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Employment Law
Professor Avery, before Fall 2007
Open book 3.5 hour exam. Maybe a question re: prizes offered by ER but not given. Reserve
exams may cover different topics – don’t need to know if didn’t cover here. Polygraph Act is not
on exam. Bring Statutory Supp to exam.
lawavery@buffalo.edu
Chapter 1: Work and Law p2-30, supp p1
A. Work and Society
-Legislation: 1935 – National Labor Relations Act – right to organize into unions and bargain
collectively
1938 – Fair Labor Standards Act – minimum wage protection and overtime pay
1963 – Equal Pay Act – unlawful to discriminate w/wages re: men/women
1964 – Title VII – no discrimination based on race, sex, color, religion, national origin
1967 – Age Discrimination in Employment Act
1970 – Occupational Safety and Health and Mine Safety and Health Act – created minimum
health and safety standards
1973 – Rehabilitation Act – disability rights
1974 – Employee Retirement Income Security Act – protects pensions
mid-1980s-present – Worker Adjustment Retraining and Notification Act, Employee Polygraph
Protection Act, Americans With Disabilities Act, Civil Rights Act of 1991, Family and Medical
Leave Act
B. Legal Intervention
Wagenseller v Scottsdale Memorial Hospital p10
P says the proximate cause of her termination was that she didn’t partake in her co-workers’
obnoxious and illegal activities while on a rafting trip. Question we want to ask: was the trip
sponsored or paid for by the employer? Contract of employment at will lets you fire people for
good reason, bad reason, or no reason at all. It’s a unilateral contract measured by
performance. No breach of contract remedy b/c it says they can fire her for anything. Where is
her right derived from? Tort law creates a duty. Loyalty question.
-NY doesn’t recognize exceptions/limits to employment at will policy.
Chapter 2: Development of Employment Law
A. Foundations of Employment Law
-Early laws made employment contracts different from other contracts and made it illegal for
workers to collectively bargain.
1. Employer-Employee
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Lemmerman v AT Williams Oil Co. p19
Issue=whether P was D’s employee. Held=yes. P=8 year old child working at odd jobs for $1 a
day. P’s mom worked there and P would do odd jobs while she was there. P fell and cut his hand.
Whether he was an employee was determined by his expectation of pay, he performed work for
pay. Contract law lets minors enter into contracts. If D establishes that P was an employee, then
it’s workers’ comp and P can recover, but he won’t get pain and suffering. This is what
happened. Dissent says that P wasn’t paid as other employees were, had no right to demand
wages from D, wasn’t on tax records, etc.
2. Employment at Will
Clarke v Atlantic Stevedoring Co. p28
Demonstrates employment at will concept. Longshoremen strike is going on, so employer
advertised that he needs 200 colored workers (“can guarantee continuous work”). An agent
found 96 colored workers who worked until strike was over then were all fired. Was
advertisement an offer of employment? No, not an offer, not definite enough. Even “permanent”
isn’t definite. “2 weeks” would have been.
-Taken w/Payne v Western and Atlantic RR and Henry v Pittsburgh and LER Co., an employer is
free to impose any conditions of employment, to discharge an employee at any time for any
reason, and to affect the discharge in virtually any manner.
-No notice provision or duration provision = employment at will. They can fire you, you can quit
both at anytime.
-Employers’ ability to discharge gives them greater power to coerce. Coercion creates a
constitutional issue.
National Labor Relations Act (NLRA or Wagner Act) p30-57, 63-71, St 1-11
B. Sources of Modern Employment Law
1.
Civil Service/Public Employment
-These cases speak to loyalty.
-Can a private employer say that you have to drive a Ford to work for them? Yes. A public
employer can also set conditions
McAuliffe v Mayor & City of New Belford p31
P=cop who got fired by mayor for soliciting $ for political reasons. P says law vs this is invalid
and he has freedom of expression. Ct says P has no constitutional right to be a cop (or to hold
any job), though he does have right of expression. Most jobs require you to suspend your 1st A
rights. Looks like employment at will, but P’s job protected by the need for just cause (tenure)
-Pendleton Act weakened spoils system.
-Hatch Act tightened prohibitions on political activity of federal employees, later on state and
local government employees, and educational and religious organizations receiving federal
funds.
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-State and local government employees today can: run for nonpartisan positions, campaign for
and hold elective office in political clubs/organizations, campaign for partisan elections,
contribute $, go to fundraisers, but may not: use their authority to influence
elections/nominations, coerce/advise coworkers to contribute, campaign, etc., solicit
contributions, engage in political activity while on duty, use government facilities for political
purpose, or run for elective office in a partisan election.
-Rutan v Republican Party p37
Issue=whether promotion, transfer, recall, and hiring decisions involving low level public
employees may be constitutionally based on party affiliation/support. Held=No. IL Governor
tried to get around patronage law and in doing so looked at how applicants voted, their support of
Republicans, etc. CL held that an elected sheriff couldn’t fire, promote, etc. on basis of political
support b/c this would make people falsely support, campaign and thus inhibit their 1st A rights.
The fact that P was employee at will doesn’t matter b/c in precedent cases, it didn’t matter. High
level employees can be fired b/c of their political views b/c they are involved in policymaking. Held=not hiring someone b/c of their party affiliation is a violation of the 1st A.
Elrod and Banti invalidated patronage firing to prevent the restraint it places on freedoms of
belief and association unless party affiliation is an appropriate requirement for the position.
Different from McAuliffe b/c this case re: promotions, hires, and transfer while McAuliffe re:
discharges. Is promotion, transfer, hire less severe then discharge? Yes its less severe. Does this
matter? No, it still re: freedom of expression. Civil service system was designed to prevent
patronage.
-Employer can’t fire, hire, promote, transfer for political motives unless the political motive is
justified by the position being a policy-making one. Employer must prove that there was no
political motive unless the position is policy-making.
2. Collective Bargaining (omit Pryner case & Notes & Questions on p62)
-NLRA (1935) encouraged collective bargaining, established NLRB to regulate union
organizing, elections, unfair labor practices, gave employees right to self-organize and
collectively bargain and prohibited certain unfair labor practices. Covers only businesses
affecting commerce, not government employees, supervisors, farmers, airline or railroad
workers. Its mostly concerned w/elections and unfair practices. Companies can’t discriminate vs
employees wanting to unionize.
-Fair Labor Standards Act set minimum wage, required more pay for overtime, prohibited child
labor in interstate commerce.
-Labor Management Relations Act (LMRA or Taft-Hartley Act) allowed employees to refrain
from or to participate in union activities and added more unfair labor practices.
3. Nondiscrimination
-Title VII: race, color, religion, sex, national origin
4. Judicial Modification of the At Will Rule
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-Title VII laid groundwork for undermining employment at will doctrine. Labor unions requiring
arbitration also contributed. Benefit entitlement laws also helped. Public policy exceptions are
now a majority and allow tort actions sometimes for punitive damages. Also, implied contract of
job security has given rise to breach of contract actions and implied covenant of good faith
allows contract or tort actions. Specific performance of employment contracts is a rare remedy.
5. Other Sources
-Torts in the workplace now include: invasion of privacy, IIED, defamation, neg hiring, and neg
record maintenance.
6. Collective Bargaining Agreements: Arbitration of Statutory Rights: supp2-16
Wright v Universal Maritime Service Corp.
Had CBA, had arbitration process, no specific reference to statutory claims or discrimination.
CBA says employer won’t violate state/federal law. No specific agreement waiving right to
judicial forum re: statutory claims, like ADA, ADEA. Concern about waiver of judicial forum,
which was viewed as okay in Gilmore. Union said just go to court b/c CBA doesn’t cover P’s
right to go to court in P’s situation. Issue=whether an arbitration clause in a collective bargaining
agreement requires an employee to use the arbitration procedure for an alleged violation of the
Americans W/Disabilities Act. P was longshoreman in a union. P was permanently injured and
disabled and got $ for this. A few years later, he went to the union hall, who referred him to work
for some stevedoring companies. They learned of his “permanent disability” and said he could
no longer work there b/c their collective-bargaining agreement says that no permanently disabled
person could do longshore work. P had a doctor’s note saying it was ok and his new bosses never
complained of his performance. P filed a claim w/EEOC under the ADA, alleging
discrimination. He also sued the stevedoring companies. Ct said he didn’t go to arbitration, so
it’s dismissed.
Alexander v Gardner-Denver Co
Employee won’t forfeit right to judicial forum for Civil Rights discrimination charge if
arbitrates.
Gilmer
Employee can bring claim of ADEA in an arbitration proceeding, re: individual, not union.
Arbitrators are in better position than cts to interpret collective-bargaining agreements. Held=P’s
claim is not subject to presumption of arbitrability, requirement of arbitration in a collectivebargaining agreement must be particularly clear and unmistakable. It didn’t contain a clear and
unmistakable waiver of P’s right to a judicial forum for federal employment discrimination
claims.
7. Arbitration, the FAA, and Individual Employment Contracts:
Circuit City v Adams
Issue=whether Federal Arbitration Act (FAA) excludes transportation workers from its coverage.
Every Circuit says yes except the 9th, whose ruling is questioned here. FAA also excludes
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contracts of seamen, railroad workers, or any employees engaged in interstate or foreign
commerce. D signed employment application which required him to settle all his claims vs P in
arbitration. D filed discrimination suit in state ct and P answered by enjoining to get it into
arbitration. Dispute over semantics: “engaged in commerce,” which is used in FAA, is narrower
than “affecting commerce.” Applies maxim that if general words follow specific words in a law,
the general words are construed to embrace only objects similar in nature to those objects
enumerated by the preceding specific words. Held=FAA excludes only contracts of employment
of transportation workers. Arbitration is good b/c cheap. A party bound by arbitration doesn’t
lose her right to a statutory claim, she simply must bring it in arbitration, not a court. Dissent:
history of drafting the FAA nor the Congressional deliberation records show that it was supposed
to apply to employment agreements.
Brown v Wheat First Securities, Inc. handout POTENTIAL EXAM QUESTION!
Issue=whether Cole doctrine should be extended to nonstatutory state law claims grounded in a
public policy rationale. Cole: employee who agrees to arbitration of disputes as a condition of
employment and who makes a claim based on federal statutory rights may not be charged certain
fees and expenses for arbitration of the claim, at least where that condition of employment was
demanded by an employer not subject to regulatory oversight. P’s employment provisions w/D
contained a mandatory arbitration clause. P filed for wrongful termination, breach of contract,
defamation, slander, and tortuous interference in arbitration. He was a whistleblower and says
that there is a whistleblower exception to employment at will rule. He paid a lot for arbitration.
He also alleged Civil Rights violation. P sought to cancel the agreement to arbitrate and so
dropped out of proceedings, was charged $6500. Gilmer: arbitration agreement valid as long as a
P can effectively vindicate her statutory c/a in the arbitral form. Employer must pay arbitrator’s
fees. Held=don’t extend Cole, this perpetuates Congressional intent. State restrictions on
arbitration are preempted by FAA. Extending Cole would alter FAA significantly by
procedurally limiting a lot of arbitration claims, w/o Congress’s okay.
Look at whether there is reference to statutory claims.
Arbitration is very different from mediation. Arbitration: before third party who decides the case
(similar to judge or jury). Mediation: third party acts as facilitator to help parties reach decision.
Written agreements are frequently used to require arbitration. Mandatory pre-dispute arbitration
agreement is very different from post-dispute agreement. Ex someone gets fired, so dispute has
arisen. Then ex-employee says I have a c/a. Employer says how about arbitration? Here, both
have a lot of bargaining power, employee can go to court.
2 kinds of pre-dispute arbitration agreements:
(1) CBA’s (collective bargaining agreements – between union and employer). Employee is not a
bargainer. Very old remedy, unions control grievance process, which may go to binding
arbitration or get settled before this final step. An employee may not get to go to final arbitration
if union decides it’s not worth it. Union is bound by duty of fair representation (DFR), which is
the same as duty of good faith. If employee feels union failed to represent fairly, employee may
file a DFR suit, which is very hard to win. It’s not employee’s choice to arbitrate w/CBA’s.
(2) Individual employment contracts (ex. application, employment contract, U-4 form).
Employee has power to decide to arbitrate.
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Who decides case?
Court
Judge/jury
Arbitration
arbitrator
How selected?
May be a panel, could be half picked by each party (this is in arbitration
agreement). Need not be attys. American arbitration association, as other commercial groups (as
may be named in agreement), specializes in this area. Agreement may say that employer picks
arbitrator. ww.adr.org/rules/employment/employment_rules.html
Who pays what?
Taxpayers. Parties pay $500 to file under AAA, fee=$100. Someone must
more costly for employers pay arbitrator. Agreement may specify who pays.
Parties pay for atty. May collect atty fees.
Cole: employer pays arbitrator’s fees, so employee isn’t worse off than they would be if they
went to court.
Supposed to be cheaper than court. Unions will pay if CBA. Employer may have favorite
arbitrator (who wants to be hired again by employer), as may union. Individual won’t.
Discovery
Much allowed under FRCP. Agreement may specify, as may arbitrator. Will depend on
facts, complexity of case. Employer may have most of the info, unless it’s a medical case.
Time?
Generally faster, but smaller remedy.
Statute of Limitations
May be 2-6 yrs depending on type of claim. Agreement may have, may be so short so as
to be unfair to employee. Statute will overrule if agreement conflicts w/statute.
Remedies if contract claim, contract remedies, same w/torts May be limited. Usually smaller than
in court. Backpay, frontpay, compensatory, punitive damages outlier=huge jury award.
Mutuality Employee may have to pay employer’s expenses if she loses.
Admin enforce of statute
A different authority, like EEOC, may sue on
employee’s behalf and get injunctive relief.
Judicial review
Sue to vacate or to compel action. Available if there’s fraud in arbitration, or other
defects like bias. Employee may not sue to vacate arbitration judgment unless it fits the very
narrow public policy exception. These agreements are almost always enforced (cts hate
employment disputes).
Arbitration has no SJ motions, which have recently predominated discrimination cases.
Arbitration decisions are usually not published (both parties must agree to publish it), and if they
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are, publishers choose which ones to publish. Most arbitration decisions are short and none are
binding.
FAA doesn’t cover CBAs, which are interpreted under Labor Management Relations Act §301,
which gives jurisdiction. §301 creates federal law common law for CBAs. Can bring §301 claim
in state or federal ct, but federal law is used.
Many transportation workers are covered by CBAs.
State law is preempted by FAA.
Supp p16 notes #3: employer may waive right to court and go to arbitration or vice versa while
employees must go to arbitration if their contract says so. This contract clause was found
unconstitutional in Armendariz.
Alexander v. Gilmer
CBA Pre-dispute individual U-4 form (not an employment contract) says arbitration is
mandatory. Issue=whether a union member who had pursued a claim ADEA claim pursued in ct,
rather than arbitration. Ct says under a CBA he could file suit in court for a racial discrimination
go to arbitration, where statutory rights can be decided. Extended to claim. Yes, he had right to
court b/c union can’t waive his right all other statutory claims to bring this claim. Statutory rights
are personal rights, and the union protects collective rights.
Wright v. Circuit City
Statutory claim under ADA (he failed to exhaust arbitration 1st). Employment contracts are
take it or leave it. They are binding. If you sign one w/arbitration clause, you’re stuck. FAA:
broadest class of employees should go to arbitration. Exclusions read narrowly. Transportation
employees not included in FAA.
C. The Changing Economic and Social Setting p72-101
1. Demographics: more women, minorities, less unions, more professional jobs
2. New Work Arrangements: (who is an employee?)
Fair Labor Standards Act-definitions section has broad construction of “employ.” Most
statutes each define employee differently. Cts also use different tests to see if one is an
employee. Master-servant test: does master control servant, responsible under respondeat
superior law. If employee, acting in course of employment (agency test)?
Donovan v DialAmerica (1985) p81
Issue=whether D failed to comply w/minimum wage and record keeping requirements of the Fair
Labor Standards Act. Were distributors and researchers employees or independent contractors?
Held-Researchers were employees and distributors were contractors. All signed an “independent
contractors” agreement which said they’d be paid piecework, none were rejected, though some
were fired. USSC precedent shows that homeworkers are entitled to make minimum wage. D
made no deductions from their checks. In-house researchers were paid minimum wage, did same
work. FLSA says just b/c one works at home, could still be an employee. Researchers would find
phone #s and distributors would pick up and drop off cards w/these #s. Sureway Cleaners: look
at the circumstances of the whole activity, which is dependent on the business. Look at 6 factors:
(1) degree of employer’s right to control manner in which work is performed (2) employee’s
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opportunity for profit or loss (3) employee’s investment in equipment/materials or employment
of helpers (4) special skills required (5) permanence of working relationship (6) service rendered
is integral to employer’s business. Researchers worked continuously long periods of time, so
they had permanence and didn’t transfer their services from place to place, as independent
contractors do (it was an exclusive contract) (#6). #5 satisfied for researchers but not distributors
b/c though these researchers only did 4% of D’s work, the work was D’s primary work.
Economic dependence aspect satisfied for researchers even though this work was usually a
secondary source of income. #1 not met for researchers, but other factors are enough to make
them employees. Distributors kept own records, recruited own researchers, risked financial loss,
paid their own expenses, had authority to set rate of their researchers, invested in transportation
expenses, were subject to minimal control, and their work wasn’t integral to D’s, so they were
independent contractors.
Industrial homework was prohibited in 1940s by Dept of Labor, but ban on 5 types was
rescinded in 1988: gloves/mittens, handkerchiefs, buttons and buckles, nonhazardous jewelry,
and embroideries. Frequent problems: no minimum wage, no benefits, no advancement
opportunities.
Contingent Workers
Part-time (often they don’t want p/t, paid less, no benefits, largest group of contingent workers,
no statutory workplace protection), contract workers (employed by primary employer, but also
provide services to secondary employer on contract basis), temp workers, independent
contractors, labor pools.
Vizcaino v Microsoft
Issue=whether “employees” were entitled to participate in pension and benefit plans of D.
Held=yes. These workers signed an agreement saying they were independent contractors and
were responsible for benefits, pension, taxes, etc. They worked for 2 years or more
continuously, worked same hours, used office equipment, had keys, worked right w/other
employees, worked on site. D didn’t pay FICA share of taxes. IRS found out and D started
paying FICA, gave “employees” choice to quit and work for a temp service. Some were hired on
by D. Question here re: what happened before IRS found out. P and D agreed that they were
common law employees. Should D treat them as employees for all purposes? Ct assumed D had
made a mistake. Status of employees trumps the contract which paid them more for not being
entitled to the benefits.
Chapter 3: The Hiring Process p103-128, stat 13-26
A. Introduction – status
Extent to which status restrictions create monopoly on jobs. Status requirements limit pool of
potential EEs. Nepotism is very common b/c most businesses are small businesses.
Kotch v Board of River Port Pilot Commissioners (1947) p104
Public employment Constitutional challenge. P wants to be a pilot in a LA port. Such pilots are
required to have a lot of qualifications, including an apprenticeship. P alleges that b/c the
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apprenticeship is only given to incumbent’s friends and relatives, only the friends and relatives
can become pilots and this is wrong. Ct says this system serves to promote the safety and
efficiency of the trade b/c the pilots have to know the weather conditions, etc. and must be taught
this info from a young age, so must be from this area. The nepotism is justified. In reality, the Ps
and Ds were both from the area. This occupation is justified in having a monopoly. If this system
was used to intentionally discriminate vs a protected class, Title VII violation. This case’s
holding ended up being interpreted very narrowly.
Note: Backlund v Hessen (1997) p108: only firefighters’ kids were hired to replace them. Ct
interpreted Koch as being good law, but limited it to its facts. Just b/c there’s a reason to “justify”
nepotism, its not justified.
EEOC v Consolidated Service Systems (1993) p109
P says D didn’t hire him b/c he wasn’t Korean and D only hired (mostly) Korean EEs and only
used word of mouth to advertise. P didn’t really intensively seek this job. The local work force in
that trade was mostly non-Korean, though D was almost all Korean. I=whether the circumstantial
evidence of discrimination compels an inference of intentional discrimination under Title VII. D
says word of mouth is free and it gives EE referrals, which are reliable, helps screen applicants.
No motive to discriminate – knowledge of disparity does not = intent to maintain it. In a
disparate impact case (this isn’t), advantages of word of mouth advertising would be balanced vs
possible discriminatory effect when workforce is already skewed. Held=no discrimination.
People tend to work and socialize w/others like themselves. I=is word of mouth advertising
evidence of intent to discriminate? No. ER was passive in its hiring advertising. What if ER was
big law firm and hired only white males from the country club? Eventually, nonwhites and
females will intensively seek these jobs and get denied and discrimination claims will be
brought. These facts don’t give rise to an inference of discrimination.
Want Ads can’t be discriminatory unless a trait is a qualification (discriminatory traits = sex,
race, color, religion, national origin). It is legal to target certain newspapers, etc.
If sign is put up, it should be in language most in the area can understand.
State employment agencies aren’t allowed to discriminate under Title VII. CSO is employment
agency. Private employment agencies are not federally regulated.
Unions (hiring halls) can’t cause an ER to discriminate under NLRA. Unions can’t give
preference union members over nonunion workers.
B. Legal Restrictions to Access to Jobs
Assumption that fairest is most efficient system. Probation allows you to correct poor or
mistaken hires. Employment at will efficient in this regard. Decision not to hire someone isn’t as
clearcut. Is failure to hire rational based on lack of qualifications or was it illegal or was it just a
bad decision? People usually not told why rejected, so not likely to challenge it. Most people
expect some rejection. No investment to protect as in a discharge case (investment of 10 yrs,
etc.). Private ERs in a way have residency requirements – ex. live in a mine camp.
1. Residency Requirements
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Wardell v Board of Education (1976) p117
Residency in public employment. 14th A- Equal Protection. Residency as a condition of
employment. D is free to change qualifications R’ly even though they’re in a union. Public sector
unions can’t strike. K=property interest. I=whether a school district can require its teachers to
live w/in the city w/in 90 days of hire. P was hired and never moved to city. P says his right to
travel violated – equal protection. Ct applies rational basis test b/c this re: continuing residency
affecting intrastate travel. D laid out many valid reasons for the requirement (ex. community
involvement). Held-requirement is valid. The fact that it doesn’t apply to the teachers w/tenure
doesn’t make it invalid and local boards are free to impose conditions/qualifications and higher
standards than the state may have. Residency requirements have been attempted to be struck
down a lot, mostly unsuccessfully. Public ERs can impose restrictions as long as they don’t
affect subtle expectations, which new hires don’t have. This case is really about $ and taxes.
2. Undocumented Aliens
Farm bosses need only an instinct that someone is undocumented and they have an excuse not to
hire. ERs need only have EE provide documentation of legal status, need not check authenticity
of documents.
Collins Foods Int’l v INS (1991) p122
Alienage. Immigration status – IRCA. IRCA put burden on ERs, but it is minimal. P was fined
for hiring an alien knowing he was unauthorized to work in US and w/constructive knowledge of
his status and that constructive knowledge is sufficient to establish the knowledge element of the
statute. EE was hired over the phone, he didn’t say he was unauthorized to work in US and had
already been working for another store in that chain. ER asked alien for documentation that he
was allowed to work in US, when EE didn’t have it, he sent him home w/understanding that he’d
come back w/it. EE came back w/fake social, ER filled out I-9 w/it, didn’t know it was a forgery
(didn’t compare back of social to INS ex, but wasn’t statutorily required to). ERs must verify at
time of hire, which is the commencement of employment for $. Pre-employment inquiries of
race, etc., may constitute evidence of discrimination under Title VII. Held=ER performed its
duty and didn’t have constructive knowledge. Prior cases held that constructive knowledge =
being alerted to the fact that aliens were unauthorized. ERs can be fined for not paying minimum
wage and for employing illegal aliens, who are covered by NLRA. Undocumented aliens,
children not allowed to be hired. ERs can make ER offers w/o checking status. If ER finds out
after hire that EE is illegal, must fire them. As long as ER checks adequately, ER is off the hook
unless put on notice.
C. The ER’s Info Gathering Process p129-151, supp 19-20
1. Hiring Practices: active/passive – cost $$ - Consolidated Services
2. Obtaining info re: applicants – Sullivan – ERs want to get as much info as possible about
potential EEs.
3. Obtaining info from applicants – Lysak
4. Providing info to prospective ERs – Chambers
5. Providing info to exiting EEs - Lewis
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Churning=turnover
Scarring=EE fired, hard to find new job now. IF ER gives no reason for firing, this can also
scar.
ER can give info re: past EEs if EEs waive defamation claims by giving consent.
1. Applications
Sullivan v USPS (1996) p129
P applied for USPS job, checked on app “don’t contact current ER,” USPS did anyway, he was
fired as a result and not hired by USPS. Motion for sum j by D. Held=no sum j, issues of fact
exist. D’s actions constituted a disclosure prohibited by Privacy Act.
2. Interviews
Lysak v Seiler Corp. (1993) p135
P voluntarily (unsolicited) told D during her interview that she wasn’t having any more kids
while she was pregnant at time of interview. She was fired when D found out about pregnancy.
D said fired b/c lied, P said fired b/c pregnant and sex discrimination. She became independent
Ker. Held=D could have based an employment decision on an unsolicited lie by P. Also, Kraft:
EE may not be fired for lying in response to an illegal question by ER.
3. References
1. Defamation: (restraint on ER making full disclosures)
ER has 5 options: (1) truth (2) lie (3) tell as little as possible (4) say nothing (5) be ambiguous.
Truth is a defense to defamation. If ER gives good feedback, no problems. If bad feedback,
possible defamation claim. If ER lies about EE in a positive way, no defamation claim by EE,
but is this a neg referral? Harm may be F if there was a duty to be truthful. If ER tells as little as
possible, safe. Is there a duty for ER to tell of EE’s really bad character (ex. rapist)? This is a
question of law, not of fact. If duty, maybe privilege.
Burden of proving falsity is on alleged defamer.
It’s not defamation to state your opinion of something. Facts can lead to defamation. 2
categories of defamation: slander=oral, libel=written (includes email).
Defamation elements: (1) publication of a (face to face communication b/t the 2 parties doesn’t
count) (2) false and (3) defamatory statement that was (4) unprivileged and (5) D was at least
neg and (6) damage was caused. Damages not always an element – libel per se (D defames
person re: professional rep, accused of a crime, accused of having STD) doesn’t require
damages. Defamation may be an intentional tort.
ER’s defense: Qualified privilege, truth, lack of publication, statement is not defamatory, ER was
not neg, reckless, etc., consent. Beware of compelled self-publication – is it F that EE will have
to explain.
2.Injurious Falsehood: (restraint on ER making full disclosures)
Doesn’t require defamatory statement, D must know statement is false or was reckless in
making. Ex. possible K for new job, X lies to future ER and says P already accepted other job.
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3.Privacy Torts:
a. public disclosure of public facts: statement is true, but should be kept private (statement is
embarrassing, for ex). Harm is harm to privacy, dignity, not defamation.
b. Privacy laws re: public EEs: records and info w/in records.
c. State constitutional interests: re: privacy interests of EEs. Look at if covers public or private
EEs.
d. Federal constitution: 5th and 14th As, due process, liberty interest, privacy interest. More
limited than state constitutions.
Impose duty on ER to make full disclosure:
-shield law that gives ER protection in order to make full disclosure.
-watch for neg disclosures or intentional lies b/c of grudges.
-false and positive statement made to get rid of EE.
-maybe EE signs waiver releasing ER from tort claims in exchange for severance pay. Ex. b/c
EE signed release, couldn’t sue for malicious and intentional lie by ER while giving reference.
Some cts won’t recognize prospective waivers (before suit arises).
-consent to investigation by EE during pre-employment, which precludes all privacy claims by
EE.
-ERs get insurance vs defamation claims, which may not cover intentional torts
ERs are limited in using certain techniques, like handwriting analysis, by statute, like EPPA,
anti-discrimination laws, laws limiting questions re: disparate impact (ex. arrest record), privacy
laws (ex. vs inclusion on seclusion – physical intrusion), state constitutional privacy laws, ADA
(pre-offer medical test or disability inquiry is unlawful), pre-offer psychological tests may be
unlawful under ADA b/c it’s construed as a medical test.
-If honesty test really does screen out liars, ER has good reason to use.
-No harm if ER hires applicant after asking illegal question.
Chambers v American TransAir (1991) p138
Held=SJ for D. P left D and was finding it hard to get another job, she had given D as a
reference. She had her mom and boyfriend call to see if D was giving bad references. Mom and
boyfriend were more aggressive than most prospective ERs probably would have been in getting
info. These “testers” were agents of P, so they’re treated as if they are P. P loses b/c she can’t
prove that ER actually told prospective ERs bad things about her. Also, qualified privilege saved
ER. They were, she sued under defamation, the elements of which are: defamatory imputation,
malice, publication, damages. Qualified privilege is a defense to defamation and this ct holds that
ERs’ statements given to a prospective ER are covered by this privilege. Qualified privilege
defense is lost if: (1) ill will motivation (2) excessive publication or (3) no grounds in truth. P
has burden to prove qualified privilege no longer exists.
P151 Note #7: Disclosure of reason for termination: states may require, but common law does
not.
Lewis v Equitable Life Assurance Society (1986) p144
Ps are at will EEs, no employment K, indefinite duration, were told they’d be discharged for just
cause, had handbooks, all fired for gross insubordination b/c they went on business trip to
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Pittsburgh, were told little about how to fill out expense account forms, upon return were asked
to change their method of filling out the forms about 5 times, fired b/c wouldn’t fill out again. No
severance pay. Suffered emotional/financial hardship. Elements of defamation: communicated to
someone other than P, false, harms rep. D never communicated statement, but Ps had to tell
prospective ERs reason why they don’t work there anymore. Held=in defamation action,
publication requirement satisfied where P was compelled to publish defamatory statement to 3rd
person if it was F to D that P would be so compelled.
4. Neg Hiring
Does ER have duty to find out info about EEs? Should all ERs have to do background checks?
Malorney v B&L Motor Freight (1986) p151
I=whether ER had a duty to investigate EE’s criminal record even though he gave negative
responses to those questions on his app before furnishing him w/a truck w/sleeping facilities. EE
had a violent sexual criminal history. EE was prohibited from picking up hitchhikers, did so,
raped her and now she seeks compensatory and punitive damages. ER says it couldn’t have
RBLY FRSN the incident. EE acted outside scope of his agency. ER created the opportunity by
entrusting “rolling bedroom” to a rapist to places where there are potential victims. D wants SJ –
denied b/c issue became whether D breached its duty to hire a competent driver who was to be
entrusted w/an over the road truck. Held=D had a duty to do criminal check. No SJ.
EE Polygraph Protection Act stat 27-37
-prohibits polygraphs (not honesty tests) in private employment
-exceptions:
-gov’t Ers
-national security/counterintelligence federal Kers
-ER Rly suspected of involvement in ER’s economic loss
-armored car/security alarm
-controlled substances
-can’t ask about religion, union membership, racial/political beliefs, sexual
behavior
D.
20
1.
Truth-Detecting Devices and Psychological and Personality Testing p151-176, s
Polygraph
Lyle v Mercy Hospital (1995) handout
P was surgery assistant for D for 8 yrs. Allegations were of $ being taken from lockers in locker
rm P had access to. Group of male EEs (not all, including cleaners) were questioned, searched,
told of future lie detector test, P said he wouldn’t take lie detector test b/c a friend atty of his told
him never to do so. He was the only one who refused. P was told that he had chance to resign, he
declined and was fired. P was also told that if theft doesn’t stop after P’s termination, someone
else would be fired, etc. until it stops. You’re the scapegoat!, he said. ER said RBL belief P did
it. P says ER violated EPPA by using his refusal to take test as reason for firing. ER told W that
P was fired for not taking test. ER says it falls under EPPA exception b/c economic loss. Ct says
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no, economic loss must be to Co, not another EE. ER also failed to give EE written info as EPPS
provides. D lost sum j motion.
How much checking of a prospective EE is done depends upon their potential future job.
Answering an offensive question on an honesty test is construed as consent to the offensive
question. But if you don’t answer, your privacy hasn’t been invaded. Asking as a condition of
employment is invasion of privacy.
2.
Tests
Other Truth Telling Devices and Psychological and Personality
Soroka v Dayton Hudson Corp (1993) p166
P is challenging D’s use of psychological tests for department store security guards, who are
unarmed but may use force in self-defense. ER wants emotionally stable guards. The test used
has been used generally for public safety positions. Test asks many questions about religious and
sexual attitudes (revealing type of religion, if any, and sexual orientation and behavior). Testing
company tests ER recommendation that can be overridden and doesn’t give ER answers to the
questions, so ER doesn’t find out about sex, religion, only finds out about stability, reliability,
socialization, addiction potential, style. Held=treat applicants the same as EEs and treat private
and public ERs the same. Questions must be related to EE’s duty – must have direct nexus. The
sex and religion questions unjustifiably intrude on the state constitutional right to privacy. Once
P establishes prima facie case of impermissible questions, burden shifts to D to show why these
questions are job related. Test violates constitutional right to privacy and statutory prohibitions
of discrimination (sex and religion).
E.
Medical Screening p176-178, 180-189
1. Purpose
Recent purpose is to determine whether they’re at risk of developing future health problem –
predictive screening.
2.
Medical Questionnaires
Griffin v Steeltek (1999) supp 20-24
I=whether a non-disabled person has a c/a under ADA when asked as an applicant questions re:
medical history. Held=yes, non-disabled can sue under ADA. Trial ct gave D sum j b/c P wasn’t
disabled and they thought being disabled was a requirement under ADA. ER app asked if ever
collected worker’s comp or disability bene’s or if has a disability that prevents you from doing
certain jobs? P’s c/a is that he wasn’t hired b/c of his responses to these questions. ER told him
not hired b/c not enough experience. He says interviewer never mentioned required level of
experience and told him he was the most qualified applicant for the job. ADA 102(b).
Americans With Disabilites Act (ADA) 102(d) stat.81-82
-can’t ask of have disability during int or conduct medical exam. Can ask if applicant can
perform job functions. Exam given to all is ok after employment offer made, ER can condition
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employment on passing of this exam. Keep medical info confidential and tell of disabilities only
to sups who need to know to make accommodations.
-102(d) Medical exams/inquiries
-104(d) Test re: illegal drugs does not = medical exam stat 84-85
-103(b) direct threat defense
Stages of hiring in private ERs:
1. preoffer – can’t give any medical exam/inquiry, illegal drug tests can be given. Can’t ask if
have disability, can ask if can perform duties. Can’t ask if need accommodations – EE must ask
for it.
2. postoffer – can give medical exam/inquiry as long as given to all EEs, can condition
employment on passing of exam, can’t ask if have disability.
3. postemployment – stat 82: no exam/inquiry re: if EE has disability or the severity of unless
inquiry/exam is job related and consistent w/business necessity. Can require medical exam after
an injury/surgery to ensure EE can still do job.
Can always drug/alcohol test suspicious Ees.
Urinalysis/blood test/hair test = search under 4th A.
2 kinds of cases re: drug tests:
(1) individual suspicion (2) no individual suspicion – can apply across the board testing.
Can an ER ban off duty drinking/smoking? Yes, if in public for cops, etc.
Claims to bring vs ER if let out rumor of STD:
State or federal privacy law
ADA
Defamation – problem=truth
Breach of confidentiality
Public disclosure of private facts.
-Problem: refusing to hire smokers p181
City of North Miami v Kurtz – (1995) handout
I=whether FL constitution prohibits ERs from denying employment to smokers where use of
tobacco isn’t related to job function. Public employment. Held=FL constitution doesn’t give
gov’t EEs privacy here. This may be different w/private ERs. Smokers have no R expectation of
privacy b/c asked about it in public a lot. ER had a good reason to ask: self-insured, a smoker
costs extra $4K each yr.
NY Labor Law 201(d)
ER can’t fire, not hire or not license b/c of: out of work political activities, legal use of
consumable products, legal recreational activities, or union membership.
3.
Medical Examinations
Green v Walker (1990) p182 (not discussed in class)
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I=whether ER hired MD who does annual medical exams of EEs has a duty of due care and to
report his findings? Held=yes. EE had annual exam by ER hired MD, was fine. Next yr, MD said
has bad lung cancer. P says MD neg’ly failed to disclose his findings of cancer timely thereby
reducing EE’s chance of survival. EE died. Malpractice liability depends on whether there is a
MD/patient relationship. ER had K w/MD saying no such relationship existed.
Normally, there is no duty to an EE by an ER hired MD.
F. Drug Screening and Other Lab Procedures p189-220
1. Drug Testing
National Treasury EEs Union v Von Raab (1989) p197
I=whether it violates the 4th A for US Customs Service to require a urinalysis test from EEs who
seek transfer/promotion to certain positions. Part of job EE wanted involved seizure of
contraband. Test was reliable, valid, and accurate. Drug tests were made a condition of
employment for jobs w/: (1) dangers to mission of agency and lives of customs agents (2) carry
firearms (3) handle classified material. Testing is post-offer. Subj. to dismissal if test is positive –
EEs not given chance to explain. P says 4th A prohibits b/c it’s an overly intrusive search.
Held=search is ok b/c firearm carriers and drug interdiction. Handlers of classified info can’t be
tested. Balance privacy w/Gov’t’s interests. Can’t turn over test results to cops. Compelling
interest. Dissent: very intrusive, violates one’s dignity, no demonstrated need in this dept, drug
use not necessarily connected w/being a bad EE, would be ok if done to set example to country.
Eastern Associated Coal
Recent USSC case. Random drug tests. Caught 2x w/weed in system. Covered by CBA, went to
arbitration. Arbitrator ruled he was suspended w/o pay for 3 months, rehab program, not fired.
Had to sign resignation ltr. if it happened again. ER wanted to fire him. Narrow public policy
exception re: arbitration agreements. Ct said contrary to public policy to fire EE. Ct upheld
arbitrator’s award. If no CBA, EE surely would have been fired.
2. Genetic Testing
3. The Effects of Workplace Screening
Chapter 7: Conditions of Employment p554-70, supp 58
A. Work Environment
1. Grooming and Dress: (includes bad breath, body odor)
We have freedom of expression generally, but it’s limited to things like mandating that people
wear clothes. Community norms regulate porn.
Public
-military (much deference)
-uniformed civilian services (cops, etc.) (less deference)
-nonuniformed civil EEs (least deference)
Private
-regular civilians
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Kelley v Johnson p556 (1976)
Police Dept had standards for men’s hair, president of cop association challenges. P says hair
restriction infringes on his 1st A via 14th A liberty interest that community standard of cops is
opposite to. I=whether there is a rational connection b/t the regulation and the promotion of
safety. Public EEs have different standards. Test is whether it affects public. Freedom to decide
their own organizational structure. Held=hair restriction valid b/c makes cops recognizable,
provides uniformity. Standard of review when liberty interest is raised by public uniformed
civilian servant = rational relationship b/t regulation and its goal (very low burden for whoever
imposes regulation). EE has burden of showing that there is no rational connection. Majority
looked at P as a public EE, not a civilian. Dissent: liberty interest in personal appearance.
Majority’s reasons are B.S.! Uniform makes cops recognizable. Not brought under Title VII b/c
Title VII didn’t apply to federal then, now it does.
Ex. female civil servant typists can’t wear green nail polish (similar to no beard rule). Is it
different to say “no nail polish” or “no nail polish for women”? Changeable vs nonchangeable
standards. No constitutional protection at all for private EEs – no 1st A rights, due process, etc.
For public ERs, ask: (1) is there a liberty interest? (could there be a ban on all nail polish for
everyone?) (2) is the reg facially discriminatory on the basis of sex? If no, does it have a
discriminatory effect to women? Does Title VII come to the rescue? Yes, if it alters the
terms/conditions of employment. If she’s fired for insubordination for wearing nail polish, too
bad. Her employment opportunities aren’t limited by this reg, which is what Title VII speaks to.
Just b/c her autonomy is impinged on, opportunities aren’t. Appropriate dress standards are
based on community standards. Different standards for men and women are ok and are
recognized by community. If impact of reg is de minimus, no claim.
Must cause problems w/performance of work duties.
ER is liable for customer sex harassment on EEs if they do nothing about it.
Grooming standards are sex based and this is ok unless it demeans one sex.
EEOC v Sage Realty (563)
P had to wear uniform as a lobby attendant. A new, one size fits all, uniform was issued, it didn’t
fit P well, she had the manufacturer alter it 2x, they said they wouldn’t alter it again, it still didn’t
fit, she was subjected to sexual harassment and other comments as a result of wearing it, he sup
didn’t do anything to help her, she started wearing old uniform, was issued a lay-off letter, and
now sues under the Civil Rights Act of 1964 b/c of sex discrimination. She must establish prima
facie case. Uniform was a condition of employment. ERs can regulate uniforms, but can’t make
them sexually provocative. Uniform interfered w/her ability to perform job. I=whether D could
require p to wear a uniform which subjected her to sexual harassment on the job. Held=no. She
was asked to wear uniform b/c of her sex. BFOQ for sex would permit that women wear uniform
b/c of sex. ER can use this defense.
-Problem: Defining Essence of the Business
ex. Hooters uniforms are in line w/essence of the business, which is to use sex to sell your
product. Doesn’t violate Title VII b/c it’s a BFOQ.
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2. Harassment p571-598, supp58-60
Ellison v Brady (1991) p573
Sex harassment case. I=(1) what test should be applied to determine whether conduct is
sufficiently severe or pervasive to alter the conditions of employment and create a hostile
working environment and (2) what remedial actions can shield ERs from sex harassment liability
for harassment by co-workers? Male co-worker got weird on P and sent her notes and ltrs, kept
asking her out. P told sup, sup said she’d handle it, P told her not to, but after getting 3 page ltr, P
again told sup, asking her transfer one of them. As soon as ER knew of problem, it had an
obligation to take good faith steps to end the harassment once it’s substantiated. Under
employment of will, ER could theoretically just fire alleged harasser. Both are gov’t EEs covered
by CBAs – lots of rights. Sup warned weirdo many times, told her boss, union, and had him
transferred before P returned from training. Weirdo transferred back b/c of union, wrote another
ltr, P transferred this time. P filed formal complaint, this is P’s appeal from D’s sum j. Sex
harassment constitutes sex discrimination under Tiles VII. Quid pro quo=ER conditions work on
sex favors, Hostile environment=offensive or abusive environment. Precedent sets the lowest
possible standard for hostile. This ct finds that weirdo’s behavior was sufficiently severe and
pervasive to alter P’s working conditions and create abusive environment. Required showing of
severity/seriousness of conduct varies inversely w/pervasiveness or frequency of conduct.
Harasser’s conduct must be severe/pervasive, not the alteration in the conditions of employment.
EE need not put up w/it long enough to make them suffer anxiety and debilitation. Look at
through V’s eyes. Hostile environment requirement met when P alleges conduct that a R woman
would deem sufficiently severe/pervasive to alter conditions of employment and create abusive
work environment. P’s response demonstrated that she viewed the conduct as more than trivial.
To avoid liability under Title VII, ERs may have to educate and sensitize their workers to
eliminate conduct a RBL V would consider sex harassment. RBLness of ER’s remedy depends
on whether it ends the conduct. V of sex harassment should not have to work somewhere less
desirable as ER’s remedy. Title VII requires more of an ER than a request to refrain from
conduct. Some cts use RP standard.
Harris v Forklift Systems (1993) p587
I=def of abusive environment. D’s pres made remarks, innuendos, and insults to P repeatedly. P
complained, he stopped, then started again, she quit. Factors: frequency, severity, whether
physically threatening or humiliating or a mere offensive utterance, whether unRly interferes
w/performance, psychological harm. Ct remanded case and reversed finding of no abusive
environment. Look at from RP in V’s position. Test=subjective to RP in V’s position and
objective re: above factors.
Oncale v Sundowner Offshore Services (1998) p594
I=whether workplace harassment can violate Title VII when they’re of same sex. P was
subjected to threatened rape, sexual physical assault, humiliating actions by male co-workers,
then quit after sup took no action. Held = same sex harassment is actionable under Title VII. Can
have same sex harassment if harasser is gay was old standard. Look at from RP in V’s position.
Widened kinds of claims that can be brought under Title VII.
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Male co-workers making it harder for women to do their work is harassment.
Denial is 1st line of ER’s defense in sex harassment cases (Clarence Thomas Defense).
Development of Title VII:
1972 Rogers v EEOC (race) – work environment heavily polluted w/discrimination. ER
permitted discriminatory conditions.
1976 Williams v Saxbe (district ct) – recognized sex harassment as sex discrimination under Title
VII.
1977 Barnes v Costle (D.C. Circuit) – sex discrimination b/c EE refused sup’s sexual advances.
Assumes sex desire is motive.
1979 C. McKinnon’s Book – very influential.
1980 EEOC Guidelines – hostile environment distinguished from quid pro quo. Not binding on
ct.’s.
1981 Bundy v Jackson (D.C. Circuit) – ct recognizes hostile environment theory for sex.
1986 Meritor (USSC) – 1st USSC sex harassment case, adopts hostile environment theory.
Don’t need economic harm to have a claim. P must show that conduct was unwelcome. That
conduct was voluntary is not a defense. Recognizes element of coercion. Evidence of P’s dress,
comments is not irrelevant as a matter of law if it’s provocative. Look at her conduct to
determine if welcome. Claim not barred if she voluntarily submits to it.
1991 Ellison – severity of conduct ruled on.
1993 Harris v Forklift
1998 Onacle
3.
Privacy p598-613, handouts
Bodewig v Kmart (1981) P598
At what point did ER cross the bounds of legal conduct? Pockets? If public employment, it’s a
search. Bathroom strip search in front of V? No false imprisonment. Did she consent? Under
duress. Was the search justified if V wasn’t there? Look at degree of intrusion. Age and
sophistication of P was important and goes to the subjectiveness of her options, interpretation.
Tort of outrageous conduct’s elements: (1) intentional and to inflict emotional duress (2) breach
of obligation. There was a special relationship w/ER that subjected them to liability. No special
relationship w/customer, but her conduct was intentional, etc.
Vega-Rodriquez v Puerto Rico Telephone Co. (1997) p604
Can public ERs monitor public work areas constantly w/video camera?=I. Held=yes. No
microphones were involved and cameras only viewed public space, not bathrooms, etc.
Intrusions cross constitutional line only if they invade a R expectation of privacy. Test:
subjective-actual expectation of privacy and objective-expectation must be R. To determine if
expectation exists, look at: whether EE had exclusion use of that work area, extent of which
others had access to the space, was there notice? Here, there was notice. As long as taping is
done from a legal vantage point its ok. No 4ht A claim.
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Smyth v Pilsbury Co. (1996)
At will EE wrongly discharged. Held=P didn’t state a claim upon which relief can be granted.
I=was it illegal for ER to fire P for transmitting inappropriate emails after ER told P repeatedly
that they would not intercept the emails and the emails could not be used as grounds for firing?
No. This state has no law re: c/a for wrongful discharge of at will EE. Does have exceptions:
public policy. CL here says that ER not estopped from firing based on promise even if EE relied
on promise. Balance EE’s privacy interest vs ER’s interest in preventing inappropriate and illegal
emails. No R expectation of privacy in email voluntarily sent. Even if there was such an
expectation, no RP would find ER’s conduct offensive. There was no personal info disclosed. No
public policy violation.
McClaren v Microsoft Corp. (1999)
Held=P failed to state a claim upon which relief can be granted. I=whether there was an invasion
of privacy when ER read email P had stored in personal folders at work. P was suspended and
while gone asked that no one go through his personal stuff. He had a private password for the
personal folders – tried to equate the folders to a locker that only the EE had the combo to. Tort
of intrusion upon personal affairs’ elements: (1) intentional intrusion (2) highly offensive to RP.
Held=email is not that private. Password doesn’t create R expectation of privacy. RP wouldn’t
deem offensive. Email search was part of investigation re: his suspension. Test: ER’s interest in
preventing illegal and inappropriate email vs EE’s privacy interest.
Epilepsy Foundation v NLRB
CBA. Union EE called for disciplinary hearing is entitled to Weingarden right: have someone
come in w/you to this hearing in Rly believe discipline may occur. Right to have coworker, not
atty, present at disciplinary hearing arises from NLRA § 7, not a specifically union right. All EEs
in private sector have this right. Gives EEs affirmative right they didn’t have before. Not
retroactive. § 7 applies also to nonunion EEs. Must request this right to have it.
Look at whether video surveillance is in public or private employment. If public, use 4th A. If
sound had been recorded, Federal Wiretap Act would have been implicated.
Wiretap Act doesn’t cover computer servers. ERs can legally access this stuff.
No expectation of privacy in a work area where sup could be watching you. Is there a right to
privacy in your office? Ortega: USSC said you may have expectation of office privacy, unless
people are always coming in and out, getting things from you. Where is your privacy? When is
warrantless search w/o probable cause R? Balance special needs of ER, interest of EE. 4th A.
Special needs may allow search. ER’s computer search never violates 4th A. You shouldn’t
expect ER not to look at it. Is there a search? Was there a subjective expectation of privacy? This
is not enough, also need R belief that ER won’t look at it.
P612 – Privacy Torts – know the 4 CL privacy torts! Also on p35 of last handout. Jurisdictions
differ re: these torts. NY only recognizes 1 of these.
Interrogation
-Searches
Page 21 of 42
-Surveillance
-Monitoring
4. Freedom of Expression p613-28, supp60, handouts
Often depends on whether emp is private or public. US Constitution prohibits arbitrary state
action vs public EEs and ensures public EEs due process. No 1st A protection in private sector.
Rankin v McPherson (1987) p613
I=whether a public clerical EE in sheriff office was wrongly fired for saying that if they try to
kill Regan again, she hopes they succeed. Sheriff is elected, other EE overheard the comment. P
is a 19 yr old BF w/1 yr of college, was on probation for 90 days b/c just started job. P seeks
reinstatement, back pay, costs and fees. State can’t fire on basis that infringes her free speech.
Even though on probation and at will, still can’t be fired for exercising constitutional right to
freedom of expression. Was her comment a matter of public concern? Yes. Balance EE’s
interests vs efficiency of public services after determining it re: public concern. Do not consider
in a vacuum. Considerations for balancing: whether it impairs discipline by sups or harmony
among coworkers, has detrimental impact on working relationships for which loyalty and
confidence are necessary, impedes her performance of duties or operation of enterprise. Prime
factor here is whether operation of office was impeded. It was not (coworker to whom comment
was made wasn’t bothered), he sup didn’t even make this inquiry. Statement wasn’t made in
public so didn’t discredit the office. Look at her responsibilities, they were negligible, not
exposed to public, didn’t carry a gun or wear a uniform. Dissent worries that public confidence
in the sheriff’s office will be undermined and says this is not a matter of public concern. Could
just reprimand her for this. Test is extremely fact intensive. If she wasn’t on probation and had
made comment, she may have 1st A right, would have had due process right, = protection right,
and maybe a CBA K right. B/c on probation, she’s at will. In this view, she = at will policymaking EE. Once not on probation, analysis would depend on how much a property interest she
had in job. Still a citizen! If she’d have said this outside of work, cop couldn’t arrest her for
saying it. Race claim attaches even though on probation. No expectation of privacy if
conversation is held in office open to other EEs. She has burden of showing her speech was a
matter of public concern. Her sex life isn’t. Balance EE’s rights as a citizen vs ER’s rights in
efficiency of service. If she was a policy-maker, he could have asked her upon hire re: her
political loyalty. Gives gov’t higher burden.
Why would why permit trigger for mild adverse action – why can injury be relatively mild –
Analysis – Public Employment 1st amendment – Freedom of Speech
1. Something that restrains speech
Test – Balancing Test Employees Speech Rights v. Employer Rights to run business of
government
1. Show that it is Speech of PUBLIC CONCERN
2. Impacts against the business – efficiency, moral – whether it interferes
Now Weigh it –
Scallia Dissent – said that we don’t want every concern in the workplace to become a
constitutional claim.
Court looked at the context in which the statement was made and decided there was no meaning
to actually kill the president – It is pretty clear that because she is such a low level employee.
Page 22 of 42
Plurality – There is a reasonable good faith test – employer is reacting in reasonably good faith.
Objective good faith test
Novosel v Nationwide Ins Co (1983) p623
I=whether an EE (claims adjuster) can be fired for not participating in an ER’s lobbying
campaign that he privately opposes. He sued under tort for public policy and K for breaching his
right to long term emp as long as performance is satisfactory. He was never reprimanded. Big
issue=whether ct can limit nonunion ER’s right to fire EEs. Same considerations taken into
account as in Rankin. Held=no legit reason for firing, discharge violates public policy. This case
extends constitutional protections to private sector EEs via the public policy exception to the at
will doctrine. Balancing test factors for wrongful discharge: nature of actor’s conduct, actor’s
motive, interest of the other w/which actor’s conduct interferes, interests ought to be advanced
by actor, social interest, proximity of conduct to interference, and relations b/t parties.
WASHINGTON ALUMINUM case
Worker walk out together because the warehouse was to cold. It was a concerted activity
protected under NLRA – there walk out was there speech – the court states the reasonableness
was irrelevant. NO union or CBA but it was a concerted employee activity for “Mutual Aid or
Protection”
October 15th 2004 new Board case held
A woman was complaining about sexual harassment in the work place – asked another female
co-worker to be a witness in a proceeding. Employer discharged her for asking to have coworker
ask to be witness. Board said she was engaging in concerting in activity but not for Mutual Aid
– NO section 7 protection. A complaint about harassment is personal
Smith v Fruin (1994) handout
P=police detective who was given shitty job assignment in retaliation for complaining about
other cops breaching smoking law. Held=P’s complaints were re: his own personal health and
made on his behalf in his own interest, not a matter of public concern, so he loses. 1st ask if P’s
complaints were protected by 1st A via 14th A (must be public ER). To be protected, must be
matter of public concern, and EE’s interest in expressing himself must not be outweighed by
injury speech would cause to interest of state as an ER in promoting the interest of public
services it performs through its EEs. Next, ask whether his speech addressed a matter of public
concern. Look at content, form and context of speech as revealed by whole record. Qualified
immunity analysis asks whether sups should have understood it to be protected. Speech not
protected by 1st A. ER must prove it interfered w/efficiency, etc. Not a matter of public concern!
ER violated law, he was merely asserting his rights. Smith remedy’s are in the specific law ER
violated (very minimal – fines to ER) and in his CBA. Sups have qualified immunity: not
addressed b/c trial ct said his statement “I am entitled to smoke free workplace” is public
concern. Here, ct says b/c his speech is used to make a gripe re: workplace conditions, so it is not
public concern. Maybe he should gone to the press instead of complaining. If he had, he’d of had
a better chance b/c speaking out as citizen re: matter of public concern/safety. The more dirty
laundry comes out, the more it looks like a gripe.
He was given a shitty assignment – shift was changed – he has been injured – Court of Appeals
does not agree protected speech – because it was of Public Interest.
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EEs’ speech is more likely to be protected when it’s outside of the workplace.
Waters v Churchill (1994) p620 Note #3
Once problem is possible, ER must proceed in R good faith, investigate in good faith.
Concurrence wants ER to act w/subjective good faith. ER must be sure comments were problemcausing before firing. Dissent says objective good faith is required.
Public EE free speech: (whether as lone rep or rep of others) 2 prong analysis: is it re: matter of
public concern? If yes, balance interests of EE as a citizen vs gov’t as ER’s interest in efficiency.
Balancing test is fact intensive. Advice to public ER: be very careful in discipline.
B. Regulation of Off Work Activity p633-58, supp 60
1. Personal Associations
Rulon-Miller v IBM (1984) p634
Private EE was there for many yrs, promoted to manager, started dating coworker, he quit, went
to competitor. They kept dating, everyone knew and they knew when they promoted her. No rule
vs dating coworkers. Such a rule would be ok even if re: marriage. If it was probationary public
(no due process, no CBA), can EE be fired for dating coworker? Freedom of association, to
marry. If deemed disruptive to workplace morale, may be upheld. Sexual harassment concerns
especially if sup/subordinate b/c of coercion. Also what if they fight? Disruptive? WHAT
ABOUT KONEFSKY???!!! Were they trading trade secrets in the bedroom? This c/a is
for IIED and wrongful discharge. ER had policies about its EEs’ out of work freedom and there
was no policy vs EEs socializing w/competitors. No conflict of interest here. P’s sup asked if
dating competitor, she said yes, he said to a wk to think about quitting or breaking up, she was
fired the next day. P won.
Ozer v Borquez (1997) (handout)
C/a: wrongful discharge and invasion of privacy. P was atty, did well, got raises. Learned gay
partner had AIDS, was worried that self had AIDS, took day off, told partner exactly why and
asked him not to tell anyone else, he told his W, manager, 2 secretaries. Law: can’t fire for legal
out of work activities and/or b/c gay. Right of privacy can be invaded in 4 ways: (1) unR
intrusion upon seclusion (2) appropriation of another’s name/likeness (3) unR publicity given to
another’s personal life (4) publicity that unRly places another in false light before public. Here,
#3 applies and has these elements: (1) fact disclosed must be private in nature (2) disclosure was
made to public (3) disclose highly offensive to RP (4) fact disclosed not of legit concern to
public (5) D acted w/reckless disregard of the private nature of fact disclosed. Sex and disease
generally considered private.
2. Political Activity
Nelson v McClatchy Newspaper (1997) p641
Private ER, so P is screwed. Ask if she has K rights, discharge in violation of public policy?
Look for statutes. Here, there was one that protects politically active EEs. Does ER have a
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defense? P worked for newspaper whose policy was to be objective, so it prevented EEs from
being really politically active, which P was. ER moved her to a different position, shift when
found out about her lobbying. Relevant statute held to apply: EEs can’t be discriminated vs for
supporting politics. But since ER had good faith reason (objectivity), its ok here. D won b/c said
constitution would be violated if this statute was applied b/c freedom of press overrides her
freedom of speech. She does have a right to avoid discrim based on her politics.
NY has nondiscrim law re: political activity. Majority of states have laws like this.
Tort law – use if no statute protecting specific rights like these. Ex. public policy exception to
wrongful discharge.
If it was public ER, use constitutional analysis: ask (1) is speech a matter of public concern?
(also ask about due process rights) (2) balance interests.
Note #2 p648 – Hatch Act – prohibits federal EEs from taking active part in political campaigns.
LOOK AT THIS!!! Applies to state and local gov’ts who receive federal funds. Exemplifies that
public EEs can be restrained from certain political activities.
Rutan – political patronage. High level jobs can be hired for based on political beliefs.
Public is different from federal. Can’t bring federal or state (unless vs officers) 1983 actions.
Constitutional torts – Bill of Rights, Due Process, Equal Protection (race, sex, alienage).
3. Lifestyle
Chambers v Omaha Girls Club (1987) p649
P was a sup and role model at club whose goal was to further girls’ opportunities. She got
pregnant, was single, told her sup. There was a policy vs this. P was fired b/c it was a business
necessity. There were no other jobs for her to work in outside of the role model one and they
couldn’t afford to give her a leave of absence for 6 mo’s. Under disparate treatment theory for
emp discrim, P must show discriminatory animus. P must 1st establish prima facie case for
discrim. Next, ER has burden to show legit reason for what it did. If done, P must show reasons
were pretextual. No violation for ER if what it did was a bona fide occupational qualification
(BFOQ). To be BFOQ, test asks whether essence of business would be undermined w/o
challenged action, whether safe and efficient performance of job is possible w/o the challenged
practice, and whether challenged practice has manifest relationship to emp in question. Held=it
was a BFOQ, so D wins.
Collective Action:
NLRB v Washington (1962) p628
Shop was always really cold, one day it was really really cold and heater was broken, so 7 EEs
said “maybe if we just go home, it’ll prompt them to get some heat in here.” They walked out
and were fired. This amounted to an unfair discharge under section 7 of NLRA, which allows
concerted action and of section 8(a) b/c they were wrongly fired. Bd said to reinstate and give
backpay. Section 7 protects activities that occur as demand is made, not just after. Section 2(a)(9)
re: working conditions and here there was an ongoing dispute about it being cold there. Rness of
concerted action is irrelevant to whether a labor dispute exists or not. Even the foreman said
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maybe they should go home that day. If just an individual EE had done this, he’d have no rights.
Maybe rights if implied K, handbook, maybe wrongful discharge b/c protest is form of speech.
Not a matter of public concern, just a gripe. B/c it was more than 1 EE, they have a claim even
though ununionized. Dispute re: labor conditions, so protected. Safety in #s. ER said fired for
insubordination. The group had no spokesperson. Walkout viewed as speech by ct. NLRA covers
private EEs and EEs not being sups or managers. ER can’t interfere w/EEs’ rights to engage in
concerted action for purpose of CBing or other mutual aid/protection.
Winegarden rights: nonunionized EEs have. Higher wages is a working condition.
Holling Press – when a women asked a co-worker to be a witness in a sexual discrimination
action. Court found that the action was a “concerted” activity – but the activity was not for
“Mutual Aid” and not protected under § 7 of NLRA
§201 of NY Labor Law – Discrimination against the engagement in certain activities – statutory
protection for certain activities like political activities – right to smoke or drink beer.
Intimate Association –
Anti Fraternization
Anti Nepotism
Political Rules
Chapter 10: Discharge p910-929, supp 67-68
A. Freedom of Contract/Fairness in Employment
Justifiable causes of discharge: theft, dishonesty, falsification of records, fighting on site,
possession/use on site, insubordination, bad language to sup, sleeping, dangerous horseplay,
disloyalty, refusal to accept assignment, absenteeism.
Today most CBAs provide for mandatory arbitration and require cause or just cause when firing.
Just cause is hard to define. Only MT has a law requiring just cause.
W/o employment contract, can’t analyze under contract law.
Tort action of wrongful discharge: used when employee fired for not perjuring himself, when
employee filing comp case, or when employee is discharged for acting in a way that public
policy would encourage or refusing to do something public policy would condemn (Peterman).
Exception to employment at will when one is fired for exercising statutory right.
Some cts don’t recognize any exceptions to employment at will doctrine.
B. Judicial Erosion of Employment at Will
1. Public Policy
Gantt v Sentry Ins. (1992) p914
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Issue= whether employee who was terminated in retaliation for supporting a co-worker’s sex
harassment claim may also state a c/a for wrongful discharge and if so, does Worker’s Comp bar
this c/a? Held=actionable and not barred by Worker’s Comp. P hired as manager, one of the
employees who reported to him (he had lawful duty w/in his company to make the reports and
company could be held liable under Title VII if he didn’t make the report) claimed sex
harassment by another manager, so P made reports, etc. Harassment continued, harasser demoted
and victim transferred then fired 1 month later. A different manager quit around this time b/c of
alleged sex harassment. In house counsel encouraged him not to participate. State law prohibits
retaliation by coworker for supporting discrimination claims. P heard conspiracy to fire victim. P
was one of the top managers. His performance evaluation was changed w/o his knowledge to
unacceptable. Dept of Fair Employment and Housing (DFEH) investigator told P that he
wouldn’t be harmed by reporting incident. P demoted and not given info he claimed was
necessary to do new job, 2 months later P left company b/c of new job but P says he was forced
to resign. Foley: tort c/a ok if it involves something that would affect society, not just the 1 or 2
people involved. Also the policy affected must be fundamental, well-established, and substantial
at the time of injury. 4 popular categories of public policy violations: (1) not breaking a law (2)
performing lawful obligation (3) exercising lawful right/privilege (4) reporting violation of law
of public importance. Its illegal to obstruct a DFEH claim. Tameny: employer can’t make you
engage in illegal activity.
Murphy v American Home Products (1983) p920
P never had formal employment contract, he was fired in a humiliating way when 59 years old,
was assistant treasurer. P says fired b/c of age and b/c of his telling top management (as internal
regulations required) and refusing to participate in accounting improprieties. Held=NY says
employment at will prevails – where employment is for indefinite term, its employment at will
which can be terminated anytime by either party for any or no reason. Leave it to the Legislature
to create an exception. NY responded to this holding via NY Labor Law 704 (handout) – this
new law wouldn’t help Murphy b/c there’s no danger to health or safety in Murphy’s allegations.
Under the new law, you must tell your sup 1st and give them R time to correct problem. Relief
under this law is reinstatement to position (not available under tort law), atty fees, no punitive
damages. This law waives other remedies.
Protection varies by state.
Problems p928
Does employee have c/a? What is the public policy?
a.
b.
c.
It’s all state law. Exam will be set in fictional jurisdiction, so assume no overriding laws, but say
there is a minority/majority rule. Keep trends in mind.
Wrongful Demotion p927, note 14
No protection for employees who are demoted, transferred, or reprimanded, except by a few cts
who recognize wrongful demotion or refusal to promote.
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Whistleblower Statutes p923, note 6
Employees who report employer’s illegal activity to outside authority (c/a exists) treated
differently than those reporting illegal activity internally (no c/a b/c only involves employee and
employer, no others affected). Most states have whistleblower laws. Whistleblowers’ accusations
must be true for protection to attach.
Wrongful Discharge Statutes p922, note 4
AZ has law vs unjust discharges and MT’s law prohibits employers from firing employees w/o
good cause as defined in statute, or in violation of public policy or the employer’s own written
policy. Allows punitive damages and lost wages.
MT Wrongful Discharge from Employment Act Stat 203-206
Is this law to be a trend? Should common law recognize wrongful discharge? Takes away
employee’s right to sue in tort, but expanded their rights by giving broader grounds under which
to sue, also makes ER show cause. This law doesn’t allocate burden of proof but P must show
there was a discharge and ER gave no reason or the reason on its face isn’t legit. Very detailed
statute setting forth specific definitions and remedies for discharge. See above. At will
employment v cts recognizing public policies that they define. Tort names: wrongful discharge,
abusive discharge, public policy. So, MT created this law to specify and limit. This law doesn’t
cover independent contractors (EM may use this law as a defense), EEs covered by CBA or K
covering a specific term (duration), nor does this law prohibit Title VII claims, federal
whistleblower claims, and other federal or state laws providing remedies for certain claims.
Discharge is wrongful only if (1) in retaliation for refusal to violate public policy (which it
defines), (2) was not for good cause (statute defines, one basis is other legitimate business
reason) and EE completed probation, or (3) ER violated its own policies. Constructive discharge
= common law definition, conditions created by ER made it intolerable as viewed by RP, doesn’t
mean no raise, no promotion.
If one resigns, they lose their chance to bring a discharge claim.
Statutory “Good Cause” supp 68-74
Marcy v Delta Airlines
Trial ct looked at her intent – question of fact. Intent not an issue now, presume she made honest
mistake b/c that’s what jury said. I=whether the MT Wrongful Discharge from Employment Act
(WDEA) provides a c/a to an employee discharged for a reason based on mistaken facts but
where ER acted in good faith in reaching its decision. Jury found P was wrongfully discharged.
D said P didn’t prove D acted in bad faith, so no c/a under WDEA. P was always an outstanding
EE. She was fired for having incorrect entries on her Daily Attendance Record, which gave her
$250 extra. Also, she had a prior problem w/keeping false logs re: long distance phone calls. D
relied on EEs to correctly record their hrs. There were several procedures for using sick/vacation
days and her request form was missing and her name erased from schedule. P said such mistakes
were common, boss usually called EE’s attention to it and they correct it. Instead, they gave her a
chance to fix it and she didn’t and was fired. I on appeal=whether D fired for a legitimate
business reason, which has been defined as reason that’s neither false, whimsical, arbitrary or
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capricious, and must have logical relationship to the business’s needs. Held=discharge rested on
mistake of fact. Under WDEA, discharge is not legit if (1) invalid as a matter or law under
WDEA (2) rests on mistake of fact (3) pretext for other reason. This holding takes away from
ER’s right to define a sufficient reason to fire someone.
If Marcy had a K, she’d of had to breach it in order for Delta to justly fire her. She was taking
pay w/o performing work. Is this breach substantial enough to cancel K? Do other EEs engage in
this practice? If yes, no substantial breach.
Salary per yr doesn’t mean 1 yr = period of employment in a K.
2. Breach of Contract p929-938, supp 74
a. Written Contracts
Gordon v Matthew Bender and Co.
Employment agreement stated no definite time period (employment at will). P was commendable
EE who met goals. D gave him reduced territory and told him he had to achieve same goals in
the newly reduced size of the territory (sales). If not, he’ll be fired. This changed the term of
employment agreement. P accepted by not quitting. Didn’t meet goals, fired. P was once given a
ltr b/c of probation that said continuous employment if acceptable performance (written ltr’s are
only relevant if statute of frauds issue. Oral K is just as enforceable). D says termination at will,
Ct agrees. A K that doesn’t specify length of employment but does have conditions upon which
termination may be based, is terminated upon those conditions. But, acceptable performance
language in a K w/o time period doesn’t make it into a K where its terminable at will. Held =
“Satisfactory performance” K is terminable at will. Such a condition could be implied in every
K, including employment at will and means nothing.
Good cause (employment at will) differs from acceptable performance Ks (not employment at
will).
If K is for definite time period, no discharge before expiration date unless good cause or breach
of K provision. ER has burden of proof once EE proves discharge in violation of K.
If terms of employment are being changed (like pay reduction), EE can quit or accept. If doesn’t
quit, implied acceptance.
Most EEs have no written Ks.
b. Implied Terms of Oral Contracts
Pugh v Sees Candies
P starts out as EE at will, this changes b/c of duration, promotions, awards, lack of criticism,
assurances. Such assurances, etc. imply job security. P went from dishwasher to VP in 30 yrs
w/D. P sued in tort and K, but tort claim dismissed b/c no public policy exception. He is suing
for punitive and comp. damages for wrongful termination and is also suing union for colluded
w/D in wrongful conduct against P. P never reprimanded, no warning or notice of fire, no
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complts, only raises/promotions. P not given reason for discharge. “look inside yourself to find
answer.” President often told him if he’s loyal, his job is secure. ER’s practice was not to fire
unless good cause. P’s only possible idea as to why he was fired was that he disagreed w/a
proposed union deal, there is evidence of this via oral statement. 2 reasons why ER can’t
terminate at will (1) if vs public policy (2) discharge is contrary to express or implied K.
Consideration=ER pays and won’t fire arbitrarily and EE will work. Factors: ER’s practices (no
fire unless good cause), duration of employment (very long), assurances (P got from President),
industry practices. Look at totality of relationship. Held=P demonstrated prima facie case, so
now D has burden of showing reason for discharge. P can then attack and say its pretextual or
insufficient under grounds of K and has the ultimate burden of showing wrongful termination.
Just cause is regulated by good faith. Union may have been involved so no nonsuit motion for
them either.
c. Employee Handbooks and Manuals p938-947, supp74-75, handout
Duration for definite term where EE leaves early makes EE pay damages for breach of K.
Note 8 supp74
Oral agreement for P to be trainer of Tyson as long as Tyson fights professionally. Ct said this is
a definite term and an enforceable K.
If K says hired permanently or for life, this is indefinite. This is employment at will and these
phrases mean nothing legally. Ex. ER promised for life employment, even if P is disabled from
baseball. Job was not baseball related, P became disabled and is fired. P says lifetime clause.
Clause is unenforceable b/c specific terms of job performance not established and in order to
enforce K, EE needs additional consideration beyond just continuing to work. What constitutes
additional consideration?
ER is made more efficient by distributing a uniform handbook b/c individual questions can be
answered by the manual, not by asking an HR Rep every time they have a question. ER also
avoid EEs unionizing b/c manual lays out terms as a bargained for CBA would. ER may have
both a CBA and manual.
Handbooks/manuals that have substance of reasons for discharge and procedures for firing laid
out become binding (w/o disclaimers) Kal promises via: ER’s promise to provide substance and
procedures is an offer and is binding as soon as EE starts working while relying on the manual.
Unilateral b/c ER makes promise and EE promises nothing. Becomes binding at the moment
performance is begun? Party can revoke at any time before performance is complete in a
unilateral K. So when is employment performance complete? Treat it as an option K where once
performance is begun, offeror can’t revoke. If EE is employed and receives manual 20 days after
she starts work, when is manual binding? When she continues to work in reliance on manual’s
promises. Unilateral Ks require reliance. So if EE never got manual and was fired, ER can say no
reliance. Even if not every EE gets manual, they all can constructively rely on it b/c manner of
distribution of handbook makes it so that each should be able to rely on it.
Disclaimers can be trumped by oral assurances which discount value of disclaimers. What if
manual has disclaimer but manual also says mandatory arbitration, can EE go to ct?
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What if ER wants to change handbook b/c of economic hard times? Where’s the consideration?
Is it needed to modify the K? At common law, you need mutual assent and fresh consideration to
assure no duress or coercion. But if mutual assent and good faith, no additional consideration
required.
Wooley v Hoffman-La Roche, Inc. (1985) p938
Handbooks and disclaimers. Disclaimers must be legible and not hidden and must be clear (ex.
manual is not Kal binding and is subject to change any time w/o consideration of EE –
ineffective b/c not in lay terms, also disclaimer must be in different typeface and color, etc.).
I=whether certain terms in a co’s employment manual may contractually bind the co. Held=yes,
absent a clear and prominent disclaimer, an implied promise in an employment manual that an
employee will only be fired for cause may be enforceable v. an ER even when employment is for
an indefinite term and otherwise terminable at will. P and D had no written K. P got manual, read
it 1 mo. after hire. He was promoted twice, later asked to resign, declined to, was fired. He says
breach of K b/c manual mandated for cause fire and ER had no cause. Manual is an offer seeking
the formation of a unilateral K- EE’s bargained for action needed to make the K binding = their
continued work when they have no obligation to continue. If P has been on thin ice for cause, the
manual required him to go through training to rehabilitate him into a good worker, which he did
not go through.
States differ on whether they recognize manuals as binding, it often depends on the explicit
language in the manuals.
Modification of Implied in Fact Employment Contracts
Asmus v Pacific Bell (2000) (handout)
Modification of policies. Unilateral Ks can be modified unilaterally. I=whether an ER’s
unilaterally adopted policy which requires EEs to be retained so long as a specified condition
does not occur has become part of the employment K, may the ER thereafter unilaterally
terminate the policy even though the specified condition has not occurred? Held=yes, ER can
unilaterally terminate a policy that contains a specified condition if the condition is one of
indefinite duration and the ER affects the change after a R time on R notice and w/o interfering
w/the EE’s vested benefits. ER can’t secretly change terms of manual. Need express notice.
Unilateral no longer distinguished from bilateral, but majority depends on finding a unilateral K,
so it maintains this distinction. Scott: unilaterally created employment policies are enforceable
and ERs can alter their policies so as not to create unwanted Kal obligations. Management
Employment Security Policy (MESP) of D: security as long as there is no change that will
materially affect D’s business plan achievement. D issued ltr informing managers of potential
change, 2 yrs later D said it will terminate MESP. D gave generous severance to EEs whether
they left now, stayed for awhile, or tried to stay permanently. 60 EEs were affected, 52 signed
agreements saying they wouldn’t sue for this change. P and D stipulated that D wouldn’t present
any evidence whether D’s “business plan achievement was altered.” Foley: implied in fact K
term not to terminate an EE w/o good cause will rebut the statutory presumption that
employment for an indefinite period is terminable at will.
Dissent: modification of K view differs. Formation not relevant. Once a K, treat it as a K. No
distinction b/t bilateral and unilateral once formed. Notice is not enough, continuing to work
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does not = assent, need more consideration. Maybe the additional pension benefits could be the
additional consideration, but this issue was not addressed. Majority isn’t really using K analysis,
they twist it to support a policy. Dissent uses K analysis and admits it, majority pretends to.
Unilateral K where ER pays EE for work. Here majority retains distinction b/t unilateral and
bilateral even though experts have discarded this distinction. Scott and Foley: policies, manuals,
offers not exempt from K law interpretation. In a unilateral K, promisor doesn’t get promise in
return for consideration, any act or forbearance of promisee like continuing to work =
consideration. P says D can’t change terms unless material change in business occurs, D says its
unilateral so can change whenever. Majority of cts, as this one, says can change it w/R notice,
etc. Minority says need additional consideration which the pension benefits may have been
construed as, but it wasn’t an issue. Specified condition may be of indefinite duration.
Note 12 in supp74
If EE relies on manual and ER later rewrites manual or writes in a clause permitting rescission,
can EE continue to rely on the former manual? Some states say yes: modifying terms of implied
in fact Ks are governed by K rules, which require assent and consideration to the offer of
modification and continued employment alone is not enough.
d. Good Faith and Fair Dealing p947-964, supp 75-84
W/o express individual K, good faith can be found implicit in employment K. Good faith
obligates each party to refrain from injuring in any way the other’s to receive benefits of the K.
Fortune v National Cash Register Co. (1977) p947
P was D’s salesman and sued to recover commissions. Held=its ok to submit issue of bad faith
termination of employment K to jury. Most jurisdictions reject this good faith c/a as not in
accordance w/employment at will, which lets ER terminate for any or no reason. P had a written
K, which was terminable at will, w/o cause, by either party by written notice. A big account was
secured in P’s sales territory and P was entitled to a lot of $ in commission from it. Soon after, P
got termination ltr, but D decided to keep P on but w/a different, title. Was this a K
modification? P didn’t get the $ from the big account that he was supposed to, but D said he did
b/c he was only entitled to a smaller % b/c of his “new” position. A while later P was asked to
retire, he refused and was fired. He worked there for 25 yrs. Issue=whether it was ok for jury to
determine if D acted in bad faith in both attempts at P’s termination. Ct said it could go to jury,
there was a breach of K b/c termination was not made in good faith. P only sought the value of
the commissions (K damages), so it wasn’t a tort claim. Looks like objective bad faith,
opportunistically (which is not necessary bad). The K was written as distinguishing the date of
order and date of delivery, this may have been for ER benefit so EE doesn’t quit after they make
sales.
Foley v Interactive Data Corp (1988) p953
P was an executive of D, was fired. I=was there a breach of implied K of good faith and fair
dealing? Held=yes and for this breach P can get K but not tort damages. P was fired for telling
his manager that his sup was being investigated for embezzlement. No written K. Implied in fact
K existed. D was supposed to follow procedures and have good cause to fire P, but instead of
allowing him to transfer or be demoted, as D had promised, they offered him resignation or
termination. ER said P went out of chain of command, though this was necessary b/c his
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immediate sup was the embezzler, P probably wouldn’t have been fired if he’d reported a
subordinate. P loses on his public policy tort case b/c the dealings w/keeping on the embezzler
are private. P loses on implied in fact K claim. P says good faith and fair dealing is a tort c/a. Ct
said P is wrong, except for a very narrow group of cases, including bad faith. Recognizes that
good faith and fair dealing is implied in employment K’s, but its not a tort claim.
Prima facie tort = doing something you have a legal right to do, but w/malice. Cause harm while
doing something legal out of bad motive. Ex build fence just to kill neighbor’s roses.
Guz v Bechtel National, Inc (2000) supp75
P got steady raises, promotions. Policy stated termination at will, but had procedures for
improving EE’s employment if termination was possible. P was advised to seek another position
b/c of budget, which his EE group had run over. His performance contributed to his firing.
Held=mere passage of time in ER’s service even where ER approves of EE work, cannot alone
form an implied in fact K that EE is no longer at will. Longevity, praise, etc in and of themselves
don’t constitute employment security in future. P lost. Covenant of good faith and dealing
implied by law in every K, exists to prevent one K’ing party from unfairly frustrating the other
party’s right to receive the benefits of the agreement actually made. I=whether there was a
breach of the covenant of good faith and fair dealing. This jurisdiction has codified at will
employment w/notice. If at will employment, good faith and fair dealing can’t be applied b/c it
would violate at will employment’s underlying premise. Good faith and fair dealing is
superfluous, redundant. Good faith and fair dealing is tort claim, and here it adds nothing. It can’t
trump at will employment.
C. Other Protections from Discharge p964-981
1. Common Law
You always have the choice to quit your job.
Torts: intentional infliction of emotional distress (IIED), invasion of privacy, fraud and
misrepresentation, neg, slander, defamation, libel, tortuous interference of K’al relations.
Elements of IIED: (1) intentional of reckless conduct, which is hard to prove (2) extreme and
outrageous conduct (3) actions caused emotional distress (4) emotional distress was severe.
Wilson v Monarch Paper Co.
ADEA and IIED. Since ADEA is federal, federal ct. IIED claim uses the state’s law, so another
state may have different standards for IIED. ADEA doesn’t give a lot of damages. Jury here gave
P $3.5 mil. P was VP and President’s Assistant. President died, new management wants younger
managers, although the ones they hire are over 40. ADEA protects those over 40. P was over 40
when hired. It doesn’t matter under federal law that P was replaced by someone over 40. D
didn’t want to fire P outright b/c then he’d have sued under wrongful discharge public policy
(implied in fact K via handbooks, duration, etc – this wouldn’t work in CA b/c CA says
promotions/bonuses, etc. don’t give rise to implied in fact K) and he’d of had an ADEA claim. If
P would have sued under ADEA and implied in fact K, he wouldn’t get punitive damages, only
backpay b/c it’s a K claim. For ADEA, he could get liquidated damages (which is double the
pay). D gives P 3 options: (1) work in Corpus Christi for half salary (he lives in Houston), (2) be
a sup in Houston w/same pay but no bene’s, like car, etc. (3) resign and get severance pay. P
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does #2, it ends up being a janitor job, his boss harasses him b/c of his age, he goes crazy and
gets involuntarily admitted to mental home, has bipolar disorder and depression, which he had
neither before. If he quits he can’t sue. Constructive discharge is hard to prove w/less pay or a
menial job. Constructive discharge can exist under employment at will. A reduction in pay or
transfer won’t give rise to an IIED claim. I=whether D’s conduct was extreme and outrageous.
Insults are not enough to show IIED, cts give ERs a lot of room. Narrow holding, but a low-level
EE could take advantage of it – ex. sexual abuse leads EE to quit, have severe emotional distress,
sues for sex harassment and IIED.
2. Discharge in Public Sector Employment – the role of the Constitution
Mostly everything up to this point was private sector.
A public EE, regardless of what level of gov’t they work for, or an EE who can show state action
(ex. independent K’er), has the 14th A protections of due process (both procedural and
substantive) and equal protection. Property and liberty interests under due process.
Goetz v Windsor Central School District (1983) p974
If public EE case, ask is there a property interest and independently, a liberty interest? You can
have a liberty interest w/o a property interest. P says he had a property and liberty interest in his
employment. 1983 claim. P is a janitor (EE of school district), worked there 1 yr. He was
arrested for allegedly stealing from the workplace and removed from workplace, then ER
suspended him. P pled to a misdemeanor. It’s unknown whether he actually did it. School sent
out a memo to keep everything confidential. ER sent P letter asking for explanation. P doesn’t
respond as his atty suggests. P says he had no chance to be heard. D says letter was his chance.
Remanded to see if a sufficient factual dispute exists (b/c sum j) re: liberty interest. Property
interest can be created by local ordinance or implied K (either rests on state law). P was
terminable at will. Held=no property interest. Liberty interest is implicated and a name-clearing
hearing is required where an ER creates and disseminates a false and defamatory impression
about an EE re: their termination. P has a right to pretermination notice and chance to be heard.
P’s failure to respond to letter (chance to be heard) is not a waiver of his right to assert a due
process claim. A usual remedy for such case is chance to be heard, not reinstatement. Remedy
for property interest wrongful deprivation in his job: reinstatement, backpay, hearing w/notice,
frontpay. Property right depends on state law. Due process is federal constitutional right. If he
had a 1 yr K, he has a property right in continued employment. At end of the 1 yr, property right
is gone. No entitlement to renewal. He’s unskilled. Statutory tenure creates a property right. P
says CBA gives him a property right to at least 1 day notice and reasons for termination and thus
a right to just cause. Ct says no, his status as EE at will is not altered by the notice requirement of
the CBA. Why doesn’t CBA take him out of employment at will? Could a CBA change his
status? CBA may create property interest, says ct. CBA gives additional procedural rights.
Nothing in P’s CBA altered his status as EE at will, says ct. What could’ve changed his status in
a CBA? Civil service statute requires notice, not reasons. CBA adds to this by requiring reasons.
Look for R expectation of continued employment. If its there, property right exists. Then ask if
due process was served when property right was taken away. Discharge is necessary (demotion
not enough). Liberty interest elements: discharge, ER created and disseminated publicly false
and defamatory impressions (in this case), P was damaged seriously re: freedom to obtain other
employment and community rep, denied meaningful chance at name-clearing hearing (due
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process). Even if he’d gotten the 1 day notice w/reasons and chance to respond, this may not be
enough b/c no name-clearing hearing. CBA on its face may not satisfy due process. D can win if
it was not false, but they didn’t know. ER should say media disseminated, not them. Liberty
remedy: right to process (hearing), not reinstatement.
Public EEs have 14th A and 1st A rights (free speech, association).
3. Overlapping and Conflicting Remedies p981-1006
Ask what is the source of the rights? Lingle is just one of many. NLRA covers private ER in
interstate commerce, gives rights to EEs and provides for unfair labor practices of ER and
unions. NRLA doesn’t include high-level EEs, managers. Rights given: unionize, join a union,
organize. If the subject matter of a dispute is covered by NRLA (clearly or arguably), then
NLRA has primary SMJ over that matter. Garma doctrine: NLRB must resolve such matters,
state or federal ct can’t touch it. No appeal to cts. Sears: issues of state law arose, so is there is
an exception to Garma doctrine. Exceptions: matters peripheral to federal law, or intense local
feeling. Above is federal preemption.
Ex. individual 301 c/a to compel arbitration, facts raise issue of implied in fact K, good faith and
fair dealing. NY recognizes implied in fact Ks, but not good faith and fair dealing. CA
recognizes both and limits damages to K damages. State X recognizes both, but gives tort
remedies for good faith and fair dealing. So damages may depend on what state you’re in.
CBA covered EE is dependent on CBA rights. Any other rights re: K rights are preempted. K
interpretation required. State law rights independent of CBA include, for ex, worker’s comp.
Unionized EEs get 2 chances: arbitration and court.
Not necessary to interpret CBA. Rationale: EEs should not be deprived of state’s rights.
Lingle v Norge Division of Magic Chef, Inc. (1988) p983
301 preemption. Once you’re in federal ct, federal case law applies. If you assert a K claim, in
federal ct, can’t use state law. If brought in state ct, use federal law. Federal judges are more
experienced w/federal law, so most go there. 301 is jurisdictional. ER v labor organization re:
CBA may be brought in district ct w/o re: to citizenship. EE who was fired for filing a worker’s
comp claim may recover compensatory and punitive damages from ER in this ct. I=whether an
EE covered by a CBA that provides her w/a K’al remedy for discharge w/o just cause may
enforce her state law remedy for retaliatory discharge. Held=yes. P was discharged for filing a
“false” worker’s comp claim. Her CBA required proper cause and had a procedure for
grievances. Arbitrator ruled for P and ordered reinstatement. If resolution of a state law claim
depends upon the meaning of a CBA, application of state law is pre-empted and federal law
applies. Here, resolving the state law claim does not require construing the CBA. Even if dispute
resolution pursuant to a CBA and state law would require addressing the same set of facts, as
long as the state law claim can be resolved w/o interpreting the CBA, the claim is independent.
Application of state law is preempted only if application requires the interpretation of the CBA.
P’s tort claim not preempted even though her employment was covered by a CBA.
D. Reconsidering Employment Security
Model Employment Termination Act stat. Supp. 207
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Not adopted anywhere yet. Possible exam question re: if adopted under CL or under statute. Who
does it favor? What’s it do?
No termination w/o good cause. Protected employees are those who’ve been thereat least 1 yr.
Mutual agreement can waive good cause requirement. Awards: reinstatement to the position,
backpay, severance payment, atty’s fees.
Chapter 11: Leaving A Job p1007-1024
Ask: (1) public or private EE? If private and can be brought under NLRA, look at federal
preemption. (2) covered by CBA? (3) EE covered by K? Facts give rise to implied K? (4) Facts
give rise to public policy claim? (5) Constructive discharge if no discharge? (5) tort? Does your
jurisdiction recognize such a tort? Case law or statute? (6) if K claim at issue, does it require
interpreting CBA – 301 preemption? (7) parallel claims in different forum? By pursing 1 route,
does EE waive right to a parallel claim? (8) source of rights? Nature of claim? C/a? remedies?
F.
Breach of K by EE
EE can quit for any or no reason. Possible remedies for ER: not reinstatement b/c ct can’t order
someone to work under 13th A (involuntary servitude), negative injunction forcing EE not to
work for competitor for certain amount of time.
General assumption that EEs are not unique exists.
To get injunction, show irreparable harm, property interest at stake, no other remedy will redress
the wrong, likelihood of success on the merits.
1.
Breach of Express Terms
Handicapped Children’s Education Board v Lukaszewski (1983) p1007
P was speech therapist for spring term, during which D asked her via K to come back for next
school yr and she accepted. P commuted 45 miles from home. She was subsequently offered a
closer job w/better $ and accepted it, resigned from D, who told her to write resignation ltr. Then
D’s atty told her she can’t quit and told her new ER they can’t hire her b/c of interfering w/K
terms. She went back to D, later went to MD, who wrote D ltr saying P has hypertension from
the situation and shouldn’t drive long distances. Then she resigned at worked at closer job. D
hired only qualified applicant having to pay her $1K more b/c of experience. D sued for breach
of K. I=whether P breached and if so if D suffered recoverable damages. Was resignation
justified?=I. Though health hazards may excuse nonperformance, this is not so if party knew of
them when entered K or they are caused by the breacher. Trial ct said P caused health hazard by
self-induced stress of attempted repudiation of K and by living so far away. She knew she had
health problems when she originally took job. Also, P resigned for reasons other than health
(more $, closer, which she testified to). H=affirmed, P breached. Damages measured by
expectation of parties. P says even though D pays replacement more, they are benefiting from
her experience. Ct says no, damages = $1K. Benefit of bargain is to freeze salary regardless of
market fluctuations. Preformed w/o problems in the spring. Distinction b/c material and partial
breach = material is what happened here. Only material breach gives rise to excuse for
nonperformance. If material, give nonperformer chance to cure it if readily curable. This limits
damages. P must show, but for breach, nonbreacher would have performer. Substantial
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performance required under K. total breach permits canceling K. If material, look at timing.
Earlier breach will be more material. If she missed 1st month of teaching, can they hire someone
else? Willful breaches are more material. Look at hardship on nonbreacher, benefit to breacher.
Question of material breach is a question of fact.
Look at how ER may be constrained in a term K when EE behaves in a way that may be material
breach.
If flight attendant was under term K and sued for breach for expectation damages, ER would
have said her conduct constituted material breach, thereby excusing ER’s nonperformance.
2.
Breach of Implied Terms
Mercer Management Consulting, Inc. v Wilde (1996) p1015
NOT on exam. Ds left P and started own similar business. P sued for breach of fiduciary duty, K,
and tortuous interference w/K’al relationships. D counterclaimed for breach of K. Held=P won
for breach of K and won counterclaim, D won others. Each of the 3 Ds had a employment K w/P
saying they can’t render competitive services or hire P’s EEs w/in 1 yr of termination. Merger
created new Ks, which said no competitive services for 3 yrs w/in 50 miles radius, but also said
that it supersedes all previous Ks except re: rendering competitive services after termination. Ds’
clt contact prior to quitting and after idea for new company is not breach of fiduciary duty. Ct
found the restrictive covenant R. D1 let off b/c didn’t hire D’s EE w/in 1 yr. D2 & D3 hired w/in
1 yr, and rendered services to D’s clts, so they breached K. Ct awarded D $ that P made in that 1
yr off of D’s previous clts and replacement costs of hiring new EEs. Tortuous interference w/K
elements: (1) relationship exists (2) D’s knowledge of relationship (3) intentional interference
w/relationship by D and (4) resulting damages. The interference must be improper, competing is
not intentional interference. P lost this claim b/c no intentional interference. What steps during
employment can EE take (regardless of K) to begin a competing business? What obligation of
loyalty does EE have? Look at EE’s title at ER. Higher up leads to more loyalty required. If not a
corporate officer, (ex. middle level manager) begins to prepare to start a competing business, it is
disloyal and is discouraged by law b/c restraints on trade and on EE’s ability to be employed. At
what point is it actionable disloyalty? EE can’t use ER resources to do this (ex phone) b/c not
doing work he was supposed to be doing. Can plan outside of work to start new business. K may
prohibit starting new business during term of employment. W/o such K, EE will really have to
take concrete steps to cross the line. Agency law gives duty not to compete, but some efforts are
allowed as long as not injurious to ER. Must continue best efforts for ER. Failure to disclose
plans of new business not required. P wins profits they would have received if work was done by
them not D. Look at obligations while employed b/c this is when the fiduciary duty attaches.
G.
Post-Employment Restrictions p1024-1056, supp 83-84
1.
Future Employment
Post-employment restrictions may impose restriction on EE’s ability to quit. Who owns rights to
EEs skills and expertise? Can an EE K these away for a term? If so, can an ER restrain EE’s
right to do this? Look at fairness to ER, EE, right to earn a living.
Arias v Solis (1991) p1024
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P was D’s boxing manager and now wants D not to box in exhibitions pursuant to their 2 yr
personal services K. D refused to fight in matches set up by P, as required by K and then entered
into a K w/another manager while under K w/P. P says damages b/c of fights D never fought, $ P
put in training D, permanent injunction. K said that D’s services are extraordinary – Ct says it
can make a contrary finding. Injunction can prevent D from rendering his services to another
during P and D’s K, but can’t force one to work (or fight, as here). Held=D’s services are unique.
P will suffer w/o injunction, D can’t fight in the fight set up w/the other K b/c he has brain
damage. If D fights in this fight, P will lose $ b/c P thinks this fight will end his career. D offered
P the K’al agreed $ if he wins this fight. P won the breach of K claim – right to direct D’s fights.
Post-employment restrictive covenants on attys and MDs: can atty take clts from firm? If there’s
an agreement not to take clts, its unenforceable b/c restricts clt’s choice. Usually same w/MDs
b/c patient/clt relationship.
KGB, Inc. v Giannoulas (1980) p1030
I=whether a local radio station may prevent its EE/mascot from wearing a chicken suit. D
worked for P as a mascot, K said he can’t wear the costume or a similar costume. Ct said this
restricts D’s right to earn a living and to express himself as an artist. CA (this ct) has a law
prohibiting any restrictions on legal behavior in a K. Prior cases say D must be a threatening
menace for P to get injunction and P has burden to prove irreparable injury. Ct allows P to
prevent D from being the “KGB Chicken.” The only unique part was the costume, not the act D
performed. There was no pre-chicken K preventing D from taking his act elsewhere.
2.
Trade Secrets
Look at ER’s interests, if it is a trade secret (secret and unique). ERs wanting to protect trade
secrets must take steps to keep the secret. If its not protected, ER can’t claim that it’s a secret.
SI Handling Systems, Inc. v Heisley (1985) p1041
D previously worked for P along w/a few other former officers of D. D has a very specific secret
design for a machine and when P left, he and the others formed a similar business. This ct’s law
requires P to show the following to get an injunction vs disclosure or use if info: (1) info is a
trade secret (2) it has value to P in his business (3) ER has right to its use and enjoyment (4)
secret was communicated to D while D worked a trust position and its unjust for D to disclose it
to others or use it himself to ER’s detriment. I=whether info is a trade secret. Ct held that some
of the info was and some was not a trade secret. D wouldn’t have breached if he had made use
of his knowledge of P’s major account’s needs and key decisionmakers.
11-30-04
OSHA
1.
2.
Common Law – has always recognized the duty of employers to provide safe
working environment.
Look at OSHA in Statute Book p 146 – Definitions – covers every employee
in interstate commerce.
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3.
NY has a general duty law cover NY employees.
Whirlpool Corp v. Marshall - case p 854
What are the rights of employees faced with the dilemma do this job and they fear they suffer
serious injury or death. The risk in whirlpool was quite high and apparent. Washer machine
factory with conveyer belt with parts on it with a screen under it that keeps the parts from falling
off and hitting the employees. Two employees are asked to crawl out on these metal screens and
retrieve parts. No safety belts attached to hoists, completely un protected and risk 20 feet.
Someone had previously fallen from the screen to their death, like a week earlier. Company
makes rule not to walk on screen itself, so can only walk on the outer frame. Then make a new
rule that they had to use a lift couldn’t even stand on frame. Nigel and Virgil talk to supervisor
about the safety hazards this was 9 days after someone died. Then went back to foremen and
asked for number and address of OSHA. Next day they call OSHA – they didn’t run out and
inspect. The very next nite on the 11:30 shift the supervisor walking on the frame told the
employees to walk out on the screen to get the pieces. What are the employees options at this
point? They say no because they saw someone fall to their death. Foremen sent them home and
treated it as insubordination. Do they have the right to walk off the job in protest – who are they
to decide it is dangerous, in this case doesn’t take a lot of expertise to decide if this job is unsafe.
What protects their jobs in complaining – these employees were not fired.
29 USC --- In 1973 OSHA implemented a good faith refusal of work - the employee could
refuse to work and still keep position and not disciplined if a reasonable person might think that
it could lead to death or serious injury. Question is this valid legislation. Under 8 F1 an
employee has the right to request an inspection.
§ Procedures to handle imminent dangers
Under 13(a) – OSHA could use emergency procedures
13(c) can recommend injunctive relief requiring employer to repair situation.
§ 11© - Protects against discrimination of employees for filing a complaint or testify – it does
say walking off the job is protected
Require
1. Good Faith
2. Reasonable Belief of serious injury or death
3. No reasonable Alternative or opportunity
a. To report to ER
b. OSHA
Washington Alum test – concerted activity
1. Good Faith
2. Concerted activity for mutual aid or protection
3. Erroneous – OK
NLRA § 502 – pg 859 says that – employees that refuse to work because of abnormally
dangerous working conditions are not deemed to striking.
1. Good Faith
2. Ascertainable obtainable evidence that working conditions are dangerous – (higher
standard)
Why this is place is when you have a CBA with a no strike clause you won’t violate CBA.
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Ranch v. Holy Shoe p. 859
Retaliation of OSHA reporting
1. Prima Facia case showing that protected activity
2. Adverse Employer action
3. Causation
Court says that do not have to have direct knowledge who reported it – but an employee was
fired because the employee was believed – both protected.
ER
Must show legitimate reason then burden shifts
EE
Must show Pretext
12-07-04
Avery made a mistake – on reporting of OSHA they are not statutorily protected.
Workers Compensation
Nothing in OSHA that protects employees or compensate employees –
Tort – based on fault i.e.. negligence, intentional act – only find culpability when find a duty and
a breach.
Courts adopted these defenses - found 3 rules –
1. Defense absolute bar - if injury was caused by co-worker not employer fault
2. Contributor Negligence – you did anything to contribute to injury an absolute bar of tort
claim against employer
3. Assumption of Risk – you were informed about the risk took the job – you assumed the
risk. Absolute bar to tort claim
In time early 20th century – comparative negligence – agency rules – defenses began to be eroded
Employers welcomed workers compensation – union didn’t want because defenses wore down –
and the awards under workers compensation smaller awards
Workers Comp. – is no fault system – amounts awarded are statutory determined – occupational
diseases not recognized at first.
Employers gave up Fault to exclusivity – if injury is brought under workers comp. can’t be
brought under tort.
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Eckis v. Sea World
– a secretary that rode Shamu in a bikini to take publicity photos- Issue: was when she was
riding the wale was she engaging in something separate from her employment – does it arise out
of her employment – court finds she was an employee at that time – on employer at the time,
asked to do something for employer (a little scary). Bought bikini – benefit employer was not on
weekend – employee said she was hired as a secretary – not hired to ride whale – employment
had nothing to with injury – as a matter of law court says it all points to a work connection
(similar to leberman – little kid conveince store). P wants to escape workers comp law and sue
under tort. No pain and suffering in worker compensation. Failure to notify of risks. Eckis
wanted to be treated as independent contractor and not an employee. Problem in this case she
did not know the risks – would she have a good public policy argument. Was Sea World
exploiting her by her past work as a model, by using her at a model and paying her secretary
wages (although she was paying separated). Court is not being paternalistic by protecting a
young nieve girl – if girl got lawyer or agent – who probably would have negotiated premium
pay or insurance. The problem with case Eckis had a choice – she took a risk. Court treated her
a full grown adult able to protect themselves.
Footnote – Shamu became a PR disaster because it was caught on videotape by local new station
“Arising out of “
“in course of”
Weiss v. City of Milwaukee p917
Employer gave a employees husband access to her address. This husband was threatening to kil
her and had restraining order against him. It was clear that Municipality was at fault. She is
trying to sue under tort law. The injury is that husband is calling and saying gonna kill her and
kids, I know where you are. Mental distress
Elements of Workers Compensation
1. The employee sustains an injury
2. at the time of injury, both the employer and the employee are subject to provisions of the
WCA
3. at the time of the injury, the employee is performing service growing out of incidental to
his or her employment.
4. the injury is not intentionally self inflicted and
5. the accident or disease causing injury arises out of the employment
Court says they look at this positional risk doctrine – if employment conditions facilitated the
attack – court that because she was required to give name and address for the job – negligent –
she loses her claim
Guess case in supplement
Is working on production line – her worker who is injured and she gets blood on her – she thinks
she has been infected by HIV – because co-worker is gay and been ill – her problem is there no
fault, no evidence of employer negligence – she wants to be covered under workers
compensation is her only compensation – for her condition – which is a mental condition post
dramatic syndrome – mental distress. She is terrified. Court says your not covered by workers
compensation – why not she was at work - in course of employment -
Page 41 of 42
REVIEW:
Can use abbreviations on exam if obvious or if demonstrate. Don’t rewrite facts. Discuss them
w/rules applied. Argue both sides. Don’t need cites.
Ask:
 Is there an ER/EE relationship? Is EE really an independent Ker? Apply economic
realities test, right of control test. Maybe its neither and no relationship.
 If ER/EE, ask is it private or public or quasi-public (PR phone co)?
 How many EEs? Matters b/c if under X# of EEs, laws may not apply. Multiple worksites
count.
 What is nature of business? Matters b/c CBAs, certain laws like FAA, which applies to
arbitration agreements. Exclusion for transportation workers.
 Who is the EE?
(1) job title/rank? Manager/sup? Rank and file? If sup/manager, no NLRA
protection. Owner? Partner?
(2) protected status? Title VII (sex, race, national origin, religion)? ADEA
(age)? Disability (ADA)? Prohibited questions, screening. Marital status?
Veteran status? Sexual orientation?
(3) These 3 re: state law. When hired? When did discipline occur? When did
termination occur? Look at timeline.
(4) Keep Statute of Limits in mind – not on exam, but can mention it.
(5) Facts of story? Was EE doing something right like serving on a jury but
there is no law protecting this in this state?
(6) Good work history? Performance? Defense for ER – he was a thief! K?
 Types of claims to bring: If private ER, bring K (CL) claims (emp at will is a K, can be
at will w/a notice/severance provision; K for a specified term – if so, was there breach of
K if discharge?; implied in fact K – look at handbook, duration, promises, raises, bonuses
(doesn’t really mean anything); implied in law – good faith/fair dealing (ex hired to cook
books)? Some states, like NY, don’t recognize good faith/fair dealing. Looks like tort b/c
duty implied by law; if K, what forum? Was there predispute arbitration agreement? If so,
is it enforceable? Circuit City. Unfair? Unconscionable? What claims does it cover?
Waive ct forum for all claims or some? How was is signed (was it knowing)?
 If private, tort: many types. Wrongful discharge on basis of public policy, 4 privacy torts,
defamation, IIED, etc.
 If private, statutory claims: regulations, orders, etc. Federal or state? Look at both.
Federal – Title VII, PPA, FFA, NLRA, ADA, ADEA, IRCA, …. State – Human Rights
Laws, etc. NY Labor Law, Smokers’ Rights law, Workers’ Comp. Who do these laws
apply to? Only private?
 If private and unionized, look for CBAs, does it provide for arbitration? Can union waive
right to statutory ct forum? Not in the case we covered b/c ADA. Who knows how far
this will go? May get 2 bites at the apple – grieve then sue re: federal statutory rights.
Preemption – if right arises out of K, and can be resolved by arbitration, must be – this is
a 301 federal law. Of not covered by K, bring claim outside of arbitration.
 Public ERs: federal constitutional rights you can bring = 1st (speech, association,
dress/grooming), 4th A claims, procedural DP, = Protection (race, sex). Maybe state
Page 42 of 42
constitutional rights that apply to public and private EEs. Dayton. Don’t give up just b/c
no federal laws – look at state constitution.
BRING ANYTHING!!!