Employers Duty of Care and Issues of Compensation - Assignment Example

Employer’s Duty of Care and Issues of Compensation Scope of Employment Scope of employment covers those “activities of an employee that are in furtherance of” his or her duties “owed to an employer and where the employer is, or could be, exercising some control, directly or indirectly, over the activities of the employee” (“Scope of Employment,” n.d.). This “includes all acts which are reasonably necessary or incident to the performance of work” (“Scope of Employment,” n.d.). In the case of Pyne vs. Witmer, 129 III.2d 351, it is stated that a servant’s conduct is “within the scope of employment if, but only if”: (1) “it is of the kind he is employed to perform” (2) “it occurs substantially within the authorized time and space limits” and (3) “it is actuated, at least in part, by a purpose to serve the master” (cited in “Brief in Scope,” n.d.). As to the present case, Jake was just required to change the oil of cars in accordance with the company’s sale’s strategy. Nevertheless, Jake did not just change the oil of cars but also check the basics like inspecting the brakes, tires and transmission. He contended that doing a thorough and perfect job is required by law and being a certified auto mechanic, he has standards to live up to. On the other hand, the manager (Herman) said that he does not require a thorough and perfect job as of that moment and that Jake is involved in a work slowdown. Based on the respective contentions of the two parties, Jake and Herman, it is ruled that Jake’s actions are within his scope of employment. The suggested requites of “scope of employment” are all complied with notwithstanding the fact that Jake did a work which is beyond the given instruction and is not covered by his title as a service manager in that particular instance. Jake’s act of changing the oil and checking the other parts of the car are obviously activities which are in furtherance of his duties. His act of checking the other car parts is incidental to the performance of his work. Such act is of the kind he is employed to perform as a certified automotive mechanic. Plausibly, the cited activities occurred “substantially within the authorized time and space limits” (“Brief in Scope,” n.d.). In fact, Jake was actually forced by Herman to work overtime. Accordingly, the acts committed by Jake were obviously done to serve his master. His new position as a service manager is not an issue to his scope of employment. One’s scope of employment is not to be determined by the title alone but it should be primarily based on the nature of the employee’s actual work. Employer’s Duty of Care Under the Workplace Health and Safety Act of 2007, an employer and employee have reciprocal duties. An employer has a general duty “to ensure as far as reasonably practicable, that workers and others are not exposed to risks to health or safety arising from the conduct of the employer’s business” (P.5, D.1, S.55). Amongst others, an employee has the following duties: (1) “to take reasonable care for the worker’s own health and safety, and for the health and safety of others while at work” and (2) not to “intentionally create a risk to the health or safety of another at the worker’s workplace” (P.5, D.3, S.59). In the instant case, Herman noticed that Jake’s thumb was bleeding. When asked as to the reason of such injury, Jake answered that he tried to tighten his thumb with a torque wrench. Herman then moved Jake off the car and pulled out his handkerchief to wipe the car. Jake afterwards suddenly felt numbness on his thumb and contended that he should go and see a doctor right away. He added that he hurt his thumb because Herman forced him to work for extra hours and he got so tired that he could not tell the difference between his thumb and a spark plug. In accordance with the aforementioned statements, it is without doubt that Herman is responsible for Jake’s injury. It is to be presumed that Jake’ act of trying to tighten his thumb with a torque wrench is caused by the numbness of his thumb. He could be thinking that tightening his thumb using the instrument would stop the numbness. Furthermore, the injury is due to overwork. Herman could have hired another worker to assist Jake, taking into consideration that Jake is already sixty years old and has arthritis. Knowing such condition, Herman could have done something to ensure that his worker (Jake) will not be exposed to such risk of health. Notably, although tightening the thumb by a torque wrench is not reasonable care, Jake however opted to see a doctor right away. Consequently, Herman as the shop’s legal representative will be liable for any medical expenses necessary to treat Jake’s thumb. Overtime Payment Overtime actually pertains to “a work done by hourly employees” which is “beyond the regular work hours per week” (“Overtime,” n.d.). U.S. labor law classifies two kinds of employee to be covered by the overtime pay, the exempt and non-exempt (“Overtime,” n.d.). Under the Fair Labor Standards Act of 1938 as amended, “executive, administrative, and professional employees, outside sales employees and certain skilled computer professionals are exempted from the minimum wage and overtime pay” (“Wages and Hours,” 2009). On the other hand, one example of the employees who are only exempted from the overtime pay are those “auto, truck, or farm implement parts-clerks and mechanics employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers” (“Wages and Hours,” 2009). Accordingly, employees must meet certain tests imposed by the United States Department of Labor to qualify for the aforementioned exemptions (“Fair Pay,” n.d.). The primary reason of which is that “job titles do not determine exempt status” (Fair Pay,” n.d.). In the case at hand, Jake complained that he had been working overtime for two days because his manager (Herman) had forced him to. Thus, he wanted his overtime pay. However, Herman insisted that since Jake was just promoted to service manager which is part of the rally Management, he will not receive overtime payment. Jake complained that despite such promotion, he is still doing the work of an auto mechanic. As a compromise, Herman offered Jake a couple of days off with pay to compensate his overtime work. Nonetheless, Jake refused such offer and still demanded for overtime pay. Herman then gave another option of paying Jake an extra five dollars for every car he will service that day but Jake still did not agree. Truly, Jake had rendered an overtime work. However, it is a contention that Jake should not be paid overtime. Under the Fair Labor Standards Act of 1938 as amended, job title is not the basis of exempting an employee from the payment of his overtime work. To reiterate, Jake was just promoted to service manager but he was still doing the work of an auto mechanic. In such case, he is not covered under the first group of exemption of overtime pay and minimum wage. Instead, based on his job duties and salary rate, he belongs under the second category of those exempted only from overtime pay. Jake is still an auto mechanic employed by the auto dealer shop primarily engaged in selling autos to ultimate buyers. Respective Rights of Jake and Herman Basically, in the given scenario, Jake and Herman have enforceable rights against each other under the laws on labor. For Jake, he has the right to claim for worker’s compensation as against the auto dealer shop represented by the manager, Herman. The basis of which is the injuries he incurred while working in the shop’s premises and under the manager’s authority. Undeniably, the conduct causing the injury is within his scope of employment. Also, Jake’s employer was not able to comply with its statutory duty of care. On the other hand, as to Herman’s side, as the representative of the dealer shop, he has the right to refuse and not to accord Jake an overtime pay under the Fair Labor Standards Act of 1938 as amended. References Brief in Scope of Employment Appeal. (n.d.). In William Lazarus, Attorney at Law. Retrieved from http://www.lazaruslegal.com/brief-in-watson-v-imperial-construction- filed-9909/ Fair Pay. (n.d.). In United States Department of Labor Wage and Hour Division. Retrieved from http://www.dol.gov/whd/regs/compliance/fairpay/main.htm Overtime. (n.d.). In Answers.com. Retrieved from http://www.answers.com/topic/overtime Scope of Employment. (n.d.). In Other Free Encyclopedias. Retrieved from http://law.jrank.org/pages/10039/Scope-Employment.html Wages and Hours Worked: Minimum Wage and Overtime Pay. (2009, Sept.). In United States Department of Labor elaws. Retrieved from http://www.dol.gov/compliance/guide /minwage.htm#ftn1 Workplace Health and Safety Act of 2007. (n.d.). In Northern Territory Numbered Acts. Retrieved from http://www.austlii.edu.au/au/legis/nt/num_act/whasa200731o2007296/ Read More