Category: Legal Issues

Introduction

Australian law constitutes one of the best world jurisdictions consisted of English common law, federal laws enacted by the parliament and laws enacted by the parliament of the Australian states and territories (Carvan 2002).

However like many other laws Australian law faces challenges in the course of changing world and the law is as dynamic and elusive as any other. In this paper we will examine some legal issues in Australia and a fictional case is going to be analyzed for breach of copyright and intellectual property law, public liability and duty of care, negligence and contract, secret recording et cetera.

The case presented is a complicated one and will attract many rulings depending on who is dealing with it. The analysis is divided into scenarios as per the paragraphs of the case story so that scenario one analyzes the cases in paragraph one and so forth.

The case study story

In the fictional case story Gideon Goal, a famous footballer, is invited by the manager of a brand new hotel to stay for a weekend as a celebrity guest. He posts a photo on Face-book of himself sitting in his opulent bedroom at the hotel. Later that night, he does a TV interview for Channel X TV in the hotel restaurant.

The cameraman accidentally knocks into a fish tank in the restaurant and cracks it. Gideon Goal slips on a patch of water that leaks out from a fish tank. He injures his back and is unable to play football for two weeks thus club seeks compensation.

Three months later, the hotel launches an advertising campaign headlined “These rooms kick Goals”, and prominently featuring the Face-book photo of Gideon Goal. Gideon Goal complains, saying he didn’t know the photo was going to be used and demanding the hotel pays him for being featured in the advertising campaign.

The hotel refuses, saying that this was the understanding in offering him the room for the weekend.

A year later, Gideon Goal writes his memoirs for an Australian publisher. A freelance journalist, Jack Hack, hears from a source that the book is going to be “explosive”. He contracts a private investigator who hacks into the voicemail of Gideon Goal’s mobile phone to see if he can gain any hints about the contents of the book.

From the messages, he learns that in Chapter 2, Gideon Goal will reveal that two of his team-mates are in a homosexual relationship, but wish to keep it private. Jack Hack poses as a Work-safe inspector to gain entry to the publisher’s factory and manages to take a copy of the book which is being prepared for publication.

The Daily Trumpet newspaper contracts with the publisher for exclusive serialisation of excerpts from the book. Gideon Goal also agrees with the newspaper to invite the players featured in Chapter 2 to a hotel in Melbourne, where the newspaper has installed secret video equipment.

When they arrive, Goal begins a discussion with the players about whether they would be willing to join the public campaign for equal rights for same sex couples but the players decline.

The following day, Jack Hack releases the entire contents of the book on a website he has set up called GideonGoalsbook.com. The Daily Trumpet complains to the publisher that they have lost all the value from their exclusive serialisation rights to the book.

The players named in Chapter 2 deny the claims that Gideon Goal has made. The players say they are consulting lawyers and will seek an injunction to stop all publication of the story. The next day Daily Trumpet publishes on its website the full video of their meeting with Gideon Goal in the hotel.

Scenario one

In this paragraph, Gideon Goal was invited by the hotel manager in what is seen as advertising mission and he complied. The first legal implication happens in an incidence when he accepted and even posted his photo on the Facebook which is a social network.

The potential effect is that unless he restricted access to his profile picture and his on line album, everyone would access it and he could not claim if any information is copied and or distributed.

When Goal slips on a patch of water leaking from the tank whose breakage was caused by the cameraman, he got injured to an extent of missing games for his club. In law it is evident that the accident was not intended and no one can be linked directly to the accident.

This is because Goal had consented to take part in the commercial advertisement of the hotel through him as a celebrity.

It would appear that by accepting to take part he would consent to any harm emanating from his involvement in the exercise unless it is ascertained that there was an agreement made between him and the hotel to cover him up in case anything happens in the course of promoting the hotel.

However under the public utility law, since Gideon Goal was undertaking a commercial activity by being used to promote the new hotel the case can be a bit complicated (Parkinson 2001). The accident that occurred affected the club and probably fans, who missed him in the field.

Therefore the hotel under public liability; the tort of negligence and the concept of duty care, is liable to compensate the club.

Gideon Goal himself did not sue for the injuries and this could mean that he was compensated or covered but his injuries also affected the club and the fans where they were inconvenienced by having their star outside the game. This could lead to fans economic and personal losses and therefore may lose confidence with the club.

This means that the club which had contracted him incurred some damages. It can be argued that the player got injured because the hotel neglected the safety precautions on the leaking fish tank that led to the injuries, whether they were aware or not does not matter.

Although the hotel had no direct consent with the club, by hiring their star player, whether they knew it or not, accepted the burden of any liability that may emanate from Goal’s security threat.

When the hotel hired Gideon Goal, knowing that he was a celebrity, they ought to have ascertained the potential risk in case he would get any harm and therefore exercise utmost care as far as he was in the course of doing what they intended him to do (Alleyne 2003).

Otherwise anything happening against him would be a negligence of the concept of the duty of care.

Scenario two

The hotel used Goal’s photograph, which he had earlier posted on the Facebook when he was offered a weekend in the opulent hotel, for advertisement purposes.

While this would appear as if it is a form of piracy and impingement of a copyright, it was probable that Goal had not restricted access to his photograph so anybody could access, transmit and even copy the photograph.

Goal can not validate his claim unless there is evidence that he had restricted access as per the terms of Facebook as a social network where everybody has access. This is the only way the hotel can be sued for trespassing by either Hacking into the Goals profiles without his consent.

Jack can be sued for the breach of confidence because he accessed. This case has precedence in the United Kingdom in a law case that illustrates the effect of phone interception.

A journalist from the tabloid newspaper was jailed on 28/1/07 for intercepting mobile messages that were meant for staff of the UK royal family (Tanner et al. 2005). In the same way Jack Hack can be sued for intercepting by Hacking into the Goal’s voicemail and accessing what can be confidential information.

This can also constitute a breach of confidence because the voicemail contained information which had personal information for some two players.

Moreover recording phone conversations and accessing ones voicemail without permission is against commonwealth law and can be punishable if proved by the person whose act hurts (Leiboff 2007).

On the other hand Gideon Goal can sue the hotel if it is ascertained that there was no agreement for his photos to be used in the campaign when they offered him to stay in their hotel over the weekend.

This is because use of his photo without his consent can damage his image which under the law is protected as his personal property. Secondly use of his image without permission is a breach of privacy, defamation which under the law is a private protected area.

In case the hotel is not able to substantiate their claim that they had agreed with the Goal on the use of his image in advertisement then it can be sued for a breach of confidence too.

This case can be compared to that of David Beckham who threatened to sue a Russian firm which used his image to sell Alco-pops without his authority.

Just like in Beckham’s case the hotel’s use of Goals image in the advertisement amount to passing off Gideon Goal’s image without authorization because any breach of image rights could be damaging to Goal and his club (Chisholm and Nettheim 2007).

Scenario three

In this paragraph as far as Jack Hack is concerned, in journalism getting the information and facts from the Goal’s memos is not recognized by the Australian law as a breach of copyright. The freelance writer can only be sued for what can be analyzed as a breach of confidence for Hacking into Goal’s voicemail.

The other legal issue arises when he posed as a Worksafe inspector in order to access the memos of Gideon Goal. Consequently he manages to get hold of unpublished copy of Goal’s book without the permission of either the publisher or the author.

Under the common law of tort, Jack Hack can be sued for deceiving the publishing house to access the information for his gain thus causing damage and loss to both the publisher and the author. This law applies to individuals like Jack who poses as someone else with an aim of gaining some goodwill.

Jack posed as an inspector which means if the inspection bureau discovers him, it can sue him for damaging its reputation and he can pay heavily for it because this can take a course of a criminal case where he can either be fined or imprisoned if proved guilty (Butler and Rodrick 2007).

This is also a breach of copyright because he copied what can be called a substantial part of Goal’s book without the permission from either the publisher or the author.

Scenario four

Daily Trumpet gets a contract from the publisher to have a serialization of the book excerpt. Under such agreements no other body or person would be granted such an authority to disclose the content of the book otherwise they would have breached the contract.

In what can be seen as a breach of confidence Goal conspires with the newspaper to bring the players featured in chapter two of the book, without their knowledge of their intention to capture their discussion. There is also secret recording which involves the discussion of the two players with Goal on their sexual orientation.

Recording of conversations is governed by state and territory law in Australia where each state has legislation covering the recording of conversations without the knowledge of everyone involved (Pearson 2010).

For this case the Daily Trumpet recorded the videos of the players having conversation with Gideon Goal without their knowledge and can therefore be in trouble in case the players sue in a court of law for defamation and secret recording.

This recording is not only a breach of confidence but also intrusion of the privacy of the players and their personal information which should not be disclosed in public.

Both Daily Trumpet and Gideon Goal can be sued for a breach of confidence in disclosing the players’ personal information unless they have a strong excuse for revealing the players’ sexual orientation information and these excuses could be strong public interest like the public health or safety.

Furthermore, the case of privacy was illustrated by the Bingles v. Fevola case where Bingles sued Fevola in 2010 for breach of privacy and misuse of her image by distributing a photo he took her in the shower on the mobile phone and this case put a lot of pressure on the Australian law (Chisholm and Nettheim 2007).

Since the aim of Goal, can be alleged, was to embarrass the two players by exposing their private lives he is very vulnerable to be sued and the two can claim damages because they had declined to come public during the conversation they had with him in the discussion they had.

Scenario five

Jack Hack releases all book content on a website GideonGoalbook.com thus bringing it in the public so that Trumpet complains that it has lost their exclusive right for serialization of the book.

It is true that the Daily Trumpet had lost all the value for exclusive serialization because once the content of the book was in the public domain they could not expect any value for what they intended as new information.

The first blame goes to the publisher who could not exercise care when publishing the book thus Gideon Goal can sue them for negligence of duty of care.

This is unavoidable obligation on those whose work affect the public and for this case the publisher can be required by the law to compensate or provide damages to Goal and Daily Trumpet because it was out of their negligence that both suffered economic loss.

A precedence case similar to this is the ABC media house in 2007 where it was deemed to have failed in its duty of care by revealing the identity of a woman in Victoria who was the victim of rape (Thompson 1994).

The duty was an obligation recognized by the court because of a separate criminal law in Victoria which obliges the media not to identify the victims of sexual attack, once the attack has been reported to police.

In the case of Goal’s book, the publisher is obliged to keep secret and safe all works undergoing publication for the sake of copyright law and therefore anyone who leaks the information is liable to a breach of law and can cause great damage to the author.

The players who were featured in the video taken secretly when they were discussing with Goal can sue for a breach of private rights but this holds as far as the information was not a public interest and had no public value.

Lastly the players named in chapter two of the book can seek an injunction for further publication of the book because the book breaches their confidence by publishing their personal life details and relationship.

A precedence of this case can be taken from the Loreena Mckennitt’s case of December 2006 where the Canadian song writer succeeded in preventing a book for former personal assistant from being published because it contained details about her personal life and the court ruled that it constituted a breach of confidence (Leiboff 2007).

Conclusion

The case story of Gideon Goal is a convoluted case touching on many areas of law from intellectual property law, copyright law, public liability, duty of care, secret recording and breach of confidence and the list can be endless upon critical reflection of each case in the story.

That is why there can be as many rulings to these case story scenarios as there can be judges.

One thing noted in the analysis is that there can be no absolute judgment because even the Australian law itself, like other laws in other jurisdictions is very dynamic and the age of computers and electronic has presented a challenge on the jurisdictions where there is lack of precedence in some cases.

Australian entire law enterprise is in a state of making and some laws like those regarding electronic cases are taking shape day by day.

Reference List

Alleyne, B., 2003. The Australian Law of the Media. Oxford: Oxford University Press.

Butler, D. and Rodrick, S., 2007. Australian Media Law. 3^rd ed. Pyrmont, NSW: Thomson Lawbook Company, pp. 3-25.

Carvan, J., 2002. Understanding the Australian Legal System. Sydney: Law book Co.

Chisholm, R. and Nettheim, G., 2007. Where law comes from: case law. 7^th ed. Butterworths: LexisNexis, p.45-72.

Leiboff, M., 2007. Creative Practice and the Law.1^st ed. Pyrmont, NSW: Thomson Lawbook Co, pp.178-9.

Parkinson, P., 2001. Tradition and Change in Australian Law. Sydney: LBC Information Services.

Pearson, M., 2010. The Journalist’s Guide to Media Law. 4^th ed. Crow’s Nest, NSW: Allen & Unwind, pp. 386-420.

Tanner, S. et al., 2005. Public and Private: Journalism Ethics at Work. Sydney: Pearson Education.

Thompson, J., 1994. Theory of the media in Socialization. Stanford, CA: Stanford University Press.

Introduction

Occupational health and safety laws coupled with human resources laws ensure that the workplace is ideal for the modern-day worker. Such laws guarantee a safe environment that is devoid of any discrimination, which is a shift from the traditional workplace where labour laws did not consider the plight of employees. In this essay, five articles relating to the laws will be discussed with the aim of examining the legal issues raised therein.

Discrimination in the workplace

Discrimination at the workplace is a serious offence under the aforementioned laws and offenders face strict penalties and imprisonment. In this section, an example of an article detailing discrimination at the workplace is discussed. The article published in the New York Amsterdam News explores a case in which the US Supreme Court was to decide on the extent to which an employer could be held liable for discrimination (Jamie, 2013).

In the case, Vance v. Ball State University, Maetta Vance complains of being discriminated by a supervisor in the institution. The cause of disagreement is in the definition of the term ‘supervisor’ with Vance claiming that the university employee who discriminated her was her supervisor in the Banquet and Catering Department where she worked (Jamie, 2013).

The case was filed in the year 2006 after Vance accused the institution of not reacting and carrying out any disciplinary action against the supervisor who racially and ethnically discriminated her. Discrimination could take place at the workplace on racial grounds as seen in Griggs v. Duke Power Co and in this case, the discrimination was rather direct (Larkin, Pierce, & Gino, 2012)..

According to Vance, the supervisor by the name Sandra Davis “created and fostered a hostile work environment by frequently making discriminatory remarks about her race and ethnicity” (Jamie, 2013, p.40).

The case took the nature of other discrimination at the work place, such as Bradley v. Pizzaco of Nebraska, Inc. Ricci v. DeStefano, and EEOC v. Peoplemark, Inc. that had the basis of racial discrimination based on grooming policies, the requirement in tests and criminal reports respectively (Heather, Kevin, & Jitendra, 2013).

The issue brought into light the legal provisions for the case and according to Title VII, “employers aren’t liable for non-supervisors’ discriminatory conduct of the majority non-supervisors as long as they act reasonably enough to prevent discrimination from occurring and for any issues of discrimination brought to their attention” (Jamie, 2013, p. 40).

The university tried to shield itself from the suit by filing a motion for summary judgment to confirm, and this was an apt thing to do in its defence based on the available level of evidence (Wood, Braeken, & Niven, 2013). The courts had previously discussed whether Vance was in order to state that Davis was her supervisor, with the various definitions of a supervisor being sought.

The paper claims that the only evidence available as to Davis being Vance’s supervisor is that she “had the authority to direct Vance’s day to day activities” (Jamie, 2013, p. 40).The issue brought into sharp focus the description of the term ‘supervisor’. Under the Supreme Court, the definition of the term is rather broad and the court’s ruling was deemed a landmark ruling for trials cases that would follow on the same.

This assertion holds as the litigation cases against employers would increase or decrease depending on the definition that the court would provide. Adoption of the broader definition of the term would mean employees make more suits against their employers based on the Title VII claims (Jamie, 2013).

On the contrary, adoption of the narrower definition of the term as stated in the 7^th Circuit would see a decline in the claims under Title VII (Jamie, 2013, p. 40). The 7^th Circuit states, “Supervisors are individuals who have the power to ‘hire, fire, demote, promote, transfer or discipline’ employees” (Jamie, 2013, p. 40).

An institution is responsible for any discrimination that employees undergo in the same institution (Wood, Braeken, & Niven, 2013). The employer should thus try to solve any discriminatory issues affecting the employees, with those responsible for the same facing strict punishment and legal action as per the legislation.

Since the application of Title VII, plaintiffs have regularly used it as a means to pursue charges against the employers for alleged racial discrimination at the workplace (Heather, Kevin, & Jitendra, 2013). The article details the definition of a supervisor under Title VII, and a broader and narrower definition for the same are explored.

The author gives both definitions of the term, with the various consequences that applying each may have on future discrimination suits. Discrimination is a major source of legal battles, and employees constantly take their employers to court based on the same (Heather, Kevin, & Jitendra, 2013). The definition of the term supervisor is thus of importance and the outcome of these cases could be determined by the same.

Employer/Employee relationship

The relationship between an employer and employees is a significant legal issue with different employees raising concern over their employers (Heather, Kevin, & Jitendra, 2013). One such issue is evident in the rule that was meant to display the difference between employers and employee pay.

In an article by The Hill newspaper, the inclusion of one of the laws that require company CEOs to declare the difference between the salary of the average employees and theirs in a reform had brought chaos in the industry. The law is said to predate the Occupy Wall Street movement and most of the opponents state, “Salary data are difficult to collect and of no interest to investors” (Schroeder, 2012, p. 12).

The inclusion of the regulation in the provisions means that if this element becomes law, the executive officers would have to bear with the knowledge of their remuneration being widely available in the public domain.

The opponents and proponents of the requirements have varying views of the same, with those supporting it doing so based on the campaign agenda by the president, with the year of publishing being an election year (Schroeder, 2012). The proponents argue that the issue is a rather political one finding itself in the public domain and thus it requires further and sober evaluation without the political pressures (Schroeder, 2012).

Some of the groups that supported the move according to the article include the various labour groups that are major players in the country and other Wall Street members (Allen, Ericksen, & Collins, 2013).The major argument against the requirement is that it poses greater trouble than it would actually solve.

The people concerned stated that the executive officers in the various industries would feel embarrassed and even cause some disturbance between employers and their employees (Allen, Ericksen, & Collins, 2013).

In the assessment of a company’s performance, investors use a number of parameters to evaluate the health of a company. The opponents of the requirement stated in the article that the requirement to have the average pay for the employees compared to the executive pay might not be one of the measures.

According to them, the performance of a company is not indicated by the difference between the pay for executives and the average worker (Schroeder, 2012).

The article focuses on the legislation with various people interviewed stating points for their support or lack thereof for the requirement. Some of the proponents state that the requirement was not dated with any deadline for implementation and would thus not be difficult to debate and apply (Schroeder, 2012).

However, the opponents are said to be bent on using the senate to counter any political attempts to make the regulation apply (Schroeder, 2012).

Labour laws are specific on the privileges that an employer and the employees enjoy, which should be respected by both parties, as well as other concerned parties. The steps that the employees may take if dissatisfied with their employer include lawsuits such as the one above, and these cover mainly the remuneration or the working conditions (Isolani, 2011).

The major concern that the article portrays and describes is the advent of regulation in the industry, with the change cited to have an implication on the relationship between the employer and employee. The assumption and likely effect is the public display of executive’s remuneration, with the above likely to affect their work ethics and performance (Larkin, Pierce, & Gino, 2012).

The legislation that requiring secrecy of remuneration details of officers in the organisations will be turned inside out and this aspect will be a departure from the current held secrecy (Isolani, 2011).

In the making of regulations affecting employees, the consideration of their relative pay is not important and so is the ratio of their pay to the executive officers. The article displays some of the major flaws in the labour laws and specifically in remuneration. However, it is not right that employers and the CEOs get their salaries exposed in public in the name of comparing this to that of their subordinate or average employees.

The human resource law is particularly strict when it comes to the recruitment of employees in companies and their remuneration issues (Ehrhardt, Miller, Freeman, & Hom, 2011). It provides for the respect of the basic rights and freedoms in the workplace (Park, Yang, & McLean, 2008).

The attempt to have the CEOs have their salaries compared to their average employees in the companies has no basis and is likely to embarrass them as suggested in the article. It is imperative that employers can force employees to state their salaries publicly.

Vicarious Liability

The acts of an organisation or of its employees may be punishable to the origination on behalf of those committing them by either commission or omission (Meredith, 2012, p. 11).

Various laws and legislations around the world ensure that there is taking of responsibility for any action in the professional practice and one of the ways is the vicarious liability that allows people to make organisations accountable for the acts of their employees.

In an article detailing the application of vicarious liability, a stage man is stated to have sued his mother company in the United States for allegedly being forced to inject controlled performance enhancing drugs in the clients in the belief that they would prolong their erections (Meredith, 2012, p. 11).

The employee Ronald Baker sued the company after he allegedly pierced his finger while administering the drug to one of the clients, thus suffering the effects of the drug that were not known to him (Meredith, 2012, p. 11). The employers were not sure of what to do after the incident and the employee claimed that he feared to have contracted HIV, which was the main reason for him contacting them (Meredith, 2012, p. 11).

He later realised that the drugs that they were giving were not appropriately prescribed, and immediately stopped giving them, which prompted the employer to withhold the employment benefits (Meredith, 2012, p. 11).

In the suit, the employee states some of the reason for the suing as being the manner in which the managers handled the matter, the way in which they terminated his employment contract, and the violation that they had for the labour law (Meredith, 2012, p. 11). He also sued for the emotional distress that the event caused him, as well as the health effects that clients may have had without knowledge (Meredith, 2012, p. 11).

The suit also included the suing of other employees who are also involved in the same activity and lawyers in the case stated that nurses did not give the injections, as the Californian law requires (Meredith, 2012, p. 11). The clients also do not know the effects of the injection and potential effects had not been investigated before administration of the drugs.

The company is said to be in the adult entertainment industry, thus involved in the making of pornographic movies for the clients (Meredith, 2012, p. 11). The participants were described as getting many hours of erections, with this being regarded as beneficial for the company since they could make more movies for longer (Meredith, 2012, p. 11).

The employee and his colleagues are directly responsible for the effects of the drugs, since they are involved in its administration. However, the managers are also responsible, despite showing little interest when contacted by the employee (Meredith, 2012, p. 11). The company was sued due to the matter by indicating the vicarious responsibility that it had over its employees.

The occupational health and safety law and the human resource law are some of the laws that recognise vicarious liability. The crafting of the regulation in these laws allow the taking of responsibility for actions that employees of a company may take that may adversely affect the rights of other individuals.

Before the regulation, employers could not be sued for the wrongs done by their employees, and this was unheard of as the various crimes committed before the regulation came into effect were enough to warrant its effect (Anselmi, 2012).

Some of the cases of vicarious liability that have been reported in the past have ended with the plaintiff getting less of the sentence that they had anticipated. In the Lynch v. Binnacle Ltd. t/a Cavan Co-op Mart case, the employee displayed the same vicarious liability as described above, though the employer was not directly involved in the injuries that the employee stated to have occurred at the workplace.

The cases citing vicarious liability have often been ruled in favour of the defendant, and there is often little evidence or basis for the defendant to be fined or accused. The above-mentioned news article, for example, the employee was directly involved in the administration of the drug distributed in the company’s sets, but this exercise was without prior knowledge of the effects that it may have on people having it.

The ideal process for the case to one of vicarious liability is where the participants’ in the pornographic videos would have sued the company for the action of the employees. In this case, the employees would have been the people behind the acts with the company being sued instead.

The application of the law in its entirety means that companies can no longer pose to be safe with the actions of their employees (Giliker, 2011). To avoid these cases, the organisations need to have workforce that is adequately trained and well supervised.

Statutory duty of care and OHS

Statutory duty of care and occupational health safety are some of the most important factors to consider in occupational health and safety law and human resource law. In this section, an article will be discussed based on the above component of the laws and their application will be examined.

The article applies to Western Australia, and it was published in The Australian in the year 2012. It is about a juvenile jail in Western Australia that had been rocked by problems in its workforce. The guards in the jail were reported in the article to be traumatised by their work at the juvenile prison with many of them seeking stress leave, compensation, and other forms of leave (Paige, 2012, p. 9).

They claimed that the working conditions at the prison were suboptimal with their work being stressful. The actions by the guards described in the paper as threatening to cause the closure of the institution handling many teenagers who are yet to be sentenced for the crimes they committed (Paige, 2012, p. 9).

The labourers reported increased stress levels compared to their counterparts in other institutions, with this causing the teenagers to be locked in their cells for long hours and to miss most of their classes (Paige, 2012, p. 9). The paper includes a report by the West Australian Department of Corrective Services confirming an increase in the number of guards who have taken leave due to job related stress (Paige, 2012, p. 9).

The stress that the guards reported is due to mistreatment from the detainees with a number of guards being involved in incidents where the detainees caused harm to them. The incidences to some of the staff led to their absence from the workplace with some quitting the job and others seeking compensation on the same.

The paper also reports that the effects were also influencing the detainees negatively with the time they are allowed out of their cells reducing markedly. The result of this aspect is a vicious behaviour from the detainees and some are described as flooding their cells with others trying to escape from the facility violently (Paige, 2012, p. 9).

These activities are described as further worsening the situation with the guards as most of them reported being injured at least once during these incidences. The majority of the guards, thus opted for personal leaves, stress leaves, or even sued the facility for compensation. According to the article, 20 guards were absent from the facility at the time of reporting due to the above problem.

Some of the teenagers in the facility included some of those known for notorious acts such as throwing petrol bombs to the police. The root of the problem is described as being a result of the merger of “two juvenile detention facilities at banksias Hill in the Perth suburb of Canning Vale” (Paige, 2012, p. 9).

The merger was driven by a shortage in the number of staff with an escalation in the number of detainees (Paige, 2012, p. 9). However, the guards were unprepared to handle the large number of students in the facility with some being inexperienced with the cases in the facility.

The article presents a valid occupational health and safety problem with the guards involved being harmed in their line of duty. The occupational health and safety law provides for the safety of workers at their workplace (Paige, 2012, p. 9).

The human resource law is also clear on occupational health and safety issues by providing appropriate measure to be taken in the case that the law is violated such as in the article above (Parrott, & Wiatrowski, 2013).

In the juvenile prison discussed, the people in-charge and the governing authority should have first evaluated the safety of the guards and their capacity to handle the new population of detainees before the merger.

Adequate training and preparation should also have been carried out. Examples of cases with the same implications and structure are Reynolds v. Sheet Metal Workers Local and the case of Gregory v. Litton Systems.

Another requirement in the occupational health and safety law and the human resources law is that the labourers should be adequately equipped with the tool necessary to perform their duties. In the case above, the guards were not necessarily equipped with the right tools to handle the detainees, and hence the injuries and stress suffered.

The compensation that the guards seek in the article is also warranted, since it is evident that the labour laws were violated and harm caused to the employees. In any workplace, employees should ensure that the occupational health and safety law and the human resources law are adhered to in the work process.

Workers’ Compensation

Worker compensation is a significant part of everyday workplaces and the laws that have been put in place in business and trade have facilitated the increased number of compensation claims (Amirah et al. 2013; Burkhauser, Schmeiser, & Weathers, 2012).

In recent years, the number of people taking their employers or clients taking the companies to court seeking compensation has increased. In this section, an article that details a case of compensation is discussed with the relevant laws being applied. The article published in the Daily Mail in the year 2012 features a bank assistant who sued the bank she previously worked with.

Susie Sheridan, according to the article, had exceeded her overdraft limit, but requested a computer in the branch she worked in to enable her to pay a direct debit (Martin, 2012, p. 22).The request was declined, but she proceeded to overrule the decision and through her account did the same.

The alert by the computer to the bank managers over the transaction cost her job with the dismissal being due to misappropriation of the banks resources. The boss in the dismissal letter also claimed that the manager illegally used her position to evade some of the costs incurred in the transaction and used her position to falsify details and overrule the previous decision (Martin, 2012, p. 22).

Suzie took the bank to court on claims of unfair dismissal and hearing, and won the case. In her case, she stated that it was true that she accessed the bank account on the said date and that the reports that she instructed an illegal pay were correct (Martin, 2012, p. 22).

She defended herself by stating that her salary would have been paid the next day, and that she had been able to access her finances the same way she intended the previous month through a direct debit (Martin, 2012, p. 22).

The bank manager also stated that she had also accessed the account two weeks before the incidence, with no action being taken by the bank. She also reported a policy in the bank that allowed the staff to access funds even when they exceeded their overdrafts (Martin, 2012, p. 22).The court ruled that her dismissal was wrong and that the money that the manager took could be paid since there was no indication that it would go unpaid.

The judge also made a ruling citing the buffer zone that the bank allowed its employees (Martin, 2012, p. 22).The ruling also included the indication that though Sheridan made the transaction illegally, there was no indication that she falsified the details or even attempted to suppress any record as indicated in her dismissal letter.

The case progressed for a considerable period with the bank fighting to make sure that the employee did not get the compensation that she sought. However, at the end of the case, the former employee was awarded €35,000 in compensation by the judge due to the trouble that she went through (Martin, 2012, p. 22).

There has been many cases of employee compensation, with the bulk of employment cases leading to compensation (Isolani, 2011; Larkin, Pierce, & Gino, 2012).

Most of the cases in court are also in based on employee desire to get compensation for the problems or mistreatment incurred directly or indirectly at the workplace. Lynch v. Binnacle Ltd. t/a Cavan Co-op Mart is an example of cases that the employee sought to be compensated for incidents at the workplace, and though there was no compensation forthcoming, the intent was to have financial compensation in the end.

Courts have recently encountered increased cases where the employee are suing their employers for due compensation for many incidents at the workplace. As stated earlier, the issue of employee compensation is a dominant one in courts, with many people seeking compensation for harm or any kind of injury that they may have suffered under the company that they sued.

The observations of increased cases can be attributed to the changes in the employment law that have taken place in the last few decades. The provision under the many employment laws are responsible for the surge in the number of people seeking compensation in the courts and the occupational health and safety law and human resources law are some of the laws that govern the issues of employee compensation.

In the case above, the bank is signatory to the human resource law base on its line of work and many countries around the world have adopted these laws in their system. The increase in the compensation claims is partly as a result of increased awareness on the side of employees where many employees are aware of the laws that have been formulated (Hong, Chin, & Thomas, 2013; Backes-Gellner, & Pull, 2013).

The other reason for the increase in compensation claims could be the stringent laws that are in the many industries. However, the laws should be more specific on the extent to which employees and other individuals should be awarded, since most suits feature significantly large amounts of money that may not necessarily be equivalent to the suit (Isolani, 2011; Larkin, Pierce & Gino, 2012).

Nevertheless, organisations need to work with the laws in place to ensure that they are not taken to court for any wrongdoing. They should ensure that there is also documentation to act as evidence if such suits emerge.

Reference List

Allen, R., Ericksen, J., & Collins, J. (2013). Human resource management, employee exchange relationships, and performance in small businesses. Human Resource Management, 52(2), 153-173.

Amirah, N., Asma, W., Muda, M., & Amin, W. (2013). Safety culture in combating occupational safety and health problems in the Malaysian manufacturing sectors. Asian Social Science, 9(3), 182-191.

Anselmi, K. (2012). Ethics, Law, and Policy. Nurses’ personal liability vs. employer’s vicarious liability. MEDSURG Nursing, 21(1), 45-48.

Backes-Gellner, U., & Pull, K. (2013).Tournament compensation systems, employee heterogeneity, and firm performance. Human Resource Management, 52(3), 375-398.

Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 797, 798–99 (8th Cir. 1993).

Burkhauser, V., Schmeiser, D., & Weathers, R. (2012). The importance of anti-discrimination and workers’ compensation laws on the provision of workplace accommodations following the onset of a disability. Industrial & Labour Relations Review, 65(1), 161-180.

EEOC v. Peoplemark, Inc. 2011 U. S. Dist. LEXIS 38696 (2011).

Ehrhardt, K., Miller, S., Freeman, J., &Hom, W. (2011). An examination of the relationship between training comprehensiveness and organisational commitment: further exploration of training perceptions and employee attitudes. Human Resource Development Quarterly, 22(4), 459-489.

Giliker, P. (2011). Vicarious liability or liability for the acts of others in tort: a comparative perspective. Journal of European Tort Law, 2(1), 31-56.

Gregory v. Litton Systems, 316 F. supp. 401 9 C. D. Cal. 1970) modified on other grounds, 472 F. 2d 631 (9th Cir. 1972); Notice 915.061 EEOC, (1990).

Griggs v. Duke Power Co., 401 U.S.424 (1971).

Heather, S., Kevin, B., & Jitendra, M. (2013). Discrimination in the workplace. Advances in Management, 6(2), 3-9.

Hong, O., Chin, D., & Thomas, E. (2013). Global occupational health and safety responsibilities of occupational health nurses based in the United States. Workplace Health & Safety, 61(7), 287-295.

Isolani, L. (2011). Occupational health and safety risk: role of the occupational health physician and of the public occupational health and safety services in the workplace. Italian Journal of Occupational Medicine and Ergonomics, 33(3), 217-220.

Jamie, B. (2013). Sexually harassed school worker awarded £100,000. Daily Mail, p. 40.

Larkin, I., Pierce, L., & Gino, F. (2012). The psychological costs of pay-for-performance: Implications for the strategic compensation of employees. Strategic Management Journal, 33(10), 1194-1214.

Lynch v. Binnacle Ltd. t/a Cavan Co-op Mart, [2011] IESC 8.

Martin, F. (2012). Banker sacked in direct debt now wins €35k. Daily Mail, p.22.

Meredith, M. (2012). Porn company sued over penis injections. San Francisco Chronicle, p.11.

Morris, M. (2013). “Trying to keep up”: The Experience of Combining Full-Time VET with Work. Australian Journal of Adult Learning, 53(1), 44-67.

Paige, T. (2012). Staff stress disrupts juvenile jail, The Australian, p.9.

Park, S., Yang, B., & McLean, G. N. (2008). An Examination of Relationships between Managerial Coaching and Employee Development. Web.

Parrott, A., &Wiatrowski, W. (2013).Workplace safety and health profiles of occupations with green technology jobs. Monthly Labour Review, 136(1), 49-56.

Reynolds v. Sheet Metal Workers Local 102, 498 F. Supp. 952, aff’d. , 702 F. 2d 221 (D.C. Cir. 1981).

Ricci v. DeStefano, 129 S. Ct. 2658 (2009).

Schroeder, P. (2012). Disputed rule intended to shame CEOs. The Hill, p. 12.

Wood, S., Braeken, J., & Niven, K. (2013). Discrimination and well-being in organisations: testing the differential power and organisational justice theories of workplace aggression. Journal of Business Ethics, 115(3), 617-634.

What are some special issues that arise in Internet transactions involving contracts as compared to traditional transactions involving contracts?

In the contemporary society, internet transaction has grown rapidly into the most preferred means of transaction. Since internet transaction surpasses boundaries of the judiciary, several critical issues arise. The first major challenge is formulating a balanced legal obligation that involves more than one law. For instance, managing the geographical location of the agreement may prove challenging, especially when the same involves countries with different laws on the same. Besides, establishing universal acceptance formalities and verifiable content such as acceptance evidence and signatures are difficult to keep for future reference.

Besides, there are no clear laws regulating contract agreements for international internet transactions. Moreover, litigation and arbitration venue may not be defined (Cheeseman, 2010). Generally, internet transactions still face the challenge of breach of contract in terms of substance and content of initial agreement since limited laws exist on reversing a disagreement or seeking compensation. Thus, business executives should enlist the services of a specialist in internet transaction laws to review eventual risks and provide informed mitigation before formalizing any international internet transaction.

What other contract components should the manager make sure he or she is familiar with, and why?

Besides clarity in contract formation, a business executive should critically review the aspects and assumptions of the risks involved. In practicality, it is vital to establish the premise that any contractual tenure allocates the aspect of risk between parties involved. Risk evaluation determines the possibility of optimal returns and cushion for any negative eventuality. Therefore, a critical review of the risks involved facilitates utility maximization out of a contract (Dettmer, 2003). Thus, terms of contracting should be representative of all risk aspects for the business executive to be in a position to optimize incentive hedge and reduce the magnitude of risks that may surface during and after contract formation and execution.

Think about a transaction—a contract—that you have entered into. For that transaction, discuss what legal transactional risks can arise for you, and what you can do to minimize or prevent those risks

I have signed a sales contract with Bangladore Software Provision Company based in India. This company offers online software sales services. I have purchased ten software programs via the internet and am awaiting special activation codes which are expected to reach my location within the United States of America in three days via airmail. Under the terms of the contract, I have wired payment amounting to $500 through PayPal service to the company and I have a confirmation message for received payment. The immediate risk is the fact that there is no physical presence of this company within the United States of America and the laws governing international internet transactions are relatively undefined in India.

As a risk mitigation strategy, the government of the United State of America will have to take over the claim in case of breach of contract since the laws in the U.S has a mandatory provision for seeking compensation and canceling international transactions upon producing evidence of payment (Fox, 2009). To resolve any eventual dispute, I will forward my case to the government to follow it up and seek compensation for any loss since the initial transaction was within the law.

Compare and contrast two forms of contract dispute resolution, such as mediation, arbitration, negotiation, peer-review, and mediation-arbitration

The 2012 dispute between Samsung and Apple Companies ended in a court settlement worth $107 million paid to Samsung. Negotiation involves parties in dispute working on mechanisms for breaking any existing stalemate. Under negotiation, parties involved are open to express their views and review terms, as long as the results are confidential. Unlike negotiation, arbitration ends with an independent third party imposing a binding decision on the conflicting parties (Wright, 2007). I would prefer arbitration in contract dispute resolution since the arbitrator is often an expert with independent evaluation skills on the disputed matter. Thus, an arbitrator will provide a professional settlement to the disputing parties.

References

Cheeseman, H. (2010). Business law: Legal environment, online commerce, business ethics, and international issues. Upper Saddle River, NJ: Prentice Hall.

Dettmer, W. (2003). Strategic Navigation: A Systems Approach to Business Strategy. Alabama: ASQ Quality Press.

Fox, W. (2009). International Commercial Agreements: A Primer on Drafting, Negotiating, and Resolving Disputes. New York: Kluwer Law International.

Wright, D. (2007). International Form of Contract User Guide, The International Purple Book. New York: IChemE.

Introduction

It is important for our team to have a clear focus on what should be done when signing a contract, given that we have identified our first client. Understanding these elements will make it easy for us to avoid any future litigation that may arise due to the poor execution of the contract. The following are the six elements of a contract, and each of them is very critical in developing a legally binding agreement with the client.

Offer

The first element of a contract is an offer. An offer refers to what one party is willing to give in exchange for a product or a service that is expected from the other party. According to Albaric and Dickstein, any of the two parties can make an offer based on the prevailing circumstances (41). A good example can be our client offering our legal firm a certain amount of money in exchange for the legal services that are to be offered. Sometimes there may be a counteroffer, especially in case one party feels that the value of the offer made is below the value of the product or service to be delivered.

Acceptance

In case the other party is convinced that the offer made is fair enough, then there will be an acceptance. Acceptance refers to commitment by the second party to deliver goods or services as per the terms and conditions stated in the offer (Cross, Miller, and Cross 33). For instance, if our client made an offer to pay our firm $ 250,000 for the services that we shall deliver, and then if our firm communicates back to the firm agreeing to the terms, it shall be considered an acceptance. Acceptance can be communicated orally or verbally.

Consideration

The offer and the acceptance can only be considered legally binding if they involve the exchange of goods or services which are of value. Both parties must be seen to benefit from the offer and acceptance made (Schwenzer, Hachem, and Kee 84). For instance, it may be suspicious if our client offers our firm $ 250,000, and all we do is to congratulate them for having a lot of resources. Unless it can be proven that through such actions, we are adding value to them, the contract may not be valid because we shall not be offering any value in return.

Mutual obligation

The entire process of making an offer and acceptance should be based on mutual obligation. It should not arise from mistakes, fraud, or any other form of coercion. None of the parties should feel forced to be a party to the contract. For instance, in case our firm uses any form of threat or blackmail to force the client to make a generous offer, then if the client can prove that such were the circumstances under which the contract was signed, then it can be nullified. The agreement should be made voluntarily.

Competency and capacity

The parties involved in signing the contract must have competency and capacity. It means that our client and members of our team who shall be involved in this contract should be of legal age. They should also be of sound mind when signing the contract. As McKendrick puts it, the parties must have the capacity to be legally responsible for their actions (43).

Written instrument

The contract must be made in writing or orally as long as future references can be retrieved. In most cases, the contract is written and signed by both parties for future reference. If it is made orally, there must be a neutral person who acts as a witness in the entire process (Singleton 64). All these six elements of a contract must be present for it to be admissible in a court of law.

Revelations Perfume and Cosmetics Inc. v. Prince Rogers Nelson

Revelations Perfume and Cosmetics Inc. signed a contract with Prince Nelson which stipulated that Prince will endorse all the new products of this firm as a way of promoting sales. In return, Prince would be entitled to some amount of the profits generated from the sale. When the company introduced new line products, Prince deliberately failed to make the endorsement as per the acceptance signed in the contract. The court awarded Revelations Perfume and Cosmetics $ 3.9 million for loss of profits (DiMatteo and Hogg 81). However, no further punitive measure was taken against Prince for the breach of the contract.

I believe the outcome of the case was fair. Prince had made a commitment, and the cosmetics company had relied on that commitment when it invested heavily in the new product. It was, therefore, a breach of the contract made for him to fail to undertake the tasks he had promised before. The failure led to a loss of profit for the cosmetics company. I strongly agree with the judgment that was made by the court. The company was compensated for the loss of profit resulting from the unfulfilled promises of the music started. This was the amount of money the company would have made if the breach had not occurred.

Works Cited

Albaric, Cristelle, and Marianne Dickstein. International Commercial Agency and Distribution Agreements: Case Law and Contract Clauses. Austin: Wolters Kluwer Law & Business, 2011. Print.

Cross, Frank, Roger Miller, and Frank Cross. The Legal Environment of Business: Text and Cases : Ethical, Regulatory, Global, and E-Commerce Issues. Mason: South-Western Cengage Learning, 2009. Print.

DiMatteo, Larry A, and Martin Hogg. Comparative Contract Law: British and American Perspectives. New York: Cengage, 2016. Print.

McKendrick, Ewan. Contract Law: Text, Cases, and Materials. Oxford: Oxford University Press, 2012. Print.

Schwenzer, Ingeborg, Pascal Hachem, and Christopher Kee. Global Sales and Contract Law. Oxford: Oxford University Press, 2012. Print.

Singleton, Susan. Commercial Agency Agreements: Law and Practice. London: McMillan, 2014. Print.

Introduction

There are a number of challenges facing students in the Educational environment and workplaces. This needs to be considered by all students and workers as they affect their learning and working lives. These challenges and legal issues that require students to families themselves with are current, future, and past and are common in all working places and learning institutions. Among the legal challenges encountered at Educational and working places are related to the treatment of HIV/AIDS colleagues, Racism, Sexual harassment, Bullying and intimidation, Cultural differences, Stress, Political intentions, and Riots and strikes.

HIV/AIDS

HIV/AIDS affects teaching staff, non-teaching staff, students, and the community at large. A workplace and educational environment is a place where there are many people with different moral standards and motives—proper laws governing the relationship between the interaction to avoid spread and victimizations. Students, workers, and other community members should follow these rules set out. Failure institutions teaching programs will be affected adversely.

Also, the institution should be able to provide safety measures like providing condoms in toilets. When a teaching employee is affected by HIV/AIDS, absenteeism creeps in, and other teaching schedules are affected not only his/her but also for the other staff members as the teaching schedule will have to be altered. The governing the problem should be clear and followed by all.

Racisms

This is another legal issue that needs to be properly articulated and followed. Educational places and working environments have many people from diverse races. Academic staff, students, and non-academic staff may practice racism. Persons or groups towards others on the grounds of their color and ethnic origin may define racism as offending expressions or acts. People being of diverse cultures, racisms take the following forms:-

• Verbal or written derogatory name-calling, jokes, remarks, gossip, insults, and other offensive languages against one’s race.
• One may incite others to commit such racism. For example, a teaching staff inciting students
• Continual or regular unfair allocation of duties and responsibilities to a person of a particular race as if he is the only one in that workplace.
• Withholding information or excluding one from meetings, social places like swimming pools, playfields, libraries, etc. will amount to racism
• Watching racist movies touching one’s race while he’s there and making offending remarks.

The educational workplace should have a proper code of ethics regarding racism and how to deal with it. If not properly handled, it may lead to some teaching staff resigning, others offering poor services, and students discontinuing their learning process. There should be proper rules that are followed relating to this form of harassment.

Intimidation and Bullying

Bullying and intimidation are offensive acts that humiliate an individual. In the educational working place, bullying is common among staff members and students; it may take the form of students to the student, student to non-teaching staff, even to some groups. Bullying and intimidation includes the following;

• Threats, shouting at, uncalled for outbursts, open aggression
• Invasion of personal property and space
• The unreasonable setting of objectives and deadlines or an abrupt change of objective
• Use of derogatory language, remarks, insults, jokes, gossip, and slander.
• Taking credit for someone’s work but avoiding blame.
• excluding oneself from information unjustifiably
• twisting someone’s statements
• threatening to report or take action with the aim of intimidation
• monitoring one’s work unjustifiably
• Pestering, spying, and the following someone
• inciting others to commit bullying or to intimidate

The educational workplace should have proper guidelines as to how to deal with the above challenge being a place of many people with diverse beliefs, cultures, and motives. Lack of clear policy may lead to unrest, strikes, or separation from affected groups or individuals.

Sexual Harassment

This is common in almost all educational workplaces, and it can be defined as an act of sexual discrimination and can be uncalled for sexual comments or activities in learning, teaching, administration working, or social situations. It may involve people of unequal status in the workplace. The following includes sexual harassment:

• unwelcome physical contact
• Suggestive gestures and comments emphasizing the gender or sexuality of an individual
• Requests for sexual favors
• Pornographic, degrading, or indecent pictures
• Exclusion of one’s gender from a group discussion or meeting
• The promise of rewards for sexual favors that may misuse workplace resources

This is a very serious challenge that requires proper procedures for its reporting, investigation, and handling should be fair. The procedures adopted should have the following features/principles

• should have the intention of good faith
• Confidentiality
• Should show fairness to both parties
• Should allow representation if the matter is serious

Training is essential because so much information is disseminated to staff that could otherwise be uninformed on the dangers of sexual harassment. Training usually informs workers of their rights and marks their positions in work. This makes them be aware of favors and helps them to draw boundaries at their workplaces. Also, the workers are taught how to accord respect to their seniors and stick to their principles and believes firmly but kindly. Either they are also taught on whom to report to in confidentiality or if they fear they can report anonymously.

While carrying out this training, the junior and senior staff are usually separated so to prevent alienation and victimization by their seniors. They can also share their experiences freely. The employees are taught how sexual exploitation is propagated and spread through an organization and the dangers of it on the company and on the individual, like loss of career. They are also taught how harassment causes humiliation, mental and psychological injury, and loss of dignity at the workplace.

Most senior staff has blackmailed their juniors on mistakes they made or some unfavorable act that they know about them and ask for sexual favors. They are also taught on worker compensation in case of wrongful termination of work because they reported it. They are also taught when they can sue and also lawyers who can represent them when it reaches a critical level. Senior staff has been known to exploit their positions in an organization to promise junior workers the much-anticipated promotions.

Some employees have a tendency to cheat. In this organization, a thorough investigation is carried out to make sure that the allegations are worthy and have evidence. In reporting the cases, the areas of improvement should be on the methods used. This could be through keeping the written information like short messages, notes, and any other material. The administration should install surveillance systems in offices. There should be a certain dress code observed to cut down on cases where women dress so provocatively and sending suggestive messages across.

Senior officers who have been implicated in this offense more than once should have their past behavior investigated and counseling provided. This is to prevent more cases of abuse in a system. In case the workers feel harassed, their workstations should be changed and given due protection in case to avoid unfair job termination.

Stress

Educational workplaces possess unique challenges that may lead to stress. Stress can be defined as difficulties experienced while coping with pressures and demands; stress in the educational workplace may arise because of the following

• unfair allocation of work or work one is not able to handle
• Bullying and intimidation
• Sexual harassment
• Poor rewards and recognition policies
• Lack of proper working and research tools and materials
• Large class for teaching staff to handle.

A policy should be put in place that aims to:

• Promote a culture of participation, consultation, and communication
• Provide enough materials and tools for work
• Encourage teamwork
• Identifying causes of stress

Cultural Differences

Educational working places have people from different cultures. Cultural beliefs influence human behaviors to a great extend. As cultures differ, it makes it difficult to design an environment that is conducive to performance and satisfaction you final a colleague who beliefs that women should not expose her face, this will make it hard for women to associate with him to such person he may also find difficulties in relating to them. Cultural differences influence the following in educational workplaces

• Mode of dressing
• Food served, some eat snakes and frogs while to others it’s poison
• Associations in the institution
• Language used

Harassment policy- harassments take the form of undermining one’s sex, race, and even bullying. The policy should aim to correct this injustice through a proper grievance procedure. A good grievance procedure should have the following principles: – Good faith, confidentiality, fairness, and give employees equal opportunities in Defence. Examples of harassment include:-

• physical conduct ranging from the invasion of personal space and/or inappropriate touching to serious assault,
• verbal, written, and e-mail harassment through derogatory remarks, jokes, insults, offensive language, gossip, and slander,
• sexually suggestive and unwelcome comments or derogatory remarks, including any regarding the sexual orientation or preference of an individual,
• Unwanted requests or pressure for sexual favors,
• Unjustifiable exclusion, like Withholding information, not talking to, not including any discussions or meetings, or exclusion from social occasions,
• Sexual and racial graffiti or displays on computer screens,
• Intrusion by pestering, spying, following, stalking,
• unfair allocation of work and responsibilities,
• incitement to commit harassment,
• open aggression, threats, shouting, unpredictable outbursts,
• deliberately setting objectives with unreasonable deadlines or changing objectives unfairly,
• Belittling, marginalizing, or ridiculing;
• taking for someone else’s work but never taking the blame if something goes wrong,
• twisting something someone says or does,
• Threatening disciplinary or other action deliberately to intimidate.

References

Conte A; (1999); Sexual Harassment in the Work Place; Aspen Pub. Glassglow university website.

Croft, M. (1995), “The Bill to Change”, Marketing Week, pp. 29-30.

Jennings Croft, M. (1995), “The Bill to Change”, Marketing Week, pp. 29-30.

M..M.; (2005) ; Business :its legal, ethical and global environment.

Case Study

Elaine has sued Jerry because Jerry fired her. Elaine was on the letter she had been given mentioned the great career opportunities at the company and stated that her annual salary would be $30,000. The employer is an employment at will employer. Elaine was given no reason for the termination. After the termination, Jerry hired a man named Kramer, who had less job experience and education than Elaine, for the position. Elaine has sued to get her job back.

Legal Issues

The legal problem in the case of Elaine vs. her employer Jerry is the promise given by the employer to offer her great employment. Bearing in mind the employer is an “At Will” employer, the question rises if he needs to explain terminating her employment.

Other questions, which must be addressed include whether there was any ethical issues or any type of discrimination that led to the termination of the plaintiff. To make a ruling on this case it needs to be clarified if the employer had the right to terminate the plaintiff’s employment without explanation and if there is sufficient evidence to justify claim of ethics violation or discrimination used against the petitioner.

Plaintiff’s argument

The petitioner has the “burden of proof” for demonstrating each count of accusation leveled against the employer. The petitioner claims to have been wrongfully fired and had been sexually discriminated. The petitioner argues that her letter of employment promised her a great career opportunity and her starting salary would be $30,000 annually, which had not been honored.

Despite the fact that the employer is an “at will” employer and does not require drawing an employment contract, the job offer letter he issued the plaintiff in this case became the contract the moment the plaintiff accepted it. Elaine lays her claim on sex discrimination based on the fact that the employer hired a man named Kramer who also had less experience and his education was lower than hers was.

She claims, based on the wrongful dismissal that she needs to be offered her employment back. Though the defendant is an “at will employer” which gives him the right to fire an employee legally for any reason, the plaintiff could claim that the offer she received from him was an “express contract” that governs the employment connection.

This would imply in her instance existed an “implied-in-fact contract” at the time of hiring which was created between her and the employer. In the letter which she received on her employment stated; “Her annual salary would be $30, 000,” and she should expect “great career opportunities”. Here the word “annual” in relation to salary brings to light the fact that her work in the company was indefinite.

In addition, when the letter mentioned great career opportunities it would be logical to believe it meant the career was going to be for more than two years. The plaintiff could also enforce Title VII of the Civil Rights Act referred to as the fair Practices Act, which was made to purge job discrimination based on color, race, nationality, sex and religion.

Defendant’s Arguments

At- will employment is a policy in the United States law which describes employment relationship where the affected parties may opt out of the relationship without liability, if and only if there is no express contract for a given definite term leading the employment relationship. In addition, the employer should not be a member of a collective bargaining group.

The defendant under this policy could argue the petitioners claims by stating clearly he does not have to explain terminating the employment since he is an “at will “employer. He could also argue that though Kramer, the new employee, claimed had little experience and his education was lower than the plaintiff’s was hired based on natural abilities and offered a better job. He could also argue that the sex discrimination charges were unsupported since he had hired her.

My decision as the judge

In the case brought before me, it is my findings that there was no defense offered by the defendant on the wrongful job termination brought by the plaintiff. The plaintiff in my findings has brought sufficient evidence to show her employment was wrongfully terminated, which clearly showed that it was created on the express employment contract.

The petitioner’s employment letter promises to offer great career opportunities, which clearly suggest the employment was to be long-term and was to last for more than a single year. There are various constitutional and contract exceptions that apply to employment drawn out of at will doctrine.

The exceptions states that; if wrongfully discharged, an employee can take legal action against the employer for compensation. It is also clear that the plaintiff was sexually discriminated and this goes against Title VII of the Civil Rights Act, which protect these rights. Based on the evidence brought, it is my ruling that the plaintiff should be reinstated and granted punitive damages for her wrongful dismissal from work.

My Own Opinion

In my opinion, there is fair and reasonable application of the At-will employment law. Exceptions on the employment at will help protect employees who may have been wrongfully dismissed. There are some ethical issues concerns about the application of this doctrine.

One of them is there should be a written explanation on reason for dismissal because lack of this leaves the dismissed employee. If we assume an employee who was rightfully terminated but was offered no written explanation may find it hard to identify and rectify their mistakes. This to appoint, could affect the society creating increased unemployment, which will lead to many social ills.

The written explanation would help the employee accept the termination and help improve his/her performance. It is also my opinion the Title VII of the Civil Right Act laws should be harshly enforced to avoid the numerous cases arising from wrongful termination and segregation. This should also try involving and protecting male workers, as it seems that sex discrimination only applies to women.

The principal restriction of impeachment, by the use of evidence of misconduct, can result in a conviction of a witness

According to the principal restriction of impeachment, the use of evidence of misconduct can cause the conviction of a witness. Any misconduct that is compliant with the truthfulness of the witness’ evidence can result in impeachment of a witness even if an individual was not convicted for the kind of misconduct as a crime. If the witness intentionally gives false evidence and it is proven by the court, the witness can be convicted.

There are two main restrictions which need to be observed by a cross-examiner before asking a witness any provocative questions with the aim of questioning his/her trustfulness and possible impeachment of an individual as a witness. These are the factual basis for asking particular questions because “no unfounded fishing expeditions are permitted for this form of cross-examination” (Garland, 2006, p. 160).

According to the second restriction, the interrogator has to accept the witness’ answer as it is if the witness is not convicted for this particular misconduct in the past. “Extrinsic evidence of instances of conduct that show false statement or dishonesty is not allowed” (Bocchino and Sonenshein, p. 157). For example, if a witness lied on his/her tax returns but was not convicted for it, the examiner can ask a related question because it can shed light upon the witness’ trustfulness but the answer should be accepted as it is.

Specific acts of misconduct can be related to the witness’ credibility but proper procedures of cross-examination need to be observed for using this evidence of misconduct for the impeachment of a person.

Examples pertaining to the waiver of privilege against self incrimination

Under the current legislation, the witness’ privilege against self-incrimination can be waived at the witness’ discretion. It is significant, that the right for this privilege can be claimed only by the witness and waiving it, the witness will have to keep to this decision throughout the whole case.

If the accused decides to take the stand in most cases it would mean waving the privilege against self-incrimination though there are rare exceptions to this rule. Thus, taking the stand and waving the privilege against self-incrimination, the accused will not be able to testify only about the issues which are favorable to him/her and then reject to answer the questions relating to unfavorable issues.

Still, the privilege against self-incrimination can be retained by the accused who takes the stand under particular circumstances. “Unless the defendant, during direct examination, testifies in such a way as to deny the crime generally or testifies to facts and circumstances relating to the crime, there is no waiver of the privilege” (Garland, 2006, p. 170).

For example, if a person is accused of robbery in a particular place and somebody claims of recognizing him because he was seen nearby a high school some 8 years ago, the defendant can take the stand for saying that he/she did not attend the school in question without waiving the privilege against self-incrimination. In this case, the defendant’s evidence is not linked to the crime or related circumstances.

Thus, the privilege of the accused against the self-incrimination has been retained and the prosecution will not have the right for the cross-examination.

Making a decision to waive the privilege against self-incrimination, an individual should bear in mind the waiver would be applied to the entire investigation and cannot be used for answering only the questions on favorable matters. The privilege can be retained by the accused who decides to take the stand in case if the evidence he/she gives is not related to the crime.

Reference List

Bocchino, A. & Sonenshein, D. (2006). A practical guide to federal evidence: Objections, responses, rules and practice commentary. (7th ed.). Louisville, CO: National Institute for Trial Advocacy.

Garland, N. (2006). Criminal evidence (5th ed.). New York, NY: McGraw-Hill.

Introduction

Private defense firms employ defense personnel or guards to safeguard property and the citizens of a given region or country. Opposed to police officers, private security personnel are civilians who are formally employed to prevent illegal activities or actions that are inappropriate on the property through high visibility observation, conducting patrols, checking various alarm systems installed within an organization, and/or through direct checks on people and belongings including baggage. The primary function of the security personnel is to “detect, observe, deter, and report” acts of crime (Van Steden & Nalla, 2010, p. 215). They are not mandated to execute the arrest. However, they are given authority to arrest citizens or execute any activity that fulfills their functions as agents of law enforcement when requested by sheriffs and/or police officers (Wakefield, 2007, p.13). The increasing importance of the roles of security personnel in enhancing law and order has forced many states and nations to set legal guidelines for training security personnel. The purpose of this paper is to discuss various legal issues in the process of training security personnel.

The emergence of Training Concerns among Security Personnel

Tantamount to the police professional training approaches, training of personnel serving in private security companies have been evolving as time progresses. Van Steden and Sarre (2007) reveal how security personnel receives poor payment and training (p.227) perhaps because private security companies are paid poorly for the security services that are provided by their security guards. According to Wackenhut Training Institute (2004), initially, contracts to offer security services were given from the basis of cost competitiveness as opposed to levels of professionalism and experience in the industry showcased by the bidding companies (p.13). However, this trend was altered radically in the US following September 11 2001 revolutionary assault. Organizations began taking security issues seriously. They began altering their methodologies for evaluating bids for private security organizations based on professionalism and experience as the chief factors for winning contracts.

In response to the new trend of the private security industry, private security firms began to pump more money to fund training programs for their employees. Different states also started initiating legislation on the training of security personnel. Button (2007) amplifies this argument by asserting, “the term security professionalism began to surface, with large private security firms such as Blackwater, USA beginning to offer training services for the private security industry that approached the level of training provided by the military” (p.23). Emphasis on professionalism in private security sectors made security firms offer higher remuneration to their employees in the bid to attract personnel having background training in the military to be deployed in special and strategic operations. This meant that security personnel would argue the state security systems including the police in some instances. The situation, therefore, created friction in the mandates of various law enforcement agents. This challenge necessitated the creation of legal frameworks to guide the approaches deployed by private security firms to train their personnel in many states of the US and other parts of the world. For instance, in the state of New Jersey, from 2006, it became mandatory for every security personnel to undergo a state-enforced and certified training program. This law is termed SORA. This legislation was created in the quest to increase the state’s control over the quality of security services.

Legal Issues in the Training of Security Personnel

For organizations in the private security sector to have effective personnel, they need to hire and train people acquainted with the operation of security surveillance systems together with the ability to assess potential threats. They also need to have the ability to work collaboratively with the public (Van Steden & Nalla, 2010, p. 220). Based on this argument, the law in the state of New Jersey requires security personnel instructors not to involve themselves in acts that impair public trust for them to have their licenses renewed. According to Rigakos (2005), competence is an essential aspect for consideration in the training of security personnel since “the ability of US companies to protect the nation’s critical infrastructure and/or contribute to homeland security efforts depends largely on the competence of private security officers” (p.78). This implies that the legal provisions on the training of security personnel as established by different states are significant in the extent that they help in the proper screening of security personnel and their instructors before they are allocated duties within organizations.

Considering the increasing significance of private security firms in enhancing the success of security initiatives developed by the department of homeland security, it is also important to consider various legal distinctions between state law enforcers and security officers. The state of New Jersey’s legal provisions on the training of security personnel defines a security officer as a person who offers security services such as “protection of a person or property, real or personal, from injury or harm, deterrence, or any other purpose whatsoever for either for hire, fee or rewards” (State of New Jersey, 2006, p.2). Law enforcers are people who are employed permanently and working full time to serve functions such as arresting, rehabilitating people who have violated the law, detecting, detaining and or convicting people who have violated the law as directed by municipal law provisions, state law, county laws or laws prescribed by the U.S. constitution. This implies that law enforcement officers only serve in the realm of criminal law. They do not involve themselves in civil law. Indeed, in the case of Warren v. District of Columbia, the court held that police officers do not have any legal authority to protect citizens at an individual level (Stucky, 2005, p.151). However, private security personnel may have this obligation. However, they are not legally anticipated to offer protection for all people within private properties.

Legal frameworks on the training of security personnel set the minimum qualifications for persons who are deemed fit to serve in the security firms together with training requirements, licensing requirements, and even qualifications for tutors in the training of security personnel. However, these laws vary from state to state and from nation to nation (Pastor, 2003). From 2008, the state of New Mexico demanded all security personnel to undergo mandatory FBI certified training having been taken through intensive FBI background scrutiny. It is also required for security personnel who are authorized to carry firearms to go through additional training on handling and caring of firearms. They are also supposed to pass psychological health tests (Anderson, 2008, p.83).

In North Carolina, safety personnel must be enlisted within the records of classified defensive services board to be qualified. This body serves the principal functions of licensing security personnel and addressing issues related to training coupled with education of people, association companies, and corporations, which provide security services across North Carolina. Under the legal guidelines for the operation of the board, security personnel are classified into two. The first category is unarmed security personnel while the second category involves all armed security personnel. Unarmed security personnel must complete 16 hours direct classroom training program for them to acquire certification (Anderson, 2008, p. 83). Armed security personnel are required to attend additional direct classroom training for 16 hours. The citification to carry a firearm is based on the qualification for gun range that is carried on regular duties. For Oklahoma, decree enforcement schooling board approves defense personnel. Unarmed security personnel must be 18 years and above while armed security personnel must be 21 years and above. Unarmed security personnel undergo 40 hours classroom training. They must also excel in criminal tests and checks. Psychological test is another requirement for armed security person apart from undergoing 40 extra training hours in comparison with the unarmed security personnel.

In South Carolina, legal issues in the training and management of security personnel are different from the above-discussed three states. Security personnel are conferred equal powers to arrest people tantamount to deputies of sheriffs when such people are on the grounds of the properties they (security personnel) are charged with their protection (Anderson, 2008, p.79). However, many security firms provide policies, which prohibit their personnel to arrest in the fear of strict liability issues together with inadequate confidence on the persons (the security personnel) they have deployed to conduct business on their behalf. The law also gives the security personnel the freedom to utilize blue lights together with traffic radars. SLED is the main body responsible for the licensing of the security personnel. Such personnel must undergo 8 hours of training in case they are not to carry firearms while those carrying firearms undergo 8 extra hours of training.

In Virginia, from 1980s, the law provides the department of criminal justice to certify and register security personnel. The department is also charged with the registration of people who enforce the law within the state of Virginia (Button, 2007, p.44). Unarmed security personnel are required to undertake 18 hours training in a classroom that is administered by a certified instructor. The certification cards are obtained within a period of 90 days upon employment by a private security firm. The card is subject to renewal after every two years. For certification as armed security personnel, law in the state of Virginia provides that a person must successfully undergo 16 hours of training in firearms handling, additional 6 hours training on how to execute arrest that is considered legally lawful besides qualifying for the caliber required for arms that are intended to be handled by such persons. The armed security personnel are also subject to annual firearm qualification testing for them to receive endorsement to continue handling the firearms. The state code authenticates armed security personnel to conduct arrest. However, it denies unarmed security personnel this authority (Button, 2007, p.45). Arrests are only legally valid if they are conducted in the jurisdictional areas where the security personnel are employed to execute their duties. Defense personnel are given powers through the state regulation to give orders for people to appear before judges to answer charges of transgression coupled with other illegal acts.

Security personnel are given the privilege by the law of the state of Virginia to undergo a 40-hour extra training to achieve the status of peace conservators within the firms that employ them. Upon successful appointment to this position by the circuit court judge, the personnel acquire similar powers to police officers. These powers are only executed while on the property guarded by the security personnel. Such powers include the legal duty to act as a witness in a court of law for a felony act, and the power to pursue fleeing offenders. Peace conservators are also allowed to utilize red illumination together with car sirens. Similar to the case of other states discussed above, FBI checks and police checks for criminal background history are also important for security personnel in the state of Virginia.

Upon consideration of the above-discussed legal issues in the training of security personnel in the US, it is evident that training is a necessary requirement for security firms to consider if they are to have merits in the industry in terms of winning contracts. Hence, it is important to consider legal issues related to the selection and recruitment of instructors to provide the training services. These legal issues are different, though similar in some ways for different states. Since the discussion of the laws in all states is beyond the scope of this paper, a general consideration of the laws is made with reference to the state of New Jersey.

According to the State of New Jersey (2006), people who seek employment in the security firms as security personnel must undergo 24 hours of classroom training course (p. 9). Certified instructors administer this course. Section 4.1 (b) of the legislation on security personnel training as provided for by the state of New Jersey requires the security personnel to be taught a minimum of 2 hours. Subjects taught include counterterrorism together with homeland security, mechanism of emergency responses, and communication process during incidences of emergency. Avoidance of theft, extents of the use of forceful interventions, law-safeguarding civilians on matters of forced detection, and ethics and codes of conduct in law enforcement and first aid are also taught (State of New Jersey, 2006, p.9). The law further provides, “all registered security officers shall complete an approved eight-hour refresher course of classroom instruction taught by a certified security officer instructor prior to having the certificate renewed pursuant to N.J.A.C. 13:55 A-3.6” (State of New Jersey, 2006, p.9). This provision implies that security companies must consider certain acceptable legal credentials while hiring persons to act as instructors for new security personnel recruits.

Among the many credentials, age is an important parameter for successful selection as an instructor across many states in the US. The state of New Jersey sets this age at 25 years (State of New Jersey, 2006, p.10). Such persons also need to possess 20 years working experience in supervisory roles at a managerial capacity in a security organization. The organization must be legally licensed to offer security services subject to action of the chapter on private detectives as enumerated in the 1939 act or subject to action of other jurisdictional laws of established by US. Alternatively, a successful security instructor needs to satisfy these requirements, but with an experience of 15 years in addition to possession of associates degree acquired from an university or a college that is credited by the state. 10 years experience in the service at a security managerial caliber may also be considered while accompanied by the possession of an undergraduate degree from a fully-fledged university or college (State of New Jersey, 2006, p.10).

In the state of New Jersey, application for security training instructor requires formal applications. The law provides, “a person seeking to become a certified security instructor shall submit an application for registration as a security officer instructor on a form provided by, and in a manner prescribed by, the superintendent” (State of New Jersey, 2006, p.10). Other legal requirements include submission of fingerprints accompanied by consent on clean criminal background history in such a manner that complies with the direction from the superintendent. The law requires security-training instructors to complete refresher courses prescribed by the superintendent. Such courses last for 16 hours. This training is done before renewal of instructors’ licenses as prescribed by N.J.A.C 13:55 A-5.5. These requirements place emphasis on the need to have security personnel trained by academically qualified and experienced persons in the effort to enhance professionalism in the private security industry.

The above legal requirements do not automatically guarantee the renewal or acquiring of a license to execute the function of a security personnel instructor. In many states, superintendents are given authority to deny license applications by persons seeking to become trainers for security personnel. They may also revoke or even suspend licenses for different reasons ingrained within legal frameworks for training of security persons subject to the operation of different states’ legal clauses or laws on training of security personnel. In case of New Jersey, legal issues guide the appropriate action of the superintendent such as conviction of a licensed instructor for 1^st, 2^nd, 3^rd, and 4^th degree acts of crime as enumerated in the New Jersey criminal justice codes and/or provided for in title 2C. N.J.S.A. 2C:35-2 defines acts of unlawful sale of dangerous substances or possession of such substances, which may prompt the decision to cancel the license of a practicing security personnel instructor.

The discussion of various applications of law in the in matters of selection of instructors and security personnel proves that competence and the ability to handle security issues are important considerations that private security companies need to understand. In fact, according to the National Association of Security and Investigative Regulators (2005), “private security selection and training criteria vary from state to state ranging from comprehensive training requirements for every private security officer to little or no training at all” (p.15). Compliance with various legal provisions in matters of training of security personnel is necessary in the effort to provide effective security services and/or meeting the anticipation of the department of homeland security.

Conclusion

Legal provisions on the training of security personnel have evolved over years from no training requirement to specification of training hours in legislation for different states. Legal requirements for instructors interested in the training of security personnel have also been evolving with time in the effort to ensure that security personnel employed by different security firms help in the fulfillment of initiatives of the department of homeland security. The paper proved that, although the specification of the number of training hours for security personnel varies in different states, there is legal contention that training for security personnel is necessary. Evidence for such training is reflected by certification requirements. In all states of the US, it is an offense to employ uncertified security personnel.

Reference List

Anderson, T. (2008). Affairs of State. Security Management, 2(1), 83-84.

Button, M. (2007). Security Officers and Policing: Powers, Culture and Control in the Governance of Private Space. Aldershot: Ashgate.

National Association of Security and Investigative Regulators. (2005). Model State Regulation of Private Security Officers and Their Employers. Waterloo, IA: National Association of Security and Investigative Regulators.

Pastor, F. (2003). The Privatization of Police in America: An Analysis and Case Study. Jefferson, NC: McFarland.

Rigakos, G. (2005). The New Para-police: Risk Markets and the Commoditization of Social Control. Toronto: University of Toronto Press.

State of New Jersey. (2006). Law and public safety: security officer and security officers companies. Web.

Stucky, D. (2005). Local politics and police strength. Justice Quarterly, 22(2), 139-169.

Van Steden, R.., & Nalla, M. (2010). Citizen satisfaction with private security guards in the Netherlands: perceptions of unambiguous occupation. European Journal of Criminology, 7 (3), 214-234.

Van Steden, R.., & Sarre, R. (2007). The growth of private security: Trends in the European Union. Security Journal, 20(3), 222-235.

Wackenhut Training Institute. (2004). Wackenhut Security Officer Training Materials. Palm Beach Gardens, FL: The Wackenhut Corporation.

Wakefield, A. (2007). The study and Practice of Security: Today and Tomorrow. Security Journal, 20(1), 13-14.

Introduction

This paper will address the basic elements of business formation. It will evaluate both legal and regulatory aspects which, may be considered during the creation and modification of the business. Additionally, it will provide an analysis of how professionals may be selected to provide business advice including their would-be qualifications. Here, the researcher will look at the role of expatriates. Finally, the study will suggest the best choice of legal entity that may be selected and the reasons behind such a move. The above analysis will be used to address a case study involving Harry and Sons.

Legal and Regulatory Issues

This section will address legal and regulatory issues that may be considered in creating/modifying a business.

The main legal issues to be considered during the creation or modification of a business are as follows:

• Agreement process and ownership
• External compliance or government policy and regulations

Therefore, it would be important to look at the contractual relationship if the business involves two or more parties. Here, the basic issues to take into account are that all parties should be involved in a valid contract. In other words, the creation or modification of any business must ascertain that any kind of agreement involved is backed up by a real contract. In the same vein, the contractual agreement must incorporate all legally binding aspects (Beale 23; Halson 19). For instance, there must be an offer that refers to the intention to agree on certain terms; acceptance refers to the agreement of the terms specified in the offer. Moreover, a valid contract must have consideration since each party must get something of value (Young 31). Lastly, parties involved in the creation or formation of a business should have intentions to seek legal relations.

The above-mentioned aspects are critical during the creation of a business especially if it involves an agreement between two or more parties. It is more applicable in cases of partnership agreements. The other consideration is that the parties should ensure that their partnership deed outlines the rights and responsibilities of all the parties. This may require them to ensure that it complies with other relevant legislation such as Partnership Act 1980 among others.

Choice of Professionals

In choosing professionals outside the business, it is important to ascertain that they have all qualifications needed to address the problem. Therefore, the use of expatriates to provide professional advice should not go outside the requirements the company would choose if it sought to seek the same at the local level. In this case, the selection criteria for professionals to offer guidance on how to operate a business may be anchored on the following aspects:

• Qualifications: This means that they should possess all expertise to undertake or offer any consulting services. The management should see to it that it hires people who have a good reputation and whose profiles support their candidature on the same
• Availability: The other requirement is that the professionals should be available to undertake such a duty. This is because the management will need people who can be reliable in the entire process. In so doing it would save time and have minimal instances where its resources may get wasted as a result of delayed consultancy services. This requirement also underscores the possibility of the professionals to commute from their homeland to the premises of the business especially if it involves the need for technical input.
• Financial Implication: Last but not least, management should ascertain that the choice of professional consultants from abroad does not create unprecedented costs for the business. In other words, the choice should be value-adding both financially and in terms of personnel. Indeed, the need to have international professionals may be inevitable if such involves replacing a deficiency with the local personnel. However, the company should not direct all its finances to such since it is an expense.

Legal Entity Choice

This section will look at the legal entity choice one would make in the creation or modification of a business. The main choice would be that of partnership.

Analysis of Business Situation No.2

After Harry passed away Dick and Jane, run the business as a general partnership. This includes contracting with companies such as ExxonMobil and BP-Amoco. It is also the case that each of the two had 25% ownership of the business while 50% belonged to Wilma and Betty. The business originally operated as a sole proprietorship but Harry had brought Fred and Barney into the business without a formal partnership agreement. The main issue is that Dick and Jane intended to expand the business and at the same time sell it to a consolidator. As such a consolidator is a company that purchases local businesses in exchange for a combination of stock, cash, and debt.

Now, looking at the issues above it can be seen that Dick and Jane are making decisions that may create conflicts among the stakeholders, for instance, Wilma and Betty as well as Fred and Barney. This is because by their right they can claim for an explanation why the two chose to sell the business to a consolidator without involving them. Normally, a partnership requires that decisions be made by all the partners contrary to a sole proprietorship. However, looking at the scenario above it is not clear if the business left behind by Harry was a partnership or sole proprietorship. Well, it has been established that it was originally the latter case but looking at beneficiaries involved one will regard it as a partnership. This is because there are many stakeholders involved with the shares of the business. All the same, since there was no legal indication that it was a partnership business then it may be assumed that it was passed on to other generations in such status quo. What Dick and Jane ought to do is convert the original status of the business to being a partnership and indicate the rights of every member. Thus, assuming that they would be the active partners and the rest being dormant partners then they can proceed to sell the business to a consolidator without fear of legal conflicts from other beneficiaries.

Works Cited

Beale, Hughes. Contract Law. Hart Publishers, 2002. Print.

Halson, Roger. Contract Law. Longman Publisher, 2001. Print.

Young, Max. Contract Law: The Basics. Taylor & Francis Publishers, 2010. Print.

Introduction

The COVID-19 pandemic has forced most organizations to consider teleworking. In the aftermath of the pandemic, the return to the usual way of working from the office has been slow due to social distancing regulations and inadequate office space. The advantages of teleworking have demonstrated themselves to many managers, and as a result, more companies now have a more significant number of employees who work remotely. Notable advantages of remote work include work-life balance, increased productivity, saving of time, and reduction of costs for office space for employers. Both employees and employers have special rights when it comes to remote work while at the same time not losing the privileges enjoyed by standard employers and employees. Since this discipline is relatively new, its laws and regulations are less known. One law that all stakeholders need to be familiar with is the Telework enhancement act which addresses the rights that a person who chooses to work from home must enjoy. Stakeholders must also familiarize themselves with various studies on the issue, although there are only a few to date.

Problem Statement

Numerous studies have been conducted to investigate the impact of virtual work on the broad experience of the employees. Hill et al. (1998) found that workers who chose to work from home had better morale and good work/life balance in comparison to those who worked in an office setting. The same study also found that the cost of equipment used for telework, such as laptops, continues to decrease while the cost of office space needed for work is constantly increasing. Thus, it is beneficial for employees and employers to go the remote work route. However, an unresolved issue remains when permission for remote work should be granted. Likewise, workers’ rights who operate remotely are not well defined, although the law states that they are the same as those who work from the office. The US should, however, borrow from specific external legislations like the Irish remote work bill. It should also ensure that issues such as teleworker’s occupational health, unaddressed legal issues in remote work, and how to maintain work/life balance are addressed.

Purpose of the Study

The main objective of this study is to define and discuss the significant legal issues that affect teleworking programs. As stated above, the scope of this study has been limited, and thus decision makers have few reference points. This study interlinks various legislations and studies with real-life legal issues that affect teleworkers and employers in the workplace. In doing so, the study will first determine how one achieves the status of being considered an employee. Secondly, the study will look at how excess work can be measured and how legislation can be implemented to limit it. This study also seeks to define and discuss issues of termination in remote work-specific cases as well as issues of civil liability. Finally, the study will examine the employee’s right to telework and the employer’s right to refuse to grant telework.

Limitations of the Study

This study relies on secondary data to address the legal rights concerning teleworking; thus, it had finite information. Additionally, there were no samples conducted for this study; therefore, deductive reasoning was used to come up with conclusions. This is always risky since the argument could be biased. The lack of previous contemporary research has also restricted this study. Thus, the secondary data collected was of insufficient quality and quantity. The time provided to do the study was also less than required; thus, some aspects could not be exploited fully.

Definition of Terms

Since aspects of teleworking differ from one organization to the other, there is no actual legal definition of the term teleworking. However, most people agree that it is a flexible arrangement where employees operate in any other place apart from the regular operation center of the organization (Baruch & Smith, 2002). Teleworking has benefits not enjoyed by people who work in a workstation. Studies show that individuals who work from home are healthier, and their well-being is also better (Montreuil & Lippel, 2003). Other words synonymously for telework are telecommuting, virtual work, remote work, working at home, and working at a distance.

Legal Aspects of Teleworking

Determining the Status of the Employee

Unlike definitions and components of remote working, the legal aspects of teleworking have been less studied. The employment relationships should continue unless the contracts are breached, termination period reachers, or both parties agree to terminate. As employment has evolved, the legislations have also evolved to keep with its changing nature. However, the distinction between employees and self-employed persons has remained narrow, and it is blurry when working from home (Baruch & Smith, 2002). The law clearly states that a home employee works like any other and is entitled to all employment rights (Viktorovich et al., 2020). The determination of whether a person is an employee is done using the control test. This is determined based on the supervision, choice of activities, and work schedule flexibility. A remote worker could fail to pass the control test due to some of the outdated requirements. The conditions are ineffective since the traditional in-office mindset of office work is used in drafting them.

Legal Interventions against Excess Remote Work

Another legal aspect affecting teleworking is the criteria for determining minimum wages and the number of hours an employee is legally supposed to work. In the traditional settings, it was easy to calculate the wage based on the hours done and still manage the maximum number of hours an employee will work. Montreuil & Lippel (2003) found that employees who worked remotely worked longer hours than those operating from a workstation. This is possible since an employee’s work schedule from a work setting is observable, but that is not the case in remote work. Many governments have failed to find regulations limiting this extra work, although the EU has had a somewhat working solution. Its work time regulations state that there should be the maximum number of hours worked in a week, there should be regulation on night working, mandatory resting periods, and four-week paid vacations every year (Baruch & Smith, 2002). Thus, all responsible bodies should take statutory interventions to ensure that employees are not overworked in these remote settings.

Issues on Dismissal

The issue of dismissal should not even form any part of the discussion of remote workers since they are employees, and general dismissal protocol should be followed. However, unique challenges make the dismissal procedure different for a remote worker. First, before one is dismissed, a notice is usually given, and the employee continues working until the end of the notice period (Kot, 2021). This has not been the case as many remote employees have had their roles and remuneration cut immediately upon dismissal. Secondly is the dismissal issue due to matters specific to remote work. Misuse of office equipment or exposing the organization’s data are issues that have led to the dismissal of employees that would have otherwise not lost their jobs. These are not in the contract but are expected as part of the professional competence of a worker. Legislations should, however, enforce that all factors that may lead to the dismissal of remote workers be explicitly explained in the contract.

Legal Aspect of Civil Liability in Remote Work

Apart from determining when a remote worker is at work, there is another concern concerning civil liabilities in remote work. According to the common law, every employer has a duty of civil liability towards their employees. If they break that duty of due care, they are liable to be sued and pay any losses the employee may receive (Pearce, 2018). However, employees may easily refuse to take liability for injuries or losses incurred in a teleworking environment (Weiner, 2018). This raises concerns about the work time and how the litigations for such cases are addressed when injuries occur. In the traditional sense, injuries caused by work were easily identifiable. However, it is now hard to determine long-term injuries such as illnesses caused by strain. The law is unclear on how this problem can be addressed, and further research needs to be done.

Right to Teleworking

Different state legislation and bills support the Telework enhancement act. According to this law, every employee has a right to be granted permission for remote work (Rosenberg, 2021). If this bill is introduced and passed, employees will have a right to approve or refuse to accept remote work. Under regulations in the telework enhancement act, companies will have to set formal documentation that workers can use to request remote work. After receiving an employee’s appeal, the worker can send another plea for the same in 24 hours. According to this act, employees are only liable to apply for remote work if they have worked in the organization for more than six months (Rosenberg, 2021). This does not mean that employees who have not worked for less than six months cannot be allowed to work virtually. An employee can file an appeal with relevant institutions should the employer refuse to grant their request. This act states that no worker should be penalized for requesting to work remotely.

Right of Employer to Refuse Requests for Teleworking

Laws in different states give reasons employers may refuse to grant their employee’s requests for teleworking. For apparent reasons, whenever the worker needs to be physically available in the workstation, the employer can refuse the request for remote work. Employers sometimes cannot reorganize their work among the remaining staff to merit one to leave for remote work. If this condition is met, the manager can refuse the request. Some employees deliver poor quality work whenever given a chance to work remotely (Arnow-Richman, 2020). There are also some occupations where it is almost impossible to deliver good quality output when working from home. If the quality of work is sure to be poor when done remotely, then the employer has the right to refuse to grant permission for the work.

Some employees’ home environments are not ideal for work, and working from a public place may also prove problematic. In the case that telework negatively influences the level of performance of staff, the organization is granted permission not to grant it. Structural changes comprise changes in management, employee hierarchy, and departments and affect almost all employees in an organization (Boshoff, 2020). The remote work bill permits the refusal of telework should the organization be in the process of implementing such changes. However, remote work is generally more cost-effective on rare occasions the burden increases. If such a case happens and adopting remote work is costly, the employer can deny requests.

When the employer is sure that their business’s intellectual property and confidentiality will be risked by remote work, then they are allowed by the law to refuse to approve the request for virtual work. Similarly, they may be concerned about their employees’ health and safety. The employer can refute the remote work requests if there are such concerns. In some cases, the manager may need to physically visit the place where telework is done (Aloisi, 2022). The bill permits the employer to refuse the request when the distance is deemed very far from the onsite location. The bill also allows refusal for remote when where genuine data concerns arise. Since remote work necessitates a good internet connection, people who reside in locations that do not have it should be granted permission, according to the bill. If the agreement when signing the contract conflicts with the request for remote work, then the employer has a right to say no to the request. Finally, if the employee has an ongoing or recent disciplinary case, their request for remote work may be declined.

Conclusion

Both employers and employees need to be protected when it comes to issues concerning teleworking. However, although this form of work started long ago, the study and implementation of legislation on remote work have been slow. This paper found some significant legal issues concerning teleworking through secondary sources and laws. First are the primary legal aspects of teleworking, such as the number of working hours and how they are handled, civil liability concerns, legal issues on dismissal, and legally determining the status of an employee. The study also examined the legal aspect of an employee’s right to telework and when employers can refuse to grant this offer. This study raised more questions than answers concerning the scope of telework; thus, more research needs to be done on the topic.

References

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