LEGL 312 Common Law

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Questions and Answers

When should an employer conduct checks on job candidates?

Before any offer is made

Immediately after the interview

After making a conditional offer of employment (correct)

Only if required by law

What is one reason organizations prefer to hire independent contractors?

They guarantee fixed work hours

They typically have more benefits

They provide better job security

They require fewer financial and legal obligations (correct)

Which of the following is NOT a right typically associated with employees?

Paid holidays

Ability to set their own hours (correct)

Paid overtime

Pregnancy and parental leaves

Which factor distinguishes an independent contractor from an employee?

Requirement for payroll deductions Signup and view all the answers

What is a common misconception about the relationship between an employer and an independent contractor?

They always have written contracts Signup and view all the answers

What is one implication of the employment relationship that independent contractors do not experience?

Rights to paid vacation Signup and view all the answers

Which statement about independent contractors is TRUE?

They can determine the amount of work they take on. Signup and view all the answers

What distinguishes independent contractors from employees in terms of taxation?

Independent contractors handle their own tax filings. Signup and view all the answers

What should an employer do if they do not know the answer to a candidate's question during an interview?

Offer to contact the candidate later with the correct answer Signup and view all the answers

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

To invalidate all past statements once the contract is signed Signup and view all the answers

What should be included in an employer's contract with a recruitment agency?

Specific details about the position, compensation, and career potential Signup and view all the answers

What can an employee claim if they were aggressively induced to leave a secure job and were then wrongfully dismissed?

Increased damages or financial compensation Signup and view all the answers

What does a 'restrictive covenant' in an employment contract typically prevent an employee from doing?

Engaging in specific activities during or after employment Signup and view all the answers

Under what condition will a court enforce a restrictive covenant in an employment contract?

If it is deemed reasonable Signup and view all the answers

What might an employer face if a recruitment agency makes misleading statements about a job?

Legal liability for misrepresentation Signup and view all the answers

How should employers address the recruitment process to avoid potential legal issues?

By documenting all candidate interactions thoroughly Signup and view all the answers

What is misrepresentation in a legal context?

A false or misleading statement that leads someone to take action. Signup and view all the answers

What might happen if an employee misrepresents their qualifications during the hiring process?

They may be dismissed if the misrepresentation is significant. Signup and view all the answers

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

To state that the information provided is true and can lead to consequences if false. Signup and view all the answers

What does liability in the context of misrepresentation refer to?

Legal responsibility for harm caused by misleading statements. Signup and view all the answers

If an employer makes inaccurate statements during the hiring process, what can happen?

They could be held liable for harm suffered by the employee. Signup and view all the answers

What type of compensation might a victim receive if a misrepresentation causes harm?

Financial compensation known as damages. Signup and view all the answers

Why is it important for employers to include an attestation clause?

To emphasize honesty and the gravity of false statements. Signup and view all the answers

In cases of misrepresentation, what must the person held liable typically provide to the victim?

Financial compensation or damages. Signup and view all the answers

What is a reasonable restriction for a former regional sales manager after employment ends?

Competing in the same region for a short period. Signup and view all the answers

What occurs during an anticipatory breach of contract?

Either party rejecting the contract before employment starts. Signup and view all the answers

What should an employer do to protect against an anticipatory breach of contract?

Determine candidate suitability before making an offer. Signup and view all the answers

Which of the following is NOT a common practice to avoid negligent hiring?

Hiring candidates solely based on social media profiles. Signup and view all the answers

What type of background checks can an employer conduct on job candidates?

Education and professional credential checks. Signup and view all the answers

In which situation is it necessary for an employer to get written permission from a candidate?

Before conducting any background checks on the candidate. Signup and view all the answers

What is the purpose of conducting reference checks during the hiring process?

To verify a candidate's work experience and suitability. Signup and view all the answers

Which of the following describes negligent hiring?

Hiring without any background checks. Signup and view all the answers

What is a potential consequence of misclassifying an independent contractor as an employee?

Liability for penalties and interest charges Signup and view all the answers

Which of the following principles differentiates employees from independent contractors?

Employees receive vacation pay Signup and view all the answers

How can an organization demonstrate that a worker is an independent contractor?

By stipulating a fixed term for the contract Signup and view all the answers

What should an organization avoid doing to maintain an independent contractor's status?

Setting their work hours Signup and view all the answers

What type of employees are hired for an indefinite period and typically work between 40 to 44 hours per week?

Permanent full-time employees Signup and view all the answers

Why should independent contractors consider incorporating their business?

To limit personal liability Signup and view all the answers

Which of the following actions indicates that a worker may be an employee rather than an independent contractor?

Being paid overtime for long hours Signup and view all the answers

What should NOT be included in a contract with an independent contractor?

A performance review clause 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 (financial compensation).
Liable: Legally responsible.
Misrepresentation by Job Candidate: False statements about qualifications or experience, significant enough to influence hiring decisions, may be grounds for dismissal.
Attestation Clause: In job applications, this clause states information is true and complete, with consequences for false statements.
Misrepresentation by Employer: Misleading statements during hiring can lead to liability. Employers must ensure hiring statements are accurate and complete.
Employer Obligations: Ensure all pre-employment information is accurate. Avoid misleading statements about the job. Offer to clarify unclear answers during the interview. Provide a written contract outlining all terms. Include an "entire agreement clause" stating all past oral representations are void upon signing the contract.
Misrepresentation by Agency: Employers employing recruitment agencies can be held liable for misrepresentations made by the agency. Contracts should specify position details, compensation, potential, and limit the agency to such information. Indemnity clauses protect employers from agency misrepresentations.
Inducement/Aggressive Recruitment: Encouraging someone to leave a secure job with inflated promises, and subsequent dismissal, may entitle the employee to more compensation. This aggressive recruiting involves significant efforts.
Restrictive Covenants: Clauses in employment contracts restricting activities during or after employment. Reasonableness is key for enforcement. Ex. former regional manager prohibited from competing in the same region for a brief period after leaving is reasonable.
Anticipatory Breach of Contract: One party backing out of a contract before the employment begins. Employers can protect themselves through careful candidate screening and conditional job offers.

Negligent Hiring

Failure to take due care during the hiring process: Involves employer actions creating harm.
Reference and Background Checks: Employers should conduct to avoid negligent hiring. Including reference checks with candidate permission. Credit checks, education, and professional checks are common. A candidate should be asked for written permission for background and reference checks. This should be done after a conditional offer is made.
Internet and Social Media Searches: Not recommended.

Employment Relationship and Independent Contractors

Employment Relationship: A contract for work and compensation.
Independent Contractor: A self-employed worker performing specified tasks for an organization, often preferred from taxation reasons.
Employee vs. Independent Contractor: Distinguishing the two is important due to legal and financial implications for both the person doing the work and the organization. This is crucial since employers have legal obligations regarding employees but not independent contractors.
Consequences of Incorrect Classification: Incorrectly labeling someone as an independent contractror when they are an employee can include the employer paying for retroactively owed benefits and interest, further creating potential penalties and/or financial liability.
Risk Minimization (Independent Contractors): Use a contract specifying worker status as an independent contractor. Clarify terms like fixed term or project-based work and establish a mutual termination clause. Avoid statutory deductions, benefits (vacation, holiday, pay) and reimbursements. Ensure the independent contractor works offsite, purchases their own insurance, manages their own hours, and avoids requirements for performance reviews and disciplinary measures.

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