay, health care, or other employee benefits. (A) Signup and view all the answers

Which of the following is a key factor in maintaining an independent contractor relationship?

Allowing the contractor to accept or decline work as offered by the organization. (D) Signup and view all the answers

What should an independent contractor do to further solidify their classification?

Incorporate their business and file appropriate tax returns. (C) Signup and view all the answers

What is a characteristic of a permanent full-time employee?

They are hired for an indefinite period, usually working 40-44 hours a week. (C) Signup and view all the answers

Study Notes

Understanding Common Law (Judge-Made Law)

Misrepresentation: A false statement causing harm. A court may hold the person responsible liable for damages.
Liable: Legally responsible. Common law aims to determine liability for harmful misrepresentations.
Misrepresentation by a Job Candidate: False statements before hire may justify dismissal if they affect job qualifications. If the false statements were material to the hiring decision and the employee performs poorly, the employer has just cause for termination even if performance is satisfactory afterward.
Attestation Clause: A clause in job applications stating information is true, complete, and false statements may lead to disciplinary action or dismissal.
Misrepresentation by an Employer: Misleading statements during the hiring process can make employers liable for resulting harm, even if the employer believed the statements were true. Employers must ensure material statements during the recruitment process are accurate.
Employer Actions: Employers need to ensure accuracy and completeness in information given to candidates during pre-employment stages, avoiding misleading language, and offering to clarify unknown answers in interviews. Contract agreements should address potential prior misstatements by making them void upon signing (entire agreement clause).
Misrepresentation by an Agency: Employers may be liable for misleading or inaccurate statements by recruitment agencies. Contracts with agencies should be explicit about the position, compensation, and career potential along with indemnity clauses protecting employers from liability for agency misrepresentations.
Inducement/Aggressive Recruitment: If an employee accepts a new job to aggressive recruiting or inflated promises and is then wrongfully dismissed, they could receive increased damages. Aggressive recruiting entails repeated contact and encouragement to leave a current job.
Restrictive Covenants: Clauses in employment contracts restricting activities during or after employment (competing with employer, soliciting employees/customers, or using confidential information). Courts enforce them only if reasonable (e.g., restricting a former regional sales manager's competition in the same region for a short time). Employers should check if candidates are restricted by covenants before hiring
Anticipatory Breach of Contract: Occurs if an employee or employer rejects a contract before employment begins. If an employer anticipates a breach and makes the offer conditional on circumstances, they protect themselves. The employer needs to be careful in determining suitability of the candidate before the offer is made, and positions that depend on circumstances should have conditional offers. An employer who breaches will also have to pay damages.

Negligent Hiring

Failure during hiring, resulting in harm from hired candidate.
Prevents this by checking job candidates' backgrounds.
Obtaining written permission and conducting appropriate checks like educational, professional, credit history, and criminal background checks.
Internet and social media searches are NOT recommended.

Employment Relationship and Independent Contractors

Employment Relationship: Involves a contract where employers compensate their employees for work.
Independent Contractor: Workers providing services to organizations, typically with fewer obligations and liability than employees; organizations increasingly utilize them.
Employee vs. Independent Contractor: Careful determination needed; factors like contracts, employment status, benefits, payment, and work arrangements help determine the relationship.
Implications: Employees have rights like paid holidays, overtime, and leave; employers have responsibilities like payroll taxes, while independent contractors don't. Incorrect classifications can result in back pay of missing benefits and penalties.
Employer Risk Mitigation: Using contracts specifying the contractor status, fixed-term contracts, avoiding deductions or providing benefits, avoiding office or uniforms, and permitting independent contractor to work for others, minimizing set work hours, avoids liability.
Types of Employees: Permanent full-time, permanent part-time, temporary, casual, and agency employees (temps).

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