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TABLE OF CONTENTS I. Legal Boundaries of the Employment Relationship..................................................4 The Idea of Employee Status...................................................................................4 i. Employees v.

Independent Contractors.............................................................4 NLRB v. Hearst, 322 U.S. 111 (1944).............................................................4 Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 319 (1992).................4 Clackamas Gastroenterology Associates v. Wells, 538 U.S. 440 (2003).........4 Vizcaino v. Microsoft Corp., 120 F.3d 1006 (9th Cir. 1997)............................5 ii. Statutory Exemptions, Small Employers, and Joint Employees ........................5 Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2003)..............................5 ......................................................................................................................6 The Hiring Process...................................................................................................6 iii. Legal Restrictions on Job Access .....................................................................6 Wardwell v. Board of Education, 529 F.2d 625 (6th Cir. 1976)(School Teacher Case).................................................................................................6 Collins Food Intern., Inc. v. INS, 948 F.2d 549 (9th Cir. 1991)(Sizzler Case). .7 iv. Employer Information-Gathering.....................................................................7 1. Interviews......................................................................................................7 Lysak v. Seiler Corp, 614 N.E.2d 991 (Mass. 1993)........................................7 2. Employment References ...............................................................................7 Singer v. Beach Trading Co., 876 A.2d 885 (N.J. Super Ct. App. Div. 2005). . .7 Lewis v. Equitable Life Assurance Soc’y, 389 N.W. 2d 876 (Minn. 1986).......8 3. Invasion of Privacy.........................................................................................8 Eddy v. Brown, 715 P.2d 74 (Okla. 1986).......................................................8 Bratt v. IBM Corp., 785 F.2d 352 (1st Cir. 1986)............................................8 v. Negligent Hiring/Retention...............................................................................9 Malroney v. B&L Motor Freight, Inc., 496 N.E.2d 1086 (Ill. App. 1986)...........9 Keller v. Koca, 111 P.3d 445 (Colo. 2005)......................................................9 Kadlec v. Medical Center v. Lakeview Anesthesia Associates, 527 F.3d 412 (5th Cir. 2008)...............................................................................................10 Testing of Applicants and Employees....................................................................10 vi. Polygraph and Personality Tests....................................................................10 Soroka v. Dayton Hudson Corp., 1 Cal. Rptr 2d 77 (Cal.Ct. App. 1991)........10 vii. Drug Testing and the Constitution ...............................................................10 National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).......11 Chandler v. Miller, 520 U.S. 305 (1997)(contrast with Von Raab)................11 viii. Drug Testing (conclusion) ...........................................................................11 19 Solid Waste Dept. Mechanics v. Albuquerque; 156 F.3d 1068 (10th Cir. 1998).............................................................................................................11 Luedtke v. Nabors Alaska Drilling Inc., 768 P.2d 1123 (Alaska 1989) ........12 Work Environment.................................................................................................12 ix. Grooming and Dress......................................................................................12 Kelley v. Johnson, 425 U.S. 238 (1976)........................................................12 Jespersen v. Harrah’s Operating Co, Inc., 444 F.3d 1104 (9th Cir. 2006) ....12 Protecting Privacy on the Job.................................................................................13 x. Constitutional and Statutory Responses.........................................................13 1

Bodewig v. K-Mart, Inc, 635 P.2d 657 (Or. App. 1981).................................13 Vega-Rogriguez v. Puerto Rico Tel. Co., 110 F.3d 174 (1st Cir. 1997)..........13 xi. Common Law Responses...............................................................................13 Smyth v. Pyllsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996)..............................13 Catalano v. GWD Management Corp., 2005 WL 5519861 (S.D. Ga. March 30, 2005).............................................................................................................13 xii. Off-Work Activity...........................................................................................14 Rulon-Miller v. IBM Corp., 162 Cal. App. 3d 241 (1984)...............................14 McCavitt v. Swiss Reinsurance America Co., 237 F.3d 166 (2d Cir. 2001) . .14 Freedom of Expression on and Away From the Job................................................14 Rankin v. McPherson, 483 U.S. 378 (1987)..................................................14 Curay-Cramer v. Ursuline Academy, 450 F.3d 130 (3d Cir. 2006)................14 Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir. 1983)..............15 Jordan v. Ector County, 516 F.3d 290 (5th Cir. 2008)...................................15 II. Discharge and Termination of Employment..........................................................16 A. The Employment At-Will Rule............................................................................16 Buian v. Jacobs and Co., 428 F.2d 531 (2d Cir. 1970)..................................16 B. Erosion of Employment at Will...........................................................................16 xiii. The Public Policy Exception..........................................................................16 Gantt v. Sentry Insurance, 4 Cal. Rptr. 2d 874 (Cal. 1992)..........................16 Arres v. IMI Cornelius Remcor, Inc., 333 F.3d 812 (7th Cir. 2003)................16 Serrano v. Christ Hosp., 2007 WL 4462723 (N.J. Super Ct. App. Div. 2007). 17 xiv. Breach of Contract Terms............................................................................17 Gordon v. Matthew Bender & Co., 562 F.Supp. 1286 (N.D. Ill. 1983)...........17 Scribner v. Worldcom, Inc., 249 F.3d 902 (9th Cir. 2001)............................17 Pugh v. See’s Candies, Inc., 171 Cal. Rptr 917 (Cal. Ct. App. 1981).............17 xv. Employee Handbooks...................................................................................17 Woolley v. Hoffman-LaRoche, Inc., 99 N.J. 284 (1985) ................................17 Bankey v. Storer Broadcasting Co., 432 Mich. 438 (1989)...........................18 Nicosia v. Wakefern Food Corp., 136 N.J. 401 (1994) ..................................18 xvi. Promissory Estoppel....................................................................................18 Pepsi-Cola General Bottlers, Inc. v. Woods, 440 N.E.2d 696 (Ind. App. 1982) ......................................................................................................................18 xvii. Covenant of Good Faith and Fair Dealing...................................................19 Murphy v. American Home Products Corp., 448 N.E.2d 86 (N.Y. 1983)........19 Fortune v. National Cash Register, 364 N.E. 2d 1251 (Mass. 1977) ............19 C. Other Protections for Employment Security.....................................................20 xviii. Intentional Infliction of Emotional Distress; Whistleblower Statutes..........20 Dudewicz v. Norris-Schmid Inc., 443 Mich. 68 (1993)..................................20 Wilson v. Monarch Paper, 939 F.2d 1138 (5th Cir. 1991).............................20 xix. Wrongful Discharge Statutes.......................................................................20 Buck v. Billings Montana Chevrolet, 248 Mont. 276 (1991).........................20 xx. Property and Liberty Interests......................................................................20 Goetz v. Windsor School District, 698 F.2d 606 (2d Cir. 1983) ...................20 Mosrie v. Barry, 718 F. 2d 1151 (D.C. Cir. 1983) ........................................20 Plant Closings........................................................................................................21 2

.. Alternative Dispute Resolution............... Arbitration after Circuit City............ Breach of Express Terms............. 2d 774 (Wis............ Superior Court..........23 B.. 1999)................. 920 F.22 xxiv............... 42 Cal......... 15 F... v..... Steel Corp................. 20 (1991).............. Common Law and Statutory Responses....................... v.. Arbitration of Employment Disputes: Chap 3 of casebook............... Supp........................................ Inc............................... 532 U... Gulfstream Aerospace Corp................................................. Rights of Employees and Arbitration..... Consulting................. Gardner-Denver Co........... The Federal Arbitration Act............... 332 N............................3d 1359............ 219 (D. Council of New Orleans v.... 428 F............xxi........S......... 500 U..............................................23 Hooters of America.................................... 105 (2001)..... Inc...3d 418 (7th Cir.........................................22 Alexander v.. Dillard Dept.... v.. Breach of Implied Terms.............21 Local 1330..... 1996)..22 xxv....S...........................................................................22 Mercer Mgmt.C......................................S..... Soler-Chrysler-Plymouth................................................................... 2005) ................S..24 3 .............. Phillips................21 Pena v... WARN ACT Litigation.................. 279 (2002)......................................22 A........................... 173 F.. 534 U.. Waffle House............ 4th 443 (2007)........22 III........................22 xxiii.......... 631 F..22 Mitsubishi Motors Corp............ 1983).......................23 Circuit City v....... v....... 1980)..... Inc..23 C.......................22 Handicapped Children’s Educ.................................. Lukaszewski.......................... 1994)........D........ Inc......21 Leaving a Job.................. Interstate Johnson Lance Corp........22 Gilmer v.........3d 1275 (5th Cir....... 614 (1985) ... 36 (1974)......... 415 U............................ Bd...........................21 Carpenter Dist...............S.........3d 933 (4th Cir.......... Stores.......................23 EEOC v......24 Gentry v....... Adams.................W.................. 473 U.........24 Caley v............................. American Meat Packing Corp............S............... 362 F..........21 xxii... 1378 (11th Cir................... Wilde..............2d 1264 (6th Cir.. United Steel Workers v. Inc............................... 2004) ....................... U....................................

newsies rely on the wages paid by publishers. publishers set the minimum price on papers. o employee benefits.e. D argues that ADA does not apply because they do not meet the 15-employee threshold necessary for ADA to apply. o regular business of hiring party. o Holding: Remanded to determine whether P is “employee” under Agency Test o Rule: Where the statute is unclear as to how to determine whether P is an “employee. o duration of relationship. INDEPENDENT CONTRACTORS o NLRB v. Darden. Nationwide rescinds his retirement plan and P sues under ERISA. EMPLOYEES V.S.S. o extent of hiring party's discretion over when and how long to work.I. o source of instrumentalities and tools. 322 U. etc). o Holding: Union should be allowed to collectively bargain because the paperboys are employees under NLRB. LEGAL BOUNDARIES OF THE EMPLOYMENT RELATIONSHIP THE IDEA OF EMPLOYEE STATUS I. o skill required. 503 U. 111 (1944) o Facts: News publishers refuse to collectively bargain with union representing paperboys because they didn’t consider them “employees” under the NLRA. o right to assign additional projects.” the Court should employ a commonlaw “agency theory including factors such as: o hiring party's right to control manner and means by which product is accomplished. give them equipment. 319 (1992) o Facts: Nationwide allowed P to enroll in company retirement plan so long as he sold their insurance. Wells. Hearst.S. o Rule: In determining whether person is IC or Employee look at “economic realities” of the situation (i. 538 U. o method of payment. o tax treatment of hired party Clackamas Gastroenterology Associates v. v. P is terminated and begins selling other insurance. P argues o o 4 . o hiring party's role in hiring and paying assistants. o location of work. Contract provided that P would forfeit this retirement plan if he sold other insurance within a year of termination. 440 (2003) o Facts: P files suit alleging that she was fired in violation of the ADA. Nationwide Mutual Insurance Co.

to what extent individual is able to influence organization. Labeling someone an “independent contractor” in an agreement doesn’t necessarily make them one. o Issue: Whether garment manufacturers who hired contractors to stitch and finish pieces of clothing were “joint employers” within the meaning of the FLSA. o Holding: Vacated and remanded with new test o Rule: Economic Realities test: 5 . o Rule: An employer may not contract a way around a statutory or common-law definition of an employee.. to what extent organization supervises individual's work.that the 4 physicians that own the practice should be counted as employees. if so. 1997) o Facts: Microsoft employs two workforces—one of “core” employees and one of “freelancers”—that essentially do the same work under the same supervision. Microsoft Corp. and liabilities of organization. o Issue: Whether a “shareholder-director” is an “employee” under the ADA.. 120 F. The difference is the freelancers signed a contract that states they were ICs ineligible for health and retirement plans but received more pay. SMALL EMPLOYERS. if so. STATUTORY EXEMPTIONS. o (2) whether and. II. o Holding: “Shareholder-directors” or a Professional Corporation can be employees if sufficient control is exerted over them as in a typical master-servant relationship. P sues under ERISA o Holding: Freelancers were entitled to retroactive benefits because they were employees. 2003) o Facts: Ps are non-English-speaking workers that finished clothing for several contracting corporations through Liberty. AND JOINT EMPLOYEES o Zheng v. o Vizcaino v. 355 F. Reversed and remanded o Rule: Control Test: o (1) whether organization can hire or fire individual or set rules and regulations of individual's work. and o (6) whether individual shares in profits. losses. o (3) whether individual reports to someone higher in organization. o (5) whether parties intended that individual be employee. They brought suit against Liberty alleging overtime and minimum wage violations under the FLSA. Liberty Apparel Co.3d 61 (2d Cir.3d 1006 (9th Cir. o (4) whether and. as expressed in written agreements or contracts.

o Holding: The right to INTRAstate travel is not protected by the Federal Constitution and that there was rational basis for the school board's residency requirement. o (5) the requirement is in keeping with the goal of encouraging integration in society and in the schools. o (2) teachers who live in the district are more likely to vote for district taxes.2d 625 (6th Cir. less likely to engage in illegal strikes. 6 .o Whether [employer]’s premises and equipment are used for P’s work o Whetehr Contractor Corp. o The extent to which Ps performed a discrete line-job that was integral to Liberty’s process of production o Whether responsibility under the contracts could pass from one subcontractor to another without material changes o The degree to which the [employer] or their agents supervised P’s work. and more likely to help obtain passage of school tax levies. LEGAL RESTRICTIONS ON JOB ACCESS o Wardwell v. 1976)(School Teacher Case) o Facts: A schoolteacher brought an action under federal civil rights statutes questioning the constitutionality of a rule adopted by the Board of Education of the City of Cincinnati requiring all teachers in the Cincinnati schools hired after a given date to establish residence within the city's school district within 90 days of employment. had a business that could shift as a unit from one putative joint employer to another. and o Whether Ps worked exclusively or predominantly for the [employer] THE HIRING PROCESS III. and urban problems of the children they teach and are thus less likely to be considered isolated from the communities in which they teach. o Rule: Government employer can restrict job access where it has rational bases for basis for restrictive measures such as: o (1) hiring teachers who are highly motivated and deeply committed to an urban educational system. Board of Education. economic. 529 F. o (3) teachers living in the district are more likely to be involved in school and community activities bringing them in contact with parents and community leaders and are more likely to be committed to the future of the district and its schools. o (4) teachers who live in the district are more likely to gain sympathy and understanding for the racial. social.

2d 549 (9th Cir. E MPLOYMENT R EFERENCES o Singer v. Inc. She is terminated after she discloses that she is pregnant. 7 .o Collins Food Intern. P brings sex discrimination suit against employer. o Holding: offering alien a job prior to verification of documents could not support finding of constructive knowledge. and thereafter unreasonably provides false or inaccurate information. 1993) o Facts: In interview woman tells employer without solicitation that she is done having children. Seiler Corp. Beach Trading Co. The next day he returns and presents driver’s license and fake SSI card. o 2. 948 F. When employee shows up to work he doesn’t have his working documents so he is not allowed to work. o (2) the employer voluntarily decides to respond to the inquiry. o Holding: employer was entitled to discharge employee on basis of her unsolicited and false statement at time of interview when she knew she was pregnant o Rule: Employer can terminate employee for giving knowingly false information on an interview. 876 A. She sues for negligent misrepresentation..J. hires an employee from Sizzler’s in California to work at a Sizzler’s in Phoenix. o Holding: Reverse and remand to use new negligent misrepresentation test.E. 614 N.2d 885 (N. v.. Super Ct. o Rule: Employers need not verify documents prior to extending an offer to work but must before commencing employment. INS fines Collins for hiring an alien to work. IV. Div. EMPLOYER INFORMATION-GATHERING 1. 2005) o Facts: Employee is terminated from new job when her old job tells the employer that she was not a VP but a customer service representative. 1991)(Sizzler Case) o Facts: Collins. I NTERVIEWS Lysak v. o Rule: Employer can be held liable for the negligent misrepresentation of a former employee's work history if: o (1) the inquiring party clearly identifies the nature of the inquiry. INS.2d 991 (Mass. and employer complied with verification requirement. App. through a store manager. It comes out that she was pregnant —and knew of it—during the interview.

o 8 . IBM Corp. o Lewis v. 2d 876 (Minn. Equitable Life Assurance Soc’y. [but] one of a communication that reaches. 1986) o Facts: o o Holding: Rule: o 3. it did not amount to “publicity..2d 352 (1st Cir. they were not actionable as unreasonable intrusion upon employee’s seclusion. 1986) o Facts: P sues IMB for right of privacy for: o (1) disclosing P’s use of a company wide open-door policy. or is sure to reach the public. or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge . The difference is not one of the means of communication . I NVASION OF P RIVACY Eddy v. and o (5) plaintiff suffers quantifiable damages proximately caused by the negligent misrepresentation. by communicating it to the public at large. 715 P. Brown..  Rest.. P sues for IIED and invasion of privacy.W. 2d Torts § 652D o Unreasonable o Given as a private fact Bratt v. Furthermore.. 389 N. o (4) the recipient of the incorrect information relies on its accuracy to support an adverse employment action against the plaintiff.. 785 F.” o Rule: Invasion of privacy: o Publicity  “Publicity” means that the matter is made public.o (3) the person providing the inaccurate information is acting within the scope of his/her employment. 1986) o Facts: A couple of Eddy’s co-workers make fun of him after they out—through his medical record—that he is undergoing psychological evaluation. since only a few people knew about the psych visits. o Holding: Because psychiatric visits legitimate concerns of his supervisor.2d 74 (Okla.

NEGLIGENT HIRING/RETENTION o Malroney v. 496 N. 9 .o (2) circulating memos that said he was paranoid and had mental problems. On the application it asks if he has committed any vehicular or criminal offenses. o Holding: o (1) discussion of open-door policy is permitted because it’s not intimate or highly personal o (2) circulating memos about P’s mental health was not invasion of privacy because it was not widely disseminated and limited to managers that would work with P. 1986) o Facts: D trucking company hires truck driver.” o Rule: Invasion of Privacy balancing test: o Balance  the degree of intrusion on privacy created by this disclosure Against  the legitimate business interest in that information held by the employees to whom the disclosure was made.3d 445 (Colo. o Breach o Causation o Damages o Keller v. o Holding: Employer has duty to entrust truck to competent employee fit to drive a truck with a sleeping compartment. The answer is not verified by D. o Holding: Employer did not owe duty to victim. 111 P. 2005) o Facts: D owned drycleaners where Uzan was GM and had keys to the store but was not allowed to let 3rd parties in during non business hours. He says no. o (3) REVERSED and REMANDED because a reasonable fact-finder could have found that IBM gave P a reasonable expectation of privacy in providing an “in-house” doctors—even though the doctor that disclosed this was not “in-house” but a “local examining physician. While on duty. Koca. Uzan lets in a 12-year-old (P) during non-business hours and sexually assaults her. the trucker picks up hitch-hiker (P) and sexually assaults her. P sues D under respondeat superior. Inc. P sues.E. o Rule: Negligent Hiring Elements: o Duty – trucking company employer has duty to public to entrust truck to competent employee.2d 1086 (Ill. B&L Motor Freight. V. and o (3) allowed IBM’s physician to discuss P’s medical problems without P’s permission. App. since harm to her was not foreseeable risk. REMANDED to determine whether hiring was negligent..

absent misleading statements. o (4) defendants did not have duty to disclose in their referral letters. Dayton Hudson Corp. Rptr 2d 77 (Cal. but o (3) hospital's referral letter that did not recommend anesthesiologist to clinic was not affirmatively misleading. POLYGRAPH AND PERSONALITY TESTS o Soroka v. Medical Center v. o Facts: Target security applicants brought class action suit against the company for requiring them to submit to a psychological screening. o Kadlec v. 2008) o Facts: Anesthesiologist lets patient lapse into vegetative state at current job. 1 Cal. any violation of the right to privacy of job applicants must be justified by a compelling interest. o Holding: Target's preemployment requirement of psychological screening violates both the constitutional right to privacy and statutory prohibitions against improper preemployment inquires and discriminatory conduct by inquiring into its applicants' religious beliefs and sexual orientation o Rule: Under California Constitution.3d 412 (5th Cir. 1991). o There is no compelling interest to ask a store security officer about sexual orientation or religion. TESTING OF APPLICANTS AND EMPLOYEES VI. The test involved questions of religious beliefs and sexual orientation. DRUG TESTING AND THE CONSTITUTION VII. App. Current employer sues old employer for negligent misrepresentation on old referrals and omissions of the employee’s drug use. o Holding: o (1) defendants had duty not to make affirmative misrepresentations to clinic in their referral letters concerning anesthesiologist. o (2) statements in PC shareholders' referral letters were materially misleading. they have a duty to not make affirmative misrepresentations concerning previous employees..Ct.o Rule: Duty element requires foreseeability. Admits to on-duty narcotic use. o Rule: Employer does not have a duty to disclose. 10 . 527 F. Lakeview Anesthesia Associates. but if they choose to disclose.

o Holding: Georgia's requirement that candidates for state office pass a drug test does not fit within the closely guarded category of constitutionally permissible suspicionless searches o Rule: Where public safety is not genuinely in jeopardy. Fourth Amendment precludes suspicionless search. Miller. then you’d have to test people like bus drivers. o Holding: City's program requiring drug testing of trash truck mechanics not authorized to drive city vehicles on streets and highways was not warranted by a special need. o Rule: DRUG TESTING Balancing: o public need for the program against o the individual's privacy concerns implicated by the tests to determine whether a warrant. o dissent: no evidence that drug use caused these agents to take bribes or if they carry guns. 305 (1997)(contrast with Von Raab) o Facts: State statute in Georgia requires those running for public office to submit to a drug test.o National Treasury Employees Union v. Chandler v. 156 F. or some level of individualized suspicion is required in this particular context. Von Raab. 656 (1989) o Facts: Customs agents are notified and subjected to drug testing prior to promotion/transfer o Issue: Whether federal customs agents could be subjected to drug urinalysis testing as a condition of promotion or transfer even where there’s no history of a drug problem.3d 1068 (10th Cir. 520 U. Mechanics v. o Holding: Urinalysis does not violate 4th Amendment because Government has a reasonable interest in drug testing customs officers—immediacy of the government concern outweighs the minimal intrusion. and thus constituted unreasonable search and seizure o Rule: o Balancing Test Explained: In balancing intrusion on individuals' privacy interests against promotion of legitimate governmental interests. diminished expectation of privacy. cause poor aim and shoot a person and if you test people that carry firearms. Albuquerque. and others who are likely to cause harm to the public safety VIII. court examines on one side the nature of the privacy interest upon which the search at issue o 11 .S. probable cause.and drugpolicies on the grounds that they are violations of 4th and 14th Amendments. 1998) o Facts: City employees challenge city’s alcohol. no matter how conveniently arranged.S. o challenged by (Libertarian) candidate DRUG TESTING (CONCLUSION) o 19 Solid Waste Dept. for purposes of determining whether program for drug testing of government employees constitutes unreasonable search and seizure. crossing guards. 489 U.

and (3) discharge of employees did not violate implied covenant of good faith and fair dealing. o Holding: Police force regulations were not arbitrary enough to deprive an officer of his liberty because they were rationally related in fostering an “esprit de corps” and making officers readily identifiable to the public. the state constitution must afford a right to privacy to invalidate drug test program. She refuses and is terminated. o Holdings: o requirement that only female employees wear makeup was insufficient to establish prima facie Title VII sex discrimination based on disparate impact. 238 (1976) o Facts: Policeman brought suit under the Civil Rights Act of 1871 challenging validity of county's hair grooming regulation for the male members of its police force. GROOMING AND DRESS o Kelley v. o Rule: With private employer (at-will doctrine!). Harrah’s Operating Co. WORK ENVIRONMENT IX. The regulation required short hair. no sideburns. (2) employer's actions did not give rise to cause of action for invasion of privacy. on the other side. o Rule: Choice of organization. Inc.intrudes and the character of the intrusion that is complained of.S. 444 F. o Court of Appeals would not take judicial notice of asserted fact that it cost more money and took more time for a female employee 12 . dress and equipment for law enforcement personnel is a decision entitled to the same sort of presumption of legislative validity as are state choices designed to promote other aims within the cognizance of the state's police power. She brings a suit against the casino under Title VII sex discrimination.3d 1104 (9th Cir. considers the nature and immediacy of the governmental concern at issue and the efficacy of the challenged test for meeting it. 425 U.. 2006) o Facts: Female bartender at a casino is told to wear make-up. o Jespersen v. moustaches.. o Luedtke v. o Holding: (1) drug testing program did not violate state constitutional right to privacy. Nabors Alaska Drilling Inc.2d 1123 (Alaska 1989) o Facts: Brothers working on Alasking drilling rigs are fired by private employer after refusing to submit to a drug test. and. Johnson. beards or goatees except for medical reasons. 768 P.

Ga.D. Supp. COMMON LAW RESPONSES o Smyth v. o Reasonable expectation of privacy was lost when he sent out the e-mail over the company server.than a male employee to comply with employer's grooming policy.. 110 F. GWD Management Corp.. 914 F. App. Inc. 2005) o Facts: McDonalds strip search case o Holding: o Rule: 13 . CONSTITUTIONAL AND STATUTORY RESPONSES o Bodewig v. and o grooming policy did not constitute impermissible sex stereotyping. Pyllsbury Co. 1996) o Facts: Employee is discharged for what he send over company e-mail o Holding: o Rule: Termination of at-will employee for sending inappropriate e-mail did not violate public policy.2d 657 (Or. o (2) employees lacked fundamental right to be free from surveillance. o Catalano v. o Holding: o Rule: Vega-Rogriguez v. March 30. K-Mart.3d 174 (1st Cir. 1981) o Facts: K-Mart employee is accused by customer of shorting her change. Pa. The employee is searched and subsequently stripsearched. o Rule: Private employees may reasonably regulate the grooming and dress of their employees. She sues K-Mart and customer under theory of outrageous conduct.. 635 P. and o (3) surveillance did not violate employees' substantive due process rights o XI. as would establish that gender played a motivating role in employer's policy. 97 (E. Co. 1997) o Facts: o Holding: o Rule: (1) employees lacked objectively reasonable expectation of privacy against disclosed.D. 2005 WL 5519861 (S. PROTECTING PRIVACY ON THE JOB X. soundless video surveillance while toiling in open and undifferentiated work area. Puerto Rico Tel.

237 F. alleging that her termination after signing pro-choice advertisement in local newspaper constituted retaliation for protected speech and sex discrimination in violation of Title VII and Pregnancy Discrimination Act o 14 .3d 130 (3d Cir. made in course of conversation with coemployee addressing policies of President's administration. “if they go after him again. IBM Corp.XII. 483 U. I hope they get him” dealt with matter of public concern. She is terminated for a conflict of interest.. individual school officials. 2006) o Facts: Former teacher at private Catholic school sued school. 162 Cal. Ursuline Academy. o Rule: Protected Work Speech Balancing Test: o to determine whether public employer properly discharged employee for engaging in speech is whether speech may be fairly characterized as constituting speech on matter of public concern Curay-Cramer v.. App. Gave her an ultimatum to stop dating.” in reference to an assassination attempt on the president.3d 166 (2d Cir. and others. McPherson. that. 3d 241 (1984) o Facts: IMB terminated low-level employee after accusation that she was in a relationship with a manager of a rival company. “if they go for him again. and o (2) constable's interest in discharging clerical employee in constable's office for making statement did not outweigh employee's rights under First Amendment. IMB knew about the relationship before she was promoted. Swiss Reinsurance America Co. 2001) o Facts: o Holding: o Rule: FREEDOM OF EXPRESSION ON AND AWAY FROM THE JOB o Rankin v.S. o Holding: o Rule: o McCavitt v. 450 F. 378 (1987) o Facts: Data-entry employee in county constable office is terminated because she says. o Holding: (1) statement by employee. I hope they get him. OFF-WORK ACTIVITY o Rulon-Miller v.

employer was prevented from efficiently carrying out its responsibilities. After an incident where Jordan goes into a locked judge’s office. she must prove that: (1) she suffered an adverse employment decision. and o (2) sex discrimination claim was not cognizable. o whether speech interfered with essential and close working relationships..3d 290 (5th Cir. precluding retaliation claim. o Holding: employee engaged in protected activity involving hybrid of speech and political affiliation o Rule: For a public employee to prevail on a First Amendment retaliation claim. 2008) o Facts: Two County Clerk employees run for County Clerk. When one wins (Morgan). (2) she was engaged in protected activity. o Rule: o Novosel v. and (3) the requisite causal relationship between the two exists o 15 . in violation of First Amendment. o whether speech impaired employee's ability to carry his own responsibilities. time and place in which speech occurred interfered with business operations. Ector County. the other (Jordan) stays on but is demoted. Nationwide Insurance Co. 516 F. Jordan v. o Rule: Factors to be considered in discharge for refusal to participate in lobbying: o whether. 721 F.2d 894 (3d Cir. and o whether manner. Morgan fires her.o Holding: (1) teacher did not engage in protected activity when she signed newspaper advertisement. because of speech. 1983) o Facts: o Holding: (1) former employee's allegations of discharge for refusal to participate in former employer's lobbying effort and his privately stated opposition to company's political stand stated claim for wrongful discharge under Pennsylvania law. It comes out that Morgan fires her because they were about to run against each other again. since it would necessitate court's assessment of relative severity of violations of church doctrine.

She refuses to do this because she believes it to be unlawful. He is terminated after arriving in Saudia Arabia o Holding: provision of employment contract that ‘it is scheduled that your assignment in Saudi Arabia will continue for a period of 18 months' was merely one of expectation and was not sufficient to convert employment relationship terminable at will to contract of specific duration. 1992) o Facts: Employee is demoted and ultimately terminated for supporting a co-worker who has claimed sexual harassment against their employers. Jacobs and Co.2d 531 (2d Cir. 2003) o Facts: Employee suggested to employers that they terminate people who may have fraudulent SSI cards. Rptr. THE EMPLOYMENT AT-WILL RULE o Buian v. B. 4 Cal.3d 812 (7th Cir. 428 F.II. XIII. particularly where contract specifically permitted employee to work as long as he desired. o Rule: An employment contract not specifically intended by the parties to be any certain duration creates employment relationship which is terminable at will by either party without cause and without liability. Sentry Insurance. IMI Cornelius Remcor. o or for refusing to do something that public policy would condemn o Arres v. Employer tells her to notify the employees to correct the error.. 333 F. 1970) o Facts: P is offered a contract to work in Saudia Arabia offering a MONTHLY salary for an 18-month contract. Inc. DISCHARGE AND TERMINATION OF EMPLOYMENT A. o Holding: employee who was terminated in retaliation for supporting co-worker's claim of sexual harassment stated cause of action for tortious discharge against public policy o Rule: At-will employee possesses tort action when: o he or she is discharged for performing act that public policy would encourage. 2d 874 (Cal.. o Holding: fact that employee may have had federal remedy against employer under Immigration Reform and Control Act did not automatically preclude employee's state law tort claim of retaliatory discharge 16 . EROSION OF EMPLOYMENT AT WILL THE PUBLIC POLICY EXCEPTION o Gantt v.

There is no written employment contract. Inc.J. 2007) o Facts: Meningitis case o Holding: o Rule: XIV. 1981) Facts: Holding: Rule: o XV. 99 N.D. 2001) o Facts: Employee is terminated by his employer when they are trying to sell a division of the corporation. The corporation frames the termination as “for cause” to avoid having to honor stock options to employee.J. Super Ct. App.. o Holding: Employer could not terminate (in bad faith) prior to the vesting of pension to avoid paying the pension. BREACH OF CONTRACT TERMS o Gordon v. 284 (1985) o Facts: P works as an engineer for D. Ct.3d 902 (9th Cir. o A theory of retaliatory discharge under Illinois law requires an employee to show: o (1) that she had been discharged. o Rule: Employee at will may not be deprived of commissions. App. o Serrano v. 1286 (N. you cannot deprive an employee of bargainfor terms (pensions. 171 Cal. Inc. Rptr 917 (Cal.. stock options) by operating in bad faith. Matthew Bender & Co. Pugh o o o v. o (2) that her discharge was in retaliation for her activities. 249 F.. o Scribner v. 2007 WL 4462723 (N. After writing a report about piping problems 17 .o Rule: Public Policy exception is allowed even if the employee asserting it is incorrect about the law which he or she is trying to uphold. Inc. Hoffman-LaRoche. Worldcom. Div. 562 F. and o (3) that her discharge violated a clearly mandated public policy of the state of Illinois. 1983) o Facts: Employee is terminated right before the 8-year mark of employment where his pension would have kicked in..Supp. See’s Candies. o Holding: committee breached duty of good faith and fair dealing it owed under Washington law when it found employee's termination to be with cause for purposes of option contracts o Rule: Once again. by discharge made in bad faith and intended to deprive employee of the commissions. Christ Hosp. EMPLOYEE HANDBOOKS o Woolley v. in large part “earned” prior to separating from employer.. Ill.

P is fired.J. even though right to make such change was not expressly reserved from onset o Rule: For revocation of discharge-for-cause policy to become legally effective. he is asked to resign or be fired. v. 432 Mich. courts look to reasonable expectation of employment. o Distribution: the handbook must be widely distributed o November 2. App. 438 (1989) o Facts: o Holding: In Michigan. Woods. o Holding: P had right of action under promissory estoppel. 136 N. plaintiff was not entitled to recovery.2d 696 (Ind. 1982) o Facts: P is orally promised a job with Pepsi provided that she quit her other jobs. o Holding: absent a clear and prominent disclaimer. employer may unilaterally change written discharge-for-cause policy to employment-at-will policy. 18 . PROMISSORY ESTOPPEL o Pepsi-Cola General Bottlers. o Rule: Executory indefinite employment contract is not enforceable.. but since defendant could discharge plaintiff after a single day's work without incurring liability and since there was insufficient proof of out-of-pocket expenses incurred in reliance on defendant's promise. P declines.. P sues on promissory estoppel theory. Wakefern Food Corp. Nicosia v. The manual contains a disclaimer on the first paragraph of the first page of a 160-page manual but was only distributed to 300 of the 3.that his superiors did not like. o Rule: Disclaimer location: In determining whether handbook is enforceable contract of employment. o Rule: An employment manual can contractually obligate the employer to the terms within it (unilateral contract!) o Bankey v. Inc. 2009 XVI. an implied promise contained in an employment manual that an employee will be fired only for cause was enforceable against employer even when employment was for an indefinite term and would otherwise be terminable at will. P files wrongful termination suit for not following the manual’s procedures. She discloses that her boyfriend works for Coca Cola.E. reasonable notice of change must be uniformally given to affected employees. She is terminated before she reports to work. o Holding: employee handbook created implied contract of employment.000 of the employees. and is terminable at will of either party. 401 (1994) o Facts: Low-level employee (P) is fired for mishandling merchandise. Storer Broadcasting Co. She subsequently finds a job at the Ramada. 440 N.

an employer's right at any time to terminate employment at will was unimpaired. Finally. and breach of contract. such contract is one at will. absent a constitutionally impermissible purpose. 448 N. intentional infliction of emotional distress. Law ß 297(5) because ß 297(5) applied only to the filing of complaints with the Division of Human Rights. 1983) o Facts: P who has no written contract is allegedly fired for uncovering millions in illegal financial manipulations and for his age. intentional infliction of emotional distress. fetter an employer’s right to terminate an employee. Under New York law. o Holding: there is no implied obligation of good faith in at-will contract of employment o Rule: Good Faith: (NY) an obligation of good faith and fair dealing on the part of a party to a contract may be implied and. P argues that D was bound not to dismiss employees for reasons contrary to public policy. and may be terminated at any time XVII. the court held that recognition in New York State of tort liability for wrongful discharge should await legislative action. 50 million in illegal accounting practices OUTCOME: The court modified the lower court's order to reinstate the former employee's cause of action for age discrimination. prima facie tort. Exec. 19 . The dismissal of all other causes of action was upheld. Prior to completing a big sale. if implied will be enforced.o If tenure of service cannot be determined from terms of contract. o Fortune v. OVERVIEW: The former employee filed an action against his former employer for wrongful discharge. however. which granted defendant former employer's motion to dismiss the former employee's causes of action for wrongful discharge. 2d 1251 (Mass. Further.E. 1977) o Facts: P is employed by written contract as a salesman who receives commission for his sales.E. 364 N. and (2) evidence sustained determination that employer had discharged the salesman in order to avoid paying certain bonuses to the salesman. COVENANT OF GOOD FAITH AND FAIR DEALING o Murphy v. o Holding: (1) even though salesman's contract was terminable at will. On appeal. and breach of contract. PROCEDURAL POSTURE: Plaintiff former employee appealed a decision of the Appellate Division of the Supreme Court in the First Judicial Department (New York).Y. the company terminates him. a relationship in which the law had accorded the former employer an unfettered right to terminate at any time. The covenant of good faith will not. National Cash Register. the court held that the former employee's cause of action for age discrimination was not barred by the one-year statute of limitations in N.2d 86 (N.. or an express limitation in individual contract of employment. The court held that the former employee's employment was at will. a statutory proscription. there was an implied covenant of good faith in the contract.Y. prima facie tort. American Home Products Corp. the court held that facts alleged by the former employee fell far short of the strict standard for a claim of intentional infliction of emotional distress.

Buck’s contract doesn’t have this condition. o Mosrie v. He is subsequently terminated. Cir. 1983) o Facts: Police officer criticizes his superiors and is transferred laterally (to a worse assignment). o Rule: Civil service employment positions can be legitimate property interests. employer cannot terminate employee to avoid contract terms. OTHER PROTECTIONS FOR EMPLOYMENT SECURITY INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. 20 . He offers the previous owners a contract to buy the dealership on the condition that they resign.2d 1138 (5th Cir. PROPERTY AND LIBERTY INTERESTS o Goetz v. 2d 1151 (D. Billings Montana Chevrolet. 1991) o Facts: o Holding: o Rule: XIX.o Rule: (MA) Under covenant of good faith and fair dealing. 939 F. C. Asserts that he is being deprived of Due Process liberty. XVIII. Buck sues for: wrongful discharge. 443 Mich. 248 Mont. 1983) o Facts: The school believes that Goetz played a role in break-ins occurring at the school.2d 606 (2d Cir. 698 F. He doesn’t turn it in and it terminated. Windsor School District. Monarch Paper. 718 F. Barry. XX. He asks for an extension to write reasons why he was not involved and it is granted. o Holding: Goetz has no property interest in his job because he was not implied for 5 years as required by law. NO AT WILL DOCTRINE. violation of public policy o Holding: o Rule: Montana law requires a legitimate business reason for termination (cannot be arbitrary. 68 (1993) o Facts: o Holding: o Rule: o Wilson v. WHISTLEBLOWER STATUTES o Dudewicz v. Norris-Schmid Inc. 276 (1991) o Facts: Guy goes around buying failing dealerships. WRONGFUL DISCHARGE STATUTES o Buck v. capricious or whimsical).C..

3d 418 (7th Cir. 362 F. Steel Corp. or significant alteration of an interest recognized and protected by state law. U. Dillard Dept..S. Stores. Council of New Orleans v.. COMMON LAW AND STATUTORY RESPONSES o Local 1330. and thus he was not entitled to due process protections before transfer.o Holding: police officer was not deprived of any liberty interest when he was publicly criticized prior to his being transferred. extinguishment.. 1994) o Facts: o o Holding: Rule: o Pena v. 2004) o Facts: o o Holding: Rule: 21 . 1980) o Facts: o o Holding: Rule: XXII. PLANT CLOSINGS XXI.3d 1275 (5th Cir. WARN ACT LITIGATION o Carpenter Dist. United Steel Workers v. Inc. 15 F. American Meat Packing Corp. 631 F. o Rule: Deprivation of liberty must involve a removal.2d 1264 (6th Cir.

Bd. BREACH OF IMPLIED TERMS o Mercer Mgmt. 415 U. Supp. Wilde.LEAVING A JOB XXIII. 36 (1974) o Facts: o o Holding: Rule: CHAP 3 o Mitsubishi Motors Corp. 2d 774 (Wis. 1983) o Facts: Speech therapist leaves school district for o o Holding: Rule: XXIV. ALTERNATIVE DISPUTE RESOLUTION A.W.C. Soler-Chrysler-Plymouth. Consulting. 920 F. Inc. Inc. v. 332 N. Gardner-Denver Co.S. ARBITRATION OF EMPLOYMENT DISPUTES: OF CASEBOOK XXV.D. Lukaszewski.S. THE FEDERAL ARBITRATION ACT o Alexander v. v. BREACH OF EXPRESS TERMS o Handicapped Children’s Educ. v.. 1996) o Facts: o o Holding: Rule: III. 614 (1985) o Facts: 22 . 473 U. 219 (D.

532 U. v.S. Inc. Inc. 1999) o Facts: o o o Holding: Rule: EEOC v. o ARBITRATION AFTER CIRCUIT CITY Hooters of America.. Phillips.o o o Holding: Rule: Gilmer v.S. Adams. Interstate Johnson Lance Corp. 500 U. Waffle House.S.3d 933 (4th Cir. 534 U. 20 (1991) o Facts: o o Holding: Rule: o Circuit City v.. 105 (2001) o Facts: o o Holding: Rule: B. 279 (2002) o Facts: o o Holding: Rule: 23 . 173 F.

Superior Court.C. 2005) o Facts: o o o Holding: Rule: Gentry v. 4th 443 (2007) o Facts: o o Holding: Rule: 24 . 42 Cal..3d 1359. RIGHTS OF EMPLOYEES AND ARBITRATION o Caley v. 428 F. Gulfstream Aerospace Corp. 1378 (11th Cir.