Professional Documents
Culture Documents
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d. Drug Testing .................................................................................................................................... 13
Government Employees .......................................................................................................................... 15
Step 1: Can the employee bring a suit? ................................................................................................ 15
Step 2: Does the employee have a procedural due process claim? ............................................. 15
a. Deals with whether or not employee gets a hearing before termination and what kind
of hearing they get. Hinges on whether a liberty or property interest was violated. ................ 15
b. Does the employee get a hearing? (Property Interests) ...................................................... 15
c. What kind of hearing does the employee get? ..................................................................... 15
d. What are the damages? ............................................................................................................. 16
Step 3: Does the employee have a substantive due process claim? ............................................. 16
Government Employees – Free Speech ................................................................................................ 17
Step 1: Did the speech involve a topic of public concern? .............................................................. 17
Step 2: Was the speech part of the employee’s official duties? ...................................................... 17
Step 3: Did the plaintiff’s interest in the free speech outweigh the government’s interest in
efficient provision of public services? (Pickering balance test) ........................................................ 17
Step 4: Did the plaintiff suffer an adverse employment action? ...................................................... 18
Step 5: Did the plaintiff’s speech cause the adverse employment action? .................................. 18
Step 6: What are the damages? ............................................................................................................. 18
Government Employees – Patronage and Political Beliefs ................................................................. 19
Step 1: Did the employee/applicant engage in political activity? ................................................. 19
Step 2: Does the plaintiff’s claim deal with an employee being fired or with hiring practices? 19
Step 3: Is the employee in a policymaking position? .......................................................................... 19
Step 4: What are the damages? ............................................................................................................. 19
Discrimination ............................................................................................................................................ 20
Step 1: Is the plaintiff a member of a protected class? ...................................................................... 20
Step 2: Did the plaintiff suffer an adverse employment action? ...................................................... 20
Step 3: Is there sufficient causation? “The ultimate question is discrimination vel non” (Postal
Service v. Aikens – SCOTUS) ...................................................................................................................... 20
Step 4: Did the plaintiff follow the procedural requirements? ........................................................... 22
Step 5: What are the damages? ............................................................................................................. 22
Sexual Harassment ................................................................................................................................... 23
Step 1: Was there a tangible employment action? ............................................................................ 23
Step 2: If hostile work environment, can employer establish a Faragher-Ellerth defense? ......... 23
Step 3: Did the plaintiff follow the procedural requirements? ........................................................... 23
Step 3: What are the damages? ............................................................................................................. 24
What if the harassment was committed by a coworker? .................................................................. 24
Duty of Loyalty ........................................................................................................................................... 25
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Step 1: Did the employee cross the line between “mere preparation” and “active
competition”? ............................................................................................................................................. 25
Step 2: What damages are available? .................................................................................................. 25
Trade Secrets ............................................................................................................................................. 26
Step 1: Is there a trade secret? ................................................................................................................ 26
Step 2: Is there sufficient evidence that the employee misappropriated a trade secret? ......... 26
Covenants not to Compete ..................................................................................................................... 27
Step 1: Does the employee have a contractual covenant not to compete? .............................. 27
Step 2: What are the damages? ............................................................................................................. 27
3
At-Will Contract Modifications
If IC:
- Employer not liable for torts committed by IC
- No FLSA coverage (minimum wage/overtime)
- No anti-discrimination protection (Title VII, ADEA, ADA)
o ICs also not counted toward damage caps
- No bargaining power, no NRLA exception from antitrust
- No employer-paid income & FICA (SS & Medicare)
- No worker’s comp
- No unemployment
- No ACA-mandated health insurance
- No need for I-9s, employee status verification
Cite Lauritzen (including Easterbrook concurrence that we should look at policy, not factors) &
Uber – both ran through factors and determined that “ICs” were employees.
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ii. Miksh v. Exxon – Firing after conflict policies updated, 7 years after husband
opens Chevron station = specific enough.
iii. Vlase v. Wal-Mart – Manager finds out EE was sex offender and says this will
not affect employment. EE later fired = not specific enough, and manager
did not have authority.
c. Just Cause:
a. Yes cases:
i. Hetes v. Shefman & Miller (Mich. App.) – receptionist told that she “had a
job as long as she did a good job” – remanded because a reasonable jury
could find that this constituted a modification.
ii. Ohanian v. Avis (2nd Circuit) – oral promise of lifetime contract/”just cause”
standard was enforceable despite signed relocation form saying
employment was at will.
b. No cases:
i. Rowe v. Montgomery Ward (SCOMI) – “generally as long as salespeople
generated sales and were honest they had a job at Wards” – too vague to
be a modification, “casual words of encouragement.”
ii. Montgomery Hospital v. Brown (SCOTX) – hired on an at-will basis but orally
promised that she would not be terminated without good cause. Denied
because (1) no definition of good cause and (2) oral agreement.
d. Gap Terms:
a. Miller v. Riata Cadillac (SCOTX) - An employee fired without good cause before
payment of a bonus in employment agreement is entitled to a pro-rata share of
the bonus.
b. Also Chiodo and Gorbet (See 3.b. – definite term)
c. Duty of Good Faith and Fair Dealing
i. Broad application: every party in every contract (about 10 states)
ii. Narrow application: applies as long as not inconsistent with contract.
(majority of states, including TX)
1. Inconsistent with at-will employment because it limits flexibility.
iii. Fortune v. NCR (MA) - Similar to Miller but court finds termination is at fault,
not just failure to pay commission. Termination was the vehicle to
specifically avoid paying commission due.
1. Damages are normally contract damages (unpaid bonus in
Fortune) but some courts (including MT) have allowed GFFD claims
in tort re employment, which means punitive damages.
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Step 5: Did the employer have a valid reason for terminating the employee?
a. Just Cause:
a. Riley v. Stoker - What would a reasonable man do under similar circumstances at
work?
b. S.D. Codified Laws Ann. § 60-4-5: Satisfactory work includes:
i. Regular attendance.
ii. Obedience to reasonable work terms.
iii. Reasonable quantity/quality of work
iv. Avoidance of conduct that would interfere with employer’s ability to carry
on business effectively.
b. Business downturn:
a. Employer can argue that they weren’t being malicious in letting employee go but
employee can argue that the employer is in a better position to foresee downturns.
Courts resolve both ways.
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Promissory Estoppel & Implied Modifications
Step 3: Did the employer have a valid reason for terminating the employee?
a. Just Cause:
a. Riley v. Stoker - What would a reasonable man do under similar circumstances at
work?
b. S.D. Codified Laws Ann. § 60-4-5: Satisfactory work includes:
i. Regular attendance.
ii. Obedience to reasonable work terms.
iii. Reasonable quantity/quality of work
iv. Avoidance of conduct that would interfere with employer’s ability to carry
on business effectively.
c. Courts are split whether this is an objective just cause test (employee actually did
the thing that led to the firing) or subjective good faith test (employer had credible
evidence that employee did the thing).
b. Business downturn:
a. Employer can argue that they weren’t being malicious in letting employee go but
employee can argue that the employer is in a better position to foresee downturns.
Courts resolve both ways.
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Handbooks
Step 1: Does the handbook include a “positive statement” or a “negative statement” (disclaimer)?
a. Positive statements:
a. Employee will only be fired for just cause
b. Progressive discipline (oral warning -> writeup -> termination)
c. Seniority in layoffs
d. Handbook may include disclaimer that these do not modify terms of employment.
In some states these must be 1) prominent, 2) clear (understood by average
worker), 3) specific. (TX DOES NOT REQUIRE (1))
b. TX: Handbooks do not modify at-will contracts unless accompanied by an express
agreement or written representation re: procedures for discharge of employees:
a. Welch – 90 day probationary period does not create just cause post-probation.
b. Vida – “no employee shall be penalized for using grievance procedure” – yes
c. Byars – “bases for disciplinary action include, but are not limited to…” – no (not
specific enough)
d. Davis – “employees are not dismissed without warning unless they commit one of
the following offenses – yes (specific enough)
Sufficient disclaimer language: “nothing in this handbook alters at-will employment or should be
considered a promise or contract. Management reserves the right to update or modify this
handbook at any time without notice. Any modifications to at-will employment will only be in
writing, signed by a corporate officer.”
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Public Policy Exceptions to At-Will Employment
TX Whistleblower Statute
a. Does not apply to private sector employees (Winters v. Houston Chronicle)
b. Applies to state or local employees who:
a. in good faith
i. employee believed that the conduct was a violation (subjective); and
ii. employee’s belief was reasonable to an objective person with employee’s
training and experience (objective)
iii. Not “good faith” motive – may be for revenge
iv. Less wiggle room on (b) for lawyers and law enforcement.
b. report a
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i. any communication relaying illegal activity (phone, email, letter, etc.)
c. violation of law
i. any state/federal/local statute or rule under statute/ordinance
ii. internal rules or policy statements
iii. NOT common law
d. to an appropriate law enforcement authority
i. state/local/federal entity who employee in good faith believes is
authorized to:
1. regulate under or enforce law said to be in violation or
2. investigate or prosecute a violation of criminal law (FBI, police, etc)
ii. High bar:
1. No: Needham: employee saw colleague driving TXDOT vehicle
drunk and reports to HR –“none of the employees in HR have the
authority to enforce TX drunk driving laws”
2. No: Gentilello: employee reports Medicare fraud (interns being
billed as supervised when they weren’t) to dean and college
president. Dean & president can only manage internal controls, LEA
must have “outward-looking authority”
3. Yes: Levingston: employee reports animal abuse by colleagues to
head of Houston animal control. ALL animal control employees may
write tickets for animal abuse, so relevant authority.
iii. Internal whistleblowing only allowed if there is an office of inspector general
or if internal party is part of police force or other agency with authority to
impose laws on the general public.
c. Causation:
a. Was plaintiff’s whistleblowing a substantial or motivating factor for her
termination/AEA on [date]?
b. Were it not for her whistleblowing, would defendant have terminated plaintiff on
[date] anyway?
i. A “yes” answer grants an affirmative defense for the government employer.
d. Statute of Limitations:
a. 90 days from termination or adverse employment action. If a grievance procedure
exists employee must seek that first but 90 days tolled for grievance procedures
under § 554.006(c).
i. 03/01: employee fired, 03/11: employee files appeal, 03/31: appeal denied.
1. Employee has until 06/19 because 20 days in grievance process are
tolled.
ii. 03/01: employee fired, 03/11: employee files appeal, 05:11: employee has
not heard back (61st day after filing). Employee may either:
1. Continue waiting, and file claim 30 days after result.
2. Opt out of grievance process, but must be in court by 05/30.
e. Damages:
a. No punitive damages (burden would be paid by taxpayer)
b. Uncapped damages: backpay, attorney’s fees, front pay differential (difference
between what employee would have made at gov’t job and what they are
making after being fired), job hunting costs.
c. Capped damages: future pecuniary losses, emotional distress, non-pecuniary
damages.
i. < 100 employees - $50k, 101-200 employees - $100k, 201-500 employees -
$200k, 501+ employees - $250k.
Sabine Pilot
a. Only judicially created public policy exception to at-will in Texas. Requires that:
a. Employee is terminated
b. For the sole reason
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c. That employee refuser to perform an illegal act.
i. Yes: Johnston v. Del Mar (Corpus Christi) – employee who inquired whether
shipping firearms labeled as fishing equipment was first step in proving
reasonable, good faith belief that act was illegal.
ii. No: Good Time Charlie’s (Durst case) – opposite result from Johnston.
iii. No: Hancock – pilot fired for refusal to fly more than allowed under FAA
regulations. His penalty would have been civil, not criminal.
iv. Burt – LEO fired for arresting a prominent person in small town. Being fired
for performing a legal act =/= being fired for refusing to perform an illegal
act.
b. Only applies to private sector employees.
a. Carroll v. Black - A&M employee fired for refusal to perform illegal act – does not
apply to public employees.
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Tort Exceptions to At-Will Employment
Privacy
a. Off-Duty Conduct
a. Brunnar v. Al Attar (SCOTX) – Brunnar fired after letting her employer know that she
volunteers for AIDS foundation. Employer wins, not a Sabine Pilot exception.
b. Collingsworth General Hospital v. Hunnicutt (SCOTX) – Hunnicutt refused
unemployment benefits (not eligible if employee quits or fired for misconduct) after
stabbing Mr. Hunnicutt’s girlfriend. Even though unrelated to employment it was
misconduct - antithetical to goals/purpose of employer. Employer wins.
c. Novosel v. Nationwide (SCOPA) – Employee fired after refusing to lobby on behalf
of employer – normally free speech doesn’t apply to private employees but court
holds that a public policy interest is implicated when employers use hiring/firing
powers to dictate employee political activities. Employee wins.
b. Invasion of privacy
a. 3 Elements:
i. Intentional intrusion
ii. on the solitude of another
1. “reasonable expectation of privacy” standard applies
iii. that is highly offensive to a reasonable person
c. Employee office/locker
a. Trotti (Houston) – employee had reasonable expectation of privacy in staff room
locker when she brought her own lock.
d. Background checks
a. Soroka v. Dayton Hudson (CA) – State constitution treats private sector employees
the same as public sector employees, so Target had to show a compelling interest
for administering psych tests that included questions re: religious beliefs and sexual
orientation.
i. In TX (and majority of states) no protections against invasive questions unless
in violation of Title VII.
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b. Ban the Box – EEOC says applicants can’t be asked about criminal history until a
conditional offer is made. (does not apply in TX)
e. Polygraph Testing
a. Congress said polygraphs may not use polygraph tests on applicants/employees
except:
i. Government employees
ii. National defense contractors
iii. Private security guard firms (e.g., Securitas)
iv. Drug manufacturers & distributors
v. If part of an ongoing investigation involving economic loss or injury to
business.
1. Does not apply to sexual harassment since not direct loss
2. Does not apply to theft of colleague money
vi. Courts are split if employee volunteers to be polygraphed. Issues with
whether it is truly voluntary.
1. Watson v. Drummond Co., (11th Cir. 2006) - an employer does not
violate §2006 when employee voluntarily requests to take
polygraph test to prove innocence.
2. Mennen v. Easter Stores (IA) – Employee volunteers to take police
polygraph test to clear name, employer uses feedback from police
in employment decisions. Considering a polygraph administered by
someone else is not ok.
b. Wiretap Act
i. Interception of phone calls only allowed when one party consents or when
interception of phone call occurs in ordinary course of business.
1. EMPLOYER WINS – Arias v. Mutual Central Alarm Service (2nd Circuit) –
employer allowed to record all calls because they included sensitive
info.
2. EMPLOYEE (SORT OF) WINS – Watkins v. L.M. Berry (11th Circuit) –
employer allowed to listen in to see if employees are using phones for
personal use but not allowed to listen in on personal calls.
c. Stored Communications Act
i. Applies to emails and internet browsing. Employers may access stored
communications on their own systems but may not exceed scope of business
purpose.
1. Pure Power Bootcamp (NY) – employee handbook/email policy said
that employees had no expectation of privacy but employer accessed
employees’ personal email accounts using stored passwords on work
computers and printed emails to use in non-compete claim. EMPLOYEE
WINS.
d. Drug Testing
i. Generally permitted, some questions at the margins but fundamental question
of whether it’s allowed has been decided in favor of employers.
1. NTEU v. Van Raab (SCOTUS): Drug testing customs & border protection.
Deals with whether there’s sufficient nexus to justify intrusion when no
more than 5/3,600 tested positive. SCOTUS holds that this is good
enough because border patrol is first line of defense against drugs,
important governmental interest.
a. Scalia Dissent: “It is not apparent to me that a Customs Service
employee who uses drugs is significantly more likely to be bribed
by a drug smuggler, any more than a Customs Service
employee who wears diamonds is significantly more likely to be
bribed by a diamond smuggler.”
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2. Skinner (SCOTUS): Challenged Federal Railroad Administration
regulation that private railroads test employees involved in major
accidents. SCOTUS holds that drug testing for employees in “safety
sensitive” positions is reasonable.
3. Jennings v. Minco(Austin) – Employee challenged generous drug
testing program saying that she couldn’t “consent” because potential
job loss = duress. “Every day is a new K” – Jennings consented by
continuing to work there. Had to pay Minco’s atty fees because claim
is so clearly at odds with TX employment law.
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Government Employees
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b. Middle ground: Employer tells employee they are thinking of firing him, employee
Is given an opportunity to respond even if not a full hearing. Employee is fired and
can appeal.
i. Turns out this was the actual situation in Loudermill – employee’s supervisor
gave him a chance to respond but didn’t make it onto the record.
c. Most constitutional: Employer tells employee they are thinking of firing him, hold a
hearing, then fire. Employee is able to work and be paid after notice until
termination. Louderman – footnote 10 - Admin leave for employees who present
hazard to employer is ok as long as it’s with pay.
i. This is more difficult in small towns where a hearing for a single employee is
disruptive.
d. What are the damages?
a. If employer would have made a different decision with hearing:
i. Back pay, job reinstatement, front pay in lieu of reinstatement, injunction,
maybe emotional distress, punitive damages under § 1983
b. If employer would have made same decision with hearing:
i. “nominal damages” - $1. Per SCOTX denial of due process should be
rewarded nominal damages if no proof of injury.
c. Attorney’s Fees:
i. Allowed generally under § 1988 but if victory was nominal, no fees.
1. Farrar v. Hobby (SCOTX) – Farrar sued Lt Gov. Hobby for $17M for
due process and other violations, succeeds on denial of due
process only and awarded $1. SCOTUS split 4/4 on whether atty’s
fees should be awarded with nominal damages. O’Connor breaks
tie saying that attys fees are ok if the claim was advanced for public
policy reasons. Farrar wanted $17M damages and only prevailed
on one claim, so goal more personal than public policy.
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Government Employees – Free Speech
Step 3: Did the plaintiff’s interest in the free speech outweigh the government’s interest in efficient
provision of public services? (Pickering balance test)
a. Question of law, but may be dependent on contested facts.
b. Yes - Pickering – letter to editor was not directed toward anyone Pickering would have
daily contact with, his relationship with board and superintendent were not critical to
functioning of schools.
c. Yes - Rankin – speech was made privately (she thought) and speech re: race relations
carry heavy weight in favor of employee.
d. No - Connick v Meyers – Speech was in the form of a questionnaire sent to colleagues and
had a disruptive effect on working environment.
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Step 4: Did the plaintiff suffer an adverse employment action?
a. Question of fact – jury determines.
b. Termination easy to prove, but AEA?
a. Rutan (SCOTUS) – FN 8 says it can include not giving an employee a birthday party
(standard rarely applied IRL).
b. Rutan (7th Circuit) – “substantial equivalent of a dismissal”
c. Mattern (5th Circuit) – “ultimate employment decisions” - hiring, firing, granting
leave, discharging, promoting, and compensation.
Step 5: Did the plaintiff’s speech cause the adverse employment action?
a. Question of fact – jury determines.
b. No - Mt. Healthy v. Doyle (SCOTUS) – 1970: Doyle argues with another teacher and slaps
him, argues w/ cafeteria worker re: amount of spaghetti given, yells at students that they
were sons of bitches who disrespected his authority as cafeteria monitor. 1971: forwards
memo re: dress code to radio station who encourage listeners to vote no on bond election.
Told one month later that K would not be renewed.
a. “Mixed Motive” or “Motivating Cause” causation. Jury question:
i. Was plaintiff’s protected free speech activity a substantial or motivating
factor for her termination on [date]?
ii. Were it not for her protected free speech activity, would defendant have
terminated plaintiff on [date] anyway?
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Government Employees – Patronage and Political Beliefs
Step 2: Does the plaintiff’s claim deal with an employee being fired or with hiring practices?
c. Rutan (SCOTUS) – Refusing to hire employees based on whether they voted for
party in power, plan on working on campaigns, plan to vote for party in power
in future is the same as firing based on political affiliation (but 5-4 decision).
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Discrimination
Step 3: Is there sufficient causation? “The ultimate question is discrimination vel non” (Postal
Service v. Aikens – SCOTUS)
a. Motivating Cause/Mixed Motive Causation (McDonnell-Douglas Burden Shifting):
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a. Applies to:
i. Title VII discrimination – race, sex, religion, national origin
ii. Disability – discrimination
b. Jury questions:
i. Was plaintiff's [protected class] a substantial or motivating factor for
defendant’s decision to [terminate/AEA] plaintiff?
1. Plaintiff bears burden of proof.
ii. Were it not for plaintiff’s [protected class], would defendant have
terminated plaintiff on [date] anyway?
1. Defendant bears burden of proof.
2. Federal law – if jury finds that LNDR offered by employer is pretextual
then plaintiff can recover.
3. TX law – if jury finds that LNDR offered by employer is pretextual then
Plaintiff still needs to provide evidence of discrimination to recover.
b. But For Causation:
a. Applies to:
i. Retaliation – Due to report of discrimination under Title VII/Texas Law
ii. Age Discrimination
iii. Disability – retaliation
b. Jury question:
i. Did the defendant [discriminate/retaliate] against plaintiff because of the
plaintiff’s [protected status/reporting of discrimination]
1. Plaintiff bears burden of proof.
c. Stray Remarks Doctrine:
a. Reeves (5th Circuit) - Racist or discriminatory remarks not made in relation to AEA
are insufficient to establish discrimination. Four factors to determine if something is
a stray remark:
i. Related to plaintiff’s class of people
ii. Proximate to AEA/decision
iii. Made by somebody with authority over decision
iv. Related to defendant’s decision.
b. Application:
i. Ray v. Tandem Computers (5th Circuit) – Supervisor held lunch at Hooters
and said he wanted to get rid of the “cunt in the office” four years before
plaintiff was passed over for promotion. Stray remark – not proximate in
space and time.
ii. Boyd v. State Farm (5th Circuit) – Plaintiff’s supervisor called him
“buckwheat” and “porch monkey” and told it was unusual for State Farm
to hire someone like him. Stray remarks – not actually racist (wtf 5th circuit?)
and did not have a bearing on his firing.
d. After-Acquired Evidence Doctrine (AAED):
a. McKennon v. Nashville Banner Publishing (SCOTUS) – McKennon fired due to age
but learned in discovery that she had taken a treasure trove of documents to later
blackmail newspaper.
i. Employee would have been terminated on those grounds alone had
employer known about evidence at the time of the discharge
ii. Discovery of AAED does not bar claim completely but limits backpay
calculation from the time of discharge to the date the information was
discovered.
e. Bona fide occupational qualification exception (BFOQ):
a. Authenticity/genuineness – French restaurant may only hire French workers.
b. Safety-sensitive positions (where age is a fitting proxy for actual concern) – age
limitations on airline pilots and ATCs, where actual concern is heart attacks, failing
eyesight/hearing. (Western Airlines – SCOTUS)
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c. Extreme customer preference – NO all nurses must be of same gender but YES “all
nurses who give sponge baths must be of same gender as patients.” NO Hooters
employees must be female but YES exotic dancers at gentleman’s club must be
female.
i. EEOC v. UT Health Science Center San Antonio (5th Circuit) Age cap on
campus police officers at 45 ok because they need to relate to students.
22
Sexual Harassment
23
vii. If resolved via mediation, settlement is drawn up and case is closed.
c. If no resolution, EEOC has 180 days to investigate.
viii. Requests a statement and documents from employer and employee, rarely
interviews or visits.
d. EEOC can either issue a cause finding or not.
ix. If cause finding (rare, only 4% of cases):
1. EEOC may pursue the claim themselves (even more rare, normally
when trying to advance policy) EEOC becomes plaintiff.
2. EEOC may try to settle it or, if they can’t settle, send a “right to sue”
letter to plaintiff. Plaintiff must file civil suit within 90 days (+ 2 days if the
right to sue is sent by mail). Cause finding increases settlement value
and reduces likelihood of SJ in favor of employer.
x. If no cause finding:
1. Plaintiff must file civil suit within 90 days (+ 2 days if the right to sue is sent
by mail)
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Duty of Loyalty
Step 1: Did the employee cross the line between “mere preparation” and “active competition”?
a. Oldham (NJ) – Employee may anticipate the future termination of his employment and
make arrangements with another employer or to start his own business. Per Durst “you can
flirt but you can’t date”
a. Mulei (CO) – Customers:
i. Telling banks that he would be leaving Jet and “would try to give them the
same service” – not competition.
ii. Telling banks that he would be leaving Jet and he could take their business
without a break in service and fully satisfy their needs at a lower cost –
competition.
b. Mulei (CO)
i. Restatement 2nd Agency § 393 – “An employee is subject to liability if,
before or after leaving the employment, he causes fellow employees to
break their contracts with the employer.”
ii. Looks at (1) nature of employment relationship (2) impact/potential impact
on employer (3) extent of benefits promised to colleagues.
b. Implies a good faith and fair dealing standard on employees even though most states
(except CA) do not apply the same standard to employers.
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Trade Secrets
Step 2: Is there sufficient evidence that the employee misappropriated a trade secret?
a. Schulenberg (IL) – engineer leaves Signatrol and comes to market 6 months later with his
own construction lights. Says that he’s an engineer so he could take them apart/reverse
engineer them without misappropriating company secrets.
a. Experts said that it would take at least 9 months (more likely 12) to reverse engineer
and go to market so he likely relied on prior knowledge from Signatrol.
b. To defeat this, Schulenberg would have had to present detailed notes showing
how he developed the lights without the use of prior knowledge.
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Covenants not to Compete
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