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Economic Rational a. Inefficient for government to intervene b. People best at knowing what they want (rational beings) 2. In balance of information between employer/employee (safety) 3. Power inbalances a. Employees may have no other options (captive) b. Employers have more power in general 4. People are irrational, don’t know what is best for them 5. Social cost to society from “rational” choices (third-party effects) Employees v. Independent Contractor 1. Employees are those who as a matter of economic reality are dependent upon the business to which they render service. (Secretary of Labor v. Lauritzen – FLSA Standard) a. Control - Nature and degree of the employer’s control as to the manner the work is performed i. Does employer exhibit pervasive control over operation as a whole b. Profit and Loss - The alleged employee’s opportunity for profit depending upon his managerial skill i. Concerned about whether could lose everything from investment, than earning less money b/c chose ot pick pickles in a bad spot c. Investment - equipment or materials required for task or employment of workers i. Gloves are not enough (but what about lawyers who are i.c.) d. Skill - Does the service require a special skill i. Like all skills, it increases by doing the work, and could be applied in any field (not just pickle field) e. Permanency - Degree of permanency and duration of working relationship i. Tend to not find this dispositive, because i.c. can return year after year or work for long time, and employee could work for 3 weeks at McDonalds f. Integral Part - Service is an integral part of employer’s business (side project is ic) i. Unless pick pickles, no pickles made (but does this not affect everything the employer hires to do; how distinguish?(E)) g. Dependence of Worker on “Employer” (Key consideration) i. Ex Post view (maj) – depend on def’s land, crops, expertise, equipment, nad marketing ii. Ex Ante view (Eastebrooke) – If they chose to not work there would other jobs be available. h. Eastebrook – person statute was meant to cover (In FLSA cases, unskilled, lowpaid employees are meant to be protected) 2. Covered v. Non-Covered Employees a. Employees may be covered even if sign paperwork stating not covered i/o/i i. Workers when signed the paperwork did not know themselves to be
employees (Vicaino v. Micrsoft) ii. Or, waiver in contract is held to be definition of office, not explicit waiver (Vicaino v. Microsoft) iii. Reflects willingness to protect workers beyond contract rights At will Doctrine Employment at Will Doctrine 1. Default Condition a. Overrode by mutual understanding between the parties that the employment was for a fixed and definite period (note: permanent or lifetime employment is not for a fixed period) i. Sometimes can be inferred from the terms of the contract 1. Rate-of-Pay Rule – hiring at stated sum for week, month, or year, is definite employment for the period named - Jurisdictions are split over whether to enforce ii. If not default, employment is a condition precedent to recover wages unless the contract is divisible or the condition is waived by the employer 2. Employer/Employee can terminate the employment at any time. Tort Exceptions to the At-will Doctrine 1. Damages for Tort Violations of At-Will Doctrine a. Standard Monetary i. Lost Wages ii. Salaries iii. Commissions iv. Benefits v.Expected Reduction in Future Wages (unlike Title VII, not likely to reinstate)… b. Mental Distress c. Loss of Reputation and other compensatory d. If conduct is sufficiently outrageous, punitive damages can also be recovered 2. Wrongful Discharge in Violation of Public Policy a. 3d Party Effects - Prevented from firing if did not take on action that would hurt 3rd Parties i. Not 3d party harms that have already occurred (if harmed third party and than report it; Devries (sic)) ii. If only policy affect is on private parties, not firing in violation of public policy b. What is public policy? i. Broadly – what is just and right ii. Or Narrow - Specific Statutory/Constitutional Provision must be violated (Adler) c. Four General Patterns of Protected Acts i. Fired for refusal to commit unlawful acts ii. Fired for exercising a statutory right 1. i.e. workers comp iii. Fired for filling public obligation 1. I.e. Ness v. Hockes, participating in jury duty 2. Potential Exception is contractual duty to make reasonable efforts to avoid
jury duty for certain parties such as nurses, teachers, doctors, etc, because harm of being on jury is greater than benefit to society at large iv. Fired for whistle-blowing, recording wrongs against insiders or outsiders 1. Courts split over whether violates at-will doctrine if the disclosure is made internally (Adler) a. Why? Duty to expose serves private interest employer, not public interest External Internal 3rd party Effects Protected Protection?? (Depends on court, or if statutorily protected) and is it warning or asserting public right (Warning if brought under FLSA) No Protection (unless protected by statute
No 3rd Party Effects
2. And remember that the disclosure needs to harm 3d parties d. Punitives Awarded if employer acted grossly negligent towards plaintiff i. So if discharge is not illegal at time, no punitives 3. Intentional Infliction of Emotional Distress (iied) backdoor to wrongful discharge claim) a. In terminations, how plaintiff was treated when termination occurred, (Agis v. Howard Johnson) but can apply to general treatment by the employer. (Concern for party, not third party affects is goal); However, if general treatment, may be pre-empted by Worker’s Comp is arose out of and during the course of employment. b. Punitives? If intended to harm the person; c. Requirements i. Intended or should have know would have caused emotional distress 1. If special relationship (i.e. employees), no need to show intent, just recklessness (or that a reasonable person would have known the conduct would have upset a reasonable person) (Bodewig v. K-Mart) ii. Conduct was extreme or outrageous 1. Defined as “so outrageous in character, so extreme in degree as to go beyond all bounds of decency and to be regarded as atrocious and utterly intolerable must go beyond mere indignities, threats, or insults.” Rest. 2d Torts 46 2. Tension over whether objective/subjective standard; objective with some characteristics of the person normally 3. Special relationship more subjective b/c should know what would upset the plaintiff, plus harder to leave if in special relationship, (Bodewig) so Rest. Allows for recovery for gross insults not amounting to extreme outrage only if special relationship exists
Note: if company policy exists. commissions. and benefits ii. Covenant of Good Faith a. But if two conflicting terms. does this modify at-will contract? i. we’ll keep you ii. So can’t change position/fire to avoid giving bonus c. motivation (more tort based) d. is it violated 5. Courts read into definite term contract a provision that plaintiff can be fired for just cause (Chiodo v. Remedies a. as long as we need you. salaries. While acting in disregard of company policy is unfair. Subjective Belief + Reason (no investigation) 3. anytime fired with malice. Monge Standard – Act fairly towards people. Satisfaction Contract – keep you as long as satisfied. 3. Correct Subject Belief (or backed up by investigation) ii. Good Cause? 1. Where contract states something given in exchange for work performed. Expected Reduction in the Future 2. violates doctrine. Hetes Test – jury could find fired for just cause or good faith . example of atrocious is remove free choice in contradiction of earlier statement.4. Standard Monetary Damages i. just like employer wants ability to fire. Some jurisdictions reject covenant of good faith b/c so inconsistent with the goodfaith doctrine e. Believe subjectively (reasonable. consideration) a. General Waterworks Corp) i. Must be able to fire for bad actions and to keep incentive for employee to continue working (moral hazard) iii. fact firing shows no longer satisfied (modified or not? Would economy work?) iii. good-faith belief) that performance was inadequate (no investigation required) 2. Emotional distress felt by the plaintiff was severe and of a nature that no “reasonable man” could be expected to withstand it Contract Based Erosions of At-Will Doctrine 1. If at-will contract. so can hire for 28 months but no start date. Express Modification of Contract a. it has an implied covenant of good-faith dealings b. employee wants ability to quit at will b. Employer has burden to show that the firing was justified iv. bad faith i. Conduct caused the distress iv. Majority – restatement of at-will. Note: Default rule will be set against the employer b/c they are in a position to change the default. especially if designed to humiliate party (Rulon-Miller – Dating Case) iii. Lost wages. Only applies in definite b/c in indefinite. and employer promises to not fire as long as does good job. Court will assume that at-will 4. Fortune Standard: Contracted-Rooted Definition of Good-Faith: If contract is established and the other party acts to deny the benefit of the bargain. Implied Modification of at-will (from employee statements.
maybe in contract/application (See Reid v. Font 2. Note: Unions and handbook. only need consideration if knew of the earlier benefits) 5. Reliance as Implied in Fact/Promise to Hire/ a. Increase loyalty. Merdith) d. productivity 3. Sears). Size c. Placement d. increases employee’s benefit a. In general. With Prominent Disclaimer (may be not in handbook. including continued assurance of job (see above) iv. Personnel Policies (See below) ii. Employer has substantial benefit other than the service the employeei s hired to performed or employee undergoes substantial hardship other than services hired to perform (Veno v. moved to new city etc.) (Grouse) . UNLESS Court requires them to have knowledge of the earlier and higher benefits (in which case. but objectively should have known that modified 2. no modification BUT disclaimer must be 1. Pugh’s list of modification: i. No meeting of the minds. Meredith) c. courts will reward under promissory estoppel theory (b/c relied on promsie and gave up another job. Employee Should ask 5. Beginning of Job i. Longevity of service (See below) iii. Misunderstanding Disclaimer is not a defense (See Reid v. Very explicit (found case by case looking to) a. Contract may be modified from consideration i.b. Strong language b. Communication by employer. Employee Handbook i. Without prominent disclaimer. Hoffman) 1. If manual given before taking job. Even though promise to hire is illusory promise. part of consideration for having job 4. Sears). terms of manual can be read as modifying employee k. Continued Performance b. and decreases worker protection a. Consideration – If manual is altered after starts work. Court will not construe statements if not clear or if aspirational (I hope so) (see Veno v. General Practivces of Industry where working v. Consideration – If manual is given after the job begins or manual is altered.Additional Consideration e. stronger language decreases need for unions but abilitiy to fire gives nonunion a cost advantage (so may want) ii. Employee must receive something in exchange b. even if definite term k. (See Woolley v.
Violates first amendment to fire. Look to the context. 3. maybe because more outrageous/humiliating to be fired 2. Political Association a. normally in exchange for cap on remedies…. promote. Plaintiff’s Burden (shifting): Show reason is pretextual or on its face unreasonable 6. says internal working of office does not rise to level of public concern b. Some states have passed statutes mandating good cause for employment terminations. so if weakens patronage. Court often distinguishes. but you have no right to keep your job. looking to): i. When/where speech is made iii. Political Speech (Rankin v. Defendant’s Burden: Burden is on defendant to state reason to fire for good cause iii. Position of employee ii. (Pugh – implied contract) ii.. is it something the public should know/care about ii. limited as justice requires ii. Courts use “less stringent” good cause in indefinite term contract when employee has spent a long time with employer/general practice/promises etc. But does that mean no longer at will after 90 b. transfer. not necessarily efficiency of office itself. Person reasonably relied on promise to detriment 2. Scalia – Only violate first amendment to fire based on political support (patronage as old as government. S. weakens democracy) i. hire. Balance need to protect free speech and employer’s interest in maintaining an efficient office (efficiency to the public. Drug Testing if required for promotion etc. expected tehm do so. Co. based on the nature of the employee’s duties? . or recall based on political support in a low-level position (Rutan) unless position involves policy drawing (or political related activity) i. Brennan . Or reasonable expectation that would not be fired for reasonable amount of time after being hired (Dicta of Grouse) iii. Probationary Period – Can fire for any reason for 90 days (explicitly atwill). McPherson) a.Ct. speech is still protected by 1st. If No.1. We have expectation that people will not be harmed for political belief (so justifies erosion of at-will doctrine) b. Unreasonable Searches/Seizures (Violation of 4th Amendment) a. Effect of speech on the workplace c. Employees have good-faith opportunity to fulfill obligations of job to the best of ability before fired (under promissory estoppel) 1. At-will/Longevity of Service i.Does the government have a strong interest in performing the search. Statutory Limitation on At-Will a. If Yes. Privacy Protections for Employees/Employers Free Speech and Privacy Protections for Public Employees 1. Was the speech a matter of public concern i.
The threat of being fired + search is offensive c. and reinstatement 3. the less offensive ii. efficient operation of the workplace Privacy Protections for Private Employees 1. More than just symbolic (i. Invasion of Privacy a. All jurisdictions recognize protection if third-party effects b. bargain collectively through representatives of own choosing.. Employer cannot fire to interfere with rights (Note: policy is to protect the period when unions are being formed) See Section 7 of NLRB i.). were there any previous searches) b. von Raab) ii. Novosel – freedom of political association (not forced to lobby) is important public policy from previous cases/right to run for office c. protecting the border from drugs or navy policy for citizens who have access to classified information. Compare to Political Speech under Public a. Raytheon) or if the job itself has a political twist (See dissent in Novosel) 2. In general. should not be overbroad…. Trotti. Right to Bargain Collectively (Timekeepers Inc. The more targeted the search is. political activity in direct contradiction of company’s financial interests may not be protected (not sure how far test stretches) (Korb v. so only claim is tortious. cease and desist order to stop illegal activity. if fired for not allowing invasion could sue for . However.e. I. or parties who are carrying guns (Security/safety outweigh privacy concerns). No 1st Amendment Protection. firing in violation of public policy i. Some jurisdictions recognize if abridges public policy (as seen in statute or precedent) i.e. Remedies: posting notice. breach of contract. Was the complaint private or public? 2. b. and right to have concerted efforts for the purpose of mutual aid or protection. reasonably related to wages or other employment related problem iii. Objective test from the circumstances (i. Intrusion must be highly offensive to a reasonable person i. could bring lock from home. Action must be protected -not violent. Instead. does the reasonable expectation of privacy outweigh government’s need for supervision. and backpay for affected employee.e. must be government interest in protecting classified information/carrying guns (lower expectation of privacy) 1. Political Activities (on the job/off the job) a. or illegal b.i. How many other employees brought the complaint? ii.How many other people does it affect 2. Note: Must be actual invasion. I. Employee shall have the right to self-organize. For mutual aid or protection . control. Concerted activity or acting on behalf of additional employees 1. Work-related reason 1. Intrusion in area where employee had reasonable expectation of privacy i.e acting against drugs want enforcers to not be on the drugs) (See Scalia’s dissent in National Treasury Employee’s Union v.
8. CA Labor Code – protect employee’s right to engage in political activity (including struggle for homosexual equal rights) and prohibit discrimination against employee for sexual orientation Defamation by employer of employee a. privacy outweighed be Health and safety concern of employer as long as (See Luedtke) i. 5. Causes Actual Harm/Loss of Reputation . Legitimate government interest is balanced against right to privacy. a nexus between the questions being asked and the aspects of the job (reasonably related to what testing for) (Soroka v. 6. Dayton Hudson Co) ii. drugs testing. Publication iii. public employers. Problem with consent/turning down as above Honest and Personality Test a.4. Some states restrict firing for lawful off-the job activities (ND) b. limit on ability to fire at-will employee (Rulon-Miller) Right to Privacy (if found in state Constitution) a. Notice needs to be given to employees (reasonable expectation) ii. except if security guard. but b/c applicant has no support have greater need of protection) (Loder) c. However. test is lower for applicant than for actual employee (Why? Employer has greater need of the information. Elements of Defamation i. Protection for Out of Work Activities a. AND testing should be correleated with employee’s work and job safety Drug Testing (Common-law right to Privacy) a. only if employer demonstrates clear deteriment to the workplace d. i. or National Guard b. Polygraph Testing – Unlawful to require any employee or applicant to submit to lie detector or use result of one. only if fired for refusing to do an illegal thing or if 3rd party effects (public duties).e. Constitutional Violation if state has privacy laws i. FEHA cannot refuse to hire on the basis of religious beliefs or making /non-job related inquiry that expresses religious beliefs d. consenting to search employee will say defense. Statement of fact or opinion are treated the same as long as opinion . Al Attar – volunteering in AIDS Clinic) c. Can Employee reasonably rely on company policy as protection of out-of-work activity? As long as like claims are treated alike. wrongful discharge not invasion of privacy/However. If just cause contract. but volunteering may not be a public duty (Brunner v. drug manufacturer.Deter 3d party from dealings with ii. False statement of fact (or opinion as long as opinion implies false opinion of fact) 1. Liability is for invasion/intrusion (could be for method of testing or because urianalysis testing reveals so much information about employee) b. In TX. 7. False (truth but bad statement is not enough) 1.
but not actively competing against employer (Mulai v. Must act solely for the benefit of the employer in work-related matters b. Absolute Privilege 1. Need to protect privilege to speak outweighs interests in reputation 2. attempts to solicit their business (more than just encouraging announcement.implies a false opinion of fact b. Care is taken to protect information by attempting to keep it secret a. Complete defense can’t be overcome ii. Actions in mere preparation for competing.e. Qualified Privilege (i. not doing research. but only if list did not take a long time to make (more specific. Employer’s protection for trade secret 1. Non-Competitive Clause (Contractual Right to Employee’s Competition) a. Fiduciary/Common Law Duty of Loyalty a. solicitation to get them away with the effect of hurting the employer is a breach of loyalty iii.e. If proven. Illegal to take advantage of insider/confidential status and memorize and copy down information or to take information out of the company (Schulenburg v. Even if at-will employee. Customer Lists . Competing with employer after leaving the job: Theft of Trade Secrets i. must be trying under cut business prices or pushing to switch. Getting other employees to quit 1. taking advantage of insider information) ii. Or if information is not common knowledge b. more valuable to the company) 2. Contractual provision to prevent competition by employee after finishes working . Signatrol) a. burden switches to plaintiff to show abuse of qualified privilege a. Trade Secret if 1. Something valuable – generally something taking time to create ii.e. Jet Courier) 2. Knowledge statements made were false or with complete disregard for the truth b. stated worked with employee in giving recommendation when didn’t c. Remedy: Loss of payments for time spent engaged in disloyal behavior c. Competing with employer while on the job i. I. i.Can contact clients on list. Legal to do reverse engineering (or to take product apart to figure out how to work it) 2. Defense to Defamation i. Non-compete clause is an example of keeping it secret 2. Going after clients of the firm 1. More than telling clients that leaving. In Employee Recommendation – employer may be held responsible for false positives (teacher didn’t molest when did) Employer Protection under At-will Doctrine 1. employer recommendation) 1.
and scope 1. does not protect much more than duty of loyalty (i. a. the court recognized the protectable interest of training an oral surgeon that he would not be competed against by the trained surgeon ii. rule the entire contract invalid iv. Cannot unduly harm the public (i. not protected if just better at job than others) 2.e. Scope – action must be competing against former employer (i. Assignment of patent to employer 1. But Courts can find broader: Protected Interests can include Employer’s good relations with clients or significant training (even if not secret. Guilford Packing) b.e. just extensive) a. Must serve protectable employee interest that court recognizes as a justification to keeps them from working in the future 1.e. no monopolies) 3. employee owns the patent even if related to job and competes with employer ii. geographic area.the court may rewrite the contract to protect interest c. REM Metal v. Blue Pencil Approach. is done on the side i. oral surgery not dentistry) (Karpinsky) 2. i. Policy: Employee is doing what paid/hired to do b. Shop rights – common law right to use invention in the workplace (including use and manufacture rights) a. BUT shop right cannot be assigned by employer to someone else (Francklyn v. If unreasonable. Done during work hours or with employer’s resources. Policy: maximize inventions by balancing rights of inventor with rights of employer 4. Logan Test: Only information/skill that is developed by the specific company and keeps its value because it is kept secret. Non-inventive Employee – Job Duty does not include inventing. Employee Inventions (Implicit or common-law Right) a.rule out unreasonable sections b.e. Must be reasonable in time. If done on own time and with own resources. may be unenforceable . Inventive Employees – hired to invent i. Test i. Must be supported by sufficient consideration 1. employer has shop rights 1. Reformation . Assignment of patent to employer even if non-inventive employee i. in Karpinsky. can be in exchange of employment iii. Policy: Anti-competitive so scrutinized carefully by the courts b. If work is unrelated to business. Employee Inventions (Explicit or contractual right) a. at the beginning of k. OR infringe on employee’s right to assign/lease the patent himself (Francklyn) i.with the firm i. narrow test.
national origin. employer does not have protected interest in the information/May not be legitimate if does not resemble work being done by employer 2. need to . if unrelated to job (not in R&D) ii. (Why? Job may want to say poor performance instead of inter-personal reason. No undue harm on employee 3. religion or sex) (unrelated to work productivity and immutable trait) . so actual reason may not be discriminatory). Indirect or Pre-Text Argument: Show reasons offered by defendant is false Direct: Evidence showing a discriminatory reason more likely motivated the employer o Plaintiff’s Burden of Persuasion (Post-Hicks) Plaintiff does not automatically meet test by showing reason is false (though it might be enough).ii. Enforced if reasonable in scope and time (Salori Whitmeyer Test) 1. But if information taken is not trade secret or does not look like any research being done by the company. Upheld if relates to work.McDonnell Douglas/Burdine/Hicks Test o Plaintiff’s Prima Facie Case (Hired) In protected class Applied for job that employee was seeking applicants for and the plaintiff was qualified for the job Was rejected despite qualification Position remained open after rejection o Plaintiff’s Prima Facie Burden (Fired) Member of protected Class Satisfactorily Performed Job Was Fired Replaced by member of non-protected class o Defendant’s Burden of Production Give legal evidence that gives reason non-discriminatory reason why plaintiff was not hired/was fired If employer remains silent. or if made with employer’s equipment and consideration given for patent b.Plaintiff treated differently because of protected classification (race. No harm to the public Prohibitions on Status Discrimination Disparate Treatment (or treat differently because of protected class. requires discriminatory intent) . Protect legitimate interest of employer a. Hold-over Clause (assigns right to employer to invention after employment has ended) i. Not related to work if gained idea through information available at work. Only applies to ideas formed during work and attributable to work 1. P wins o Plaintiff’s Burden of Persuasion (Burdine/McDonnell Douglas).
front pay. even if burden is made. business reasons) If Burden is met. but for considering protected class. Defendant is not liable o Defendant’s Burden (O’Connor’s Concurrence in PWC v. (Just burden of production (See above)) o Defendant’s Burden (Civil Rights Act of 1991) Would have made same decision if factor was not considered at the time of the hiring decision (same as Brennan’s majority) BUT. are either qualified for the job OR willing to do the job (use general population for unskilled jobs) Significant Statistical Disparity between actual and expected (or more than 23 Standard Deviations) . Hopkins) Protected Class was a substantial factor in hiring o Plaintiff’s Burden (Kennedy’s Dissent in Hopkins) Plaintiff must prove But for causation. would be hired (McDonnell Douglas) o Plaintiff’s Burden (Civil Rights Act of 1991) Direct Evidence that protected class was a factor o Defendant’s Burden (Brennan’s Majority in PWC v. Hopkins) More likely than not. or employer engages in facially discriminatory policy or engages in practice or policy of discrimination. Hopkins) Affirmative Defense that would have made the same decision at the time it was made if illegitimate factor was not considered If Burden is met. Hopkins) Protected Class was factor in hiring/promotion/firing o Plaintiff’s Burden (O’Connor’s Concurrence in PWC v. brought by the EEOC or the US o discriminatory motive is necessary o Plaintiff’s Prima Facie Case Actual Treatment (% of protected that are of those hired) Expected Treatment (% of protected in qualified labor pool) • What is the applicable labor pool? (reasonable) o Relevant geographical area – where hired from o AND depending on qualifications for the job. Defendant is not liable o Defendant’s Burden (Kennedy’s Dissent in Hopkins) No burden of persuasion.e. same result would have occurred if illegitimate factor was not considered (i. court can impose • Injunctive Relief • Declaratory Relief • But no Compensatory (back pay. or reinstatement) Systemic Disparate Treatment (entire class treated differently by employer).- - show discriminatory reason more likely motivated the employer or that all possible reasons for the plaintiff being fired is false Mixed-Motive Cases (Used when direct evidence exists to suggest that a protected category was used to make a hiring/firing decision) o Plaintiff’s Burden (Brennan’s Majority in PWC v.
Loss of Enjoyment of Life Capped (so back pay is separate). would caused them to fire the employee irregardless of their protected status. Nashville Banner) o BFOQ Defense (not allowed for race (only national origin. applied for job. Pain & Suffering. or religion or under the ADEA for age)) (Affirmative Defenses) We didn’t hire b/c of protected class. if member of the class. if they had known. recovery is limited to back pay (not reinstatement or front pay) (See McKennon v.e.- - • Shows inference of discriminatory intent o Defendant’s Burden of Production Statistics showing plaintiff’s statistics are incorrectly measured o If burden is not met.) • Key is how the court defines the essence of the employer’s business: Is the essence of Hooters sex appeal or selling food? Second Tier: More than convenient/reasonably necessary to particular business (or is it a good proxy) (if movers need to move 200 lbs. sex. men can’t be wet nurses) Narrowly Construed by Courts First Tier: Qualification seeks to modify operation central to business? Or is it necessary? (Should movers need lift 200 lbs. is it a reasonable proxy to use women as those who cannot) • Impossible or Highly Impracticable to deal with employees on an individualized basis • All/substantially all cannot complete the required operation Remedies under Title VII (DT) o Right to Jury Trial o Make Whole Relief Back Pay (wages from first incident of discrimination to date judgment is decided) • But plaintiff has affirmative duty to mitigate their damages Lost Fringe Benefits o Restatement/Front Pay Compensation for post-judgment effects of discrimination (can’t find comparable judge) (front pay used if restatement is not feasible) o Compensatory Damages Emotional Distress. were qualified. presumption is that you were discriminated against Defendant can only avoid liability if can show proof it did not discriminate against particular person Employee Defenses under Disparate Treatment o Employee Misconduct: Special Test: If during discovery employee discovers information that.000 o Punitive . but reasonably necessary to the normal operations of a particular business (i. any individual discriminated against can come forward and collect damages Or. Large Employer (500 or more employees) capped at 300.
the claim is actionable Causal Nexus between the Two o Defendant’s Burden of Persuasion Business Necessity AND practice is job related o Plaintiff’s Rebuttal Show other employment practice that can serve the same legitimate business purpose that will effectively test for job performance without the disparate impact. o Plaintiff’s Prima Facie Case (Griggs v.Under Respondaet Superior. but only against plaintiff (if defendant wins) if the lawsuit was frivolous or without merit . religion.Employee criteria has disparate impact on protected class (race. company can be vicariously liable for actions of employees (balance incentive to control employees and feeling actions may be uncontrollable). national origin. or sex).Remedies under ADEA o Jury Trial Available o May get whole relief or liquidated damages if knew or showed reckless disregard for whether the conduct violated the statute Disparate Impact (no discriminatory intent required) . (Defendant does not have to be aware of alternative method) o Exception: Bona Fide Seniority Systems . but only against plaintiff (if defendant wins) if the lawsuit was frivolous or without merit Remedies for Disparate Treatment/Disparate Impact for Individuals . but active enforcement of policy) .Determined by State of Mind (Kolstrad v. So employer is liable if o Employee is acting in managerial capacity (hiring/firing) o UNLESS. Duke Power Co). ADA) • Employer engaged in intentional discrimination with reckless or malicious indifference for employee’s federally protected right (or employer made decisions knowing violated employee’s protected rights) – so often no punitives in BFOQ if felt legitimate qualification No punitives awarded against public employees Note: Under the ADA. no compensatory/punitive against employer who has made reasonable efforts to accommodate the disability o Attorneys Fees available.Remedies o No right to jury trial o Injunctive and Declaratory Relief Only Attorneys Fees available. actions are contrary to good-faith efforts on part of employer to comply with Title VII (must be more than just policy that complies. Identification of Facially Neutral Hiring Practice • Standard must be shown with specificity unless it is incapable of separation Disparate Impact on Protected Group (Statistical Significance) • If success for impacted group is 4/5 of the group with the highest selection rate.
with different responsibilities change of benefits) What is tangible employment harm? Extra work. So in same-sex discrimination. look to evidence of homosexuality/physical attraction o Test to establish cause of action (See Meritor Savings Bank v. or denied opportunity to attend conference is not enough. but affirmative defense is: o Employer acted with reasonable care to prevent and promptly . inappropriate assignment. firing. but losing files/office/secretary is enough to appear like a demotion so is (key for vicarious liability) o Nexus between the two o Under quid pro quo. AND employee of small firm can be wrongful discharge claim in violation of public policy Sexual Harassment . not because of gender.Hostile Work Environment (Actionable under Title VII) o Unwelcome conduct motivated by sex o That is sufficiently severe or pervasive to change work environment into hostile work environment o No tangible employment harm needs to be shown o Note: some courts have started to equate discrimination that is sexual in nature under hostile work environment. reassignment.- BUT liability is limited to company (Supervisor cannot be individually liable) under Title VII and ADEA (Note: Title VII does not apply to small companies with less than 15 employee) o Why? Paperwork can be financially burdensome on small employers. (see above test) • Yes. Forklift Systems) o Frequency/Severity of conduct o Harshness of Conduct (physically threatening or mere offensive utterance) o Whether unreasonably interfered with work o Effect on employee’s psychological well-being is relevant to determining whether plaintiff found environment abusive (but not necessary) Conduct altered plaintiff’s employment and created hostile/abusive work environment Conduct was unwelcome and based on plaintiff’s sex or gender o Vicarious Liable? If supervisor. employer is vicariously liable for employee action if employee caused tangible employee harm . Vincent) Conduct was severe or pervasive to alter condition of plaintiff’s employment • Was environment reasonably perceived and was perceived as hostile/abusive (look to totality of circumstances) (Harris v. failure to promote.Quid Pro Quo Claim o Quid Pro Quo (rejection of sexual advance) o AND tangible employment harm (not promoting.
may allow compensation under sameness/difference) Inequality Approach: Instead of looking to sameness (since women and men are often different). if compare pregnant women to other disabled. and parties receiving federal funds . Rehabilitation Act i.Pregnancy Claims.Same-sex Harassment (clarified in Oncale. cannot be towards particular member of opposite gender OR Harasser was Homosexual.Ct) (Of course. Gilbert) Discrimination on the base of pregnancy is sex discrimination • Discrimination on the basis of pregnancy.correct any sexual harassment behavior o Plaintiff unreasonably failed to take advantage of any corrective or preventive opportunities offered by employer If co-employee is harassing… • Employer knew or should have known of harassment and did nothing about it (negligence standard) . first suggests no discrimination because treatment. childbirth. Applies to Federal government. state can create statute giving “Advantage” over other disabled Discrimination against Disabled 1. So discriminating by pregnancy is okay because pregnant women are different than non-pregnant men and women (See GE v. but only if it can be actionable not how the claims are analyzed or when actionable) o Objective test to show severity of harassment o Still must prove sexual harassment because of sex to be actionable Hetrosexual motivated by hostility towards member of own gender (treated differently than members of opposite sex). pregnancy or related should be treated the same for all employment questions as nonpregnant women similarly situated with respect to their ability or inability to work o So tension between two clauses. Gilbert – S. or related condition is sexual pregnancy • Women affected by childbirth. was the nature of the conduct explicitly sexual or evidence that occurred b/c of sex or that homosexual OR Comparative Evidence – direct evidence between both genders in sex-mixed workplace o Note: no protection for sexual orientation in Title VII . second (favored by courts) suggests treat as other disabled But PDA was meant as floor of treatment of pregnant. Acts a. federal contractors. Title VII prohibits differential treatment unless it is a BFOQ o General Approach to Claim Sameness/Difference Approach: Like claims should be treated alike. look to whether treating the same disadvantages one gender over another (same opportunities) o Pregnancy Discrimination Act (in response to GE v.
hear. Burden is on the plaintiff to prove reasonable acc. Can the plan withstand challenge under Title VII to sex or race based decision on voluntary affirmative action plan? a. Essential = core feature of job a. Test (See Johnson v. Impose more than diminimus burden. Whether performed in past by former occupier of position ii. All employees with 15 or more people c. whereas ADA could be longer if reasonable and does not cause undue hardship) ii. Disabled have mandated unpaid leave (only to 12 weeks. 2. but not if imposes undue hardship on employer (Nelson v. Frequency with which it is performed ii. What kind of job performed in industry at large i. Unlike. Does individual have a disability? What is a disability? i. broken arm) 3. poss. Substantial limits = temporary condition does not substantially limit (i. OR has a record of an impairment 1. of Administration) Affirmative Action 1. Existence of manifest imbalance that it was designed to remedy in traditionally segregated job category 1.e. Major life activity = Ability to work (not just one job/employment in general. Transportation agency) i. mandatory 12 weeks provided by FMLA 2. With or without reasonable accommodation 1. but not when on the drugs (of course. Physical or mental condition = disorder outside normal range of physical/mental conditions (not brown or blue eyes) 2. Amount of time spent on task iii. as long as could do so with reasonable accommodation cannot be discriminated against (affirmative burden to accommodate) a. see.b. and sometime reproduce ii. Purpose is to avoid stigmatization of having “illness” b. so being afraid of falling out of trees is not a disability b/c can still do many jobs not in trees). Physical or mental impairment that substantially limits one or more major life activities 1. Thornburgh) OR if burden of accommodation is greater than its benefit (See Vande Zande v. Note so recovering drug addict is protected. when is addict rehabilitated enough) iii. Based upon employer’s idea of feature AND b. walk. ADA i. Is the individual qualified for the job i. Regarded as a person with a physical or mental impairment 1. Compare % in particular category to % in relevant labor pool (majority . ADA where employee does not require to give leave for relative of disabled even if reasonable. State of Wisconsin Dept. FMLA (some protection – see below) i. Qualified if can perform Essential Functions 1. Rule – even if person cannot perform essential function of job.
Exemptions are very fact-specific (apply to each individual separately. Only covers workers. Executive Employee Exemption 1. directly or indirectly. Can the plan withstand Constitutional challenges (5th/14th) (See Adarand Constructors Inc. whether the plan is gradual (case-by-case).in Johnson suggest not as strong as in prima facie for systemic or 2 or 3 standard deviations between actual and expected (though what O’Connor in concurrence wants) 2. Primary Duty = 1. AA plan cannot be used to support role-modeling/diversity decisions (see Taxman v. strict scrutiny is always applied Regulation of Compensation Fair Labor Standards Act (FLSA) 1. See Secretary of Labor v. Primary Duty is the management of the enterprise in which she is employed or customarily recognized subdivision thereof (participate in decisions of consequence) 2. Applies to vast majority public/private. Lauritzen (Section 1) d. Supervising. Board of Education) ii. State-imposed or orderd by the court. normally it will come under Constitutional standard b. other pertinent factors that support the conclusion iii. Customary and Regular Direction of Two or more employees (Training. only preempted from over-time/minimum wage) i. or if under 5th or 14th. Any person who acts. Pena) a. if no statistical dilemma. More than 50% of time spent on it OR 2. Coverage a. Moreover. not to job type) ii. Individual Directors can be held liable under FMLA: 1. But manifest imbalance cannot remedy when minorities/women lack skill in career 3. for the benefit of the employer to any employee (Economic Reality Controls) 2. Individual states may have higher minimum wage law (not pre-empted) c. Must not unnecessarily trammel rights of non-minority workers 1. KDFW-TV for example of application). Exemptions (See Dallheim v. Evaluating. Needs to have operational control of a significant aspects of the company’s day-to-day business b. Note: Plan based on sex has lowered scrutiny than if the plan is based on race (strict scrutiny) c. v. or regulated by governmental actor. Administrative Employee Exemption . claim can be brought by secretary of labor/private i. Even if plan is remedial/offensive. not independent contractors i. Courts look to whether the party was fired/lost retirement benefits. or Disciplining Employees) iv. and whether it takes position from party with right to the job 2.
Sam Dell’s Dodge) d. Public Employee Exception – can receive compensatory time for time worked . What is counted as compensation? i. Establishes a minimum wage a. not pro-rated (Marshall v. Because of purpose. ii. d. promotions 3. What does employee receive in damages if underpaid? i.1. invention. Effect of Minimum Wage – workers either get paid more or get fired (b/c employer cannot afford as many employees) b. Employee performs more than one type of work that would exempt except that a. Tacking 1. Primarily for the benefit of the employee 2. business policy. Accepted voluntarily by the employee 3. Sam Dell’s Dodge). Not compensation if primary benefit of payment is to employer (Marshall v. in a recognized field of artistic endeavor 3.Creative Employee Exemption 1. All of the exempt work taken together constitutes the primary duty 2. that is directly related to management policies or general business operation (substantial importance to business ops because involves major assignments in conducting the operations of the business or affects business operations to a substantial degree) (not just doing job poorly could cost the business money). Primary Duty is office or nonmanual work 2. not fringe benefits (Dunlop v. which depends primarily in the talent. Employer does not have to pay on hourly wage. Purpose – spread work (more employees are hired rather than hire one and work long hours)and compensate employee for strain of working more than 40 hours c. salaries. Primary Duty is creative or original in character 2. Discretionary Bonuses (like Christmas bonuses) are not included in total e. Instead should be 1. or imagination of the employee vi. Gray-Goto) e. Neither one can be considered the primary duty b. Requires Compensation for Overtime a. Agreement to not have overtime between employee/employer is null and void (Dunlop v. Benefits and Deferred Compensation should be factored into week received.e. Gray-goto). employee must receive the pay for work.) c. but amount received must be at least the minimum wage i. Compensation based on amount earned in a weekly period (Marshall v. And are a kind customarily furnished by the employer or other employers engaged in similar activities. Entitled to 1.5 times regular pay for hours worked (not counted) over 40 hours b. Difference between minimum wage and what paid 3. i. Sam Dell’s Dodge Corp. Includes work requiring discretion and independent judgment v.
and if employee wants more over-time may not seek compliance Family Medical Leave Act (FMLA) (1993) (administered by DOL with claims brought privately or by DOL) 1. Requirements a. coffee breaks are b. directly or indirectly. Provides 12 weeks of unpaid leave for: a. Can the employee use the time effectively for his own purposes? a. but coffee breaks are ii. injury or medical condition that involves . including car sales people g. Individual Directors can be held liable under FMLA: i. Houston). Skilled workers. Employers gain from not complying (lower salaries) UNLESS i. Coverage – some employees who are entitled to overtime. If only required to be within 20 minutes of work at all time. even though 1/3 maintained second jobs). But employers may respond to paying for more compensable by lowering overall wage rate 4. Employee’s own serious medical condition that precludes them from being able to work i. Restrict Ability of Child Labor (not covered) 5. Whenever physical/mental exertion is controlled or required by employer and pursued necessarily and primarily for his benefit 1. An illness. Birth or adoption of a child b. Any person who acts. Look to Totality of Circumstances 2. as long as employee cannot accrue more than a certain number of compensatory hours (normally 240). are not entitled to overtime. OR the penalty for being caught is made sufficiently high b. 50 or more employees b. Compensable Time i. or with long tenure – turnover from not receiving adequate compensation may be high ii. Needs to have operational control of a significant aspects of the company’s day-to-day business 2.over 40 hours as long as receive 1. child. Cover extended period of leave. Enforcement – tends to be underenforced a. Claims are only brought by employees who believe not receiving due. and the time is granted unless it would “unduly disrupt” the workplace f. not short-term absences that can be covered by sick leave 3. not compensable b/c of freedom.5 off for every hour worked. Need to care for spouse. Before and Work time is not compensable. 24 hours (be within 20 mins. On-Call Time 1. but compare to Renfro – firemen received overtime for on-call time. even if 24-7 for 11 months (Bright v. or parent with serious medical condition OR c. Commuting is not compensable. for the benefit of the employer to any employee (Economic Reality Controls) ii. (KS) c.
Notice Requirement i. i. Taxation Program – administered through taxation program. COBRA Benefits begin the next day 5. or to an equivalent position. Burden on employer to inquire for more information 2. But more should be provided by employee if can be done so practically d.1. Certification by medical provider can be required by employer BUT i. as cushion gives incentive to wait for best job) (higher benefit longer return to work) iii. Elgibility Requirement a. otherwise a. If unforeseeable. may get liquidated damages equal to monetary damages and interest UNLESS court concluded acted in good faith b. Civil Fine b. But also maximizes value of worker in workplace b. Must advise employee of consequence of not providing 6. Employee should post.Lost wages. salaries. and if refuse can be fired ii. Policy: Provide temporary/permanent wage replacement for workers who experience unemployment for no fault of their own i. Employer may be civilly fined if fail to post a notice setting forth the pertinent parts of FMLA (and estopped from taking action against an employee) Unemployment Compensation 1. Continuing Care (more than 2x) by health care provider 4. Interest on Compensatory c. FMLA Right cannot be limited by collective bargaining agreement or employee benefit plan (such as an employee handbook) 7. or others lost or denied as result of violation b. and keep posted a notice setting forth pertinent portions of the FMLA. Employer must seek certification soon after leave begins and in writing iii. Compensatory . not less than 15 days. Must have worked at least 12 months for employer b. However. Inpatient care (overnight) in hospital OR 2. Provides cushion for unemployed ii. Employee must give within time frame of employer. at least verbal notice of leave and anticipated timing 1. Remedies a. Characteristics of the Program a. Estopps employer from taking adverse action against the employee 8. Gets employed back into work force as quickly as possible (or does it. following the qualifying leave a. Eligible employee has the right to be restored to her position. Insurance Policy – temporary insurance policy to replace part of what lost if fired for no reason of their own c. if do not return from leave. Employers receive credit for tax paid to state UI program . employment benefits. Must have worked 1250 hours in the 12 months preceding the leave c.
applying the sameness/difference approach says pregnancy is not covered by UI 2. With satisfaction of Work-Search Requirement i. MacGregor Test – Such cause as would. discriminated against) a.ii. Normally want to discourage parties from leaving job without having another job lined up. Leaving to follow father of child (who lived together for 7 years) to care for elderly father is good cause b. Unemployment Compensation Board of Review) 1. Wimberly Test – did plaintiff leave work for reasons not causally connected to the work or the employer (i. or up to 50% of wages up to statutory cap (generally ½ -2/3 average weekly wages in the state) 2. Eligibility for Workers Compensation a. Other example: in interview. Eligible for AND actively seeking work ii. States tax at different rates based on their experience rating (or how many UI claims are filed against them) 1. eligible for 26 weeks of benefits. reasonably motivate the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the employed a. Good faith – claimant cannot attach such conditions to his acceptance of work as to render him unavailable for suitable work 2. causing employer to keep her on at higher cost rather than pay higher tax (here employer is sympathetic b/c did not fire right away) c. So even though sick child caused McCourtney to miss job 71% of the time. don’t ask don’t tell rule (not willful misconduct ot not reveal information in interview) ii. But concern is that this still affects experience rating. PA Rule – employee is ineligible to receive benefits any week where failed (See Knox v. OR if voluntarily quits employment (good cause standard) 1. though perhaps married would) c. Involuntarily Terminated i. In Wimberly. b/c in the past. based on pay and how long person has been employed) b. To apply for work at such time and in such a manner as the department may prescribe or to accept suitable work offered to him by the . but government’s policy of supporting keeping families together outweighs this (but not that of non-marital couples. in similar situations. McCourtney v. Disqualified if fired for misconduct 1. Gets employers to recognize cost of firing d.e. Prior Attachment to Workforce (calculated by states. Imprimsis Test – Willful or Wanton Disregard for employer’s interest or conduct demonstrating a lack of concern by the employee for his/her job a. In general. Without good cause a. rarely absent and attempted to find alternative to missing work b.
Results in employment loss at a single site during 30 day period i. Definition of Employment Loss 1. but because notice might reduce chance of getting financing 2. Civil Penalty of up to $500 a day of inadequate notice Employee Benefits ERISA 1. Department of Labor Regulations define reasonably foreseeable as if caused by dramatic. Requires 60 days notice of 1. EXCEPT 1. voluntarily quitting or retirement 2. Remedies – But Company can buy out violation from employees. Provisions i. Policy – created to diminish harmful affects of plant closing (on workers and on the community in general) b. OR at least 500 workers are fired iv. WARN Act a. Still must give as much notice as practical. A Reduction in Force (RIF) (not result of plant closing) b. Up to 60 days back-pay/benefits to employee ii. Termination of Employment that is not discharge for cause. Faltering Company Exception a. Insurance Savings Clause. Unforeseeable Business Circumstance Exception a. Single site of employment that is permanently or temporarily closed b. Applies to both plant closings and RIF b. Plant Closings a. so may not be issue (no standing) i. unexpected action outside of employer’s control c. Attorney’s Fee iii. Company must give as much notice as possible. ERISA Pre-Emption (applies to both pension or welfare plans) a. AND the shutdown results in employment loss for 50 or more employees for more than 30 days 2. Supercedes any or all state laws as they now or in the future relate to an employee benefit plan UNLESS b. but is not required to give 60 days if caused by business circumstances not reasonably foreseeable at time when notice would have been required i. For more than 6 months OR 3. BOTH at least 33% of employees and more 50 workers fired ii. Only applies to plant closing b. greater than 50% reduction in work hours over a 6 month period iii. Covers employees with 100 or more full-time employees ii. regulating insurance.employment office 3. OR Mass Layoffs a. banks or securities .
Same discrimination test as under Pension 1. increasing premiums to all insured parties c. a Deemer Clause exists i. who do not have health insurane. Health Insurance for Disabled i. Consequently. Plaintiff: Prohibited Employee Action taken to interfere with right b. increasing benefits paid out. and cannot have eligibility rules/higher premiums. Why? Because many insurance providers will not cover old illnesses or have statutory period to fulfill before receive coverage and insurance is too expensive to self-insurance ii. But more difficult to prove than pensions because participant has no entitlement to any level of benefit whereas in pension entitled to full benefit if work until 65 (See McGann v. health insurance etc. Pl: Reason is Pre-Text for Discrimination ii. HIPPA – 1. but contracting out for insurance is not so can be regulated by the states (Met Life Insurance v. Discrimination from attaining right that participant may be entitled under the plan a. People who are more likely to take advantage of plans are those with serious health problems. based on health-related factor 2. HOWEVER. Insurers operating in small group market must issue insurance to all small employers and to accept all eligible individual (unless specified stautory exception) 3. H& H Music – Coverage for AIDS related illness lowered from 1 million to 5 thousand after employee got AIDS. dependent – loss of dependency status) 1. (Immediate Benefits) a. COBRA – employers with twenty or more employees must continue providing coverage from 18-36 months from the time of the event (for participants. Welfare Benefit Plan – provide fringe benefits. in-house (self-insured) plans are pre-empted. Retaliation from Exercising right entitled under the plan 2. and who are not eligible for other group health insurance iii. spouses – death/divorce/legal separation. Savings Clause does not include employee welfare benefit plans because not insurance company for the purpose of the savings clause ii.c. Or people who have been covered for at least 18 months under a group health plan.Pre-Emption bigger deal b. Insurers who offer insurance to individuals are required to insure “eligible individuals” a. Def: Non-discriminatory Action c. Less broad regulation than pensions . Adverse Selection Problem with Portability Plans 1. Portability i. firing (unless fired for gross misconduct). could . Group health plans cannot impose pre-existing condition limitation on coverage for more than 12 months (and 12 months is lowered by creditable coverage under other health plans). MA) 2. such as vacation plans.
Deferred Compensation that does not vest until money was given (historically at least see McNevin v. non-participant spouse receives ½ annual Qualified Joint and Annual Survivor Annuity (unless participant choses to get lump sum . QJSA .Employee contribute set amount to pension plan (may give more or less money to employee depending on how the economy is performing) d. Defined Benefit Plan . Pension Benefit Plan (Deferred Compensation) a.Show some kind of prohibited employer conduct was taken for the purpose of interfering with a planned right b. Non-discriminatory reason for action (i. Minimum Participation ii. closed plant with more closer to retirement to decrease overall costs) c. Defined Contribution Plan . Employer Opportunism – Employers terminate employees right before vesting to keep from being eligible iii. Discrimination .If employer went bankrupt. Lack of adequate insurance for employer . while older cannot and still retain pension iii. why? 1.Employee contribute enough to give set amount of pension (determined by length of service and amount of final salary) ii. Policy for Creating Government Control over Pensions i. after death. Employee Ignorance – Employees often don’t know how to maintain their pension coverage (especially if complex. Plaintiff’s Prima Facie Case (See nemeth v. Prohibits Retaliation against parties making benefit claim 2. Types i. Defendant’s Burden of Persuasion i.e. Anti-Discrimination (§ 510) 1.Generally. often leads to many denials) ii. Clark equipment Co) i. Plaintiff’s Burden i. Federal Standard – i. Pensions and Surviving Spouse (Generally the Wife)(See Lorenzen v. pensions were often lost unless they were insured c. Participant Spouse receives 100% of annual annuity. UNLESS court takes the position that employer cannot reduce benefits for employee who at the time were in the course of medical treatment that is covered by the plan 3. Employee Retirement Plan of Sperry & Hutchinson) 1. Note: Nemeth suggests that employer would have to favor pensions over wages in deciding which to close (unless cost is substantial without wages). Failed in Nemeth b/c difference in cost between plants made them close it without worrying about pensions ii.not prove pre-text because no proof targeted against employee with AIDS) 1. OR discrimination to prevent party from receiving benefits in the future a. Prove the reason for action was pretextual 1. Solvay Products) b. Younger workers can get another job.
Must act for the exclusive purpose of providing benefits to participants and beneficiaries b. QPSA (Qualified Pre-retirement Survivor Annuity) or annual annuity commencing when participant would have retired equaled to ½ what participant would have received at retirement 3. Who has fiduciary obligation? a. Gender Inequality . b/c women typically work less-paying jobs for less hours. Fiduciary Obligation to get spousal approval before agreeing to give out lump sum payment (Lorenzen) 2. can’t say not thinking if they are) 4. Representations made b. Fiduciary shall discharge duty with respect to plan solely in the interest of participants and their beneficiaries a. pregnancy. OR has discretionary authority or responsibility in plan administration (decides who is covered or not: Most important) c. no fiduciary duty to disclose information about incentive program unless under serious consideration (but suggests still no inconsistent statements.000 hours or 20 hours a week v. Sun Co. Ballone v. Eastman Kodak test: Fiduciary has breached duty in informing participants if a.Goals of Health and Safety Measures (Prevention of Injuries. if traditional split of labor. Fiduciary Obligation to get spousal approval before agreeing to give out lump sum payment (Lorenzen) 4. ERISA was amended so that time continues to accrue during leave for birth. Moreover. and diligence as a prudent person acting under reasonable circumstances c.Fiduciary Duty and Pension 1.). By diversifying investments d. skill. With the care. That were misleading c.However. Exercises discretionary authority or control over plan management (controls funds where are going) b. Compensation of Workers if become Ill . Note gender inequality. prudence. or adoption of a child 1.payment) 2. husband still is the sole owner of the pension plan iv. But 3d circuit found for similar facts (HOckett v. And in accordance with plan documents 3. a year of service is now 1. Efficiency. And induced participants to rely on them d. Provides investment advice for plan for a fee Prevention and Compensation of Workplace Injuries and Diseases .Responses to Problem (Measured in Adequacy. Equity(how treat similarly situated parties) o Worker’s Compensation (See Below) o OSHA (See below) o Labor Market – Worker will receive risk premium in the form of higher wages in .
contributory negligence. a. Injured Can Recover (More indepth see 957-58) i. Full medical benefits without cost to worker . States have exemptions for certain parties d. but Court held later valid b/c lawmaking body can change common law rules and as for taking. takes long time to process One Response is Employer Liability Statute • Employee still must show negligence • BUT gets rid of some common law defenses o Fellow Servant Rule – injury caused by another employee o Moved from Contributory to Comparative Negligence o No Assumption of Risk (knew of risk entering job market) Worker’s Compensation 1. so employee may not demand adequate risk differential • Moreover. people just vote with feet o Tort System Adequacy – Often difficult to prove no assumption of risk. workers tend to not worry about future problems Equity – All parties receive the same irregardless of whether they are injured or not (and union workers may receive more than non-unionized) Efficiency – no burecracy involved/legal cost of liability. very adequate (include pain and suffering) Equity – People who win do very well (all or nothing) Efficiency – Costly for all parties to bring and for the state to process. employers and employees benefit from law b. So some employees with marginal injuries are hoping to convince court to include in coverage ii. Coverage i. other element of negligence • But if receive. has incentive to make workplace safer Compensation is ex ante (before injury) Adequacy: compensation may be lower than full amount because • Unbalanced bargaining power between employer and employee • Employee has incomplete information about the risks of the job • Employee does not bear all the risks (some borne by Medicaid/Public Welfare). Trade increase in number of claims receive coverage for decrease in the amount of benefits paid i.more dangerous occupations Because employer is paying more for labor. not indep. Designed to only cover employees (See Intro). Contra. But others are trying to convince court to release from coverage (so can sue in tort under exclusivity) c. General Information – provides benefits for all workers injured at work that reduces earnings and causes some ongoing medical expense. ii. Original Law held unconstitutional for taking and violate due process (b/c exclusivity giving full recovery for injury).
but requires burecracy and difficult cases still wind up in court 2. Moreover sol starts from exposure ot the risk. Industrial Commission. Do we like this rule? Balance evidence of exposure may be gone by the time the injury is manifested/may be exposed by multiple employers with possibility still may be able to prove exposure from iii. because no pain and suffering and amount recoverable is tied to statutory cap f. Industrial Commission) ii. Normally. E. Chicago Board of Education v. Industrial Commission Test 1. Board) 1. so some employment suits for injuries at work are pre-empted by ERISA (See Livitsanos v. exclusivity forbids from suing 3d parties. Equity . Disability Benefits (tied to statutory cap.ii.treat like physical disability (Eggshell Plaintif) . Workers Comp is exclusive remedy against the employer UNLESS the injury was intentional i. Diseases with a long latency period (how do you connect them to employment when exposed to multiple chemicals at multiple companies?) i.More efficient than tort. However. Kelly Case . defamation). Must arise from greater than day-to-day stress (extraordinary condition) 3. Exclusivity Provision covers both emotional and physical injuries as long as both are work-related (or arises out of and during course of employment) even if injury did not affect earning/caused on-going medical expense. Adequacy .Not as high as under Tort. no preemption of deceit/fraud c. not from manifestation of the risk (may not known when injured) (Cable v. One reason why Court may allow less stringent test for OSHA requirements concerning health rather than safety b.Stimulus of Breakdown must be sudden event iii. Superior Court) i. Lapare v. Stress-related Diseases – no physical event to cause injury or physical manifestation of injury.Treat same injury the same way (except if in different state). Courts split over affect on work-related tort suits (i. Efficiency . how long injured etc. Exclusivity Provision a. Employee must establish causal connection between workplace stress and mental disability 2. Special Diseases a.I.) iii. du Pont– initial exposure to carcinogen not covered (single-injury). but really negligent may not recover more than not negligent g. i. Or that the employer knew the injury was substantial certain (Millison v. Workmen Comp App. Stress must be objectively extraordinary ii. may still sue parties in unofficial capacity (even though it may mean less money) 3. No recovery for pain and suffering e. but once knew of injury cannot hide from employee by changing result in physical (dual injury)) b. SOL bars recovery against normally anyone but current/last employer (Tisco Intermountain v.e.
That Arose out of Employment (Causal Connection between employment and injury) i. would not have been injured) a. Nippert (S. cannot recover) 2. Peculiar Risk – Peculiar or Specific to the Workplace 3. Resulting From an Accident i. would not have been injured by the tornado d. Occupational Risk – virtually compensable under Worker’s Comp a. Assault by Stranger 3. ADA. (security guard playing Russian Roulette is personal risk) (How compare to other horseplay case. Problem is with intervening causes 2. Injury i.). place. not Employment b. Prows.Other options: 1. should apply increased risk) Actual risk of employment when bailing hay in hot weather is heat stroke 5. and activity . Actual Risk – Risk has to be actual risk of employment a.Ct. See Hanson v. FMLA – If serious disorder (with certification from health care provider). but only if it is an impairment substantially affecting major life activity (and if only one boss causing. Determine the Category of Risk 1. Test for Coverage under Workers Compensation a. but for working in the shed. Unknown Cause iii. than may receive 12 weeks of unpaid leave 4. Reichelt – Lower Court denied denied for heat stroke for bailer of hay because all population is exposed to risk. Personal Risk – virtually not compensable a. Affects earning/caused on going medical expense b. And Occurred in the Course of Employment (or the time. Some states have no recovery for stress-related diseases v. not applied today) a. Problem with Back Injuries. Increased Risk – Increase Risk beyond what the normal population experiences a. Neutral Risk ii. If Neutral Risk. Money v. Proximate Cause – Harm must be foreseeable and have unbroken chain of causation (old test. 1052) c. Act of God/Nature 2. Directly Related to Person. Street Risk (bitten by dog) 4. Positional Risk (But for employment. held working in area when tornado struck no more at risk than general population 4. maybe because it was accepted) 3. or Nippert – lower court. Determine Type of Risk 1. does not normally come from injury (See p. Hanson – (reversed. Directly Associated with Work/Employment 2. Coin Depot Corp. Determine Legal Doctrine Used in Jurisdiction 1.iv.
Horseplay (See Larson’s test applied in Prows) 1. Required by Employer to go b. Completeness of Deviation a. just natural response to attack) 3. Manifestation of Injury 1. Foreseeability: What do you expect when you put people with rubber bands iii. must be something required by employer. In general. Culminates with work employed for (attacked while working. However. On way to second job-site (but in Santa Rosa Junior College v. Horseplay was Accepted a. firm sponsorship of everything. Frequent enough to become part of employment b. and more pressure on women to play) ii. Weighs extent/seriousness of deviation a. Look to type/duration of activity (at time) (rubber bands v. AND the belief was reasonable (See Ezzy v. Nature of Work would be expected to include horseplay a. Engaged in Duty Assigned to him iv. – Worker intoxicated by working in drum got injured when crashed his car immediately after intoxication) if but for the origin. Special Mission (Ehrgott v. Employer knew of actions but did nothing to stop it 4. heavy machinery) 2. Normally court looks to where the injury occurs 2. Wage Payment or Travel Expense Exception – Employers compensation for commuting time implies an agreement that employment relation shall continue during c/g 4. Premise Line Doctrine – Injuries sustained in close proximity to employer’s premise (or a reasonable margin of time and space necessary to be used in passing to and from place work is to be done). Going and Coming Rule 1. court sometime look to the origin of the injury (See Technical tape Corp. Worker’s Compensation – participation in softball required b/c boss asked to join team. But extended only if employer created risk (compare Snowbarger (employee forced to work 86/100 hours during emergency was . the injury would not have occurred (even if injury occurs outside of work) 3. b/c employment may created a field of danger for those coming/leaving work 3. Worker’s Comp. not just taking work home with you) 5. Injury that occurs during the commute does not fulfill the course of employment test up until arrives at place of employment UNLESS 2.engaged in when accident took place) i. Had to subjectively believe participation was required 2. Jones plaintiff was injured will be driven to the airport for work-related convention by co-worker) a. Mixed Social and Business Activities 1.
However. Can be fined in applying permanent and still causing harm to the employee 5. If no OSHA standard. (unless covered by state plan) c. OR can opt out if state enforcement plan has been approved by feds e. Citations are issued by number of violations. special protection includes reimbursement for fees if OSHA acted unreasonable and lower penalities or waiver of penalties for small 3. Hazard has to be recognized iii. Brennan) . Dual Impact Laws (Laws with purpose besides health and safety) i. not minimizing impact of regulations 2. Purpose: Protecting Worker’s Health and Safety. Small Employers (with ten or fewer employees) with good safety records are exempt from regular inspections d. Applies to all employer’s whose businesses affects commerce EXCEPT a. Hazard must be Preventable (or elimination is feasible) b. National Solid Waste Management) 4. State health and safety standards are at least as effective as Fed. If small entity (100 or fewer employees).) iv. Technological Feasibility “in the near future” (AFL v. Small Farms. Employer has to keep workplace free of hazard ii. General Duty and Safety Standards i. states are free to regulate c. not by number of injuries (Reich) c. State agency is designated to run the program with sufficient funds and legal authority ii.compensated when fell asleep at the wheel) to Krushwitz(no compensation when fell asleep at the wheel for volunteering to work a second shift) OSHA (1970) 1. that no employee will suffer material impairment of health or functional capacity (for health) a. Federal Employees. b. to the extent feasible. State Enforcement Plans a. General Duty Requirement – Duty to Furnish employees a place of employment free from recognized hazards causing or likely to cause death or serious physical harm to employees a. So some use United Auto Workers Rule 1. state emp. Cannot be fined if in compliance with the permanent standard relating to the same hazard ii. Pre-empted if substantially and directly regulate occupational health and safety (See Gade v. because standards are hard to implement/increase. Hazard has to be such as causing or likely to cause death (See National Realty and Construction Co. Unless covered by other federal safety legislation (RR workers) b. OSHA preempts most state and health activities if OSHA has regulation promulgated on the hazard or in the same general field as OSHA UNLESS i. OSHA Safety Standards – shall set standards which most adequately assures. Elements i.
not to individual firms who have not kept up with the latest technology ii.i. Significant Harm to the entire industry.Direct Evidence. Only subject to cost-benefit analysis if created as an occupational health or safety standard (not if falls under 6(b)(5) – toxic materials or harmful physical agents) i. Brennan) i. Except contract for employees in motion of inter-state traffic are exempted (Circuit City v. Burden is on the Secretary of Labor ii. Current level of exposure to substance constitutes significant risk (S. Economic Feasibility (AFL-CIO v. Variances from standards may be granted (1) temporarily if cannot meet standard in time as long as promise to protect employee in interim and can be complied as soon as possible or (2) permanently if employee has provided alternative workplace that is as safe if standard was complied with Arbitration Contract 1. Threshold burden: Significant Risk Test (Benzene Case) 1. Speedier Process for Redress c. Technology needs to be possible.should be reasonably necessary or appropriate to provide safe or healthful. Problem with Arbitration . Unless intent in statute suggests Congress wanted statute to overrule arbitration clause (i. Benefits of Arbitration a. not complete elimination of hazardous occupations was Congress’s intention c. and not so overly expensive as to force noncompliance or putting an entire industry out of business b.. Cost-Benefit Analysis (See Cottondust Case) a. Upgrading or working conditions. And agency did not waive right to bring suit on behalf of employee (EEOC v. Enforce just like any other contract (Gilmer v. or not large enough of sample (b/c dangerous and expensive 2. Courts have not stated how they will read 3(8) alone 7. while may be unable to for health problems b. What kind of information? 1. sets around 1/1000 chance of death or serious injury from prolonged exposure) 2. Demonstrates by substantial evidence that new standard would eliminate/reduce risk 3. held in ADEA) c. but often not of the correct level of carcinogen. or exposed to many different car. Keeps Claim Quiet 4. Why different? Because workers harmed by safety are protected by worker’s comp. Lowers Legal Bills b. So if in contract has arbitration clause will be enforced b. Health or Safety Benefit to Workers i. Waffle House) 2. Ames) 3. 3(8) . Animal Studies – tend to expose too high levels and project to lower levels and extrapolation from animal to human is controversial 6.Ct. Interstate/Johnson Lane) a. Epidemological Studies (of humans).e.
so incentive to be biased towards employer b.a. Arbitrators paid by employee and parties chose arbitrator (Repeat Player Problem). Unequal Bargaining Power suggests employee may not want arbitration (Contract of Adhesion) .
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