Employment Outline 1

emplyment law outline
Uploaded by avaasia on Mar 11, 2013

·
! 100% (1) 152 views 36 pages ·
Document Information "
employment law outline exam dichara rutgers la…
Date uploaded
Mar 11, 2013
Download Now
Copyright
&
© Attribution Non-Commercial (BY-NC)
Available Formats
DOCX, PDF, TXT or read online from Scribd
I. INTRODUCTION TO EMPLOYMENT LAW
Share this document A. HISTORICAL OVERVIEWS
II. LEGAL BOUNDARIES OF EMPLOYMENT RELATIONSHIPS
A. THE IDEA OF EMPLOYEE STATUS

1. EMPLOYEES V. INDEPENDENT CONTRACTORS
Facebook The Control Test
Twitter
o behavioral control: whether the employer has the right to direct and control the
work
when and where to do the work
#
!
! what tools or equipment to use

! what assistants to hire
!
!
where
what workto purchase
must be supplies and
performed byservices
a specified individual
Email what order or sequence

!
! TRAINING—employment often receive training while independent contractors

usually do not
o financial control:
! the extent to which the worker has unreimbursed business expenses (IC have
more then employees)
Did you find this document useful? ! ability to profit (IC has an ability to profit whereas employees do not)
!
extent of the worker‘s investment (IC are presumed to invest more)
! extent to which workers makes services available to others (IC offer their
services to a wider market)
$ %
! how the business pays the worker (IC are usually paid a flat fee whereas
employees get a wage hourly, weekly, or yearly)
! the extent to which the worker can make a profit or loss (IC generally can
whereas employees cannot)
o ―type of relationship‖:
! is there a written contract?
!
are there benefits? (such as insurance, pension, vacation pay, and sick pay)
Is this content inappropriate? Report this Document
! permanent/indefinite (employee) or for a specific project or period (IC)?
are the services performed by worker a key aspect to businesses regular
!
activity? (if so then the business is presumed to be more likely to retain the
right to control the worker‘s activity)
o major criticisms:
(1) factors are not weighed, non-dispositive, and do not apply in every case
(2) rigid/formalistic and is a one-size-fits-all test used without regard to the many different
context in which it is applied (example- there may be good reason to classify a worker as
an employee
purposes for purposes
of taxes of Employment
and employer Law but classify that same worker as an IC for
vicarious liability)
The Economic Realities Test: factors are un-weighted and non-dispositive

1. a limited amount of the workers investment in facilities and equipment
2. the nature (close supervision) and degree of control (high) retained or exercised by the
company
EMPLOYMENT 1
https://www.scribd.com/document/129827758/emplyment-law-outline 7/8/20, 9:47 PM

Page 1 of 26
Improve Your Experience '
Rating will help us to suggest even better
related documents to all of our readers!
$ Useful
% Not useful
3. the workers limited opportunities for profit and loss

4. the small degree of the workers independent initiative, judgment, and foresight in open
market competition with other required for the success of the operation
5. 5. the high degree of permanency of the work relationship
6. The broad extent to which the services are an integral part of the company‘s business
DiChiara Test
1. degree of alleged employer‘s rights to control the manner in which the work is to be
performed
2. alleged employee‘s opportunity for profit or lo ss
3. alleged employee‘s investment in equipment or material required for his task
4. the
5. whether theofservice
degree requires
permanence ofrendered requires
the working a special skill
relationship
6. whether the services rendered were an integral part of alleged employer‘s business
National Labor Relations Board v. Hearst Publications ( *has been overturned )
o Facts: News publishers refuse to collectively bargain with union representing paperboys
because they didn‘t consider them ―employees‖ under the NLRA
o Holding: Union should be allowed to collectively bargain because the paperboys are
employees under NLRB. The Court applied the control test to determine that the newsboys
(full time newsboys and ―checkmen‖) were in employees. Because they rely on wages paid
by publishers, and publishers set the minimum prices and give them equipment they are
considered employees.
o Rule: Apply the control test to determine if individual is employee or independent

contractor.
! What if the newsboys had the ability to set their own price for the papers? It would be a
more difficult
test factors areanalysis
weighedbecause they
evenly— would
most have
focus control
is on over profit
how much controlhowever thehas.
the entity control
Nationwide Mutual Insurance Co. v. Darden

o Facts: Nationwide allowed P to enroll in company retirement plan so long as he sold their
insurance. Contract provided that P would forfeit this retirement plan if he sold other
insurance within a year of termination. P is terminated and begins selling other insurance.
Nationwide rescinds his retirement plan and P sues under ERISA.
o Holding: Remanded to determine whether P is an employee under the agency test
(CCNV v. Reid)
! skill required
! source of the instrumentalities and tools
! location of the work
! duration of the relationship between the parties
! whether the hiring party has the right to assign additional projects to the hired party
! extent of the hired party‘s discretion over when and how long to work
! method of payment
! hired party‘s role in hiring and paying assistants
! whether the work is part of the regular business of the hired party
! whether the hiring party is in business
! provision of employee benefits
! tax treatment of the hired party
EMPLOYMENT 2
Clackamas Gastroenterology Associates v. Wells

o Facts: Bookkeeper was fired and wanted to file a suit against her employer under the
American Disabilities Act for discrimination. There is a 15 employee minimum in order for her
to be entitled to protection under the ADA, there were 15 including the 4 partner doctors, so
the question is whether the partners are considered employees or shareholders.
o Holding: Remanded and reversed case. ―Shareholder -directors‖ or a professional
corporation can be employees if sufficient control is exerted over them as in a typical
master-servant relationship.
SO THE 4 PARTNER DOCTORS WERE CONSIDERED EMPLOYEES?
real partner = shareholder = equity in the company

Page 2 of 26
real partner = shareholder = equity in the company
o Rule: Apply the control test:
1. can the organization hire/fire the individual or set the rules and regulations of
the individuals work
2. how much does the organization supervise the individual‘s work
3. does the individual reports to someone higher in the organization
4. how much does the individual influence the organization
5. did the parties intend the individual to be an employee as expressed in written
agreements or contracts
6. does the individual share in the profits, losses, and liabilities of the organization
Vizcaino v. Microsoft Corp.

o Facts: Microsoft employs two workforces—one of ―core‖ employees and one of
―freelancers‖—that essentially do the same work under the same supervision. The difference
is the freelancers signed a contract that states they were independent contractors ineligible
o
for health: Freelancers
Holding and retirement plans
were but received
entitled morebenefits
to retroactive pay. They sues under
because ERISA.
they were employees in
their responsibilities even though they signed papers saying they were independent
contractors.
o Rule: Just because you call someone an independent contractor doesn’t make it so;
you have to look at the specifics of their job. An employer cannot contract around a
statutory or common law definition of an employee.
Connor v. Pier Sixty
The factors
Pier the court found
Sixty supervised dispositive
and they providedwere
boththat they and
training wereuniforms.
supervised by the same people that
o NOTE: Some employment laws exclude certain employees from coverage. (See FLSA
exemptions). Many employment rights are non-waivable. Courts have held that employee
agreements to waive FLSA minimum wage and overtime rights are unenforceable.
o Some employment rights are waiveable: i.e. the right to a jury trial mat be waived by
signing an arbitration agreement and the right to participate in ERISA employee
benefit plan is valid so long as the waiver is voluntary and knowing.
o An employer MAY NOT use a contract to make an end run around a common law or
statutory definition of employee!! (Vizcaino)
2. STATUTORY EXEMPTIONS, SMALL EMPLOYERS, AND JOINT EMPLOYEES
―small employer‖ exemptions : employment statues often exempt certain types of employers
either from the definition of a covered employer or from being subject to some or all of the
statutory provisions.
example: Why does the ADA require an employer employ 15 employs in order for the statute to
apply? What‘s the reasoning?
EMPLOYMENT 3
o
Cost of
there arecompliance. It will cost you
only 2 or 3 employees. more to comply
Government with
says it‘s alllarge
too of these
of a regulations if
burden to make
these smaller businesses apply because the costs for them would be too great.
! The employees of these small businesses can have remedies under state
law even if they can’t depend on the remedies of the federal law .
joint employees: employees of two or more closely-related companies (ex. contractors-

subcontractors or franchisors-franchisees), these types of workers are employees of both
companies for purposes of employment laws
FLSA finds joint employment when:
1. employers arrange to share a worker‘s services
2. one employer is working in the interest of another employer in relation to that employee
3. the employers share control over the employee or the company employing an employee
controls or is controlled by another company
Zheng v. Liberty Apparel Company

o Facts: PL worked for several ―Contract Corporations‖ that assembled clothing for Liberty
Apparel Company. PL alleged overtime and minimum wage violations of the FLSA. Both
partie agreed that the PL‘s were employed by the Contractor Corporations but disagreed over
whether Liberty was a joint employer. District court found that Liberty was not the PL‘s joint
employer.
o Holding: Reversed and remanded.
o Rule: The district court did not consider many factors pertinent to economic realities test
for joint employment , including:
1. were the manufacturer‘s premises and equipment used
2. whether contractor corporations had business that could or did shift as unit from one
putative joint employer to another
3. was the work completed integral to manufacturer‘s process of production
4. can responsibility under contracts could pass from one subcontractor to another
without major changes
5. how much manufacturer supervised
6. did employees worked exclusively/predominantly for that manufacturer
leased employees : a lessor company hires workers and leases them to a lessee company, the
lessee pays the lessor, the lessor pays the workers‘ wages, benefits, and payroll taxes
o does not allow the lessee company to avoid employment laws, the IRS considers
leased workers to be employees of the lessee if the lessee directs the workers as to
the work to be done and how to do it
o if a worker functions as an employee, the IRS will consider that person an

employee regardless of the label the company attempts to affix to it
B. THE HIRING PROCESS
1. LEGAL RESTRICTIONS ON JOB ACCESS
Wardwell v. Board of Education of Cincinnati

Page 3 of 26
EMPLOYMENT 4
o Facts: School teacher brought an action against BOE rule stating all teachers hired after a
given date (in Cincinnati) had to establish a residence within the city‘s school district within 90
days of employment because this infringes upon his constitutionally protected right to travel.
o
Holding : Thethere
basis, which right is
tohere.
INTRA-state travel is not protected by the Constitution, apply rational
o Rule: Government employer can restrict job access where it has rational bases for
basis for restrictive measures such as:
1. hiring teachers who are highly motivated and deeply committed to an urban
educational system ,
2. teachers living in the district are more likely to vote for district taxes , less likely to
engage in illegal strikes, and more likely to help obtain passage of school tax
levies,
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,
4. teachers who live in the district are more likely to gain sympathy and
understanding for the racial, social, economic, and urban problems of the children
they teach and are thus less likely to be considered isolated from the communities
in which they teach,
5. the
and requirement is in keeping with the goal of encouraging integration in society
in the schools.
! What if a custodian is applying to the school district and the school says that they must
also relocate? Should this rule apply to him? If it applies to teachers why not to the
custodian?
o All you would need is a rational reason between the hiring process and this
requirement.
! Should costs be considered? What if the town is extremely costly to live in?
!
Why
o
elsecan
They would
getcities want
to work onpeople to live
time, the in the
quality communities
of their where
work would they work?
be better, to recycle
taxes, help your own community by cutting down on unemployment.
! City lifted the requirement to have been living in the city for certain jobs because they
were not getting enough qualified applicants for the position.
! What if a private employer made the same requirements of relocation (similar to
Wardwell)?
o When you have a government actor then you have constitutional consideration in
any policy that you have, if you are a private employer you can make any sort of
rules you
! want
A job as long
offer whichasrequires
they areyou
nottodiscriminatory.
live within a certain mileage of the office, it
is perfectly alright for this employer to do so
! The government will not interfere in private hiring practices unless
they are illegal or discriminatory.
! Private employers can really set whatever parameters they want as
long as they are not discriminating.
Collins Food Intern, Inc. v. INS
o Facts: Collins, through a store manager, hires an employee from Sizzler‘s in California to
work at a Sizzler‘s in Phoenix. When employee shows up to work he doesn‘t have his
EMPLOYMENT 5
working documents so he is not allowed to work. The next day he returns and presents
driver‘s license and fake SSI card. INS fines Collins for hiring an alien to work.
o Holding: Offering an alien a job prior to verification of documents could not support finding of
constructive knowledge, and employer complied with verification requirement. Employer
offered the job on the telephone and accepted his forged documentation. The INS charged
the employer with hiring an alien.
o Rule: Employers need not verify documents prior to extending an offer to work but
must before commencing employment. Documentation only needs to reasonably
appear valid to meet the verification requirement.
2. EMPLOYER INFORMATION GATHERING
I. INTERVIEWS
Lysak v. Seiler Corp

o Facts: In an interview, a woman tells the employer without solicitation that she is done
having children. She is terminated after she discloses that she is pregnant. It comes out that
she was pregnant—and knew of it—during the interview. P brings sex discrimination suit
against employer.
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. If she had been asked the questions and then you lied about it, you can also
lie in response to an illegal questions so then it would have been okay.
II. EMPLOYMENT REFERENCES
Whenever an employer publicizes the reasons for firing an employee, gives a negative

Page 4 of 26
Whenever an employer publicizes the reasons for firing an employee, gives a negative
reference
employeesto, there
a subsequent employer,
is a risk that or discloses
the employer will be sensitive
subject to employee information
either a defamation to otherof
or invasion
privacy claim.
DOES AN EMPLOYER HAVE A LEGAL OBLIGATION TO PROVOIDE A REFERANCE FOR A

FORMER EMPLOYEE??
o NO but if the employer does decide to provide a reference then it must be factual, the
employer can simply say that they do not give references and simply avoid a lawsuit
altogether.
o Does the employer have an obligation to inform the new prospective employer of the
negative activity?
o Do we want to instill a burden on the former employer to make them divulge this
information?
o What if the prospective employee is applying for a job as a janitor in a school and he
was fired form the last school for molesting a child?
Singer v. Beach Training Co.

EMPLOYMENT 6
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. She sues for negligent misrepresentation.
o Holding: Reverse and remand to use new negligent misrepresentation test.
o Rule: Employer can be held liable for the negligent misrepresentation of a former
employee's work history.
Negligent misrepresentation if:
1. the inquiring party clearly identifies the nature of the inquiry;
2. the employer voluntarily decides to respond to the inquiry, and thereafter
unreasonably provides false or inaccurate information;
3. the person providing the inaccurate information is acting within the scope of his/her
employment;
4. the recipient of the incorrect information relies on its accuracy to support an
adverse employment action against the plaintiff; and
5. plaintiff suffers quantifiable damages proximately caused by the negligent
misrepresentation.
Defamation
Focus on reputational injuries to persons as a result of false statements being published
to others about them
elements:
!
false and defamatory statement
! unprivileged publication to a 3rd party
! negligent dissemination of the information on the publisher*
! harm caused by the publication
*for non-public figures, the requirement is negligent dissemination of information, for public
figures the standard is malice which is reckless disregard
!
public figures include celebrities, senators, congressmen, courts have found police
officers, doctors and nurses as public figures but it depends on the circumstances
defenses :
! the statement is true
! conditional privilege of common interest (should the new employer know why the
former employer terminated the employee, ex. such as a criminal offense), must be
disseminated in good faith and balanced with public policy concerns
!
eliminated by the presence of malice or reckless disregard!!
!
eliminated by abuse of privilege, which may occur if the defamer engages in
excessive unnecessary publication of the defamatory statement
defamation by self publication : if compelled to communicate defamatory statement to a third

person, and if it was foreseeable by employer that employee would be so compelled, defendant
can be held liable for defamation (Lewis v. Equitable Life Assurance)
Lewis v. Equitable Life Assurance
o Facts: Employees were ill-advised about travel expenses, and upon returning from a
business trip, they were told they needed to pay the company $200. Those who refused were
fired for gross insubordination. Employees were ultimately forced to disclose that they were
o
fired for gross
Holding insubordination
: Defamation when interviewed
by self-publication by potential
—employer was foundemployers.
liable.
o Rule: Self publication is a legitimate substitute for the traditional publication
requirement.
EMPLOYMENT 7
III. INVASION OF PRIVACY
pubic disclosure of private facts require that the disclosure of the private (TRUE) facts be
highly offensive to a reasonable person and that such facts are not a legitimate concern to
the public
different from defamation claims because they involve

(1) a true statement of facts, and
(2) the focus, rather than on publication to a third party, is on unwanted publicity to the public at
large
Eddy v. Brown
o Facts: OK SC considered a public disclosure of private facts claim in the context of a

Page 5 of 26
o Facts: OK SC considered a public disclosure of private facts claim in the context of a
supervisor disclosing to a limited number of other employees that the PL had seen a
psychiatrist.
o Holding: Court rejected a claim because only a small group of co-workers were told and this
tort normally requires that the general public be informed, did not constitute ―publicity‖. Also,
psychiatric visits are a legitimate concerns of his supervisor, they were not actionable as
unreasonable intrusion upon employee‘s seclusion.
o Rule: To establish invasion of privacy must establish:
1. publicity: ―the matter is made public, by communicating it to the public at large, or to
so many persons that the matter must be regarded as substantially certain to
become one of...
communication public knowledge
[but] one ... the difference
of a communication is not oneorofisthe
that reaches, means
sure of the
to reach
public.‖ (Rest. 2d Torts § 652d)
2. unreasonable
3. given as a private fact
Bratt v. IBM Corp.

o Facts: An employee was referred by his supervisor to a psychiatrist under contract with IBM,
the psychiatrist later discussed her findings (that he was paranoid) without the e mployee‘s
consent with a number of IBM officials. Bratt sues IBM for violation of right of privacy for
disclosing P‘s use of a company wide open -door policy, circulating memos that said he was
paranoid and had mental problems; and allowing IBM‘s physician to discuss P‘s medical
problems without his permission.
o Holding: Court found for PL on the privacy claim after balancing the employer legitimate need
for the information against the substantiality of the intrusion into the employers privacy—
reasonable expectation of privacy in providing ―in-house‖ doctors—even though the doctor
that disclosed this was not ―in -house‖ but a ―local examining physician.‖
o Rule: invasion of privacy balancing test:
degree of intrusion on privacy created by disclosure
v.
legitimate business interest in that information held by the employees to whom the
disclosure was made
Nelson v. NASA (*no longer good law)

o Facts: Science support staff is applying for renewal of contract with NASA which now
requires the completion of an extensive background investigation, including: any residential,
educational, employment, military history, 3 personal references, emotional and mental
stability and if they had used or been treated for drug use in past year, and included a form
authorizing the release of this information to other government agencies that may need it, all
in the name of ―national security‖. The employees sought injunctive relief.
EMPLOYMENT 8
o Holding: The court found that all of these questions into a person‘s background is too broad
and the court is not narrowly tailoring its actions to meet the interest of security. The choice
facing these employees was simply that they either disclose the confidential and private
information to potentially have their rights violated or you lose your job. Injunction granted.
o Rule: The government is subject to heightened scrutiny when prying into someone’s
personal background, which requires showing a legitimate state interest and the
government’s action have to be narrowly tailored to meet that legiti mate interest.
Is it a legitimate concern for employers to ask about the financial background of their prospective
employees, credit checks or about their previous mental conditions? Probably depends on the
position and the type of job you are trying to get
3. NEGLIGENT HIRING/RETENTION
Malorney v. B&L Motor Freight Inc.

o Facts: Trucker is hired by B&L. On the application, he is asked if he has committed any
vehicular or criminal offenses to which he answers no—the answer is not verified by the
trucking company (D). While on duty, the trucker picks up a hitch-hiker (P) who he rapes and
beats. The employer is held to have a duty to select an employee with reasonable care. In
this case they have a duty to entrust the car with a competent employee. The prior employer
of B&L has records of an aggravated sodomy charge but B&L did not the check his criminal
record. P sues company under respondaet superior.
o Holding: Employer has a rule against picking up hitchhikers but the court says they knew or
should have known they were prone to pick up hitchhikers. Determining whether there is a
duty is a matter of law and whether they exercised reasonable care is for the jury—not
entirely based on foreseeability. Employer has a duty to select an employee with reasonable
care, meaning check criminal background.
o Rule: Employer failed to check the criminal background and that was a breach of their
duty to their own employees and a breach of the duty to third persons.
Must show elements of negligence:
o duty
o breach
o causation
o damages
Keller v. Koca
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. Uzan lets in a 12-year-old (P) during
non-business hours and sexually assaults her. P sues.
o Holding: Employer did not owe duty to victim, since harm to her was not a foreseeable risk.
o The court said that this was not foreseeable, but did leave the possibility open for this
girl to bring premises liability—unwilling to place entire responsibility solely on
employer.
o Rule: Duty element requires foreseeability.
Kadlec v. Medical Center v. Lakeview Anesthesia Associates

o Facts: Anesthesiologist lets patient lapse into vegetative state at current job. Admits to on-
duty narcotic use. Current employer sues old employer for and intentional negligent
misrepresentation (two different claims) on old referrals and omissions of the employee‘s drug
use.
EMPLOYMENT 9

Page 6 of 26
o Holding: The defendants had duty not to make affirmative misrepresentations to clinic in
their referral letters concerning anesthesiologist; referral letters were materially misleading;
but they did not recommend anesthesiologist to clinic so this was not affirmatively misleading;
defendants did not have duty to disclose in their referral letters, absent misleading
statements.
o Rule: Employer does not have a duty to disclose, but if they choose to disclose, they
have a duty to not make affirmative misrepresentations concerning previous
employees.
elements of intentional misrepresentation :

!
misrepresentation of a material fact
!
intent to deceive
!
causing justifiable reliance with resultant injury
elements of negligent misrepresentation :

!
duty of defendant to supply correct information
!
breach by omission or affirmative misrepresentation
!
cause damages to the plaintiff based on the plaintiff‘s reasonable reliance on
the misrepresentation
C. TESTING OF APPLICATIONS AND EMPLOYEES
1. POLYGRAPH AND PERSONALITY TESTS
o Congress passed the Employee Polygraph Protection Act of 1988 which makes it unlawful for
an employer to require or request an employee or applicant to submit to a polygraph or use
the results of such tests, except in limited circumstances.
o The act does not apply to public employees (because they have constitutional protections),
national defense and security contractors, security guard firms, and drug manufacturers and
distributors.
Concerns About Lie Detector Tests

1. Lots of questions about the accuracy and reliability of the tests, none of the validation
studies are recognized by the scientific world
2. Not everyone has these physiological manifestations when they lie
3. What may be observed may be an emotional reaction to the question but they may not
mean
4. The theydoesn‘t
chart are lying
tell if they are lying the interpretations by the examiner determines what
is a lie
a. Their backgrounds have been called into question
b. There is no benchmark of scientific background required
Soroka v. Dayton Hudson Corp.

o Facts: Target security applicants brought class action suit against the company for requiring
them to submit to a psychological screening. The test involved questions of religious beliefs
and sexual orientation.
o Holding: Target's pre-employment requirement of psychological screening violates both the
constitutional right to privacy and statutory prohibitions against improper pre-employment
EMPLOYMENT 10
Trusted by over 1 million members
Try Scribd FREE for 7 days to access over 125 million titles without ads or interruptions!
Start Free Trial

Cancel Anytime.
inquires and discriminatory conduct by inquiring into its applicants' religious beliefs and sexual
orientation. CA Constitution requires a compelling interest when violating the right to privacy
of job applications.
! no compelling interest in asking a store security officer about sexual orientation or
religion
! employer‘s justification was that these questions measure emotional stability—court
says you cannot assess emotional stability by asking about their religion/sexual
orientation
o Rule: Under California Constitution, any violation of the right to privacy of job applicants

Page 7 of 26
o Rule: Under California Constitution, any violation of the right to privacy of job applicants
must be justified by a compelling interest.
2. DRUG TESTING AND THE CONSTITUTION
o In the public employment the laws governing drug testing are governed by the 14th
amendment whereas in the private employment context employees must rely on statutory
schemes or common law theories like the tort of invasion of privacy.
o Public employees and the 14 th amendment-- employers must satisfy a less stringent
―reasonableness‖ standard in order to engage in drug testing.
! public employees are most successful in challenging drug testing when they are not
involved in dangerous, sensitive work or where there is no evidence to suggest that
employees have been using drugs
! random drug testing have been allowed for positions such as teachers because they
play an impressionable role in the lives of young children
National Treasury Employee Union v. Von Raab

o Facts: Customs agents being promoted to positions where they would have access to
confidential information, use of firearms, and direct intervention of drug interdiction were
notified that they will be subjected to drug testing through urinalysis (even if there was no
history of drug use).
o Holding: Urinalysis does not violate 4 th Amendment because Government has a reasonable
interest in drug testing customs officers —immediacy of the government concern outweighs the
minimal intrusion, ―diminished expectation of privacy‖. The court applied a balancing test
based on the reasonableness standard, the court notes that the immediacy of the
government’s concern and the minimal nature of the intrusion outweighed the
individual’s privacy interest and permitted the government to drug test customs agents.
o Dissent : There is no evidence that drug use caused agents to take bribes or if they carry
guns, cause poor aim and shoot a person. If you test people that carry firearms because they
are responsible for keeping our public safe, then you‘d have to test people like bus drivers,
crossing guards, and others who are also likely to cause harm to the public safety.
o Rule: Drug testing balancing test:
public need for programs
vs.
individual’s privacy concerns and the determination of whether a warrant, probable cause, or
some level of individualized suspicion is required
Chandler v. Miller
o Facts: State statute in Georgia requires those running for public office to submit to a drug
test.
o Holding: Georgia's requirement that candidates for state office pass a drug test does not fit
o
within the closely
Rule: Where guarded
public safetycategory of constitutionally
is not genuinely permissible
in jeopardy, Fourthsuspicionless
Amendment searches
precludes
suspicionless search, no matter how conveniently arranged.
EMPLOYMENT 11
for private sector employees : such challenges usually maintain that the process of specimen
collection invades employee‘s privacy or that the test itself reveals sensitive private information.
o rely on legal arguments based on state constitutional provisions, statutory regimes, or
common law doctrines but are generally less successful than their public employee
counterparts
3. DRUG TESTING (CONCLUSION)
19 Solid Waste Dept. Mechanics v. Albuquerque

o Facts: City employees challenge city‘s alcohol and drug policies on the grounds that they are
violations of 4th and 14th Amendments.
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 , and thus
constituted unreasonable search and seizure
o Rule: Court examines the nature of the privacy interest upon which the search at issue
intrudes and the character of the intrusion that is complained of, and, the nature and
immediacy of the governmental concern at issue and the efficacy of the challenged
test for meeting it.
Luedtke v. Nabors Alaska Drilling Inc.

(right to privacy in the private sector)
o Facts: Paul and Clarence Luedtke worked on an oilrig for Nabors Alaska Drilling. During a 28
day of absence, Paul had a physical where he provided a urine sample that was unbeknownst
to Paul was tested for drugs and came back positive for marijuana. The report was given to
his employer. He was suspended and the company decided to instituted a blanket
suspicionless
!
drug testing
cause of action: policy,
intrusion uponwhich both brothers
seclusion (aka the were refused
right to be leftand were
alone) terminated.
AND breach of
good faith and fair dealing.
o Holding: Remanded on if the initial suspension violated the implied covenant of good faith
and fair dealing (he didn‘t know he was being tested then). The court held that the
termination did not:
1. drug testing program did not violate state constitutional right to privacy because
provisions do not apply to private actors ;
2. constitute a public policy tort because the employer had the right to make sure
employeesofdid
3. discharge not put themselves
employees or others
did not violate in danger
implied covenant of good faith and fair dealing
because that test was proposed at a time reasonably contemporaneous to the
employees ..
o Rule: With private employer (at-will doctrine!), the state constitution must afford a right
to privacy to invalidate drug test program.
! public policy: employees have some right to privacy based on common law, statutes, and
state Constitution
! private employees will have a difficult time mounting state constitutional or
common law challenges to private work place drug testing programs as long as
some basic procedural benchmarks, concerning notice and timeliness, are followed
by the employer
**this case was assigned so that we can see when the court can infringe upon a persons privacy
rights because of the job they hold
D. WORK ENVIRONMENT

Page 8 of 26
D. WORK ENVIRONMENT
EMPLOYMENT 12
1. GROOMING AND DRESS
Kelley v. Johnson
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. The regulation
required short hair, no sideburns, moustaches, beards or goatees except for medical reasons.
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.
o Rule: Choice of organization, 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.
Jespersen v. Harrah’s Operating Co, Inc.

o Facts: Female bartender at a casino is told to wear make-up. She refuses and is terminated.
She brings a suit against the casino under Title VII sex discrimination.
o Holdings:
1. requirement that only female employees wear makeup was insufficient to establish prima
facie Title VII sex discrimination based on disparate impact;
2. Court of Appeals would not take judicial notice of asserted fact that it cost more money
and took more time for a female employee than a male employee to comply with
employer's grooming policy; and
3. grooming policy did not constitute impermissible sex stereotyping, as would establish that
gender played a motivating role in employer's policy.
! Rule: Private employees may reasonably regulate the grooming and dress of their
employees.
E. PROTECTING PRIVACY ON THE JOB
1. CONSTITUTIONAL AND STATUTORY RESPONSES
Fourth Amendment protections (searching offices) .

In deciding whether public employees have such protections, the court should first decide
whether the employee has a (1) reasonable expectation of privacy in different parts of her
office. If so, the court should next (2) balance the privacy interests of the employee against
the legitimate interests of the employer in running an efficient governmental workplace .
The ―special needs‖ for legitimate work -related, non-investigatory intrusions and investigations for
work-related misconduct mean that it is not necessary to obtain a warrant based on probable
cause in this context. Such searches are instead judges by overall reasonableness .
Bodewig v. K-Mart, Inc.

! Facts: Plaintiff was a K-Mart checker accused by customer of stealing her $20. Manager
turned-out plaintiff‘s pockets then had female supervisor observe strip search down to
underwear. Customer also observed strip search. Plaintiff quit the next day and is now
claiming the tort of outrageous conduct, and K-Mart defends by saying she consented.
EMPLOYMENT 13
! Holding: This court says there are two kinds of outrage: intentional and that based on a
special relationship between the parties. The customer‘s manner was outrageous: she did
have a right to seek her money back but did so outrageously—and because of employer‘s
dominance over the plaintiff here was sufficient to establish a special relationship. Court
analogized to landlord-tenant.
! Rule:
! If the plaintiff had been put on notice that she might be strip-searched or she consented to
it without coercion, then her privacy claim would fail. This court denied K-Mart‘s consent
defense because the plaintiff (16 year old) was in an inferior position.
! What are plaintiff‘s chances of a wrongful discharge tort claim? Possible sources of public
policy: 4th amendment, state privacy statutes, common law tort claims for privacy
violations.
Vega-Rogriguez v. Puerto Rico Tel. Co.

o Facts: Employees contest 24-hour video surveillance at workplace, claiming this policy
constitutes an unreasonable search and seizure.
o
Holding: Court assumes that employees have subjective expectation of privacy while at work
so the issue is whether this is an objectively reasonable assertion of their expectation of
privacy.
o Employees lacked objectively reasonable expectation of privacy against disclosed,
soundless video surveillance while toiling in open and undifferentiated work area.
o Employees lacked fundamental right to be free from surveillance.
o Surveillance did not violate employees‘ substantive due process rights.
o Rule: To violate 4 th amendment rights, the complainant must have an actual
expectation of privacy and that expectation must be one which society recognizes as
reasonable.
! Court also held that businesses have lesser expectation of privacy than homes—
you do have some expectation of privacy at work however you need to consider
whether the area in question was given over to an employer’s exclusive use.
2. COMMON LAW RESPONSES

Page 9 of 26
The common law recognizes 4 causes of action for invasion of privacy:
1. The defendant has publicly disclosed private facts about a person
2. The defendant has intruded upon a person‘s seclusion
3. The defendant has shown a person in a false light
4. The defendant has appropriated the name or likeness of a person
The cause of action most often used by employees is intrusion upon seclusion. The elements of
this tort are:
1. An intentional intrusion by defendant
2. Upon the plaintiff‘s seclusion or private affairs
3. In a manner that is highly offensive to a reasonable person
Smyth v. Pyllsbury Co.

o Facts: Employee is discharged for what he sent over company e-mail server.
o Holding: Termination of at-will employee for sending inappropriate e-mail did not violate
public policy.
o Rule: Reasonable expectation of privacy is lost when you send an e-mail over the
company server.
EMPLOYMENT 14
Catalano v. GWD Management Corp.

!
!
Facts : McDonald‘s
Holding : strip search case.
! Rule:
3. OFF WORK ACTIVITY
Rulon-Miller v. IBM Corp.

o Facts: IMB terminated low-level employee after accusation that she was in a relationship with
a manager of a rival company (a former employee at IMB). IMB knew about the relationship
before offering a promotion, which she accepted. One week after her promotion, she was
called into the office and told she had to stop dating because he worked for a rival company.
Then call her in the next day and said she was ―reassigned‖ due to a conflict of interest. She
says she was terminated claims wrongful discharge and intentional infliction of emotional
distress.
o Holding: Even though this is employment at will, IBM had a duty of good faith and fair
dealing, which applies rules regulations consistently. IBM did not have a policy against
romantic relationships, but claimed they could inquire into the private lives of their employees
because it could diminish morale—even though they provided no evidence. Company had
an express policy on employee privacy and a history of condoning relationships.
o Rule: While acting in disregard of company policy is unfair—it is extreme and outrageous
to remove free choice in contradiction of earlier statement, especially if designed to
humiliate the party—satisfies the extreme and outrageous conduct requirement for an
IIED claim.
! What if there was a relationship between employees of two competing corporations who
had essential information about the business and profit seeking plans?
o
If
thethere is a policy
employer mighttowin
protect
if thethe
juryprivacy
got theofsame
the employee (such as
jury instruction as in
thethis
IBM case)
case
which would balance the privacy interest of the employee and the business
interest of the company.
! Is it sufficient for a company to say that this person has a conflict of interest because they
are in the position to share our company secrets with other people/ is this even in privacy
interest?
o at-will employment means you can be fired at any time for anything.
elements
o
of intentional
defendant infliction of
acted intentionally or emotional
recklesslydistress
o if special relationship, no need to show intent just recklessness (Bodewig: a
reasonable person would have known the conduct would have upset a reasonable
person)
o conduct was extreme and outrageous
o while acting in disregard of company policy is unfair—it is extreme and outrageous
to remove free choice in contradiction of earlier statement, especially if
designed to humiliate the party (Rulon-Miller)
o actions caused emotional distress
o emotional distress was severe
McCavitt v. Swiss Reinsurance America Co.

o Facts: Two employees of Swiss Co. were dating each other one of them (P), a highly
regarded employee, was passed over for a promotion and then terminated. Claims he cannot
EMPLOYMENT 15
be fired for recreational off work activities. The federal court looks at the highest court in
the state of New York and decides whether dating was seen as a protected recreational
activity. The court decides that dating is NOT a recreational activity.
o Holding: In NY it is unlawful to terminate an employee for legal recreational activities outside
of work hours—romantic dating is not a protected recreational activity. The coulrd would not
likely find a romantic dating a recreational activity.
o
Rule: Absent
contract a constitutionally
—an employer impermissible
can terminate at will. purpose, statutory proscription, or
**the ONLY state that does not have at-will employment is Montana – you need to have an
express statement of cause.
Poirier v. Mass Dept. of Corrections

o Facts: Prison guard trying to have a relationship with a former inmate in MA and you cant.
Its not protected because the court will give deference to the state to protect stuff.

Page 10 of 26
Its not protected because the court will give deference to the state to protect stuff.
o
o Holding
Rule: :
F. FREEDOM OF EXPRESSION ON AND AWAY FROM THE JOB
For public employee to make out First Amendment retaliation claims based on their speech, they
must prove that the conduct at issue was constitutionally protected , and that it was a
substantial or motivating factor in the termination . AND MUST BE A MATTER OF PUBLIC
CONCERN.
! the government can escape liability by showing that it would have taken the same action even
in the absence of the protected conduct
Considerations...
! do the statements in question impair the disciplinary authority of superiors
! the harmony among co-workers
! the close working relationships for which personal loyalty and confidence are necessary
! the performance of the employee‘s duties
! the regular operation of the enterprise.
Rankin v. McPherson
o Facts: A Texas constable fired a data-entry employee in his office for saying to a co-
employee (in reference to the Regan assassination attempt), ―if they go after him again, I
hope they get him‖.
o Holding: The Court applied the balancing test established in Pickering and found:
! the statement by employee dealt with matter of public concern (because they were
about the President)—even though made in a private context and was not discrediting
the agency
! constable's interest in discharging clerical employee in constable's office for making
statement did not outweigh employee's rights under First Amendment because she
was not a policy maker, was not discrediting the agency, was not a threat to kill the
President
o Rule: Protected Work Speech Balancing Test :
interests of the employee commenting on matters of public concern
v.
interests of the state as an employer and providing sufficient services
EMPLOYMENT 16
o Dissent: This would expand the range of protected speech and allows anyone who is not a
policy maker to can say anything they want and we can take no action.
Curay-Cramer v. Ursuline Academy

o Facts: Former teacher at private Catholic school sued school, individual school officials,
and others, 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. She originally sues under the gender
discrimination ordinance and the court determines that this has nothing to do with an illegal
employment practice but rather goes to a religious tenement.
o
Holding: (1) teacher did not engage in protected activity when she signed newspaper
advertisement, precluding retaliation claim—by saying she was pro-choice, she was basically
not protesting any employment practice here, and (2) sex discrimination claim was not
cognizable, since it would necessitate court's assessment of relative severity of violations of
church doctrine, in violation of First Amendment.
o Rule:
Novosel v. Nationwide Insurance Co.

o Facts: Employee was fired by his employer after he refused to lobby on a political issue on
the employer‘s behalf. Sued for wrongful discharge in violation of public policy. in former
o Holding: (1) former employee's allegations of discharge for refusal to participate
employer's lobbying effort and his privately stated opposition to company's political stand
stated claim for wrongful discharge under Pennsylvania law-- the employer‘s termination
was in violation of Pennsylvania’s public policy because that policy encompassed
rights of political expression and association derived from both the federal and
Pennsylvania state constitutions.
o Rule: Factors to be considered in discharge for refusal to participate in lobbying:
! whether, because of speech, employer was prevented from efficiently carrying
!
out its responsibilities
whether speech impaired , employee's ability to carry his own responsibilities ,
! whether speech interfered with essential and close working relationships , and
! whether manner, time and place in which speech occurred interfered with
business operations.
Note: For the private workplace :

Novosel has not been upheld in any other court!!! Currently—unless private sector workers have
statutory or contractual protections, such as under a state Hatch Act, individual employment
contract, or of
affiliations beliefs.handbook, they remain without workplace protection for their political
company
Jordan v. Ector County

! Facts: Two County Clerk employees run for County Clerk. When one wins (Morgan), the
other (Jordan) stays on but is demoted. After an incident where Jordan goes into a locked
judge‘s off ice, Morgan fires her. It comes out that Morgan fires her because they were about
to run against each other again.
! Holding: Court engages the Pickering test (public concern and individual interest v.
efficiency of government and public services) and finds that this is a matter of public concern
but her Employee engaged in protected activity involving hybrid of speech and political
affiliation.
! Rule: For a public employee to prevail on a First Amendment retaliation claim, she
must prove that:
(1) she suffered an adverse employment decision ;
(2) she was engaged in protected activity ; and
(3) the requisite causal relationship between the two exists
EMPLOYMENT 17

Page 11 of 26
You have to consider how the company (agency) would treat other people in the similar situation.
If other employees in the clerks office had done the same thing and weren‘t terminated than the
employer has a problem. The motivating factor in Jordan‘s term ination could have been the fact
that she was a rival (court placed a lot of emphasis on this)
III. DISCHARGE AND TERMINATION OF EMPLOYMENT
A. THE EMPLOYMENT AT-WILL RULE

Employment At Will Doctrine : the employer can fire you for pretty much any reason and you
can leave for any reason, the employment relationship can be terminated by either party for any
reason or no reason at all at any time—seems to favor employers
Montana: Wrongful Discharge from Employment Act (1987)

At will employment is the rule in every state but Montana, which passed the Wrongful Discharge
from Employment Act in 1987. After completing the probationary period, the employer cannot fire
the employee absent ‗good cause,‘ which the statute defines as ―reasonable job -related
grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of
the employer’s operation, or other legitimate business reason.‖
Buian Jacobs and Co.

o
Facts
month: contract--
P is offered
―It isa scheduled
contract tothat
workyour
in Saudi Arabia in
assignment offering
Saudi aArabia
MONTHLY salary for
will continue for an
a 18-
period of 18 months‖. He is terminated after arriving in Saudi Arabia. He sues under breach
of employment contract—the employee says that the letter was a contract.
o Holding: The provision of employment contract was not sufficient to transform an at-will
employment relationship to a contract of specific duration. The letter was not an intended
contract and was terminable at any time (carefully chosen language). There was no mutual
obligations of the parties. The employee relied on this job promise but he didn‘t give up h is
job, his travel expenses were covered.
o
Rule: An
certain employment
duration createscontract not specifically
employment intended
relationship byterminable
which is the partiesattowill
be by
anyeither
party without cause and without liability.
If you have at- will employment and your job is taken away, you don’t really have any
remedy. Even under promissory estoppel theory, the most you could probably get is
something like your moving expenses.
B. EROSIN OF AT-WILL EMPLOYMENT

Contract Erosions of Employment at Will
Since employment at-will rule is the default rule, the relationship can be changed by contract.
Contracts can be written or oral, express or implied, definite term or satisfaction, or through a
collective bargaining agreement.
o written contracts: specify the length of time, or limits the circumstances under which
the employer may discharge the employee ! no longer employment at will
! which standard of discharge should be implied into a employment contract that is
silent onmost
! the issue?
courts would imply a ―just cause‖ standard into the term of the contract
! what does ―just cause‖ mean?
EMPLOYMENT 18
!
each party will argue from their own point of view as to why their action was
correct or justified
! what are the consequences if an employee quit during a term contract?
!
employment contracts should be interpreted symmetrically—the employee, like
the employer, may terminate the employment contract for just cause
o oral contracts: problems that arise--

! nearly every employee has heard language from his employer assuring job
security
take to be —acould beenforceable
legally interpreted as words of encouragement that an employee could
promise
! courts require the employee to show that the employer made contractual
representations and that the employee furnished additional consideration ,
beyond continued employment, in reliance on those representations
! it is difficult to prove exactly what was said years afterwards
! statute of frauds—nullifies oral contracts which are not performable within year
!
if an employee asserts a contract for employment ‗until requirement‘ most
courts will refuse enforcement if the employee is young and not anywhere
within retirement age

1. THE PUBLIC POLICY EXCEPTION
(includes whistle blowing, exercising a right —statutory or constitutional, etc.,)
Employment tort remedies are far more generous than employment contract remedies.
Wrongful discharge in violation of public policy .

Public policy allows the employee to serve the public interest notwithstanding the employer‘s
displeasure (public policy tort still applies even if a contract is signed; this cannot be waived).
Can be defined two ways:
1. requires that the public policy be articulated in a constitution, statute, regulation, or
judicial holding
2. the employee can articulate a public good or civic duty (much broader)
Gantt v. Sentry Insurance

o Facts: The plaintiff was advocating on behalf of another (Bruno) who was a subject of sexual
harassment at work with upper management. He cooperated with the Department of Fair
Employment and Housing investigation into these claims. Ultimately he was demoted from
his managerial position down to a sales position—claimed constructive discharge and he
ultimately left the job.
! constructive discharge: when your employer makes your work environment so
horrible that you are forced to resign (finding a new job before resignation may affect
your damages but you can still bring the claim)

Page 12 of 26
o Holding: Employee who was terminated in retaliation for supporting co-worker's claim of
sexual harassment had a cause of action for tortious discharge against public policy. The
public policy is found in California‘s anti -discriminations statute?
o Rule: When bringing a claim of wrongful discharge for violation of a public policy- the court
asks would you want to public to do what the plaintiff had done without impunity? Do we want
to encourage this as a public policy matter? Do we want people to report discrimination who
are not victims themselves?
At-will employee possesses tort action when:
! he or she is discharged for performing act that public policy would
encourage,
! or for refusing to do something that public policy would condemn
There has to be an adverse action as well (such as a demotion or discharge) to bring this claim.
EMPLOYMENT 19
The court was also looking at public policy questions of (along with the discouragement of
discrimination) employees feeling comfortable to cooperate or tell the truth without the fear of
being fired.
Arres v. IMI Cornelius Remcor, Inc.
o Facts: Employee suggested to employers that they terminate people who may have
fraudulent SSI cards. Employer tells her to notify the employees to correct the error. She
refuses to do this because she believes it to be unlawful and is fired for poor performance.
o Holding: The employers attempt to supplement the information was reasonable but this
employee action into her own hands due to her own idiosyncratic view of what the law is—
although she believed what they were doing was illegal, she didn‘t go about her objection the
o
right
Rule:way —noPolicy
Public publicexception
policy exception found.
is allowed even if the employee asserting it is incorrect about
the law which he or she is trying to uphold.
A theory of retaliatory discharge under Illinois law requires an employee to show:
(1) that she had been discharged ;
(2) that her discharge was in retaliation for her activities ; and
(3) that her discharge violated a clearly mandated public policy of the state of Illinois.
In some cases it is warranted for the employee to blow the whistle but here the employer is acting
in a reasonable
CEPA manner.Employee Protection Act (NJ)
– Conscientious
Serrano v. Christ Hospital

o Facts: Serrano was employed at a hospital and had signed a confidentiality agreement. She
had to interpret for an elderly woman who thought she had meningitis and thought grandkids
may have gotten it. (Serrano saw the kid cough and she said they probably shouldn‘t go to
school.) Serrano informed the school about the possibility the kids may have meningitis, the
school pulled the kids out of class, and Serrano is subsequently fired for disclosing the
information. The family sues.
o Holding: The court says that even though there is not specific statute to allow this, there is a
public policy interest. There are two public policy issues at play —balancing the act of
conveying confidential information and protecting young children —protecting children
wins out.
! There is also a public policy interest in the confidentiality of patients but there are
exceptions to this interest.
! The interest of children here outweighs but the court will let the jury here decide which one
outweighs for sure without being definitive.
Public policy claims arise when there is a statutory or constitutional right at issue or if you
refuse to commit an unlawful act.
The means by which you try to enforce the public policy or whistle blow is important.
! Example: An employee was fired for throwing punches to prevent someone from drunk
driving, no exception found because although the intentions were noble, the employee
could have gone about accomplishing this in a better manner!
2. BREACH OF CONTRACT TERMS

You need to have an offer, acceptance, and consideration.
You have a unilateral or bilateral contract.
Term of a contract are bargain for exchange.
Gordon v. Matthew Bender & Co.
EMPLOYMENT 20

Page 13 of 26
Improve Your Experience '
Rating will help us to suggest even better
related documents to all of our readers!
$ Useful
% Not useful
! Facts: Gordon sold overpriced law books for Matthew Bender. The company sent him a
letter saying that he was on probation and must perform to satisfaction by meeting his sales
goals in order to continue on with the company. There was no time period mentioned. The
offer here is dependant upon the satisfactory performance of the plaintiff. Gordon gets fired
right before his pension would have kicked in and he bring suit.
! Holding: The employer could not terminate (in bad faith) prior to the vesting of pension to
avoid paying the pension. Also, satisfactory performance is a subjective standard as
compared to just cause, and the company should have had employment termination based on
just cause rather than satisfactory performance. Satisfactory performance is applied in every
contract—but this was not a contract.
! Rule:
1. Employee at-will may not be deprive d of commissions, in large part ―earned‖
prior to separating from employer, by discharge made in bad faith and intended
to deprive employee of the commissions.
2. Unless you have an express written contract it’s very difficult that the court will
enforce a contract claim just based on oral promises or discussion.
Scribner v. Worldcom, Inc.

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
o
stock options
Holding to employee.
: 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: You cannot deprive an employee of bargain-for terms (pensions, stock options)
by operating in bad faith.
Here we have a stock option contract. Scribner was terminated to facilitate an asset sale and he
was fired without cause. This case is about what cause is or is not. The court granted summary
judgment for the employee and the appellate court upheld. The court looked at the contract and it
wasn‘t clearofexactly
The terms whether
the contract there
were was just by
interpreted cause provision
the stock andcommittee
option exactly what
whojust cause meant.
reviewed
Scribner‘s case and they determined that he was terminated for cause. The purported cause in
this case the court determined was a performance related term.
Pugh v. See’s Candies, Inc.

o Facts: Wayne Pugh, a 32 year employee of See‘s Candies, had started as a dishwasher and
worked his way up to Vice President of Production, and a member of the board of directors.
Prior to his termination, See‘s had a record setting year for which Pugh was largely
responsible, and See‘s never gave Pugh any indication that his performance was less than
stellar. Nonetheless, when Pugh returned form a trip and See‘s fired him without explanation.
Pugh sued for breach of contract.
o Holding: Conduct which created this implied in fact contract was:
! the duration of Pugh‘s employment
! the commendations and promotions he received
! that apparent lack of any direct criticism of his work
! the assurance of job security he was given, and
! the employers acknowledged practice of not terminating administrative
personnel except for good cause.
o Rule: Employer’s conduct can give rise to an implied promise not to act arbitrarily
creating an implied in fact contract.
NOTE: A later case retreated this case by clarifying that long tenure is one factor in the
determination of an implied in fact employment contract, but it cannot alone form such a
contract.
EMPLOYMENT 21
3. EMPLOYEE HANDBOOKS
Handbooks fulfill the statutory notice requirement and can create a defense in other types of
employment claims.
An employment manual can contractually convert at-will employment into just-cause employment
by implication. To avoid this, employers should add a PROMINENT, CLEAR, AND SPECIFIC
disclaimer in the handbook that reminds the employee that the position is at-will.

Page 14 of 26
Depending on the state, the manual can create employment contracts that can be upheld
even if the employee had no knowledge about it or have read it.
AMENDMENTS WITH DISCLAIMER: To amend a handbook is to place a disclaimer in the front

reserving the right for the employer to rescind or modify information. Employer simply needs to
give employee adequate notice of the changes.
AMENDMENTS WITHOUT DISCLAIMER: Any modifications made to the handbook have to be
done in traditional contractual ways (offer, acceptance and consideration).
! other courts take the position that the promises in a manual only bind the employer as
long as they wish to be bound
! yet other courts have held that employers can unilaterally modify the job protection
promises only after a reasonable time, with reasonable notice, and without interfering with
the employee‘s vested benefits
Woolley v. Hoffman-LaRoche, Inc.

o Facts: P works as an engineer for D. There is no written employment contract. After writing
a report about piping problems that his superiors did not like, he is asked to resign or be fired.
P declines. P is fired.
o Holding: Absent a clear and prominent disclaimer, 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.
o
Rule: An
within employment
it (unilateral manual can contractually obligate the employer to the terms
contract!)
Bankey v. Storer Broadcasting Co.

o Facts: NA
o Holding: In Michigan, employer may unilaterally change written discharge-for-cause policy to
employment-at-will policy, 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,
reasonable notice of change must be uniformly given to affected employees.
Nicosia v. Wakefern Food Corp

o Facts: Low-level employee (P) is fired for mishandling merchandise. P files wrongful
termination suit for not following the manual‘s procedures. 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 3,000 of the employees.
o Holding: Employee handbook created implied contract of employment.
o Rule: Disclaimer location: In determining whether handbook is enforceable contract of
employment, courts look to reasonable expectation of employment. The handbook must
be widely distributed
EMPLOYMENT 22
4. PROMISSORY
*usually a secondESTOPPEL
best claim that is used when a straightforward breach of contract claim in
untenable
The contract theory of promissory estoppel enforces promises that induce reasonable reliance.
A promissory estoppel claim can be divided into 4 elements:
1. a promise
2. which the promisor should reasonably expect to induce action or forbearance
3. which does induce such action or forbearance
4. resulting in injustice
EXAMPLE: employer makes a job offer and the prospective employee resigns her current job and
moves to the employer‘s place of employment, and the employer rescinds the job offer at the last
minute
o the offer was illusory since neither party was bound to anything and the original job offer as
at-will
o many plaintiff who move for job offers in this scenario argue that relocation constituted
―additional consideration‖ sufficient to support an implied promis e by the employer to
discharge only for cause
Pepsi-Cola General Bottlers, Inc. v. Woods

o Facts: P is orally promised a job with Pepsi provided that she quit her other jobs. She
discloses that her boyfriend works for Coca Cola. Pepsi says it isn‘t a problem, but she is
terminated before she reports to work. She subsequently finds a job at the Ramada for a few
weeks until she could found a job that would pay her a comparable salary to the one offered
by Pepsi. P sues on promissory estoppel theory.
o Holding: P had right of action under promissory estoppel, 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,
plaintiff was not entitled to recovery. Court indicates she may have been able to recover
moving expenses.
o Rule:
! If tenure of service cannot be determined from terms of contract, such contract is one at will,
and may be terminated at any time
! Promissory estoppel is a viable theory but the problem is the damages; so you want to make
sure that your damages are reasonable in relation to the job offer and something moving
expenses etc. You have to make sure the damages are not speculative. The damages have
to be based on reasonable action someone would take in response to a job.
! Promissory estoppel is a contract theory but its not really a contract, it is only to get you the
damages from relying on a promise but in a reasonable light.
! The benefit for Pepsi to appeal this judgment is so that they wouldn‘t have to pay salary;
they‘ll pay the moving expenses but in any other case the salary might be much more than
the one in this case.
! If it is an at-will situation then you will not collect your salary. It is far too speculative because
you don‘t really know how long you would have worked t here.
5. COVENANT OF GOOD FAITH AND FAIR DEALING
Good faith not generally applicable to at-will employment.
Murphy v. American Home Products Corp.

o Facts: Accountant Joseph Murphy claimed that he was fired because he had told the board
that company officers were engaging in accounting improprieties. Murphy argues that the

Page 15 of 26
EMPLOYMENT 23
covenant of good faith and fair dealing should be implied into his at-will employment contract,
and that because it was part of his job to report accounting improprieties, his discharge
violated the covenant. Also tried to allege a public policy/whistleblower exception.
o Holding: There is no implied obligation of good faith in at-will contract of employment. He
was not a contract employee and you cannot have a breach of contract theory without an
underlying contract. His public policy claim was dismissed—the matter was shelved for the
legislature to deal with it.
o Rule: An obligation of good faith and fair dealing on the part of a party to a contract
may be implied and, if implied will be enforced. The covenant of good faith will not,
however, fetter an employer’s right to terminate an employee. (NY)
! NY court of appeals refused to imply the covenant of good faith into the at-will
relationship. Any limitation to the employe r’s right to fire should come from
legislature or an express contract.
! NY later passed a whistle blowing statute which says that if you were trying to stop a public
health and safety issue, you have to prove that there is a health or safety issue (very
restrictive). One year SOL for a NY whistle blower claim.
! In NJ, all you need is a reasonable belief that your employer was breaking the law even if he
wasn‘t.
Case where the court has found implied covenant of good faith in at-will employment , but
―good faith‖ is defined narrowly to mean that employers cannot expropriate benefits already
earned by employees: Fortune v. National Cash Register—see below.

Fortune v. National Cash Register
o Facts: P is employed by written contract as a salesman who receives commission for his
sales. Prior to completing a big sale, the company terminates him.
o Holding: Fortune fired P so avoid paying him the full commission (which would have been
close to $100,000) (1) even though salesman's contract was terminable at will, there was an
implied covenant of good faith in the contract, and (2) evidence sustained determination that
employer had discharged the salesman in order to avoid paying certain bonuses to the
salesman.
o Rule: Under covenant of good faith and fair dealing, employer cannot terminate
employee to avoid contract terms. Where commissions are concerned —the
employer’s decision to terminate must be made in good faith.
C. OTHER PROTECTIONS FOR EMPLOYMENT SECURITY
Successful claims of wrongful discharge in violation of public policy typically fall into one
of four categories :
1. refusing to commit an unlawful act
a. examples: an employee refusing to testify and committing perjury, defrauding
employer‘s customers, or refusing to drive a truck which lacked a legally required
inspection sticker
2. exercising a statutory right
a. examples: worker‘s compensation, minimum wage, occupational safety and health
laws. (many statutes also have anti-retaliation provisions)
3. fulfilling a public obligation
a. example: being fired for participating in jury duty
4. whistle-blowing
a. source of legal protection:
a.) wrongful discharge in violation of public policy
b.) state statutory law
c.) federal statutory law
EMPLOYMENT 24
d.) constitution
b. scope of legal protection
a.) varies by state
c. burdens of proof
a.) Some states like NY require that the employee prove that the employee
reported an employer‘s actual violation of the statute whereas states
like Ohio, conversely, protects an employee who blows the whistle if the
employee reasonably believes a statute has been violated.
1. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, WHISTLEBLOWERS STATUTES
Many employment statutes and torts permit an employee to recover damages for emotional
distress the employee suffers when the employer acts wrongfully.
Elements of of the IIED claim:
1. D‘s conduct was extreme and outrageous
2. D intended to cause severe emotional distress to the P (high probability that conduct
would inflict such harm)
3. D proximately caused emotional distress to the plaintiff and,
4. emotional distress was so severe that no reasonable person could expect to endure it
Dudewicz v. Norris-Schmid Inc.

Facts: P got into an altercation instigated by another employee while working at an auto-
dealership. The P was trying to get a warranty or discount for a customer getting work done on
his car. The other employee tore P‘s shirt, cursed at him and left fingerprints on his shirt. P files
a complaint. Upon hearing about the complaint, employer tells P to drop it if he wants to keep his
job. P refuses to drop the complaint and leaves and the employer says that he quit and he says
heclaims:
P was fired.
o public policy exception : having victims of crimes reporting the crimes that are committed
against them
o whistle-blower claim : WPA protects employees pretty broadly from any illegal act by the
employer or from another employee
Holding:
o public policy claim: there is no common law theory that you are protected from being charged
from criminal activity by an employee or employer so your remedy is the statutory protection

Page 16 of 26
from criminal activity by an employee or employer so your remedy is the statutory protection
o whistle-blower claim: Michigan Supreme Court ruled that the WPA should be interpreted
broadly and applies to the acts of employer or other employees
Rule (for public policy): if you have statutory protection then there is no common law
protection available to you, so if you have statutory protection then you do not have a
common law claim
Rule (for whistle-blower): You have to look at what is considered business hours and
whether the issue of the fight matters.
o Was it during work hours? On work property? Was it about work issues?
o Example: What if the fight had been after work in the parking lot over baseball
issues??
Dissent: This incident came out of an altercation that was not business related so the whistle
blower protection would not apply but public policy might.
Wilson v. Monarch Paper

o Facts: Wilson worked for the Monarch Company for over 40 years and works his way up to
‗special assistant to the president.‘ His boss dies and the company hires an evil young man
to take his position. The new president tells him that he will not make anymore money and he
is given three options: take a sales job with half pay, termination in 3 months, or supervisor of
EMPLOYMENT 25
a warehouse which was the same pay but lesser position. Wilson goes with #3 but it turns
out the job is actually just to be in charge of housekeeping and janitorial work and he was
subject to harassment. Wilson starts to develop respiratory problems as well as emotional
problems and he starts to see a shrink. He is eventually hospitalized and he gets shock
treatment, gets put away etc. While this case is pending, the company files a counterclaim
against him for slander but the company withdrew it.
o Holding: At the trial the jury finds for Wilson. The court found that the extreme and
outrageous conduct was the degrading and humiliating manner in which he was stripped of
his position and given the position of working among people that used to work under him.
The court did express some reservations about applying it in the employment context but
Wilson was awarded the damages.
o Rule: The elements of the intentional infliction of emotional distress are very difficult
to prove.
! D has emotional distress
! conduct must be extreme or outrageous
! emotional distress needs to be caused
! must be severe
2. WRONGFUL DISCHARGE STATUTES
Montana law requires a legitimate business reason for termination (cannot be arbitrary,
capricious or whimsical). NO AT-WILL DOCTRINE.
MONTANA IS THE ONLY STATE IN THE USA THAT DOES NOT HAVE EMPLOYMENT AT
WILL.
Buck v. Billings Montana Chevrolet

o Facts: The company that Buck worked for was sold to another company. The higher officials
were supposed to resign but not the employees. Buck was a manager and did not have to
resign but he was fired. Relied on company manual, which said that you will have a job as
long as the company is producing, which Buck was, so he believed he would have a job. He
sues for wrongful discharge.
o Holding: Remanded because of employee manual. The court held that the new owners had
a legitimate interest in discharging Buck (the values of the business would be better served
managers that were part-owners)—their reasoning is fine so long as it only applies to upper-
level management.
o Rule: In Montana you have to have a legitimate business interest for a discharge
because the state does not have employment at will.
o legitimate business interest : cannot be completely arbitrary and has to have some
logical relationship to the business, takes into account the employer‘s interest to hire
and fire who they want, must be good cause for termination as long as the employer
has a business reason for it
o Dissent : Buck was a good performer by all counts and by allowing his termination; we are
basically rendering the statute meaningless since it is an arbitrary reasoning.
With this type of statute, the concern is whether employers want courts to be involved in the day-
to-day decision making for businesses.
3. PROPERTY AND LIBERTY INTERESTS

You have to be a public employee to have a property and liberty interest.
Goetz v. Windsor School District
! Facts: Goetz was a janitor at the Windsor school district while there were thefts going on at
the school. He gets arrested and suspended by the school district. After the arrest, the
school asked for a written confession from him and Goetz does not do this so he is
EMPLOYMENT 26
terminated. His allegation is that he was fired without due process because he did not have
the right to be heard and they fired him.
! Holding: Goetz has no property interest in his job because he was not implied for 5 years as
required by law. Otherwise he would have a had a property/liberty interest in his employment.
! Rule: Civil service employment positions can be legitimate property interests.
A liberty
Goetz wasinterest
beingclaim arises
labeled when
a thief andyou areisdefamed
there a stigmain theattaches
that course of
toathat.
termination, for example,
Mosrie v. Barry
o Facts: Police officer criticizes his superiors and is transferred laterally (to a worse
assignment, same salary but loss of ability to be promoted). He is stigmatized by talk before
his transfer and claims outside business losses because he used to guest lecture places, and
after his transfer he was never asked to lecture again. Asserts that he is being deprived due
process because of this stigmatization.

Page 17 of 26
process because of this stigmatization.
o
Holding : Police
prior to his being officer was not
transferred, anddeprived
thus he of
wasany liberty
not interest
entitled when
to due he was
process publicly criticized
protections before
transfer. Stigma lone does not give you a liberty interest in your reputation. Things like job
loss, demotion, procedural due process violations in addition to stigma may give rise to liberty
claim—defamation alone is not enough. (STIGMA PLUS)
o Rule: Deprivation of liberty must involve a removal, extinguishment, or significant
alteration of an interest recognized and protected by state law.
D. PLANT CLOSINGS
1. COMMON LAW AND STATUTORY RESPONSES
Local 1330, United Steel Workers v. U.S. Steel Corp.

o Facts: Two steel plants were closing in Ohio that employed 3,500 people. The employees
were tying to set up a deal where the community could purchase the plants and keep them
running. The suit involves the congressmen, Attorney General and the union suing the Steel
Company to keep these plants open. The court found for the steel companies and found
that there was no law out there to get a remedy under. One remedy that they said the
employee‘sThe
estoppel. onlypromissory
chance was to keepclaim
estoppel thesecould
steel have
plantsatopen
leastwas thepromissory
under
paused procedure to look at
it because the managers had promised the employees that if the workers worked at the plant
and if it was profitable then they would keep the plant open. The superintendant to the plant
made this promise and this is important because US Steel itself was not a part of this
promise. If someone higher up in the company had made this promise it might have been a
clearer offer and more valid.
! Another argument that was made was the community interest: basically saying that these
plants are community property and you can‘t shut them down because of the impact they
! will haveACT-
WARN on the community.
when a plant is completely closing they have to provide a 60-day
closing notice to give the employees time to look for another job. (Worker
Adjustment and Training Notification Act). You have to have at least 100
employees for the WARN act to apply and there is a layoff of 30% of the total
workforce or at least 500 people.
! WARN act applies if you close an entire plant. (threshold is 100 employees) If you are
laying off anywhere between 50-499 it has to be 33 1/3% or more of the entire workforce.
If you have more than 500 total employees being layed of then the WARN act is also
imposed.
EMPLOYMENT 27
Workers Adjustment and Retraining Notification Act (WARN)

Provides notice rights to workers facing the loss of jobs as part of a plant closing or mass
layoff.
Created to diminish harmful affects of plant closing (on workers and on the community in
general), provides employees transition time to seek new jobs or retrain and obtain swift
dislocated worker assistance from the state
REQUIREMENT
1. covers employees with 100 or more full-time employees
2. requires 60 days notice (must be in writing) for:
plant closings
o single site of employment that is permanently or temporarily closed
o AND the shutdown results in employment loss for 50 or more employees for
more than 30 days
OR Mass Layoffs
o a Reduction in Force (RIF) —not result of plant closing
o results in employment loss at a single site during 30 day period
o BOTH at least 33% of employees and more 50 workers fired
o OR at least 500 workers are fired
EXCEPTIONS: temporary closings do not trigger WARN or layoffs caused by the end of a
specified project, or a closing caused by a strike or lockdown
1. Faltering Company Exception
o only applies to plant closing
o must be actively seeking capital or business
o believes in good faith that giving advanced notice would prevent it from obtaining cash
! company must give as much good faith notice as possible, but because notice
might reduce chance of getting financing
!
2. Unforeseeablethere must be aCircumstance

Business realistic opportunity to obtain the capital
Exception
o applies to both plant closings and mass layoffs
o still must give as much notice as practical, but is not required to give 60 days if caused
by business circumstances not reasonably foreseeable at time when notice would
have been require
! reasonably foreseeable as if caused by dramatic, unexpected action outside of
employer‘s control
! example: a sudden or unexpected termination of a major contract, a strike or other
disruption
and at a majorgovernmental-ordered
an unexpected supplier, an unanticipated andofdramatic
closing economic turndown,
a worksite.
3. Natural Disaster
o the exception applies if ‗any form of natural disaster‘ makes advance notice of the
action impossible, however notice is still required to the extent it is practicable,
even if after the fact
IMPACT OF WARN
1. purpose: to permit workers transition time to adjust to prospective loss of employment and
facilitate re-employment
2. advance notice of plant closings associated with lower unemployment and poverty rates
three years later and lower usage of social welfare services
REMEDIES
Company can buy out violation from employees, so may not be issue (no standing).
1. Up to 60 days back-pay/benefits to employee
2. Attorney‘s Fee
EMPLOYMENT 28

Page 18 of 26
3. Civil Penalty of up to $500 a day of inadequate notice
2. WARN ACT LITIGATION
Carpenter Dist. Council of New Orleans v. Dillard Dept. Stores, Inc.

o Facts: A wholly owned subsidiary of Dillard‘s merged with Holmes and they didn’t give a 60 -
day notice because they didn’t count the part -time employees. They also made an
erroneous assumption because Dillard’s tried to take the 2 weeks vacation that they
owned them and use that with the 60 days.
o Holding: The WARN Act didn‘t apply because of the faltering company exception—the
company has to be actively seeking capital and if the employer announces that they will be
laying off all these people, they will not be getting any money.
o The WARN act also applies to the white-collar division as well.
Pena v. American Meat Packing Corp.

o Facts: American Meat closes their Chicago facility without giving notice to 350 employees.
The plant had to stop production after one of the inspectors found rat droppings. There were
5 USDA inspectors in site and many unsanitary conditions. The plant had to shut down and
throw away a lot of product, do renovations, and get new coolers so they can have sanitary
meant produced which cost them a lot of money. The company is still getting non-complying
notices and finally the rodent droppings lead to a stoppage of production. The plant had
brought in expert exterminators to stop the rats and also hired an attorney in order to get the
plant re-opened.
o
Holding: The plant has had a long history of unsanitary situations so the court says
that this is not really an unforeseen issue so the plant must give its employees the
required 60 days notice.
Roquet v. Arthur Anderson

o Facts: Arthur Andersen is a major accounting firm connected with the Enron scandal. The
company was indicted and the question is whether the indictment constitutes an unforeseen
business circumstance.
o Holding: The court held that it was not foreseeable because indictments against companies,
rather than
indicted thatindividuals, were rarewas
such an indictment andlikely.
the company‘s negotiationsbusiness
The unforeseeable with the DOJ had not been
circumstance
exception applies . The court stressed that the possibility of an occurrence is not enough.
Rather the business circumstance must be probable to be considered foreseeable.
E. LEAVING A JOB
1. BREACH OF EXPRESS TERMS
Handicapped Children’s Educ. Bd. v. Lukaszewski

o Facts: A speech language therapist was hired by the school board and was paid a little over
$10k. She had a contract for the coming school year. She gets a job offer for better pay and
tells the superintendant she wants to resign and he says to submit a letter so they can
consider it. She sends the letter but he declines and says that she has to finish her contract.
She has a hyper-tension disorder which is being aggravated by this and she gets a doctor‘s
notice telling the board that she has to quit due to the work-environment and the fact that she
doesn‘t want to be there any longer and it is not good for her health. So she quits and the
school board finds another teacher to finish her class and the board has to pay more to the
new
haveteacher. The
to pay the school
new then sues for breach of contract to recover the differences that they
teacher.
o Holding: The speech therapist has to pay the school what they have to pay the new teacher.
EMPLOYMENT 29
2. BREACH OF IMPLIED TERMS
Mercer Mgmt. Consulting, Inc. v. Wilde

o Facts: There are three defendants who used to work for Mercer who was the manager of a
consulting company. There would be no solicitation and they would not hire anyone from
Mercer for 1 year (1st agreement). The second agreement was after working for Mercer
for one year, they signed a non-compete clause that said they could not compete
within a 50-mile radius, or solicit clients . Mercer alleged that they breached their contract
and duty of loyalty and got confidential information and that is why the non-compete
agreement needed to be in place. The confidential information was from the client lists.
o Holding: The court finds that Mercer has a legitimate interest to protect their business.
The company has to show that the defendants are using the confidential material or
information to the company‘s detriment and also that the other people even has access to it.
The court says that as long as you are still performing and being loyal to your employer, you
are not in breach if you contemplate starting a new company or your own business.
o The employer does not suffer any damages if the employees do not leave.
o Rule: The non-solicitation and non-compete agreement for one year was reasonable in
scope and protected the legitimate interest of the employer. The interest was that it
wanted to protects its employees and its clients .
NON-COMPETE AGREEMENTS
Non-compete agreements have to PROTECT THE LEGITIMATE INTEREST of the employer and
must be REASONABLE in scope (as far as time and area).
3 part analysis:
1. have to protect the legitimate interest of the employer
2. cant impose an undue hardship on the employee
3. can’t harm the public
Any non-compete signed by an attorney is INVALID.
Garden-Leave : You won‘t work at all for the employer for one year but the employer is paying
you. For example if there is a non-compete for one year after you stop working, the former
employer will pay you not to work for one year.
Non-compete agreements are just per se invalid in California; the state does not like them.
Employers seeking injunctions to prevent a former employee from working for the
competitor...
Must show reparable harm to the employer and likelihood of success on the merits .
Non-competes‘ are imp ortant today due to technology and the ease with which information can
be taken and stolen.

Page 19 of 26
be taken and stolen.
The employer‘s right to enforce a non -compete are not absolute.

There are elements that the employer has to establish as stated above.
1. The non-compete
protected: has
potential or to protect a legitimate
prospective interestthey
clients because of the employer.
were (notat the
not clients
time!!)
2. The legitimate interest is weighed against the undue burden or hardship on the
employee. (the employee has to be able to earn a living)
3. It cannot be adverse to the public interest.
4. Must be reasonable in scope as far as time and area.
EMPLOYMENT 30
Trusted by over 1 million members
Try Scribd FREE for 7 days to access over 125 million titles without ads or interruptions!
Start Free Trial

Cancel Anytime.
Courts can ―Blue -Pencil‖

the non-compete in orderand makeititwork
to make so that
andthe
beagreements
reasonable are reasonable. (They can change
in nature.)
Alternative Dispute Resolution
! Arbitration of Employment Disputes

oArbitration is proceeding, governed by a contract, in which a dispute is resolved by an impartial
adjudicator, chosen by the parties whose decision the parties have agreed to accept as final and
binding.
o Advantages of arbitration over litigation
!
Faster
!
Less expensive
!
Less formal than litigation (no rules of evidence or procure making it easier to prepare for a case)
o Disadvantages
!
Adhesive arbitration is involuntary
!
Controlling parties will draft a lopsided agreement
o In looking at t/enforceability of an arbitration agreement remember:
!
Purpose of t/FAA is to give arbitration agreement t/same enforceability as contracts
!
Federal court apply contract law of particular state in enforcing an arbitration agreement
!
Look at offer, acceptance, consideration, mutuality etc..
!
Class actions are not incompatible w/arbitration and compelling class arbitration in t/appropriate
case does not violate t/Federal Arbitration Act
!
Generally, when an arbitration agreement contains a single term in violation of public policy,
t/term will be severed and t/rest of t/arbitration agreement enforced
!
An arbitration agreement can be found to be procedurally unconscionable where it fails to show
t/disadvantages of an agreement.
o An employee is bound by a pre-dispute arbitration agreement to adjudicate unwaiveable
statutory employment rights provided:

!
1) The arbitration agreement does not limit t/damages normally available under t/statute
!
2) There is discovery sufficient to adequately arbitrate their statutory claim
!
3) There is a written arbitration decision and judicial review sufficient to ensure t/arbitrators
comply w/t/requirements of t/statute
!
4) T/employer pays all types of costs that are unique to arbitration
o In Mitsubishi Trilogy, t/ct interpreted t/FAA as creating a presumption that statutory claims
are arbitrable, and made this rebuttable only if the parties could show Congress specifically
intended otherwise
!
Such an intent must be discoverable in t/text of t/substantive statute, in its legislative history, or in
an inherent conflict between the arbitration and t/statutes underlying purposes.
o Under t/FAA, grounds for revocation of arbitration clause contained in a contract must relate
specifically to t/arbitration clause and not just to the contract as a whole

o Questions of arbitratibility must be addressed w/a/healthily regard for t/federal policy of favoring
arbitration

Page 20 of 26
EMPLOYMENT 31
o In EEOC v. Waffle House, t/ct held that the EEOC has t/independent statutory authority to
pursue in court a discrimination claim against an employer, even if the employee who filed the
initial charge of discrimination had signed an arbitration agreement
o
The FAA provides that state law governs contract formation issues concerning arbitration
agreements (9 U.S.C. 2)
o Courts generally agree that lopsided agreements should not be enforced. Courts have applied the
legal doctrine of unconscionability to regulate employment arbitration agreements.
o Court vary about whether an employee has received sufficient notice of arbitration
o In Circuit City Stores Inc. v. Adams held that t/FAA Chapter 1 Section 1 only excluded
employment contracts whose workers engage in interstate commerce only applies to employees
who actually engage in interstate commerce, such as truck drivers. Court also held an
arbitration agreement can be unconscionable if it unduly limits remedies available.
! Arbitration after Circuit City
o Hooters of America Inc. v. Phillips
!
HELD: 1) Employee can agree to arbitrate Title VII claims in a pre-dispute agreement 2)
Employer materially breached agreement by promulgating egregiously unfair rules
o EEOC v. Waffle House
!
HELD: An agreement b/w an employer and an employee to arbitrate employment related disputes
does not bar the EEOC from pursueing victim-specific judicial relief, such as backpay,
reinstatement, and damages, in an ADA enforcement.
! Rights of Employees and Arbitration
o Caley v. Gulfstream Aerospace Corp.
!
HELD: Dispute resolution policy that provided for arbitration of any covered employees that was
posted on the company’s website and mailed to employees individually w/cover letter explaining
t/employees continued employment would constitute their acceptance of t/policy qualified
“written agreement to arbitrate, w/in t/FAA… -Even though t/doc was not signed by t/parties
o Gentry v. Superior Court
!
F: Retail store manager filed purpoted class action against employer seeking damages for
conversion and statutory violations arising from employer’s alleged failure to pay its managers
overtime wages to which they were entitled. Employer had arbitration agreement in employee
handbook that did not describe t/disadvantages of t/agreement .
!
HELD: 1) Class arbitration waivers in employment agreements could not be enforced if
court determined that class arbitration would be significantly more effective way of
vindicating rights 2) Remand was required for trial ct to determine propriety of class arbitration
3) Arbitration Agreement was not free from procedural unconscionability
EMPLOYMENT 32
November 23, 2009

Fair Labor Standards Act (FLSA)
The purpose of the act is to protect workers (ex. regulates child labor) by
setting minimum wage, requiring employers pay time and a half for over
time, protecting against retaliation, and requiring employers to keep records.
- Statute defines employee as any individual employed by an employer.

- “Any arrangement where one party suffers or permits one party to work.”
- Does not apply to independent contractors or volunteers.
Federal minimum wage: $7.25

- FLSA allows states to set their own minimum wage so long as it is higher
then the federal requirement.
Exempt employees are not entitled to over time; non-exempt employees are
entitled to over time (time and a half for any hours worked over 40).
- There are certain types of jobs that do not get over time pay.
o Exemptions to FLSA:
!
administrative exemptions
!
professional exemptions
!
executive exemptions
!
certain computer employees
!
outside sales exemptions
!
highly compensated employee exemption

Page 21 of 26
highly compensated employee exemption
To fit into any exemption you have to make at least $450 a week.
primary duty test applies when determining whether an exemption applies:

what is the person’s principal job (most important duty)
where do they spend most of their time?
- administrative: $450 per week AND...
1. performing office or non-manual work directly related to
management or general business operations of the employer or the
employer’s customers,
2. primary duty: must exercise of discretion or independent judgment
over matters of significance
!
what to consider with discretion or independent judgment...
Search -
!
does the employee formulate policy for the company?
EMPLOYMENT 33
Download Now
!
&
can the employee bind the company through K?
!
does the employee have the ability to deviate from established
practices or procedures without getting approval?
!
is the employee form long term business plans for the company?
!
can the employee represent the company in complaints and
grievances?
- highly compensated employee exemption: minimum of $100K and fit into
one of the two criteria for the administrative exemption
- executive: must make at least $450 per week, management of the enterprise,
oversee 2 or more employees
o primary duty: authority to hire/fire or make appropriate
recommendations to hire/fire
- professional exemption: minimum salary requirement AND...
o learned professional exemption: primary duty in a field of science or
learning customarily acquired through a prolonged course of
specialized instruction, requires consistent exercise of discretion or
independent judgment
o creative professional exemption: primary duty involves the
performance of work requiring invention, imagination, originality,
or talent in a recognized field of artistic or creative endeavor (actors,
musicians)
- computer employee: no salary minimum, hourly pay must be at least
$27.63, no requirement of discretion or judgment
o primary duty must consist of at least one of the following:
!
application of systems analysis, techniques and procedures
(high level tech skills)
!
OR consulting with users to determine hardware, software, or
other system functional specifications
!
OR design, development, or documentation of computer systems
or programs
- outside sales: no minimum salary requirement because you earn on
commission, primary duty is making sales and/or obtaining sales for
contracts
) * + ,
- employee cannot waive rights to overtime pay!!
- an employer cannot rely on a job title to get exemption (being called an IT
support specialist which is just installing software onto computers—
Home Books Audiobooks Documents
EMPLOYMENT 34
EXCLUSIVE OFFER
(
software you didn’t make yourself, does not mean you are exempt from
Try Scribd for Free
overtime pay)
Unlimited* reading.
PRELIMINARY AND POSTLIMINARY TIME
IDP v. Alvarez
o Workers were complaining that the company was not paying the
meatpackers for the time that it took them to get their work clothes on. The
court said that the standard the employers would have to meet is whether
Read free what

forthe7 employee
days is doing is indispensible or integral to the work. The
court decided that this time was integral to their work and it therefore

Page 22 of 26
court decided that this time was integral to their work and it therefore
compensable.
MISCLASSIFICATION
Employer says the employees are exempt from overtime, but they are not?
Kuzinkski v. Shering Corporation
o Former sales representatives brought action against pharmaceutical
company, alleging failure to pay overtime wages in violation of FLSA.

Sales reps didn’t make sales/obtain orders/contracts to sell
pharmaceuticals, and thus outside sales exemption to employers' obligation
under FLSA to pay overtime wages did not apply to sales representatives;
sales representatives were not allowed to enter into sales contracts with
physicians, primary responsibility of sales representatives was to develop
relationships with physicians and provide information about drugs, and

sales were made by company to wholesalers and other retailers, rather
than physicians that sales representatives contacted.
o they promote the drug, which can only be obtained by a prescription for
that product, which leads to increased demands, and increased sales—
this is not a direct sale... Court says that they are not making any kind
of “sales” within the meanings proscribed by the FLSA
o The District Court held that sales representatives were not exempt from
overtime pay under FLSA.
Claudio-Gotay v. Becton Dickonson Caribe – this is a retaliation case. Claudio was hired by Becton
and approved invoices for security guard hours.
Rengifo v. Erevos Enterprise —an employee‘s rights under the FSA will no t be affected by their legal
status. The court is trying to protect undocumented workers against exploitation.
EMPLOYMENT 35
EMPLOYMENT 36

Page 23 of 26
Reward Your Curiosity
Everything you want to read.
Anytime. Anywhere. Any device.
Read For Free
Cancel Anytime
Share this document

. / 0 # 1
Related Interests
Negligence Defamation
Fourth Amendment To The United States Constitution
Employment At Will Employment
Documents Similar To emplyme…

Page 24 of 26
2
employment law Employment Law Labor Law Outline

outline Outline spring 2011
UPLOADED BY UPLOADED BY UPLOADED BY

avaasia John Ehrman Ken Kodadek
More From avaasia
Parol Evidence Rule Syllabus Land Use Land Use Outline

Chart 2009 SECRET
UPLOADED BY UPLOADED BY UPLOADED BY

avaasia avaasia avaasia

Page 25 of 26
ABOUT SUPPORT
About Scribd Help / FAQ
Press Accessibility
Our blog Purchase help
Join our team! AdChoices
Contact Us Publishers
Invite Friends
Gi!s
Scribd for Enterprise
LEGAL
) . / 3
Terms
Privacy
Copyright
Copyright © 2020 Scribd Inc. . Browse Books . Site Directory . Site Language: English

Page 26 of 26

Employment Outline 1

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Employment Outline 1

Uploaded by

Copyright:

Available Formats

emplyment law outline

Uploaded by avaasia on Mar 11, 2013

Share this document A. HISTORICAL OVERVIEWS

II. LEGAL BOUNDARIES OF EMPLOYMENT RELATIONSHIPS

A. THE IDEA OF EMPLOYEE STATUS

! what tools or equipment to use

Email what order or sequence

! TRAINING—employment often receive training while independent contractors

The Economic Realities Test: factors are un-weighted and non-dispositive

https://www.scribd.com/document/129827758/emplyment-law-outline 7/8/20, 9:47 PM

3. the workers limited opportunities for profit and loss

National Labor Relations Board v. Hearst Publications ( *has been overturned )

o Rule: Apply the control test to determine if individual is employee or independent

Nationwide Mutual Insurance Co. v. Darden

Clackamas Gastroenterology Associates v. Wells

https://www.scribd.com/document/129827758/emplyment-law-outline 7/8/20, 9:47 PM

Vizcaino v. Microsoft Corp.

Connor v. Pier Sixty

2. STATUTORY EXEMPTIONS, SMALL EMPLOYERS, AND JOINT EMPLOYEES

joint employees: employees of two or more closely-related companies (ex. contractors-

Zheng v. Liberty Apparel Company

o if a worker functions as an employee, the IRS will consider that person an

B. THE HIRING PROCESS

1. LEGAL RESTRICTIONS ON JOB ACCESS

Wardwell v. Board of Education of Cincinnati

https://www.scribd.com/document/129827758/emplyment-law-outline 7/8/20, 9:47 PM

Collins Food Intern, Inc. v. INS

2. EMPLOYER INFORMATION GATHERING

Lysak v. Seiler Corp

II. EMPLOYMENT REFERENCES

https://www.scribd.com/document/129827758/emplyment-law-outline 7/8/20, 9:47 PM

DOES AN EMPLOYER HAVE A LEGAL OBLIGATION TO PROVOIDE A REFERANCE FOR A

Singer v. Beach Training Co.

defamation by self publication : if compelled to communicate defamatory statement to a third

Lewis v. Equitable Life Assurance

III. INVASION OF PRIVACY

different from defamation claims because they involve

https://www.scribd.com/document/129827758/emplyment-law-outline 7/8/20, 9:47 PM

Bratt v. IBM Corp.

Nelson v. NASA (*no longer good law)

Malorney v. B&L Motor Freight Inc.

Kadlec v. Medical Center v. Lakeview Anesthesia Associates

https://www.scribd.com/document/129827758/emplyment-law-outline 7/8/20, 9:47 PM

elements of intentional misrepresentation :

elements of negligent misrepresentation :

C. TESTING OF APPLICATIONS AND EMPLOYEES

1. POLYGRAPH AND PERSONALITY TESTS

Concerns About Lie Detector Tests

Soroka v. Dayton Hudson Corp.

Trusted by over 1 million members

Start Free Trial

https://www.scribd.com/document/129827758/emplyment-law-outline 7/8/20, 9:47 PM

2. DRUG TESTING AND THE CONSTITUTION

National Treasury Employee Union v. Von Raab

3. DRUG TESTING (CONCLUSION)

19 Solid Waste Dept. Mechanics v. Albuquerque

Luedtke v. Nabors Alaska Drilling Inc.

https://www.scribd.com/document/129827758/emplyment-law-outline 7/8/20, 9:47 PM

1. GROOMING AND DRESS

Jespersen v. Harrah’s Operating Co, Inc.

E. PROTECTING PRIVACY ON THE JOB

1. CONSTITUTIONAL AND STATUTORY RESPONSES

Fourth Amendment protections (searching offices) .

Bodewig v. K-Mart, Inc.