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← ←A. What is Employment? ←Answer will dictate the degree to which one thinks government intervention is appropriate.
(1) Private Contract – [Hands Off] EMPLOYMENT IS A MUTUALLY BENEFICIAL PRIVATE CONTRACT BETWEEN TWO COMPETENT PARTIES AND WE SHOULD BE SKEPTICAL OF LEGAL INTERVENTIONS PREVENTING THE PARTIES FROM ARRIVING AT THEIR PREFERRED DECISION Adkins v. Children’s Hospital of the District of Columbia o Held an act that provided for the establishment of a wage board to hold hearings and investigate the wages of women and children in various jobs, to examine living standards and determine the wages necessary to maintain women and children in good health and morals, and then to establish minimum wages and made it unlawful (misdemeanor punishable by fine and imprisonment) for any employer to pay a lower wage in DC, to be an unconstitutional interference with the freedom of contract of the 5th Amendment’s due process clause. (See Lochner.) o Court relies on precedent; freedom of contract, including in the employment relationship, though not absolute, is the rule (and found examples of earlier restrictions on the freedom of contract that have been upheld inapplicable). The principles of Lochner have been refined, but not overturned – “To sustain the individual freedom of action contemplated by the Constitution, is not to strike down the common good but to exalt it; for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members.” o Act reflects Congress’s purpose to ensure workers receive a sufficient/living wage. It is not clear what a sufficient wage is, HOWEVER it is clear that Congress is NOT CONTENT TO RELY ON THE LABOR MARKET (it does not believe that the wages bargained for between employee and employer will be sufficient in all cases, and so sometimes must be set by a wage board.) o Holding, by contrast, relies on a policy assumption of an EFFICIENT LABOR MARKET – “The feature of this statute which…puts upon it the stamp of invalidity is that it exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with his business, or the contract or the work the employment engages to do. The declared basis, as already pointed out, is not the value of the service rendered, but the extraneous circumstance that the employee needs to get a prescribed sum of money to insure her subsistence, health and morals. The ethical right of every worker man or women, to living wage may be conceded.… And with that principle and with every legitimate effort to realize it in fact, no one can quarrel; but the fallacy of the proposed method of attaining it is that it assumes that ever employer is bound at all events to furnish it. The moral requirement implicit in every contract of employment, viz, that the amount to be paid and the service to be rendered shall bear to each other some relation of just equivalence, is completely ignored. The necessities of the employee alone are considered and these arise outside of the employment, and the same when there is no employment, and as great in one occupation as in another. Certainly the employer by paying a fair equivalent for the service rendered, though not sufficient to support the employee, has neither caused not contributed to her poverty. On the contrary, to the extent of what he pays he has relieved it. In principle, there can be no difference between the case of selling labor and the case of selling good. If one goes to the butcher, the baker and the grocer to buy food, he is morally entitled to obtain the worth of his money but he is not entitled to more. If what he gets is worth what he pays he is not justified in demanding more simply because he needs more; and the shopkeeper, having dealt fairly and honestly in that transaction, is not concerned in any peculiar sense with the question of his customer’s necessities.” o Policy Consideration: What does an employer owe an employee in the employment relationship? The court holds that you get what you pay for, not what you need, in a fair
exchange of labor for wages. The distortion of the bargain by Congress is unconstitutional. See also Gilmer v. Interstate/Johnson Lanes o Unequal bargaining power is not a sufficient reason to invalidate an agreement to arbitrate claims, rather the parties will be held to their bargain and the contract invalidated only on the customary grounds of fraud, duress, unconscionability, etc. (2) Relationship of Unequal Bargaining Power – [Intervention is Appropriate] EMPLOYMENT IS A CONTRACT, BUT IS ANIMATED BY UNEQUAL BARGAINING POWER, SO THE LEGISLATURE SHOULD INTERVENE TO EQUALIZE THE BARGAINING POSITIONS, OTHERWISE THE WORKER WILL BE SUBJECT TO UNACCEPTABLE CONDITIONS. West Coast Hotel Co. v. Parrish o Upholds an act stipulating a minimum wage for women and children in Washington state as CONSTITUTIONAL – Adkins is overruled. State’s power to regulate prevails. o Court relies on the view that freedom of contract is a qualified right and “[l]iberty implies an absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.” o Notes the unequal bargaining power of the parties this is the fundamental departure from Adkins; given the asymmetry of bargaining power, government intervention is appropriate. o The government can regulate in this area: “In dealing with the relation of employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression.” o Policy Argument: [In light of the Depression] – “What these workers lose in wages the taxpayers are called upon to pay. The bare cost of living must be met. … The community is not bound to provide what is in effect a subsidy for unconscionable employers. The community may direct its law-making power to correct the abuse which springs from their selfish disregard of the public interest.” Here the court takes a different view of the employment relationship, invokes a public component. See also US v. Darby (3) Public Institution – [State/public is an involved third party] THE EMPLOYMENT RELATIONSHIP SHOULD NOT BE CONSTRUED IN PRIVATE CONTRACTUAL TERMS, IT IS IN SOMEWAY A PUBLIC INSTITUTION (THE PUBLIC IS A THIRD PARTY SO DEEPLY IMPACTED BY EMPLOYMENT CONTRACTS THAT THE CONTRACT TAKES ON A PUBLIC ASPECT.) THE STRONGEST POSITION HERE VIEWS EMPLOYEES AS THE “FINGERS OF THE FEDERAL GOVERNMENT” ENLISTED TO ENFORCE PUBLIC POLICY GOALS. Egbuna v. Time-Life Libraries, Inc. o It is appropriate for Congress to partner with employers to effectuate public policy, including immigration policy which determines that an employee is “qualified” not based on his ability to work, but rather on his eligibility to work. Nees v. Hooks o In some cases, like termination for compliance with jury duty, “the will of the community” will override managerial discretion and termination will not be allowed. Novosel v. Nationwide o “The special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy.” (That is – the form of authority shaping lives in practice is just as often private, so we will take a constitutional claim and make it into a tort claim.) Wilson v. Southwest Airlines o Profit motive is not a sufficient essence of business for the purposes of the BFOQ analysis,
thus employers may be required to forego profit in order to advance a social good Americans with Disabilities Act o Requires employers to take affirmative and sometimes costly steps to advance the employment opportunities of disabled individuals in accordance with Congressional/public policy. Unlike Title VII, for example, which allows employers to determine whether an individual is “qualified” as they come, the ADA requires the employer to consider what steps can be taken to enhance the ability of applicants and employees to be productive/meeting the justifiable job requirements. Dunlop v. Gray-Goto, Inc. o NO WAIVER for FLSA rights – these are private rights granted in the public interest to effectuate a legislative policy! o Compare Gilmer v. Interstate/Johnson – judicial forum can be waived. Procedural waivers are fine, substance cannot be waived.
← ← ←B. Who is an Employee?
THE DEPENDENCY OF EMPLOYEES GIVES RISE TO THE OBLIGATION ON THE PART OF THE EMPLOYER ARTICULATED IN WEST COAST HOTEL. Secretary of Labor v. Lauritzen o Migrant pickle farmers are “employees,” subject to the protections of the Fair Labor Standards Act (and thus eligible to bring suit to enforce minimum wage, record-keeping and child labor provisions), not “independent contractors” outside of the FLSA’s protections. o FLSA distinction between “employee” and “independent contractor” turns on “economic reality” – that is, whether “employees are those who as a matter of economic reality are dependent upon the business to which they render service.” o Criteria of economic dependency: (1) the nature and degree of the alleged employer’s control as to the manner in which the work is to be performed; (2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee’s investment in equipment or materials required for his task, or his employment of workers; (4) whether the service rendered requires a special skill; (5) the degree of permanency and duration of the working relationship; and (6) the extent to which the service rendered is an integral part of the alleged employer’s business o “They depend on the defendants’ land, crops, agricultural expertise, equipment, and marketing skills. They are the defendant’s employees.” AN INDIVIDUAL MAY OR MAY NOT BE VIEWED AS AN EMPLOYEE DEPENDING ON PUBLIC POLICY CONSIDERATIONS, REGARDLESS OF THE CIRCUMSTANCES OF HIS WORK Egbuna v. Time-Life Libraries, Inc. o An individual with an expired visa is not “qualified to work” as an employee and thus eligible for the anti-retaliation protections of Title VII for assisting a coworker in a sexual discrimination suit.
] o (2) Penalty default approach: intentionally set the rule as the opposite of what the parties would want – so that the party best positioned to insist on a particular term does so. an employee can quit at any time for any cause.” (Nees v. Meredith) “Generally.” Exceptions to At Will Employment o (1) Contractual agreements o (2) Tort claims o (3) Statutory protection 4 . Conversely. however. requiring bargaining and leading to better informed contracts. Employment at Will ←Key Question: What does employment at will mean in different contexts. Problems with the At Will Default Rule: o (1) Lack of information – employees don’t know that employment at-will is the default so they don’t actually bargain around it at all. but out of a need to set some default rule. This seems to be the established rule in case the employee purchases the employment with a valuable consideration outside the services which he renders from day to day. Methods of Choosing the Correct Default Rule: o (1) Hypothetical bargain approach: court should set the default rule according to what they think the parties would have bargained for. o Employment relationship is at will – court reads in the default rule. an employer can discharge an employee at any time and for any cause. Background: Default Rules ←Consider whether these rules make substantive sense and the implications in terms of incentives for the parties in selecting a particular rule. so that the employer (party with more info) would need to bargain for at-will. EMPLOYMENT IN THE UNITED STATES IS AT WILL AND TERMINABLE WITHOUT CAUSE AND WITHOUT NOTICE. REASONS ARE IRRELEVANT! “The essence of the employment at will presumption is that the decision to discharge an employee is best left to the managerial prerogative and will not be reviewed in a judicial forum. o “Permanent employment” typically means terminable at will. The other side of the rule is that an employee may resign at any time. does it work and does it make sense? ← ←A. for any reason. [Epstein trusts that most parties would enter into at will. or for no reason at all.II. despite the parties’ obvious contrary intent.” (Veno v. in the absence of a contract or legislation to the contrary. Hooks) See Skagerberg v. o (2) Employee Signaling/Market for lemons – employees don’t bargain around employment at will because it looks like they’re signaling that they are not actually good at the job (and thus that they reasonably anticipate being terminated under the at-will default) o (3) Employer Signaling/Adverse Protection – employers don’t want to offer job security for risk of attracting employees who need this sort of protection (attracting the lemons above) Questions to Ask in Assessing the Default Rule: o (1) Is it the right substantive rule? o (2) Does the rule create positive bargaining incentives? ← ← ←Default rule: AT WILL ABSENT A CONTRARY UNDERSTANDING. the term “will be held to contemplate a continuous engagement to ensure as long as the employer shall be engaged in business and have work for the employee to do and the latter shall perform the service satisfactorily. choose the one from which it is easiest to opt out of. Blandin Paper Co.] o (3) Preference soliciting approach: leave the ultimate choice to the parties. Such termination by the employer or employee is not a breach of contract and ordinarily does not create a tortuous cause of action. [Under this theory the default rule should be just cause.
CONTRACTUAL TERMS REMOVING THE EMPLOYMENT RELATIONSHIP FROM THE AT-WILL DEFAULT NEED NOT BE IN AN EMPLOYMENT CONTRACT.’ ‘as used in a variety of contexts…have been found to be difficult to define with precision and to be largely relative in their connotation.’” (Pugh v. Meredith o The at-will employment default rule can be overcome by express or implied contract or where an employee provides sufficient consideration in addition to the services for which he was hired. Contract Erosions of Employment at Will THE CONTRACTUAL EXCEPTION TO THE AT-WILL DEFAULT RULE MAY STEM FROM AN EXPRESS OR IMPLIED AGREEMENT OR SUFFICIENT CONSIDERATION But See Veno v. o Query – when do we have a default rule with a wide range of exceptions as opposed to no background rule and a whole host of different rules contingent upon the relevant context? Questions in Exceptions Cases: o (1) Do we have an exception to at will employment? o (2) If the employment relationship is something other than at will. they connote ‘a fair and honest cause or reason. PER SE. SOME PROTECTIONS OFFERED TO THE EMPLOYEE AND A NEUTRAL THIRD PARTY DECISION MAKER MUST ASSESS THE SUFFICIENCY OF THE REASONS. o Here broad. Given all of these exceptions it is not clear that at-will is truly the default rule in American employment law. aspirational statements are not sufficient to overcome the presumption of atwill employment and there was insufficient consideration to find an implied in law contract. See’s Candies) Lingering question – is just cause subjective good faith or objective good cause? B.’ Essentially. depending on the particular circumstances of each case. REASONS DO MATTER! “The terms ‘just cause’ and ‘good cause. what is it? What does just cause mean in that particular context? o Contrary rule: JUST CAUSE NATURE OF THE CONTRARY RULE IS LESS CLEAR – NON-AT WILL EMPLOYMENT MEANS THERE IS SOME SET OF LIMITATIONS ON THE EMPLOYER’S ABILITY TO DISCHARGE. regulated by good faith on the part of the party exercising the power. THE COURT MAY LOCATE CONTRACTUAL TERMS IN: 5 .
· Policy Consideration: Collective action problems involved in the bargaining requirement. but rather trusting that all employees have paid sufficient consideration in the way of lower wages. etc.” · Employers can include a disclaimer in the policy manuals indicating that nothing contained within should be understood to confer any promises.” meaning just cause. even a casual assurance like plaintiff’s understanding: “I had a job as long as I did a good job” · Policy Consideration: How is the court to know what a “good job” is? o Ohanian v. · “While employment contracts without express terms are presumptively at will. · Policy Considerations: Decision turns on a fraud-on-the-market type understanding of employment manuals not requiring that individual employees rely. Schefman & Miller Law Office · At will employment is the default expectation. an employee can overcome this presumption by establishing a contract term that is either expressed or inferred from the words or conduct of the parties” – including in a policy manual · Modification of an implied-in-fact contract requires more than continued work – employees must be provided notice and must signal affirmative consent (may require bargaining). · Policy Question: If business necessity constitutes just cause. Hoffman-La Roche. Avis Rent a Car System Inc. COURTS MAY IMPLY CONTRACTUAL TERMS WHERE THE PARTIES DO NOT 6 . · Plaintiff was told he would have a job unless he “screwed up badly. The court held that just cause could be found without breach as a result of business necessity. Oral representations (including casual conversations) o Hetes v. but an enforceable contract for cause can arise from employers’ policy statements and oral representations. o Wooley v. Inc. ITT Corp. how valuable is a just cause provision? Workplace Policy Manuals o Demasse v. · “An implied promise contained in an employment manual that an employee will be fired only for cause may be enforceable against an employer even when the employment is for an indefinite term and would otherwise be terminable at will. in exchange for the manual’s guarantees.
Since. and that after friction developed between him and other officers of the company as to various aspects of the management. He was not only denied that opportunity but resigned the position he already held in reliance on the firm offer which respondent tendered him. the court implies a standard of conduct into an employment relationship that is not at will. Chiodo v.” Grouse v. the assurances he was given.” o “But the overall view taken appears to be this: that although the plaintiff’s conduct may not have been exemplary in all respects. o Burden Shifting Regime: · (1) Plaintiff must demonstrate a prima facie case for wrongful termination (i. the prospective employment might have been terminated at any time. the apparent lack of any direct criticism of his work.] Independent consideration is not necessary – merely an evidentiary tool. but sufficient to establish agreement. General Waterworks Corp. he was a good manager as evidenced by the fact that the operation of the company had been profitable under his leadership. Group Health Plan o Promissory estoppel applies to offers of even at-will employment. If there is a willful and substantial failure to adhere to those standards it would be justifiable cause for the employer to discharge him. without good cause) · (2) Defendant must demonstrate good cause · (3) Plaintiff has the opportunity of rebuttal to show that the proffered good cause is pretextual.” o Policy Concerns: Does this holding establish a mandatory probation period? AFTER DETERMINING THAT THERE IS A CONTRACTUAL EXCEPTION TO THE AT-WILL DEFAULT RULE. it is appropriate to consider the totality of the parties’ relationship: Agreement may be ‘show by the acts and conduct of the parties. standing alone.e. and that he would render honest. o Court must distinguish between good and bad reasons. o “What we do hold is that under the facts of this case the appellant had a right to assume he would be given a good faith opportunity to perform his duties to the satisfaction of respondent once he was on the job.’” [Subsequent decisions pulled back on this to some extent. The nature of just/good cause depends on: 7 . The court provides the employer the ability to discharge for cause even though it was not bargained for! o “Under a contract of employment for a stated term it is to be assumed that the parties intended that the employee would conform to the usual standards expected of the employee. But his explanations of whatever irregularities may have existed were sufficiently reasonable and acceptable under the circumstances that the defendant failed to meet its burden of showing justification for his discharge. faithful and loyal service in accordance with his ability. THE COURT WILL LOOK TO THE CIRCUMSTANCES TO DETERMINE THE NATURE OF THE CONTRACTED-FOR PROTECTIONS Pugh v. While oblique language will not. the measure of damages is not so much what he would have earned from respondent as what he lost in quitting the job he held and in declining at least one other offer of employment elsewhere. o While the parties agreed in the contract for sale that Chiodo would be employed as a manager for 10 years and the company’s counsel did not believe they could fire him for any reason during that fixed period. the latter sought to dredge up accusations of misconduct to justify discharging him. the commendations and promotions he received. and the employer’s acknowledged policies. as respondent points out. See’s Candies o An implied promise for just cause determination could be found in “the duration of appellant’s employment. interpreted in light of the subject matter and surrounding circumstances.
Gambro. San Antonio and USERRA’s insertion of just cause termination for 1 year. and · In retaliation for his cooperation with a law enforcement investigation concerning his employer.” o Policy Considerations: Which community interests are this important? Whose interference is problematic? Is this a fair burden for the employer to bear? Consider Rogers v. Tort Erosions of Employment at Will THE COURT MAY FIND A TORT-BASED EXCEPTION TO EMPLOYMENT AT WILL BASED ON SOME UNDERSTANDING OF “PUBLIC POLICY” – EMBRACING A PUBLIC CONCEPTION OF EMPLOYMENT Nees v. Inc. or · Refusing to do what which the law forbids (e. Court refused to create another exception for performing volunteer work at the Houston AIDS foundation. o Public policy exception to at-will employment is narrow. o “All that is required [to bring a cause of action for retaliatory discharge] is that the employer discharge the employee in retaliation for the employee’s activities.” o “The jury system and jury duty are regarded as high on the scale of American institutions and citizen obligations. If such an exception is to be created. and that the discharge be in contravention of a clearly mandated public policy. Shriner’s Hospital o The court will find an exception to the default rule of at-will employment “when employment is terminated contrary to a well-defined public policy” including termination for: · Asserting a legally guaranteed right (e. o Policy Consideration: What is the distinction between public policy (legislative rules) and public interest (incentivizing reporting for patient health?) Ball v. the court would shift the burden of compliance with the rules of professional obligations from the attorney to the employer – instead. in house counsel do not have a claim under the tort of retaliatory discharge. which is only a narrow exception to the default rule. the jury system would be adversely affected.g. C.· · o (1) The nature of the contract between the parties as determined by the jury (2) Fair and honest cause or reason. filing a workers’ compensation claim) · Doing what the law requires (e. serving on a jury). o Court declines to infer public policy for the medical profession’s code of ethics.g. HOWEVER. Brunner v. o By allowing for this suit. that is a matter within the province of the 8 .g. the court places the entire burden on the attorney.” HOWEVER. COURTS OFTEN CONSTRUE THE PUBLIC POLICY TORT EXCEPTION TO AT-WILL EMPLOYMENT NARROWLY Wright v. If an employer were permitted with impunity to discharge an employee for fulfilling her obligation of jury duty. At Attar o Court will find the narrow exception to the rule of at-will employment only where the employee is terminated to due to refusal to commit an illegal act OR where the employee is terminated so that the employer can avoid making certain pension payments. Query whether this is a good shift of authority. committing perjury). Hooks o “…there can be circumstances [like jury duty] in which an employer discharges an employee for such a socially undesirable motive that the employer must respond in damages for any injury done. regulated in good faith (may imply process rights and may imply that the fair reason is the real reason) · (3) Non-interference with legitimate exercises of managerial discretion Policy Consideration: This shifts some discretion over the employment relationship from the employer to the courts.
ETC. Good Faith Limitations on Employment at Will THE COURT MAY IMPLY A ‘GOOD FAITH’ DUTY IN AT-WILL EMPLOYMENT AGREEMENTS 9 . where the employer bears the burden of showing that the cited conduct is reasonable cause for discharge AND the employee had notice or else that the job would have been eliminated anyway. most claims are thrown out due to an onerous standard Agis v. COURT WILL CONSIDER THE BROAD PURPOSES OF STATUTORY ENACTMENTS IN DETERMINING WHO IS ELIGIBLE FOR PROTECTIONS Valerio v. City of San Antonio o Statutory imposition of for cause termination for employees returning from military service for one year: conduct or the application of some other legitimate non-discriminatory reason. Schaeff Incorporated v. is that concern consistent with an at-will regime? Bodewig v.Texas Supreme Court. o Policy Consideration: Why do the other federal leave statutes not include a similar provision? Is military service of a higher rank in our scheme of public priorities for employment than non-discrimination? E. Putnam Associates o Statutory anti-retaliation protections of the FLSA may arise when an employee makes an internal complaint (though this does not include all internal grumblings). MAY PROVIDE AN EXCEPTION FROM THE AT-WILL DEFAULT RULE – however. o Announced Rule: Liability or severe emotional distress without bodily harm will follow where plaintiff establishes four elements: o (1) that the actor intended to inflect emotion distress or that he knew or should have known that emotion distress was the likely result of his conduct o (2) that the conduct was ‘extreme and outrageous. o Two versions of outrageous conduct: o (1) Intentional conduct. Statutory Protections These are the most intrusive exceptions on the at-will default rule. NLRB o NLRA protects the rights of workers to unionize – workers who exercise this right cannot be retaliated against. Howard Johnson Co. Inc.’ was ‘beyond all possible bounds of decency’ and was ‘utterly intolerable in a civilized community’ o (3) that defendants’ actions caused the distress o (4) the distress suffered was severe and of a nature ‘that no reasonable man could be expected to endure it’ o Policy Concern: Is the real concern arbitrariness? And if so. EMOTIONAL DISTRESS/OUTRAGEOUS CONDUCT. o This effects the FLSA’s purpose of encouraging employee to enforce their rights AND to reach informal. internal settlements on disputes. and the NRLB/court will scrutinize the employment decisions of employers even when they contend that that were made for economic reasons. Rogers v. the very purpose of which is to inflict psychological and emotional distress o (2) Non-intentional conduct resulting of the breach of an obligation that attaches to the relationship between the parties o Policy Consideration: As in ITT and Nees. K-Mart. this is a choice the employer cannot require of the employee – cannot force the employee to make a choice between quitting and being subjected to outrageous conduct D.
unduly hampered by a requirement of adherence to this standard. Good faith and fair dealing between parties are pervasive requirements in our law. In so holding we are merely recognizing the general requirement in this Commonwealth that parties to contracts and commercial transactions must act in good faith toward one another. National Cash Register Co. that parties to contracts or commercial transactions are bound by this standard. Fortune v. it can be said fairly. … NCR’s right to make decisions in its own interest is not.” o Policy Consideration: Is this consistent with an at-will regime? Is there a difference between bad faith and good cause?! 10 . o “We hold that NCR’s written contract contains an implied covenant of good faith and fair dealing. in our view. and a termination not made in good faith constitutes a breach of the contract.
does the government have a justification for treating the employee differently from any other member of society? o Touchstone: speaking in official capacity (because when employee speaks in official capacity. (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other. Republican Party o Unless party affiliation is an appropriate requirement for the position involved for some higher-up policy positions. Employee Speech & Privacy ← A. the 1st Amendment forbids any government official from basing promotion. WITH FEW EXCEPTIONS FOR SENIOR. it does not empower them to constitutionalize the employee grievance – the 1st Amendment does not shield the employee from disciplinary action. Garcetti v. o Inquiry: o (1) Whether. demonstrate sound judgment and promote the employer’s mission. (3) Whether the speech interferes with essential and close working relationships. these cases suggest that an important public policy is in fact implicated wherever the power to hire and fire is utilized to dictate the terms of employee political activities. o Balancing: (a) the nature of the actor’s conduct. recall and hiring decisions on party affiliation because conditioning public employment on the provision of support for the favored political party inhibits protected belief and association. (2) Whether the speech impairs the employee’s ability to carry out his own responsibilities. because of the speech. (b) the actor’s motive. SINCE A GOVERNMENT EMPLOYER CONTROLS JOB-RELATED SPEECH. creating a need for substantive consistency and clarity. Ceballos o Pickering precedent holds that an employee’s 1st amendment rights must be balanced against the government employer’s management rights. and (4) Whether the manner. (c) the interests of the other with which the actor’s conduct interferes. the employer is prevented from efficiently carrying out its responsibilities. Employee Speech and Political Participation EMPLOYMENT DECISIONS CANNOT BE BASED ON PARTY AFFILIATION FOR GOVERNMENT EMPLOYEES. time and place in which the speech occurs interferes with business operations. 11 . o Two step inquiry: (1) Was the employee speaking as a public citizen on a matter of public concern? (2) If yes.) o “Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. A GOVERNMENT EMPLOYER’S INTEREST IN MANAGING MUST BE BALANCED AGAINST EMPLOYEE’S INTEREST IN CITIZEN/UNOFFICIAL SPEECH. the public employee cases do not confine themselves to the narrow question of state action.” o Employees have a non-constitutional claim where a corporation conditions employment upon political subordination. Official communications have official consequences.” o While public employees retain their 1st Amendment rights to speech as a citizen addressing matters of public concern. (d) the interests sough to be advanced by the actor. o Public policy can be derived of constitutional principles and applied to private employers o “Although Novosel is not a government employee. Rather. Supervisors must ensure that their employees’ official communications are accurate. EMPLOYMENT CLAIMS CANNOT THUS BE CONSTITUTIONALIZED. transfer. COURTS MAY IMPLY THAT EMPLOYEE SPEECH/BELIEF IS PROTECTED IN THE PRIVATE SECTOR AS WELL See Novosel v. (f) the proximity or remoteness of the actor’s conduct to the interference and (g) the relations between the parties.III. there are no infringements on rights that would have been enjoyed as a private citizen. Nationwide Insurance Co. POLICY-MAKING POSITIONS Rutan v.
To the extent transport and like restrictions are necessary to procure the requisite blood. and urine samples for testing. · While drug testing of this sort does constitute a “search” under the 4th Amendment. probable cause or individualized suspicion against a 4th Amendment challenge. Ordinarily.) · Policy Question: How east is it to draw the line between politics and privacy in this regard? o But See Rulon-Miller v. Trotti · Actionable invasion of privacy in Texas must consist of an unjustified intrusion of a plaintiff’s solicitude or seclusion of such magnitude as to cause an ordinary individual to feel severely offended. control and reasonable operation of the workplace. humiliated or outraged. breath. · “By and large. an employee consents to significant restrictions in his freedom of movement where necessary for his 12 . which is determined by balancing an individual’s 4th Amendment rights against the promotion of a legitimate government interest. · No warrant or probable cause requirement – just broad reasonableness under all the circumstances standard. then examine whether the search was reasonable based on a balancing of the employee’s reasonable expectation of privacy and the employer’s interest in supervision. intrusions on privacy under the FRA regulations are limited. Ortega · Is there a reasonable expectation of privacy in the workplace? Fact-based. case-bycase analysis · If yes. where both the inception and the scope of the intrusion must be reasonable.e. Employer Privacy Rights on and Off the Job EMPLOYEE HAS LIMITED PRIVACY IN PROTECTIONS IN THE WORKPLACE AND THUS EMPLOYEES MAY BE SUBJECT TO SEARCH OF PERSONAL BELONGINGS/SPACE UNDER SOME CIRCUMSTANCES o O’Connor v. Railway Labor Executive’s Association · Upheld FRA regulations providing for mandatory blood and urine testing of railroad employees involved in certain train accidents and discretionary breath and urine tests to employees who violate certain safety rules with a warrant. IBM · Privacy interests may be bestowed by company contractual policy – which provides for employee privacy with regard to outside activity not impacting work – and also IIED tort claims which require extreme and outrageous conduct. found here. Al Attar · Employee privacy in personal life activities/affiliations NOT PROTECTED by the narrow public policy exceptions to employment at will (i. · Policy Consideration: What does “privacy” mean? EMPLOYEES MAY BE SUBJECT TO DRUG TESTING o Skinner v. · Policy Consideration: How does this implicate the public/private spheres – can you really leave everything at home to avoid the invasion? o K-mart v. refusal to commit an illegal act and employers’ motive to avoid pension payments. whether or not it is lawful depends on its reasonableness.o May reflect a concern that private corporations not distort the political process (rather than concern for this employee’s speech rights) B. this interference alone is minimal given the employment context in which it takes place.” · Policy Consideration: Should the invasion of privacy track the 4th Amendment in the way that the employee speech tracks the 1st Amendment in Novocel? Why are the employer’s interests not balanced here? EMPLOYERS MAY INVADE THE PRIVATE SPHERE OF OUTSIDE ACTIVITY/RELATIONSHIPS o Brunner v.
loss of reputation and medical expenses in connection with the plaintiff’s termination following an allegedly positive drug test result for a cocaine metabolite. · Dissent believes the opinion is wrongly motivated by the war on drugs and minimizes the individual privacy interests at stake. by itself. therefore. But See Sanchez v. where an employee has a propensity for violence that the employer knew or should have known about but in disregard of the rights of persons with whom the employee could reasonably be expected to come into contact. which is determined by tests like (1) whether the employee’s conduct is ‘so unlike that authorized that it substantially different.” o However. regardless of the fact that the relationship was at will. another must be done) and a review – failure to comply defeats the statutory purpose and thus the standards are mandatory. loss of income. EMPLOYEES ARE RESPONSIBLE FOR THEIR UNLAWFUL CONDUCT THAT OCCURS ‘ON THE JOB’ Thatcher v. However. or the act was committed within the scope of employment. which is entitled to protection even at the expense of uncompensated harm to the plaintiff.o employment. o “In the instant case. WITH ONLY NARROW EXCEPTIONS. Louisiana Pacific Group o Defamation is communication which harms the reputation of another so as to lower him in the estimation of the community or deter third persons from associating or dealing with him o Defamation may be privileged where defendant is acting in furtherance of some interest of societal importance. and there is nothing in the previous relationship between Brennan and Mead Johnson which would indicate that such conduct was acceptable. o Policy Consideration: Do the three conceptions of employment have something to say about our feelings on whether or not personality testing is appropriate? DESPITE AT-WILL EMPLOYMENT RELATIONSHIPS. and few are free to come and go as they please during working hours. ETC. such that even without the state statute. 13 . expected. be said to infringe significant privacy interests. breath or urine sample for testing cannot. Any additional interference with a railroad employee’s freedom of movement that occurs in the time it takes to procure a blood.’ (2) whether the act complained of is committed in the prosecution of the employer’s business and within the scope of the employee’s authority. Georgia Gulf · Suit for damages for physical and mental pain and suffering. (FORMER) EMPLOYEES MAY HAVE CLAIMS AGAINST EMPLOYERS WHO MAKE PUBLIC THE REASONS FOR EMPLOYMENT DECISIONS. via the logic of Novocel. o Personality test results indicating aggression is not sufficient to meet the standard above. which require specific testing procedures (after one positive test. and even required to drive an automobile as part of his employment. Brennan o Respondeat superior follows where the employer either authorized the act prior to or ratified the act after its commission.” · Particularly diminished privacy interests due to the fact that this is a regulated industry. he was not authorized to assault other persons. Brennan was authorized. (3) whether such act is in the furtherance of the business of the master and as an incident to the performance of the duties of the character or kind which he was employed to perform. in furtherance of the master’s business. · Policy Consideration: Could we move to a position where. · State drug testing statute prescribes mandatory guidelines for testing. we import a requirement of due process into all situations like this. Zinda v. the employee could not be fired without some process? This would clearly obliterate the at will rule. (4) whether the act was done in the course of and as a means of accomplishing the purposes of the employment and. hired the employee either negligently or with callous disregard for the rights of such persons.
In the case of absolute privilege: motives do not matter In the case of conditional/”common interest” privilege (which is based on the policy that one is entitled to learn from his associates what is being done in a manner in which he or she has an interest in common and attaches in the employment relationship – “Employees have a legitimate interest in knowing the reasons a fellow employee was discharged. by public or private actors. without any disclaimer or explanation. (4) because the publication includes defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged. o Qualified privilege: where plaintiff shows that defendant has acted with common law malice (greater level of ill will than negligence – something like reckless disregard). and thus lost the privilege. this is a case of pure ‘rumor’ or ‘gossip’ or ‘scuttlebutt’ conveyed as fact. (3) because the publication is made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege [but incidental communications are okay]. if it reasonably implied a false assertion of fact and the statement is made with the level of fault required for recovery. (2) because the defamatory matter is published for some purpose other than that for which the particular privilege is given. Sigal Construction v. or (5) the publication includes unprivileged matter as well as privileged matter. Stanbury o Any statement can amount to actionable defamation. an employer has an interest in maintaining morale and quieting rumors which may disrupt business”): motives matter and this privilege may be abused and lost · Abuse of privilege: May occur (1) because of the defendant’s knowledge or reckless disregard as to the falsity of the defamatory matter. o “In short. Conversely. defendant has abused. unprotected by the First Amendment. coupled with Littman’s erroneously leading the prospective employer to believe he had worked on a project with Stanbury.” · · 14 .
but this duty is limited by society’s interest in fostering free and vigorous economic competition. so employees pay for this training in the form of lower wages than would be received otherwise. the temporal reach and the 15 . employers should be willing to pay for these expense in exchange for slightly lower wages VERSUS o (2) General training: valuable to many employers.IV. the impact or potential impact of the employee’s actions on the employer’s operations. employees may prepare or make arrangements to compete with their employers prior to the termination of the employment relationship without breaching their fiduciary duty of loyalty. o Policy Considerations: Is the duty of loyalty consistent with at-will employment? Is the duty of loyalty asymmetric? Pepsico v. Employee Duties and Promises ←A. giving due regard to right to make preparations. and the extent of any benefits promised or inducements made to co-workers to obtain their services for the new competing enterprise. Ingrasci o Covenants not to compete are subject to an overall reasonableness test in light of public policy considerations which militate against sanctioning the loss of a man’s livelihood fact dependent inquiry concerning the territorial extent. o A claim of trade secret misappropriation follows where a plaintiff can demonstrate that a defendant’s new employment will inevitably lead him to rely on plaintiff’s trade secrets ← ←B. BUT: · Pre-termination solicitation of customers is not preparation and violates the duty of loyalty · Pre-termination solicitation of co-workers (even where unsuccessful) may violate the duty of loyalty depending on the nature of the employment relationship. Key distinction for courts: (1) employment restrictions that protect employers when they disclose valuable information to employees or make expensive investments in training and (2) restrictions that prevent employees from using general on-the-job training that they have already paid for. Redmond o Illinois Trade Secret act provides that a court may enjoin the ‘actual or threatened misappropriation of a trade secret’ in order to protect standards of commercial morality and encourage invention and innovation while maintaining the public interest in having free and open competition in the manufacture and sale of unpatented goods. Enforcement and Non-Competition Clauses AGREEMENTS NOT TO COMPETE ARE ENFORCEABLE WHERE “REASONABLE” TO BALANCE THE COMPETING PUBLIC AND PRIVATE INTERESTS Karpinski v. Mulei o Part of the duty of loyalty is a duty of the agent not to complete with the principal concerning the subject matter of his agency. o To accommodate the tension between honesty and fair dealing and free and vigorous economic competition. EVEN AT-WILL EMPLOYEES ARE SUBJECT TO THE DUTY OF LOYALTY Jet Courier v. which employers will not be willing to pay for because if it did an employee would be able to leave immediately to an employer willing to pay the full market wage. Because these expenses will be recouped. Duty of Loyalty and Trade Secrets BACKGROUND WHO SHOULD BEAR THE COSTS OF TRAINING AND PRODUCTIVITY? Becker distinction: 2 categories of employee training o (1) Specific training: only valuable to the particular job. o Employee is not entitled to any compensation during the period in which he has breached his duty of loyalty. o Profitability is not relevant in the duty of loyalty analysis – the question is whether employee acted solely for the benefit of employer.
during the time and within the geographical scope of the covenant. if enforced. Logan o Oregon Rule: non-competition agreements will be enforced only where they · (1) Protect a legitimate interest of the employer and · (2) Are reasonable in scope and duration. but this law may be difficult draw. There is no reason why the law should prefer this method of protecting the employer’s investment to a covenant not to compete. o Employers have a legitimate interest in protecting training that imparts information especially related to the employers business. and during the term of. for a time. the focus of concern shifted to whether a covenant not to compete might have anticompetitive consequences. This fear. antitrust sense. A related function of such a covenant is to protect the employer’s investment in the employee’s ‘human capital. recognition of their social value has grown. restricted employment. They enforce a contract unless there is some reason to think it imposes heavy costs on third parities. which animates contract law and a corollary of which is that courts do not limit the enforcement of contracts to those the social point of which the court can see. from using his former employer’s trade secrets. o Illinois law’s hostility to non-competes is outdated. Later. as opposed to general skills. At the same time that the concerns behind judicial hostility to covenants not to compete have waned. v. in effect charging the employee for the training. If covenants not to compete are forbidden. rather than considering competitive effects on a case by case basis. Such a requirement is inconsistent with the idea of freedom of contract. … The employer may give the employee training that the employee could use to compete against the employer. The fear behind it was that workers would be tricked into agreeing to covenants that would. Policy Consideration: Why subject agreements not to work to so much more scrutiny than agreements to work? Rem Metals Corp. offends the moral code. “The original rationale had nothing to do with restraint of trade in its modern. fails to comply with formal requirements (such as those imposed on some contracts by the statute of frauds).” o ← 16 . o Non-competition agreements are enforceable only to the extent that the relate to competitive use. the employer will pay a lower wage. however. Barton & Barton Staffing o [Majority holds agreement enforceable because it is reasonable.] o Dissent: Competent adults should be held to their bargains in the absence of fraud. of information or relationships which pertain peculiarly to the employer and which the employee acquired in the course of employment (trade secrets) rather than the unique personal qualities of the employee o Policy Consideration: Should the court be able to convert this contracts case into something like a trade secrets case? But See DISSENT IN Outsource International v. though it continues to be cited. propel them into destitution. or doesn’t embody an actual deal between competent consenting adults. and an exiguous social safety net. Illinois requires the employer to prove that the covenant not to compete serves a social purpose. since the covenant would eliminate the covenantor as a potential competitor of the covanetee within the area covered by.’ or earning capacity. has no basis in current American conditions. the covenant. … It would be unlikely for the vitality of competition to depend on the ability of a former employee to compete with his former employer. duress and unconscionability – Posner believes that reasonableness is a proxy for all of these. and to the extent enforced prevents the employee.” o “The Illinois courts appear to place the burden of proving that the covenant meets one of the two criteria of validity on the employer. The clearest case for such a covenant is where the employee’s work gives him access to the employer’s trade secrets. It was paternalism in a culture of poverty. So unlikely that it would make little sense to place a cloud of suspicion over such covenants. substantive restrictions. … A covenant not to compete is much easier to enforce. In effect.
developed and perfected it and this is not undermined simply by the fact that the inventor is employed unless an employee is hired to design a specific invention or solve a specific problem. invention and innovation.←C. o Public interests include fair competition and fostering creativity. Employee Inventions ←EMPLOYEES’ RIGHTS TO THEIR OWN INVENTIONS MAY BE UNDERMINED BY CONTRACT OR COMMON LAW RULES REGARDING THE EMPLOYMENT RELATIONSHIP Ingersoll-Rand v. the employer is granted an irrevocable but non-exclusive right to use the invention under the ‘shop right rule. · (2) Does not prevent the inventor from seeking other employment. 17 . a nonexclusive and non-transferable license to use an employee’s patented invention. Ciavatta o Under the common law rule. o Hold over clauses pertain to inventions following the termination of the employment agreement and are enforceable when reasonable based on all of the circumstances in a 3prong test: · (1) Does not extend beyond any apparent protection that the employer reasonably requires – narrowly construed with the burden on the employer. but nevertheless conceives of a device during working hours with the use of the employer’s materials and equipment. o Invention assignment contracts in the employment context are valid except where they unreasonably obligate an employee in each and every instance to transfer the ownership of the employee’s invention to the employer. o Where the employee is not hired specifically to design or invent. and · (3) Does not adversely impact the public o A hold over agreement is enforceable where it simply protects the legitimate interests of the employer. an invention is the property of the inventor who conceived. imposes no under hardship on the employee and is not injurious to the public – balancing of the interests is appropriate.’ which grants an employer a royalty or fee.
is that requirement reasonably necessary to the ‘essence of the employers business – is the qualification scrutinized important to the operation of the business such that it would be undermined if a member of the opposite sex were hired? 18 . while the complaintant retains the burden of persuasion. non-discriminatory” reason serve to make a just cause rule for racial minorities? PATTERN OR PRACTICE DISCRIMINATION SUITS AGGREGATE CLAIMS IN ORDER TO BROADLY FULFILL THE AIMS OF TITLE VII AND THUS STATISTCAL EVIDENCE IS APPROPRIATE Hazelwood School District v. Prohibitions on Status Discrimination ←A. this requires only that the employer raise a general issue of fact of whether it discriminated. the government must establish by a preponderance of the evidence that racial discrimination was the employer’s standard operating procedure. o (2) Burden then shifts to the employer to articulate some legitimate. or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.) o Gross statistical disparities may alone constitute prima facie proof of a pattern or practice of discrimination – but this requires a determination of which numbers are relevant. United States o To prevail in a Title VII pattern or practice suit. nondiscriminatory reason for the employee’s rejection · However. v.V. o Inquiry: · (1) Does the particular job under consideration require that the worker be of one sex only – is sex so essential that a member of the opposite sex could not do the same job? · (2) If so. sex. o Policy Consideration: Does a required “legitimate. (N. sex. The Bona Fide Occupational Qualification (“BFOQ”) Defense ←THE COURT MUST DETERMINE WHETHER SEX (OR RELIGION OR NATIONAL ORIGIN – NOT RACE) IS SO ESSENTIAL TO JOB PERFORMANCE THAT A MEMBER OF THE OPPOSITE SEX COULD NOT DO THIS JOB. he was rejected and · (iv) After his rejection. Southwest Airlines o The BFOQ provides that “it shall not be an unlawful employment practice for an employer to hire (an employee) … on the basis of his religion. the regular rather than the unusual practice.: no evidence necessary to show an individual applicant was discriminated against – allows for broader fulfillment of the goals of Title VII. Wilson v. Disparate Treatment TITLE VII IMPOSES A BURDEN SHIFTING REGIME FOR INDIVIDUAL ALLEGATIONS OF DISCRIMINATION McDonnell Douglas Corp. Green o Title VII Order and Burden of Proof: o (1) Complaintant carries the initial burden of establishing a prima facie case of racial discrimination by showing that: · (i) He belongs to a racial minority · (ii) He applied and was qualified for a job for which the employer was seeking applicants · (iii) Despite his qualifications. or national origin in those certain instances where religion.B. ← ←B. which per Hicks requires proving the ultimate fact of intentional discrimination in order to prevail. per Burdine. o (3) Complaintant has a rebuttal opportunity to demonstrate that the employer’s articulated reason is pretextual with evidence like dissimilar racial treatment with respect to the articulated reason and other evidence like statistics regarding the general policies and practices of the employer. the position remained open and the employer continued to seek applicants from persons of complaintant’s qualifications.
o Policy Consideration: Should considerations that look like employee preferences matter? Does Title VII require the employer to change some jobs? o C. The exception is narrow and captures qualifications that are necessary for authenticity. And such inability to absorb the minor indignities suffered daily by us all without running to court may stop it dead in its tracks. o The employer has the burden of showing the touchstone – business necessity (that a practice that operates to exclude based on race is job related) otherwise such practice is prohibited. o The essence of a business is NOT to make a profit for the purposes of this analysis means that employers are giving up profits for a purported greater social good o Policy Consideration: Why should customer preferences not be relevant? The public/private distinction is strongly implicated here – this is about changing the preferences not just the employment environment. warn that in our quest for non-racist. like an actress. Disparate Impact TITLE VII PROHIBITS BOTH DISCRIMINATORY TREATMENT AND DISPARATE IMPACT REQUIREMENT Griggs v. An employer may defend by 19 . o Effect of the act is not to ban employment tests. non-sexist goals. o Title VII proscribes not only overt discrimination but also practices that are fair in form. religion. o Under the 1991 CRA. o Policy Consideration: How far should Title VII go? The court notes: “This case has serious underpinnings. Duke Power Co. the demand for equal rights can be pushed to silly extremes. These strains. disparate impact requires a prima facie showing by the plaintiff that the employer uses a particular employment practice that causes a disparate impact on the basis of race. We do not have such a case here only warning signs rumbling from the facts. The rule of law in this country is so firmly embedded in our ethical regimen that little can stand up to its force except literalistic insistence upon one’s rights. · (2) The employer then has the burden of showing that the employment standards are job-related · (3) The plaintiff has the opportunity to show that other methods could be used to serve the employers interest without creating the same discriminatory effect Ricci v. but those tests must not impose artificial. color. regardless of lack of discriminatory motive – it is the consequences that matter. sex or national origin. and they were only that. o Disparate treatment requires a showing by the plaintiff that employer had a discriminatory intent or motive for taking a job-related action. DeStafano o Title VII prohibits both disparate treatment and disparate impact. but it also has disquieting strains. arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Dothard v. o Facially neutral standard may violate Title VII due to a disparate impact. where sex is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise · This is a narrow exception to the general prohibition of discrimination on the basis of sex and it does not shield regulations based on gender stereotypes. but discriminatory in operation. otherwise the exceptions would swallow the rule. arbitrary or unnecessary barriers to employment Dothard v. o Burden of proof: · (1) Plaintiff must establish a prima facie case by showing that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern. Rawlinson o Title VII requires the removal of artificial. Rawlinson o Overt discrimination may be justified subject to the bona fide occupational qualification (BFOQ).
typical exemptions. employee compensation. o [Scalia Dissent] – concern that this power of showing “special circumstances” can in effect be a power to undermine bona fide employment systems. not just sham seniority programs. which is to be determined based with reference to corrective measures. with or without reasonable accommodate.o o o o o demonstrating that the practice is job-related for the position in question and consistent with business necessity. labor organization. job training. o Subsequent Amendments: In determining whether an individual is disabled for (a) of the definition. o The ADA requires neutral treatment not the preferential treatment that would follow from overriding a neutral seniority rule. E. employment agency. Vinson 20 . o Whether an individual is disabled [(a)] is an individualized inquiry. Sutton v. the hiring. But. When determining whether someone is regarded as disabled for (c) of the definition. and other terms. no covered employer [employer. o A particular job is not a major life activity. the plaintiff may still prevail by showing that the employer refuses to adopt an alternative practice that has less disparate impact and still serves the employer’s legitimate needs. The point of the ADA is to remove the barriers that exist because of the disability. to demonstrate that the assignment is a reasonable accommodation despite the conflict with the seniority rules. US Airways v. conditions and privileges of employment. Sexual Harassment SEXUAL HARASSMENT WILL BE ACTIONABLE UNDER TITLE VII EITHER FOR QUID PRO QUO CONDUCT OR HOSTILE WORK ENVIRONMENTS Meritor Savings Bank v. (b) a record of such an impairment. advancement. not the general employment barriers.e. or joint labor-management committee] shall discriminate against a qualified individual [disabled individual who. or discharge of employees. etc. Reasonable Accommodation THE ADA REQUIRES EMPLOYERS TO MAKE REASONABLE ACCOMMODATIONS TO INDIVIDUALS WITH DISABILITIES IF THE INDIVIDUALS CAN PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB WITH THE ACCOMMODATIONS. can perform the essential job functions of the employment position] with a disability [(a) physical or mental impairment that substantially limits one or more of the major life activities of such individual. Policy Consideration: What is the difference between a racially conscious decision and a racially motivated decision? Policy Consideration: What CAN be done to correct the sort of institutional discrimination that Title VII has still not been remedied (as evidenced by the performance differential on the test given)? D. Employers may violate the disparate treatment violation in the name of compliance with the disparate impact provisions only with a strong basis in evidence of disparate impact liability [imported from the equal protection context] (on all three steps of the disparate impact burden shifting regime) [Scalia Concurrence]: To what degree does compliance with disparate impact violate equal protection? [Ginsburg Dissent]: The proper test should be good faith. United Airlines o Rule: Pursuant to the ADA. an individual meets the definition if they establish that they have been subjected to an action prohibited under the Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. i. Barnett o Ordinarily he ADA does not require trumping a seniority system – the plaintiff must show more. special circumstances. mitigating/corrective measures are not to be taken into account. or (c) being regarded as having an impairment] because of the disability of such individual in regard to job application procedures.
· She recommends an alternative competence paradigm (the function of harassment is to undermine the competence of women in order to maintain masculinity of jobs). provided that it is sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment. That sexual activity was “voluntary” does not matter – the gravamen of sexual harassment claims is that the alleged sexual advances were unwelcome. it is avoiding the harm in the first place. o Policy Consideration: Court acknowledges that sexual harassment are easily considered in the paradigmatic male superior/female worker situation motivated by sexual desire and notes this would easily be extended to the male/male context with credible evidence that the harasser was a homosexual. hostile or offensive working environment (since Title VII affords employees the right to work in an environment free from discriminatory intimidation. o This standard is consistent with the purposes of Title VII since the purpose is not redress. provided it meets the Harris standard. · The Schultz article further discusses this paradigm problem and states that it is both over-inclusive (too much sexual conduct is prohibited) and under-inclusive (misses actions that have nothing to do with sexual desire). VICARIOUS LIABILITY IS POSSIBLE FOR HOSTILE ENVIRONMENTS CREATED BY A SUPERVISOR Faragher v. HOSTILE ENVIRONMENT SEXUAL HARASSMENT CAN BE WAGED AGAINST AN INDIVIDUAL OF THE SAME SEX Oncale v. o Policy Consideration: Do we want private employers to be able to kick the court out with internal policies? 21 . and can be either (1) directly linked to the grant or denial of an economic quid pro quo. o Whether an environment is ‘hostile’ or ‘abusive’ can be determined only be looking at all the circumstances. These may include the frequency of the discriminatory conduct. hostile work environment conduct must be (1) such that a reasonable person would find it hostile or abusive and (2) subjectively perceived as abusive by the victim. whether it is physically threatening or humiliating. CONDUCT MUST BE OBJECTIVELY HOSTILE TO A REASONABLE PERSON AND SUBJECTIVELY ABUSIVE TO THE VICTIM Harris v. Sundowner Offshore Services o Title VII’s prohibition against workplace discrimination because of sex is broad enough to capture same sex harassment. City of Boca Raton o An employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate authority over the employee. but the employer may raise an affirmative defense (except where the discrimination resulted in employment action) (1) that the employer exercised reasonable care to prevent and correctly promptly any sexually harassing behavior and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. ridicule and insult). and other verbal or physical conduct of a sexual nature.o o Sexual harassment in violation of Title VII includes unwelcome sexual advances. Forklift Systems o To be actionable under Title VII. IN THE CASE OF HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT. or a mere offensive utterance. requests for sexual favors. or (2) have the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating. and whether it unreasonably interferes with an employee’s work performance. its severity.
” · Bonuses count only against the minimum wage in the week they are paid · Fringe benefits are treated as wages unless they are provided primarily for the benefit or convenience of the employer.VI.5X THE REGULAR RATE OF PAY FOR WORK IN EXCESS OF 40 HOURS PER WEEK. FAIR LABOR STANDARDS ACT REQUIRES THAT EMPLOYERS PAY A MINIMUM WAGE (AS PERIODICALLY STIPULATED) AND 1. · Contrarily. 22 . the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of the commerce. Houston Northwest Medical Center · Plaintiff was still able to use on-call time effectively for his own purposes when he was restricted to the extent of (1) not being intoxicated/impaired. an amount equal to the minimum wage times the number of hours worked.] · Policy Consideration: What about blackberries and other electronic leashes? · Policy Consideration: Are we concerned about the ability of the employer to interfere with the employee’s private life/sphere? WHAT IS THE “WAGE” FOR FLSA PURPOSES AND HOW MUST IT BE CALCULATED? o THE FLSA REQUIRES THAT EMPLOYEES RECEIVE THE MINIMUM WAGE FOR THE HOURS WORKED EACH WEEK o Marshall v. Increases in the minimum wage are not offset by reduced fringe benefits. Inc. (5) Increases in the minimum wage have reduced wage dispersion. (2) always being reachable by pager and (3) always being able to arrive at the hospital in about 20 minutes at ALL TIMES – because effectively for his own purposes does not mean the same flexibility or freedom that the employee would enjoy were he not on call. (3) Statistical evidence regarding teenage employment impacts are no more compelling that evidence point in the opposite direction. QUESTIONS: WHAT IS “WORK” FOR FLSA PURPOSES? o ON-CALL TIME THAT THE EMPLOYEE CAN USE EFFECTIVELY FOR HIS OWN PURPOSES IS NOT WORK (and thus is not compensable under the FLSA) o Bright v. Darby o Upholds the FLSA (following West Coast Hotel. Sam Dell’s Dodge · The workweek is the relevant period – “Regardless of the total pay received by an employee. the Act requires that each employee receive. (2) Increase in the federal minimum wage did not adversely impact teenage employment. (1) Increase in the minimum wage does not adversely impact employment. (4) Increases in the minimum wage generate a ripple effect leading to pay raises for workers who previously earned wages above the new minimum.” o Due process is no longer fatal to wage regulation “…it is no longer open to question that the fixing of a minimum wage is within the legislative power and that the bare fact of its exercise is not a denial of due process under the 5th more than under the 14th Amendment”– employment is a public institution! Carr & Krueger. minimum wage might actually have a positive impact on employment. Regulation of Compensation CONGRESS CAN REGULATE WAGES VIA THE COMMERCE CLAUSE United States v. THIS IS NOT ENTIRELY STRAIGHTFORWARD. · [Dissent notes that the employee is not thus able to truly participate in the community and that this duty should be shares so he had some possibility for reprieve. each week. Myth and Measurement Contrary to the standard economic model. o NOT ALL FRINGE BENEFITS MAY BE OFFSET AGAINST OVERTIME PAY DUE o Dunlop v. firemen required to remain on the employer’s premises were not and thus were working for FLSA purposes. Gray-Goto. which overruled Adkins) o “While manufacture is not of itself interstate commerce.
· Chicken crew leaders are exempt managers · Policy Consideration: Assuming the crew leaders meet the exemption test. The Act stipulates categories of pay that are not considered in the regular rate of pay which can be used to off-set overtime compensation – (1) extra compensation at a premium rate for extra hours over 8 in a day. Sunday and holidays. and (3) extra compensation paid at a premium rate for hours beyond those normally required. and (4) has authority to hire/fire or make suggestions regarding hiring/firing/status that are given particular weight. Mountaire Farms. · FLSA exempts employees in a “bona fide executive capacity” which is designated by four elements: (1) compensated on a salary basis. (2) extra compensation provided at premium compensation for Saturday. (3) customarily and regularly directs the work of two or more others. what is the rationale and what impact does the changing economic structure have on our sense of whether this is still accurate? · 23 . (2) primary duty is management . THIS ARE ALL OVERTIME PAYMENTS! · Parties cannot agree by contract to waive their FLSA rights – these are rights in the public interest and waiver is impermissible because it would thwart the legislative purpose! WHO IS COVERED UNDER FLSA PROTECTIONS? o EMPLOYEES PERFORMING MANAGEMENT FUNCTIONS ARE EXEMPT FROM COVERAGE! o Davis v. Inc.
partial wage replacement to experienced workers who become unemployed through no fault of their own. Second. o Policy Consideration: What sort of incentives does this create? o Policy Consideration: What is suitable replacement work? WORKERS WHO QUIT THEIR JOBS WITHOUT GOOD CAUSE ARE GENERALLY DISQUALIFIED FROM BENEFITS In many states disqualification lasts for the duration of the unemployment experienced despite urgings from the Department of Labor that disqualification should last only for the average length of time necessary to find suitable work (6 weeks) since longer periods are likely subject to market forces beyond the worker’s control. First established in Wisconsin in 1932. working a certain number of weeks. Some states give additional. they must be able to work and available for work. o Plaintiff’s desire to protect his seniority and indication that if/when given the opportunity is an unacceptable condition rendering him ineligible for benefits. but there is some uniformity.” o Furthermore. o The Federal statute provides discretion to states to stipulate the administrative rules.). In the main. nominal benefits for dependents. Because of the cap on benefits. without good cause.VII. unemployment insurance is designed to provide temporary. In most states. A STATE CAN MAKE PREGNANCY A DISQUALIFCATION Wimberly v. during a preceding base period. all States require claimants to earn a specified amount of wages or to work a specified number of weeks in covered employment during a 1-year base period in order to be entitled to receive benefits. Policy Consideration: What does it say that we have a tax on employers in order to compensate individuals who cannot get a job? UI RECIPIENTS MUST ACCEPT AND BE AVAILABLE FOR A NEW JOB WHEN FOUND Knox v. Full-time workers are typically eligible for 26 weeks of benefits. Labor & Industrial Relations Commission o State statute provides for disqualification where the worker leaves work voluntarily without good cause attributable to his work or employer. In every state. “First. eligibility depends on earning a certain amount. average UI benefits replace only one-third of prior wages. Benefits typically are 50% of weekly wages up to a statutory maximum. Unemployment A. all States require claimants be “eligible” for benefits. that is. an employee may not attach conditions to his acceptance of work as to render himself unavailable for suitable work and willingness to be employed conditionally does not necessarily meet the test of availability. Federal government enacted a New Deal program to encourage other states to follow suit (See Stewart Machine Co. BUT RATHER BECAUSE YOU CANNOT FIND ANOTHER! Unemployment programs are typically state-managed systems. or some combination. All states require recipients to actively search for work and accept suitable employment when found. The general policy has been for unemployment insurance to be a limited response to the problem of unemployment. Third. either to apply for … or to accept suitable work. not the disqualifying act. funded by a payroll tax. BUT unemployed workers with a definite recall date general are eligible for UI benefits without actively searching for another job. Unemployment Compensation Board of Review o Statute provides that “An employee shall be ineligible for compensation for any week … in which his unemployment is due to failure. 24 . claimants must wait a week before collecting benefits. These eligibility requirements are intended to measure the worker’s prior attachment to the work force. Unemployment and Unemployment Insurance CONCEPT: UNEMPLOYMENT IS NOT PAID BECAUSE YOU LOST ONE JOB. Disqualification raises many of the same issues seen in wrongful termination and discrimination. Most states set their cap as one-half to two-thirds of the average weekly wages in the state.
and refusing suitable work. or show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.o o claimants who satisfy these requirements may be disqualified for reasons set force in state law. not the unemployment statute o Policy Consideration: Is this really about employment law or is this about family law and the childcare system? Should the unemployment system support childcare? Two problems with basing social welfarist childcare protections in employment – (1) incentivizing employers to not hire women who disproportionately bear the burden of care and (2) exclude people who don’t have a job.” Pregnancy is treated in various ways by the states – states may adopt a neutral rule that incidentally disqualifies pregnant or formerly pregnant claimants as part of a larger group and this is allowable provided the rule does not discriminate against pregnancy exclusively. grief. a reduction in earnings at supplier plants. this failure. visited on those closet to the production unit that ceases operations. “The primary effects are. pensions. which can exacerbate the problem since “feelings of lost self-esteem. can exacerbate the emotion distress. and ill health can lessen the chances of finding reemployment. or in carelessness or negligence of such degree or recurrence as to manifest equal culpability. these events 25 . depression. not a willful disregard for her employer. These in turn result in a series of secondary effects including decreased retail purchases in the community. generating a cycle of destruction. failure in good performance as the result of inability or incapacity. unsatisfactory conduct. inadvertencies or ordinary negligence in isolated instances. Federal Regulation of Plant Closings Bluestone & Harrison. Unemployment Insurance Appeals Board o Some states provide that good cause extends beyond employment related reasons to capture imperative and compelling personal reasons. mere inefficiency. Imprimis o “Misconduct is limited to conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee. o Policy Consideration: Should employment have a role in providing social goods? B. Policy Consideration: Who is similarly situated to a pregnant woman? PRESERVATION OF A FAMILY UNIT CAN CONSTITUTE GOOD CAUSE TO PREVENT DISQUALIFICATION MacGregor v. in turn. The most common reasons for disqualification under state unemployment compensation laws are voluntarily leaving the job without good cause.” o Plaintiffs actions were motivated by a willful regard for her child. and the various levels of government lose corporate income and commercial property tax revenue. of course. thus she is entitled to benefits o “The economic burden this conclusion places on the employer is a necessary cost of the legislature’s humanitarian concern for the welfare of persons unemployed through no fault of their own. wrongful intent or evil design. On the other hand. and increased unemployment in other sectors.” o Dissent views this as an unfair catch 22 for the employer – put up with the absenteeism or pay for the resulting unemployment – other social welfare programs should address childcare issues. The Deindustrialization of America Plant closing costs extend beyond the loss of employment to a decline in health and welfare.” There is also a ripple effect in the community. and other fringe benefits. The unit’s own employees lose salaries and wages. Finally. o Lack of legally recognized marriage does not prevent a claimant from demonstrating that compelling familial obligations provide good cause for leaving employment MISCONDUCT IS GROUNDS FOR UNEMPLOYMENT INSURANCE DISQUALIFICATION But See McCourtney v. supplier firms lose contracts. or good-faith errors in judgment or discretion are not to be deemed misconduct. being discharged for misconduct.
including the public sector. Arthur Andersen o A business circumstance may be reasonably unforeseeable if it was caused by some sudden. is that enough? 26 . when confronted with devastating occurrences. or by conditions outside the employer’s control. and unexpected action. the more severe are the effects of unemployment. but the notice period should be reduced from 60 days to provide as much notice as is practicable under the circumstances. o Foreseeability turns probability not possibility. with the trigger date occurring on the date that the mass layoff is reasonably foreseeable. it reacts the same way that other reasonable employers within its own market would react.” Policy Consideration: The more we root in employment. attorneys’ fees and civil penalties UNFORESEEABLE CIRCUMSTANCES EXCEPTION Roquet v. a company will not be liable if. because the WARN act was not intended to force financially fragile. What begins as a behind-closed-doors company decision to shut down a particular production facility ends up affecting literally everyone in town. all this provides is notice. When determining whether a mass layoff was caused by unforeseeable business circumstances. with two major exceptions: (1) a faltering company can give less than 60 days’ notice if it had been actively seeking new financing to keep the plant open and in good faith believed that notice would jeopardize negotiations and (2) where there are unforeseeable business circumstances (such as a client’s sudden and unexpected termination of a major contract. WARN Act violations are liable for up to 60 days’ back pay and benefits. courts evaluation whether a similarly situated employer exercising reasonable judgment could have foreseen the circumstance that caused the layoff. dramatic. Thus. and natural disasters. reduced personal tax receipts. Is the loss of a job just that or is it a loss of identity as well? Policy Consideration: Who should bear these costs? Depends on your vision of employment? WARN Act Requires employers of more than 100 employees to give their workers and local government officials 60 days’ advance notice of plant closings or mass layoffs. and eventually. layoffs in other industries. but economically viable employers to provide notice and close its doors on the mere possibility – since this would force premature layoffs and harm the individuals the act intends to protect o Dissent notes that this should not be all or nothing. produce tertiary effects in the form of increased demand for public assistance and social services. o Policy Consideration: Even when working well.
loss of two arms) – relatively uncommon Death benefits are paid to the survivor of a worker killed on the job. (3) workers’ compensation and (4) safety and health laws. Four methods to achieve: (1) labor market. Roosevelt said because work out of which accident arose was “done for the employer.e.632 and 5. TO RECEIVE COMPENSATION. The goals of government health and safety programs are (1) the prevention of workplace injuries and illnesses. · Whether an activity is a reasonably expectancy of employment depends on (1) whether the employee subjectively believes that his or her participation in an activity is expected by the employer and (2) whether that believe is objectively reasonable. accuracy of the data is questioned and there is evidence of an undercounting problem. loss of arm = 312 weeks benefits) and (2) Nonscheduled PPD benefits are paid for unlisted permanent injuries. However. (3) AROSE OUT OF EMPLOYMENT AND (4) IN THE COURSE OF EMPLOYMENT. Workers who are independent contractors or not engaged in the normal trade or business may not be protected. Temporary partial disability benefits are paid to those who are able to return to work but with limitations on the amount or intensity of work that can be performed during the healing period and are generally 2/3 of the difference between the worker’s preinjury wage and the current earnings. A WORKER MUST SHOW THAT THE INJURY WAS WORK RELATED. Cash benefits vary. Costs of workers’ compensation programs have increased. and therefore ultimately for the public.76% of payroll of $87. (2) tort suits. Workers’ Compensation About 96% of workers are covered by workers’ compensation.534 annually) and accidents (irregular decline).e. Fee schedules imposed in an attempt to limit expenses are controversial. does that mean the employers should instead? A. certain industries and certain occupations and in Texas the whole program is elective. Reichelt · The workers’ compensation act is to be construed liberally in favor of the employee 27 . Workers’ Compensation Appeals Board · No recovery may be had where the injury arises from voluntary participation in athletic activities. or are expressly or impliedly required by the employment related injuries are compensable.VIII. Temporary total disability benefits are paid to a worker is entirely unable to work for the healing period and in most jurisdictions are 2/3 of the worker’s pre-injury wage. to 1. Permanent partial disability benefits are controversial and take two forms: (1) Scheduled PPD benefits are paid for specified injuries on the statute (i. Permanent total disability benefits are assigned for particular injuries (i. WHERE THE EMPLOYMENT EXPOSES THE WORKER TO INJURY FROM THE ELEMENTS IT ARISES OUT OF EMPLOYMENT (“Actual Risk Test”) o Hanson v. Most states require employers to provide full medical benefits. subject to a maximum. TEST: (1) AN INJURY. and (2) the compensation of workers. (2) RESULTING FROM AN ACCIDENT THAT. but where activities are a reasonable expectancy of. though some states allow for exemption for employers with a limited number of employees.4B in 2004. this has become extraordinarily expensive. it is a bitter injustice that it should be the wage worker himself and his wife and children who bear the whole penalty.” Policy Consideration: If you take for granted that the employees should not bear the whole burden. subject to maximum and minimum amounts. Workplace Injuries and Diseases Introduction Bureau of Labor Statistics monitors workplace deaths (range from 6. Traditional tort recovery was difficult. THE “IN THE COURSE OF EMPLOYMENT” MAY INCLUDE WORK-RELATED SOCIAL ACTIVITIES o Ezzy v.
Du Pont · NARROW exception: intentional wrong · Intent = substantial/virtual certainty of the harm. WHERE WORKER CAN SHOW ‘INTENTIONAL WRONG’ WORKERS’ COMPENSATION IS NOT THE EXCLUSIVE REMEDY o Millison v. does it make sense to tie this to employment? EXCLUSIVITY IS ONE OF THE FOUNDING PRINCIPLES OF WORKERS’ COMPENSATION. tolerating in the workplace conditions that will result in a certain number of injuries or illnesses is different than actively misleading the employees who have already fallen victim to those risks of the work place and such intentionally-deceitful action goes beyond the bargain struck by the Compensation Act. · Whether mental illness qualifies as an occupational disease depends upon whether the employee can establish the risk to which he was exposed arose out of and in the course of his employment and has a clear causal relationship to the disability suffered. even with a strong probability. · Conduct in knowingly exposing plaintiffs to asbestos clearly amounts to deliberately taking risks with employees’ health. A disease shall be deemed to arise out of the employment if there is apparent to the rational mind. The disease need not to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence. Such aggravation shall arise out of a risk peculiar to or increased by the employment and not common to the general public. a causal connection between the conditions under which the work is performed and the occupational disease. The disease must flow from the risk as a rational consequence. the employee suffers an accidental injury arising out of and during the course of the employment. upon consideration of all the circumstances. Actual risk governs injuries from exposure to the elements. WORKERS’ COMPENSATION BECAME THE EXCLUSIVE REMEDY AGAINST THE EMPLOYER FOR A WORKER INJURED ON THE JOB (WHICH BENEFITED EMPLOYERS). THERE ARE SEVERAL EXCEPTIONS THAT ALLOW AN INJURED EMPLOYEE TO BRING A TORT SUIT AGAINST THE EMPLOYER OR ANOTHER PARTY. Stated differently. IN EXCHANGE FOR A NO-FAULT SYSTEM (WHICH BENEFITED WORKERS). mental disorders not resulting from trauma must arise from a situation of greater dimensions than the day to day emotional strain and tension which all employees must experience. the mere knowledge and appreciation of risk. · 28 . If the nature of the employment exposes the employee to the risk of such an injury. · A causal connection between the employment and the disability must be established by showing that the employment exposed the employee to an identifiable condition of the employment that is not common and necessary to all or to a great many occupations. · However. · Policy Consideration: Should we allow workers’ compensation benefits for employees who suffer mental harm as a result of layoff? Same question as asked with childcare – in the absence of a broad social welfare program. is not substantial certainty and thus will not be found to be an intentional wrong in order to overcome the exclusive remedy bar. It makes no difference that the risk was common to the general public on the day of the injury. reviewed based on the context. Industrial Commission · “Occupational disease” means a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment. ARISING OUT OF EMPLOYMENT REQUIRES A CAUSAL CONNECTION o Chicago Board of Education v. the question is whether the employment exposes the employee to the risk.
o There are four elements to a general duty claim: (1) The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed. not to completely eliminate hazardous occupations (though this would be the most certain way of eliminating hazards). (2) the hazard was recognized. so economic feasibility should be considered too – financially burdensome is fine but prohibitively expensive is not. (3) benefits to workers’ health or safety. but cannot dismiss a standard when the technology looms on the horizon/will be available in the near future because the OSHAct is “technology forcing” o Because Congress did not intend to protect employees by putting their employers out of business with either requirements for non-existent protective devices or by making financial viability generally impossible. Brennan o OSHAct is meant to upgrade working conditions. but these are done with relative infrequency. o There are surely industrial activities of little social utility that involve such great hazards that there total elimination may be appropriate o The Secretary may consider technological feasibility. THE EXCLUSIVE REMEDY PROVISION DOES NOT BAR TORT SUITS AGAINST THIRD PARTIES (WHO ARE LIABLE FOR FULL DAMAGES AND CANNOT REQUIRE THAT THE EMPLOYER PAY A PORTION. There are two types of inspections: (1) programmed inspections at highhazard industries and workplaces and (2) unprogrammed inspections triggered by accident reports.) B. and (4) cost-benefit analysis CONSIDERATION OF TECHNOLOGICAL AND ECONOMIC FEASIBILITY IS APPROPRIATE See AFL-CIO v. (2) economic feasibility. o Policy Consideration: Is it appropriate to allow for the operation of the economy to trump the functioning of the statute? OSHA MUST HAVE A WARRANT TO INSPECT WORKPLACES 29 . The Occupational Safety and Health Act OSHAct covers virtually all private sector employees (exceptions: federal employees. Standards whose cost alter the competitive structure of the industry or be unenforceable due to widespread noncompliance maybe economically infeasible. A recurring issue is what criteria should be used in creating standards – the most prominent proposals are (1) technological feasibility. (3) the hazard was causing or was likely to cause death or serious physical harm. However. and (4) there was a feasible method to correct the hazard. the standards are not specific: §5(a) subjects employers to a general duty to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” and requires further that each employer comply with the standards promulgated under the Act. state and local employees and small employers/farms) – written with the intention of imposing safety standards Enforcement with the OSHAct is done through compliance inspections.
and (2) the employee has reason to believe that there is INSUFFICIENT TIME or opportunity to either seek effective redress from his employer or apprise OSHA of the danger. o Ex parte warrants do not impose an undue burden on the inspection process – they just need to show reasonable need for conducting the investigation o Policy Consideration: Does it really make sense to provide the protections applicable in the criminal context to regulatory safety arena or is there a false equivalence? THE OSHAct INCLUDES A RIGHT TO REFUSE TO WORK IN NARROW CIRCUMSTANCES AND A RELATED RIGHT AGAINST RETALIATION Whirlpool Corp. o The purpose of the 4th Amendment is to protect against unbridled. the freedom to withdraw from a workplace environment that he reasonably believes is highly dangerous o Employees who refuse to work forego their pay. o That an employee is free to report. Marshall v. then the employee may refuse to expose himself to the dangerous condition without being subject to ‘subsequent discrimination’ by the employer. arbitrary government intrusion at home and business. any evidence of noncompliance with OSHA that the employee observes furnishes no justification for federal agencies to enter a place of business from which the public is restricted to conduct their own warrantless search. v. This right is extremely constrained. but cannot be discriminated against 30 . Marshall o The statutory scheme is intended to provide swift remedy. you must pursue the statutory channels first – this is not a broad walk-off right. o This standard comports with the preventative function – it would seem anomalous to construe the Act from prohibiting an employee. with no other reasonable alternative. Barlow’s Inc. when (1) the employee is ordered by his employer to work under conditions that the employee REASONABLY believes pose an imminent risk of death or serious bodily injury. but in the event it is not sufficient to protect workers. and the Government is free to us.
Bosch Braking Systems Division o The FMLA provides covered employees up to 12 weeks leave time for serious health conditions or to care for family members. Leave time is regulated by many state and federal laws – Family Medical Leave Act. or residential medical care facility. we examine disability based on a broad class of jobs. o The FMLA requires continued benefits and reinstatement to a comparable position upon return. etc. injury. An accommodation of NOT WORKING is not reasonable under the ADA. Why? COURTS MAY STRETCH THE INTERACTION BETWEEN THE ADA AND THE FMLA TO ALLOW FOR EMPLOYEE LEAVE UNDER COMPLICATED CIRCUMSTANCES – THE FMLA MAY PROVIDE LEAVE FOR A BROADER SET OF MEDICAL CIRCUMSTANCES THAN WOULD BE PROVIDED UNDER THE ADA Byrne v. o Eligibility for FMLA leave requires: (1) a serious health condition (or other qualifying circumstance). PREGNANCY IS NOT A PER SE SERIOUS HEALTH CONDITION. o Notice of a serious mental health condition could take the form of a noticeable change in behavior or can be excused where the condition is unforeseeable and thus the employee is incapable of providing notice/notice is infeasible. hospice. Uniformed Services Employment and Reemployment Rights Act. OR WHO NEED TO CARE FOR A SPOUSE. FAMILY MEDICAL LEAVE ACT (FMLA) MOST IMPORTANT FEDERAL LEAVE-TIME LAW. Pregnancy Discrimination Act. o Whether the pregnancy prevents performance of job duties is context-dependent – two women with normal pregnancies may be exposed to different risks because of different job duties. CHILD. o Policy Consideration: Is it appropriate for the court to take into consideration the protections offered by one statute in construing another? USERRA Governs leave for members of the uniformed services in connection with their service duty USERRA LEAVE ENTITLES EMPLOYEES TO NON-DISCRIMINATION BUT ONLY IN THE SAME NON-SENORITY RIGHTS AND BENEFITS AS OFFERED TO EMPLOYEES ON OTHER TYPES OF LEAVE 31 .IX. which can be taken either intermittently or on a reduced schedule when medically necessary. or physical or mental condition that involves (A) inpatient care in a hospital. Employee Leave Leave time is important in that it plays a role across broader workplace issues like gender disparities. o The FMLA affords leave time for qualifying conditions with notice to the employer. ADA (as a reasonable accommodation). or (B) continuing treatment by a health care provider. REQUIRES EMPLOYERS WITH 50+ EMPLOYEES TO GRANT UP TO 12 WEEKS OF UNPAID LEAVE EACH YEAR TO ELIGIBLE EMPLOYEES WHO HAVE SERIOUS HEALTH CONDITIONS THEMSELVES. BUT IN CERTAIN CONTEXTS CAN BE ONE ENTITLING AN EMPLOYEE TO FMLA LEAVE Whitaker v. o Serious health condition means “an illness. except in the case of some intermittent conditions like lupus. and (3) provision of reasonable notice to the employer. here the examination is with the pregnancy and the job at hand. impairment. OR PARENT WITH A SERIOUS HEALTH CONDITION. o Policy Consideration: In the ADA context. (2) that prevents the employee from performing her job duties. Avon Products o The ADA prohibits discrimination of a qualified individual with a disability (one who can perform the essential functions of a job with and without reasonable accommodation) because of the disability.” o Pregnancy is a serious health condition only if it produces a period of incapacity or if prenatal care is sought. WHO NEED TO CARE FOR A NEWLY BORN OR ADOPTED CHILD.
e. o Service members will NOT be considered constructively present for non-seniority workplace benefits and need only be treated in the same way as other leave programs – preferential treatment is not necessary. and to prohibit discrimination. to provide prompt reemployment upon return from service. thus service members on leave should be treated as if they were constructively present or (2) Narrow: benefits must be facially neutral so that benefits accrued for maternity leave are similarly accrued for military leave. 32 . See Rogers v. o Employers with a seniority system must restore returning service members to their place on the “escalator” (i. o VRA precedent could allow for two readings of the antidiscrimination provision: (1) Broad: anything missed as a result of absence is a denial of a benefit. City of San Antonio o USERRA was enacted to encourage noncareer service in the uniformed services by eliminating or minimizing disadvantages to civilian employment. where they would be had they not left to serve).
Enforcement of Employment Rights ←A. unless Congress has evinced a clear intention to preclude a waiver of judicial remedies for particular rights. Could be resolved by collective agent which would solve the public goods problem by aggregating preferences and spreading the costs. o Under some circumstances. B. even though not brought in subjective bad faith. or without foundation. STATE LAW CLAIMS MAY AMPLIFY THE RIGHTS PROVIDED BY FEDERAL LAW Bahramipour v. unfair or fraudulent business act or practice and incorporates other laws and treats violations of them as unlawful business practices independently actionable under state law. and (3) method for protecting against retaliation. o Statutory claims may be the subject of an arbitration agreement. Interstate/Johnson Lane Corp. o Policy Consideration: If you can’t waive your federal rights (under the FLSA. (2) method for efficient information collection. Sometimes there are fines. but the parties cannot agree on how they apply in a particular context.X. Class actions are sometimes allowed. Common Enforcement Issues Enforcement takes various forms – sometimes by the individual employee. o CA UCL prohibits any unlawful. unreasonable. PROVISION OF ATTORNEYS’ FEES TO THE PREVAILING PARTY ARE AWARDED ON A DIFFERENTIAL BASIS DEPENDING WHETHER PLAINTIFF OR DEFENDANT Christianburg Garment Co v. enforceable pursuant to the FAA. Arbitration involves informal hearings and loose rules of evidence RESOLUTION OF FEDERAL STATUTORY CLAIMS CAN BE SUBJECT TO COMPULSORY ARBITRATION UNDER CERTAIN CIRCUMSTANCES Gilmer v. There will be under-enforcement when it was left to the workers due to (1) a public goods problem [benefit to the collective is greater than to the individual] and (2) the cost of exercising rights [workers use a CBA to assess and the cost to the individual may be higher than their benefit]. o Attorney’s fees may be awarded to a prevailing defendant at the discretion of the court upon a finding that the plaintiff’s action was frivolous. An effective collective agent would have (1) aligned interests. Sometimes there are punitive damages allowances. EEOC o Title VII Presumption: prevailing plaintiff is ordinarily awarded attorney’s fees except in special circumstances due to equitable considerations tied to the fact that: (1) plaintiffs are the instruments of Congress for the vindication of a policy of the highest priority and (2) such an award operates against a party found to be in violation of federal law. which endorses a liberal policy favoring arbitration agreements and was intended to place arbitration agreements on the same footing as other contracts. Citigroup Global Markets. Arbitration of Employment Disputes There are two types of arbitration: (1) interest arbitration (unusual in the US employment sector) where a neutral body establishes the rights or terms between parties who cannot agree by themselves and (2) grievance/rights arbitration (long history in unionized labor) where a statute or contract has set out the rights and terms. this may result in an extended statute of limitations and expanded restitution o Policy Consideration: To what degree are we comfortable with allowing state and local governments to alter the applicability of federal employment regimes? UNDER-ENFORCEMENT MAY RESULT FROM A COLLECTIVE GOODS PROBLEM Weil. Inc. sometimes by government agencies. for example) 33 . Individual Rights and Collective Agents There is an enforcement gap between the law on the books and the employment reality.
(2) provides for more than minimal discovery. Saint Clair Adams o The exception to non-applicability is narrow for seamen. railroad employees and other classes of workers engaged in foreign or interstate commerce ARBITRATION OF STATUTORY CLAIMS MUST MEET CERTAIN MINIMUM REQUIREMENTS IN ORDER TO BE ENFORCEABLE Armendariz v. (3) requires a written award. and (5) does not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access. Foundation Health o Mitsubishi dictum was prescriptive – in agreeing to arbitrate a statutory claim. 34 . (4) provides for all of the types of relief that would otherwise be available in court. o Procedural requirements: (1) provides for neutral arbitrators. the plaintiff does not forego any substantive rights.o o why can you waive judicial remedy? Policy Consideration: What does the employee get in exchange for waiving these procedural rights? Policy Consideration: Are these agreements ever “voluntary”? Is this a reasonable choice to force upon the employee – arbitrate claims/waive access to a judicial forum or no job? FAA APPLIES TO EMPLOYMENT CONTRACTS Circuit City v. simply submits to their resolution in an arbitral forum.