Seaquist

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Employment Anti-Discrimination Laws Part 2

Published September 16, 2013 by Mayrbear's Lair

Part One of this series offered a brief overview of the systems that hiring managers implement to recruit potential top level performers. Part Two provides samples of the components that hiring managers utilize in the hiring process. The following fictitious samples were developed for the purpose of this research and are based on my previous employment experiences in the music industry.

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Job Description and Advertisement

Basic Information

Job Title: Administrative Assistant for the West Coast Vice President of Promotion

Job Purpose: The individual will provide administrative services for office systems in accordance with procedures, policies and engage in duties required of that department to the best of their ability, within the ethical framework established as outlined in the corporate employment handbook.

Job Overview: The individual hired for this position is required to perform the duties of the Administrative Assistant to the West Coast Vice President of Promotion that includes active participation and working in partnership with the supervisor and other staff members to build and maintain an ethical climate. The position also offers opportunities for career advancement.

Administrative Assistant Duties:

  • Maintains workflow implemented by systems established, studying models, incorporating cost reductions, reporting procedures and developing new ones.
  • Maintains, creates, and revises systems and procedures by examining operation practices, including data and record keeping systems, forms control, office layout, budgetary and personnel requirements and implementing changes.
  • Supports and develops administrative staff by providing information, educational opportunities and experiential growth opportunities.
  • Resolves administrative problems by coordinating preparation of documents, including reports, spreadsheets, analyzing data and implementing solutions
  • Maintains and ensures operation of equipment including preventive maintenance requirements; calling for repairs; maintaining equipment inventories; and evaluating new equipment, techniques, and technologies.
  • Provides information, as well as answers inquiries and requests.
  • Maintains supply inventories by checking stock to determine inventory level, anticipating need supplies, placing and expediting orders for supplies, and verifying receipt of supplies.
  • Completes operational requirements including scheduling and assigning administrative projects, as well as expediting work results.
  • Maintains professional and technical knowledge by attending educational workshops, reviewing professional publications, establishing personal networks, participating in professional societies.
  • Contributes to team effort by accomplishing results as required.

Job Advertisement for Social Media Outlets

Simulation - This is not a real advertisement

Simulation – This is not a real advertisement

Requirements, Knowledge, Skills, and Aptitudes

Bachelor Degree, Minimum Five Years’ Experience, Reporting skills, Administrative Writing Skills, Computer Technology Skills, Microsoft Office Skills, Managing Processes, Organization, Analyzing information, Professionalism, Problem Solving, Supply Management, Inventory Control, Verbal and Nonverbal Communication Skills.

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Legal and Illegal Questions to Ask Potential Hires

Employers are vulnerable to litigation in the pre-employment process if they are not cognizant of employment and discrimination laws.  The most effective hiring managers implement supportive strategies and programs that avoid discrimination to attract top performers.  Seaquist (2012) postulates that company leaders should educate employees and hiring managers when designing the interview process to make sure they do not over step any boundaries.  This means avoiding any questions that would be in violation of Title VII mandates, including: (a) race, (b) sex, (c) national origin, (d) disabilities, and (e) criminal background (Seaquist, 2012).  Information can be obtained with respect to the aforementioned topics as long as they fall within the legal parameters of both Title VII and state regulations.  For example, an interviewer may include a list of different races on the application that the candidate can select, without having to go into further detail about their culture or personal beliefs.

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Using this framework as a model, the questions listed below proposed by McKee (2012) will help outline more clearly, inquiries that are considered in compliance with employment laws, as well as those that are not.  Most experts agree that the best strategy is to pose questions that inspire and motivate the individual to speak candidly without adding stress or pressuring them into answering questions the way they believe the interviewer expects.  These questions are formulated to engage the individual in feeling comfortable sharing their experiences and can help alleviate trepidation (McKee, 2012).  The following twenty questions illustrate only a few samples of many that can be considered appropriate and inappropriate during the interview process:

Questions Deemed Legal by the EEOC

1.)   Explain to me why you may be qualified for this job?

2.)   Are you willing to relocate?

3.)   Can you describe a time when your work was criticized? How were you able to manage the situation?

4.)   Can you describe a time when your workload was heavy?

5.)   If you were hired, what will we know about you one year down the road?

6.)   How do you rate yourself as a professional?

7.)   How do you evaluate success?

8.)   How do you handle stress and pressure on the job?

9.)   How does this position fit in with the career path you envision?

10.)  Can you tell us about a failed project?

Questions Deemed Illegal by the EEOC

1.)   How many times have you been married?

2.)   What kind of relationship do you have with your family?

3.)   Have you ever had sex at work?

4.)   Do you steal or shoplift?

5.)   Do you struggle with weight or feel ugly?

6.)   Have you ever been caught cheating on your spouse?

7.)   What have you done with your life so far?

8.)   What are your religious beliefs?

9.)   What is your sexual preference?

10.)   Do you text and drive?

Conclusion

Employers that are not fully aware of employment and anti-discrimination laws will not be effective in the hiring process.  Rassas (2011) reminds us that it is important for business leaders to have a firm grasp of employment laws and to recognize the limitations (Rassas, 2011). Because no single set of employment laws cover all employers or their employees, business leaders that understand the intricate complexities of employment and discrimination laws will have an edge on their competition. In addition, to discover that silver bullet employee, leaders create effective strategies to recruit top level performers and design job descriptions that inspire and motivate candidates.  They design and implement programs that target quality potentials and refrain from using those that focus on attracting quantity.  The findings of this research conclude that even though violating employment laws can lead to litigation, hiring managers interested in recruiting top level performers must be aware and educated in employment and anti-discrimination laws to prevent legal action and costly fines.

References

Adler, L. (2013). The essential guide for hiring and getting hired. Atlanta, GA: Workbench Media.

McKee, P. (2012). How to answer interview questions. Atlanta, GA: Career Confidential.

Rassas, L. (2011). Employment law: a guide to hiring, managing, and firing employers and employees. New York, NY: Aspen Publishers.

Seaquist, G. (2012). Business law for managers. San Diego, CA: Bridgepoint Education, Inc.

Securities Law

Published September 4, 2013 by Mayrbear's Lair

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The most common securities many individuals are familiar with are stocks and bonds. According to Gabaldon and Soderquist (2011) the courts, however, have acknowledged all types of investment schemes, including some that relate to earthworms, chinchillas, and warehouse receipts for Scotch whiskey, which can also involve a security. People that invest in securities learn to become familiar with security laws to avoid violating them. It can also help them determine whether a transaction is a legitimate security based on concepts that are completely foreign like those mentioned here (Gabaldon & Soderquist, 2011). In other words, understanding security laws may help them learn how to profit from them, plus, it can also serve to protect their investments. In addition, regulation allows for fair competition in the marketplace. For example, consider a private California university that wants to issue “shares in learning” certificates; are they required to register the stock they offer with the Securities and Exchange Commission (SEC)?

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Federal laws mandate that securities are registered before they go up for sale. Companies are expected to file the paperwork with the SEC and the Supreme Court determines what securities constitute an investment contract. In order to be considered an investment contract: (a) it must provide an investment opportunity, (b) establish a common enterprise, (c) provide an opportunity to make a profit, and (d) the returns are derived from the management of others. In addition, the registration process must include detailed information on the provisions of the security offered, including the corporation’s properties and business, the company’s management team and their compensation, security holdings and benefits, a certified financial statement by an independent accounting firm, and any pending lawsuits the company may be engaged in. There are, however, exceptions to registering securities before they go up for sale. For instance, the SEC exempts securities that are issued by banks prior to July 27, 1933 or any securities issued by the government. In addition, securities are exempt if they have been issued by nonprofit organizations including religious, charitable, educational, benevolent or fraternal organizations (Seaquist, 2012). Based on this information, the private university in California, therefore, would be considered exempt, and not required to register with the SEC because it falls under the category of a nonprofit educational organization.

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Regulating securities is an extremely complicated matter. Hazen (2009) contends that it is particularly perplexing because of the degree of detail and difficulty in elaborating both federal and state laws. Although originating is a matter of state law, the majority of regulation for securities falls under the jurisdiction of the federal law (Hazen, 2009). In other words, dealing with federal securities regulations is usually a difficult task that requires the consultation of several sources for efficient management because of the complexities involved. With respect to the stocks issued in from the private California university, according to Seaquist (2012) the Securities act of 1933, Rule 504 of Regulation D states that non-public issuers are permitted to sell up to one million dollars of securities in a twelve month period to any buyer. Under Rule 147, regulations also state that securities offered for sale by an organization that conducts 80% of their business in one state, are also exempt from filing (Seaquist, 2012). Given this information, one can conclude that the private university in California would be exempt from filing with proof the institution meets the following criteria: (a) it is a nonprofit educational organization; (b) the amount offered does not exceed the maximum value mandated in Rule 504 of Regulations A and D, and (c) they conduct most of their business in California where their facilities are located and students attend classes. In conclusion, because of the complexities involved with security laws, it is best to check with a legal consultant to determine exemption status.

References:

Gabaldon, T., & Soderquist, L. (2011). Securities Law (4th ed.). New York, NY: Thomson Reuters/Foundation Press.

Hazen, T. (2009). The Law of Securities Regulation (6th ed.). St. Paul, MN: West Publishing.

Seaquist, G. (2012). Business law for managers. San Diego, CA: Bridgepoint Education, Inc.

Elements of a Contract

Published August 30, 2013 by Mayrbear's Lair

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Defining a legal relationship is a complicated issue because of the many facets involved. Scholars like Blum (2011) provide a relatively simple explanation of the complexities of a contract by describing it as an exchange relationship that is established orally or in written form that is made between two or more individuals, contains at least one promise, and is recognized as a legally binding agreement (Blum, 2011). To better comprehend these concepts, the focus of this research examines the elements that must exist for a contract agreement to be considered enforceable by law. The study will examine the following contractual elements including: (a) offers, (b) acceptance, (c) legal consideration, (d) capacity, and (e) legality of purpose. In addition, the research will identify the components that govern the parameters of common law and the Uniform Commercial Code (UCC). For the purpose of this study, a fictitious scenario has been created with respect to an individual that has been hired and offered a two year contract as the head chef of the Fabulous Hotel Company. As a sample to illustrate contractual issues that individuals may encounter, the agreement contains a non-compete clause that will serve to provide a closer analysis of specific contractual obligations and restrictions. The findings of this study will conclude that the courts are not able to successfully arbitrate disputes without an essential contractual agreement to define the terms that make it enforceable by law.

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The Anatomy of Contracts

Elements of Contracts

Without agreements spelled out in contracts, the courts are unable to adjudicate promises between individuals. In today’s business environment, many professionals find themselves dealing with contractual issues in one way or another. Blum (2011) defined a contract as an exchange relationship that is agreed upon and is recognized as enforceable by law. In addition, a contract must consist of the following elements: (a) an oral or written agreement between two or more people, (b) an exchange relationship, (c) at least one clearly defined promise; and (d) the enforcement of the law (Blum, 2011). Undoubtedly, the most significant element of any contract is that it is a voluntary, consensual relationship.  In short, the contract is created because the parties are doing so free of will, with the intent of being bound by an agreement that outlines the parameters of their relationship. Furthermore, Seaquist (2012) contends that for a contract to be considered enforceable, other essentials components must also exist. These include: (a) an offer, (b) acceptance of the offer, (c) consideration of the agreed upon exchange of energy, (d) the mental state or legal ability of the parties entering into the agreement, and (e) that the transfer of goods or services are conducted within the legal framework of the law (Seaquist, 2012). Without these elements, a contract is unenforceable.

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Contract Terms and Conditions

Contracts that are recognized by the law must contain at least one promise. In addition, it is important for people to understand that there are certain laws that govern legal contracts. For example, contract law is either governed by common law or the Uniform Commercial Code (UCC). Seaquist (2012) asserts, that if the agreement involves the sales of goods, it is governed by the UCC regardless of whether the individuals involved are merchants or not. If on the other hand, the contract involves anything other than the sales of goods – like real estate purchases, development, insurance, or professional services – then the contract is governed by common law. There are exceptions, however, like when a company is hired to build a restaurant where materials and services are required to complete the project. In order to determine which law governs this kind of contract, the courts rely on which is greater: the cost of goods or the cost of services. If the answer is the cost of goods, then it falls under UCC laws; if the cost of services is greater, then the contract would fall under the regulations of common law policies.

Contracts are recognized by the law and define the terms of an exchange relationship. Eisenberg (2002) pointed out that there are two kinds of promises that are made: (a) those that are legally enforceable and (b) those that are not. Originally, the term consideration was coined to mean a bargain, or an exchange of energy (Eisenberg, 2002). To illustrate this example, consider the following scenario: Mr. Ed promises to give Tom $200 for landscape services. In order to better determine if that promise has been broken, the individuals need to take into consideration whether or not the broken promise was given as part of the bargain. Eisenberg’s studies suggested the following questions should be taken into consideration for arbitration: (a) was the bargain merely nominal: in other words did the promise have substance; (b) was the bargain based on a promise of surrendering any legal claims; (c) did the bargain contain an illusory promise, or a promise that appeared to be genuine but in fact was not; and (d) does the bargain involve a promise to participate in an action that the other party was already obligated to take. Once these elements have been considered, the parties can determine whether these factors make that promise enforceable. In short, the concept of consideration is a significant element for the enforcement of contracts because contemplation is required to make them legally binding.

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Noncompetition Clauses

It is important for people who enter into contracts to comprehend the terms and conditions of them to avoid misunderstandings that may lead to litigation. For example, some contracts contain a noncompetitive clause also known as a covenant not to compete. Depending on the conditions of the agreement, generally these clauses are viewed as enforceable by the courts. Seaquist (2011) contends that whether a contract agreement stands alone or is contained within another contract – like an employee contract – the noncompetitive clause of an agreement can be considered null and void under the following conditions: (a) if the length of time involved is too great – like, for example, the rest of someone’s life, or (b) if the location or distance is too substantial and prohibits, for instance, an individual from engaging in employment on an entire continent (Seaquist, 2012). Employment contracts can affect a person’s career, so it is essential that they comprehend all the elements contained in the agreements they execute to make sure they can accept the parameters that have been outlined.

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Contract Case Study

The Fabulous Hotel

For the purpose of this research, a fictitious scenario has been established where an individual has been hired in the head chef position at the Fabulous Hotel Corporation (FHC). In this case study, the person has been offered a two year employment contract. After building an impressive reputation at the FHC, another hotel is interested in hiring the chef for their company and decides to pursue them. The head chef’s employment contract, however, has a provision that prohibits the employee to work as a chef for another hotel in the same metropolitan area for a period of two years after leaving employment with FHC. Seaquist (2011) proposed that if the employee agreed to terms that prohibit them to work as a chef for the entire country, for instance, a court would most likely determine the contract illegal because it falls under the category of enforcing it over too great a distance. The courts consider each case separately with respect to contract law by determining the line between reasonable and unreasonable terms they outline (Seaquist, 2012). In the meantime, it is the responsibility of each individual that enters into a legally binding agreement that they engage the services of an attorney or paralegal to ensure they comprehend the terms of the contract and the language of every clause they sign and agree to. The choices of the chef then, are limited because of the legally binding document that prohibits the individual from working in the same metropolitan area for a two year period. There may be other options available, like for instance, the new company offering FHC a settlement to release the individual from the contract, but those are matters that can be further investigated and determined by an attorney who can make those recommendations in accordance with common law regulations.

Deal-Breakers

Contract Breaches

Contracts are created to define an exchange relationship that is recognized by the law. To avoid litigation it is imperative that anyone that signs a contract knows the details of what they are committing to. For example, if one party intentionally deceives another into signing a contract, that is considered a knowing lie.  In other words, the agreeing party entered into the agreement based on a lie. Seaquist (2011) purported that if the innocent party can provide evidence to support they committed to a contract based on misrepresentation, the innocent party can be released from the contractual obligation in an act called rescission and the agreement becomes void (Seaquist, 2012). In short, when fraud in the execution of a contract is established, it is considered unenforceable by both parties, not just the victim.

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Conclusion

Many experts agree that the most important attribute of a contract is that it is a mutually consensual, voluntary relationship. In fact, Blum (2011) submits that a contract is entered into from parties that are acting on their own accord with the intent to be bound. Because of this element, is in their mutual interest to reach an agreement that outlines in detail the essential terms of their relationship (Blum, 2011). In addition, the element of consent also helps determine contractual obligations for many kinds of legal duty, such as the commitment to compensate for services rendered or to pay taxes.

This research provided many examples of the elements contracts must consist of in order for them to be considered enforceable. Chopra (2013) postulates, that an individual’s capacity to affect others with their energy is both a gift and a responsibility that people should not take lightly. When individuals choose to behave with compassion and unity, they can become a powerful force for positive change to achieve their goals. By doing so, they create opportunities to discover and develop deep and meaningful relationships, both personally and professionally (Chopra, 2013). All of the issues addressed in this study are important components that can serve to empower individuals in the decision-making process when it comes to bargain-making and entering into contractual obligations. The findings of this research conclude that a contract must consist of certain elements for it to be considered an enforceable agreement and that without those essential agreement terms the courts are unable to arbitrate disputes effectively.

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Labor-Day-2013

Personal message from Mayr:

Due to the Labor Day Weekend, there will be no post next Monday. Be on the lookout next Wednesday for my upcoming post on “Securities Laws”. Thanks for being a part of this learning experience with me.

Until next Wednesday … have a great holiday weekend and stay safe my friends!

Mayr

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References

Blum, B. (2011). Contracts: Examples and explanations (Fifth ed.). New York, NY: Aspen Publishers.

Chopra, D. (2013, August 16). 21 day meditation challenge: Miraculous relationships. Retrieved August 16, 2103, from chopracentermeditation.com: https://chopracentermeditation.com

Eisenberg, M. (2002). Gilbert law summaries on contracts (14th ed.). Dallas, TX: The Barbri Group.

Seaquist, G. (2012). Business law for managers. San Diego, CA: Bridgepoint Education, Inc.