Was this person hired for any purposes? Applies to grad students, athletes, prisoners. Same
analysis. Consider actual condition – what counts as a benefit here can be contestable.
For all the employment law we student except for FLSA – use the common law right to control
test – master servant doctrine introduced in O’connor but not used till Cotter. V Lyft. Control
rights and means of accomplishing result. Multi factor totality of the circumstances test. And
control reserved in the contract.
Cotter gives nice overview of factors to consider.
Or if the individual is actually in business for themselves. Also, Fedex case.
Entrepreneurial Opp. Is minority approach. Uses right to control test to determine whether
they have true En. Opp. And therefore is independent contractor.
ABC test flips burden into 3-factor test. But this test not actually used. Free of control, works
outside of usual course of business and engaged in independent trade. Otherwise – P is an
employee. Used in CA. (Not embraced yet, really).
Job Security:
Default rule comes from case called Savage. Over time, cts recognize common law exceptions:
can be express , written or oral or implied in fact
Definite vs. indefinite:
Basic contract remedies, possible duty to mitigate, ocassioanly liquidated damages.
Some cts will enforce a promise for good cause Showing. Americo
Some wont – Community hospital case (training period for 60 days, for cause contract after that
held unenforceable because it was indefinite – in FL for example they must be limited for time).
Express contracts- apply to executive and managerial employees.
After first generation of cases where cts found promises to be enforcebable. – employers
disclaimed as a good clause contracts but created policies in employement handbooks.
Are handbooks contractually enforceable? Can be unilateral implied contracts. If they show up,
they accept as performace. Can employer disclaim policy as ehally enforceable in the
handbook? Wooley says yes. Most cts will uphold a disclaimer.
Vested: When something is given – employees property essentially. Cant be taken away. No
need for consideration because unilateral contract. Continued work is sufficient for acceptance
and consideration.
Wrongful Termination in Violation of Public Policy (Tort-based Claim):
Sheets: plaintiff oculd have been arrested for failing to report employers mislabeling practices.
Hayes – main harm was to company not to public.
Accountants for example are required by SecandExchangeAct
Gant – chilling speech to the gov. implications for rule of law more likely to be public polict tort
Tort heavily overalps with retaliation provisions in statutes. For issue identification issues – be
aware of that.
Whether statute permits a common law claim.
If federal law. Does it preempt a common law claim?
Adequate statutory remedy, intended to be exclusive.
Gant perfect case for the plaintiff.
No remedy, so no intention for the state statute.
Labor law protections for people not in a union for stuff in the workplace
Right to engage I conerted activiyies,
Union activities, so long as protected. Washington Aluminum. Even section 7 employees.
Because NLRA accepts walkouts, even if not concerted. While disprutive was not disloyal, or
illegal. Etc. Only loses protection if disloyal (does not benefit employees). See Tripleplay sports
bar, Timekeeping.
Current board rule is Boeing. Sats plicy is only unlawful if impact on Section 7 rights is not
outweighed by busoness justification.
Requirements for pay secrecy (unlawful) per se.
Retaliation, sexual harassment are protected.
Balancing Employer, and Employee interests
Free market for labor on one hand, and
Covenants not to comepye, tade secret laws, and loyalty
Of value: most of the work by this test is done by second part secrecy – the steps the employer
took to keep this information confidential. Passwords, etc.
If readily accessible, then it is not a trade secret.
To show a violation, improper acquisition is enough. No need to show actual use.
Famages are inuuction, compensatory. Not punitive. Does not replace covenant not to
compete. Trade enforced ex ppst. The other -during.
Duty of loyalty bars high level mnagers form osliciying customers and employees. While
employed. After departure, no restraints.
Wommack – ShopRite case.
Dignitary interests:
Emotional harm: IIED, intent (reckless), extreme or outrageous conduct (without social value –
excludes insults, minor threats, minor annoyances), causing severe emotional distress.
Note: the overlap between IIED and wrongful discharge in violationof public policy. Can both
apply to outrageous terminations that can also violate public policy. IIED is broader in sense
that it can cover conduct more than just termination. Can also include pribate condict that
doesn’t include public policy.
Cts. avoid creating general civility code.
Ex. Holloman case did not consider IIED/
Bodewig. Is helpful case to understand IIED bar. Ct. sustains claim because conditioning job on
strip search in front of customer forces degrading act.
Defamation:
Searches: Public Employees
Ortega:
(a) did ee have a “reasonable
Complaints about corruption, abuse – Connick establishes threshold test that says speech must
be matter