EMPLOYMENT LAW – 2003 - PROFESSOR ADAMS
PART I – BACKGROUND
I. Chapter 1: Work and Law
A. Work and Society
B. Legal Intervention
- Keep in mind, public versus private entities
II. Chapter 2: The Development of Employment Law
A. The Foundations of Employment Law
1. Master-Servant
2. Employer-Employee
3. Employment at Will
= either party can terminate the employment relationship for any reason at any time. No
restrictions.
- Starting point for all employment analysis. Then exceptions are carved in: age, race, 2
week notice, etc.
Wagenseller case
a.
Arguments For Employment at will
i.
Efficiency – best use of resources, freedom of movement, etc.
ii.
Incentive to work better
iii.
Flexibility – unique skills, bargaining power, etc.
iv.
Control – freedom of K
b.
Arguments Against
i.
Too much discretion / control / power
ii.
Unequal bargaining power
iii.
Burdon on state – welfare / unemployment
iv.
No incentive to work well / merit
v.
Efficiency – job turnover
vi.
If injured, could get fired
B. Sources of Modern Employment Law
1. Civil Service/Public Employment
a.
There is no constitutional right to a job
b.
Two regulations regarding public employees:
i.
Appointment and promotion must be based on merit and fitness for job
ii.
Under law, only discharge for just cause
2. Nondiscrimination – protect certain classes
3. Judicial Modification of the at Will Rule
4. Other Sources – arbitration agreements are enforceable
C. The Changing Economic and Social Setting
1. Demographics
PART II – ESTABLISHING THE EMPLOYMENT RELATIONSHIP
III. Chapter 3: The Hiring Process
A. Intro
1.
Under Title VII, analyze whether there is:
a.
Disparate Treatment – intentional discrimination (not necessarily evil intent)
b.
Disparate Impact – facially neutral policy, but disparate impact on group
2.
Advertisements – can advertise only in Chinese paper, but not for only Chinese waiters
B. Legal Restrictions on Access to Jobs
1. Residency Requirements
- Reasons for:
a) proximity;
b) experience community;
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c) invest in community; and
d) tax investment.
- rational basis review
- some cities provide incentives for employees to live in certain areas (i.e., low interest
rates; reimbursement for refab homes, etc.)
Wardwell v. Bd. Educ;
2. Undocumented Aliens
- IRCA (Immigration Reform and Control Act)
▪ Goals: provide temporary and permanent resident status to aliens.
▪ Provisions:
1) employer sanctions;
2) anti-discrimination provisions – applicants and/or employees.
▪ Issues:
1) Catch-22 (hire illegally)
2) Forces employers to be proactive in immigration problem
- Applies to all employers.
- Compliance w/ IRCA
▪ after employer makes offer, must verify applicant has documents authorizing
that person to work in the U.S. – employer must review the documents.
▪ Employer must have an I9 Form filled-out – Employment eligibility form.
▪ If Employee cannot produce the documents required by the I9 Form, the offer
of employment is rescinded.
- Problem w/ Compliance Procedure:
▪ Forged documents; employer not required to be an “expert” in verification.
▪ Rather, examine the documents and the documents must reasonably appear to
be genuine.
- If employer has reason to believe (i.e. warning from the INS) that there are illegal
aliens or improper documents, the employer must take further steps.
- Key: prohibits “knowingly hiring” illegal aliens.
- Sanctions: don’t occur if have illegal aliens, unless, knowingly hire and even after
warnings fail to take further steps to prevent illegal aliens.
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C. The Employer’s Information-Gathering Process
1. Applications
▪ Title VII does not specifically prohibit employers from asking any questions about an
applicant’s race, color, religion, sex, or national origin. However, cannot discriminate
based on the answers. Inquiries which either directly or indirectly disclose such info,
unless otherwise explained, may constitute evidence of discrimination under Title VII.
▪ General questions (i.e., hair color, eye color, etc.) may also lead to claim of
discrimination (indirectly discloses info about race, color, national origin)
▪ Thus, under Title VII, should avoid specific and general questions that may lead to
discrimination.
▪ Some state laws have more stringent req’s/prohibitions – especially in the area of
preemployment inquiries.
▪ Under ADA, certain specific questions regarding a person’s handicap are prohibited,
but, can ask applicant if he can perform certain job related tasks.
- If info is volunteered by applicant, can carry-on the conversation.
Sullivan v.U.S. Postal Service, issue, Δ contacted current employer of applicant, against
applicant’s wishes. As a result, the applicant was fired from current job and not hired by
postal service. Π’s claim, violation of Privacy Act (public job), if private employer the
Privacy Act does not apply. Held: invasion of privacy claim precludes MSJ because
there was a disclosure of a protected record (application) under the Privacy Act.
▪ Application Questions - Dilema:
1. If applicant refuses to answer questions, there is no invasion of privacy and
no COA for wrongful refusal to hire (unless a Title VII violation).
2. If applicant answers questions truthfully, the dillema for the
employee/applicant is that the answers are volunteered – thus, no invasion of
privacy claim. Also, difficult to bring COA against new employer and still
retain employment. (questions for paycheck)
▪ After-Acquired Evidence:
1. Applicants who misstate their background, qualifications, work history or
other matters need not be hired when the misstatements are discovered.
2. If the misstatements are not discovered until after the individual begins
work, the misstatements will establish cause for discharge.
3. If the misstatement is not discovered until after an allegedly unlawful
discharge, the cts. will determine the applicability of the “after-acquired”
evidence, which will decide what effect, if any, the post-discharge evidence of
wrong-doing should have.
- McKennon, ct. held that the wrongful conduct of the employee will
limit damages – may collect only for the time period btw the firing and
discovery of the after-acquired evidence (valid basis for firing)
▪ It is not just the finding of something bad, rather, it must be so severe as to
justify immediate firing. Problem: why not fire before?
▪ In reality, should be information recently, or newly, discovered.
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2. Interviews
Lysak v. Seiler Corp., Π volunteered false/incorrect info regarding her pregnancy. Π was
hired. Employer then fired Π for lying when she informed president that she was
pregnant. Held: no wrongful termination.
▪ General rule, an employer cannot discharge an employee b/c of employee’s false
responses to unlawful questions asked by the employer (Kraft), however, there is no such
protection for false information volunteered by the employee.
3. References
▪ Defamation suits – cause employers to be reluctant to provide employment info
- Basic Elements: 1) defamatory imputation;
2) malice;
3) publication; and
4) damages.
▪ Truthfulness - absolute defense for defamation for employers w/ regard to ref. info
- but, the information must be based on objective and not subjective standards
- best not to evaluate the information, merely, provide the objective information.
▪ Qualified Privilege (defense to defamation suit): applies to comm. made in good faith
on any subject matter in which the party making the comm. has an interest or in reference
to which he has a duty, either public or private, either legal, moral, or social, if made to a
person having a corresponding interest or duty.
- QP arises out of the necessity for full and unrestricted communication
- Whether a statement if protected by QP is a question of law
- QP exists regarding a former employer’s statements given to a prospective
employer, state employment dept. or other public official concerning a former
employee.
- Exceptions – a statement otherwise protected by QP will lose its privilege
upon a showing of abuse, namely:
1) communicator motivated by ill will;
2) excessive publication of the defamatory statement;
3) statement is made w/o belief or grounds for belief in its truth.
- Π has BOP related to a showing of one of the “abuse” exceptions.
Chambers v. ATA (IN case), Π filed defamation suit against former
employer/supervisors. Π suspicious of supervisors providing unfavorable
responses to hiring personnel at locations in which Π was seeking new job. Π
had mother and boyfriend call Δ. Ct. held no publication, but, no matter because
employers statements were protected by QP.
▪ Self-Publication: when the defamed person was in some way compelled to
communicate the defamatory statement to a 3rd person (thereby publishing and causing
damage), and it was foreseeable – know or should know - to the Δ that the defamed
person would be so compelled, the Δ could be held liable for the defamation.
- In order for a statement to be considered defamatory, it must be communicated
to someone other than the π, it must be false, and it must tend to harm the πs
reputation and to lower him/her in the estimation of the community.
- generally, there is no publication where a Δ communicates a statement directly
to a Π, who then communicates it to a 3rd person
Lewis v. Equitable Life, Πs were discharged for “gross insubordination.” Πs
had hard time finding new employment because they disclosed the reason for
their discharge. Ct. held “self-publication” and that Q/P did not apply because
the jury found malice which negates the privilege.
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4. Negligent Hiring
a) Types of Negligent Hiring
1. Employee injures someone; and
2. Employee injures co-worker (workers’ comp issues)
b) Duty to Investigate when there is a nexus between the job responsibilities and the
potential damages imposed by the job. (connection btw. prior crimes and future potential
for crimes in new position)
- Duty can vary depending on the job responsibilities. (i.e., truck w/ sleeper and
truck route w/ numerous hitchhikers; OR keys to maint worker of apt bldg)
1. Hazard of Investigating: getting information – often restricted by State law
- Not negligent if, as employer, you investigate as far as you can
▪ certain jobs require more investigation (i.e. child care)
2. Providing Info as Former Employer:
- General rule, do not need to provide info.
- Exceptions:
a) (Calif)(n3, p 154) Former employer knew of former
employee’s dangerous proclivities. Teacher w/ sexual
problems was hired by another school. Here, issue was partly
because former employer lied.
b) (Fl. – Allstate) Allstate provided minimal info (i.e. dates
employment, position, etc.). But, while at A/S employee
performed violent acts, devil worship, etc. Then employee
gets new job and kills someone. MSJ denied. (settled)
* Employer Responsibility:
1) Information must be truthful; and
2) Trend toward proving valid information
Malorney v. B&L Motor Freight, Π was raped by Δ’s driver in the truck’s sleeping
compartment. Δ did not verify driver’s claim of no criminal history (other than driving
offenses) when in fact the driver had history of sexual offenses. Held: duty existed –
depends on forseeability, public policy and social requirements.
▪ Potential for Competing Claims:
- Defamation (truthfulness doesn’t get employer out of privacy COA) vs.
Privacy violation
D. Truth-Detecting Devices and Psychological and Personality Testing
1) Pencil and Paper Honesty tests: All states allow other than Mass. and R.I. restricts
(Reid Report; Stanton Survey; Personnel Security Inventory)
2) Polygraphs
- Employee Polygraph Protection Act (pg. 159)
▪ applicable to most private employers
▪ Very restricted; but, does not prohibit pencil/paper honesty tests.
- Exceptions
a. Doesn’t apply to fed, state, or local gov’t employers;
b. Permits testing by the fed. gov’t of contractors engaged in nat’l intelligence;
c. Permits the testing of employees who are reasonably suspected of
involvement in a workplace incident that results in economic loss or injury to
the employer’s business;
d. Permits testing of prospective employees of private armored car, security
alarm, and security guard firms; and
e. Permits testing of current and prospective employees infirms auth. to manf.,
distrib., or dispense controlled substances.
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3) Psychological Tests
▪ Psychological tests used extensively in preemployment screening & personnel selection
a) Achievement tests: measure proficiency in a specific area. Good when employer
knows the specific knowledge, skill or ability relevant to that job.
b) Aptitude tests: commonly used because most jobs are multifaceted – general measure
of a person’s potential to learn a specific body of knowledge.
c) Personality and psychological functioning assessment: measure personality traits,
temperament, personal preferences, interests and attitudes, etc.
Soroka v. Dayton Hudson; Δ req’d its security guard applicants to pass a Psych test. Ct.
held that Π survives Δ’s MSJ because there is no distinction btw. privacy rights of
employees and applicants and that Δ did not show close nexus btw questions & job.
Generally, only public employers are restricted by the U.S. Const and the Rt to Privacy.
- Right to privacy protects applicants as well as employees. Employer can ask
“job related” questions – there must be a connection/nexus between job duties
and the questions being asked.
- Most employees will subject themselves to taking the exam because:
1) If get job, as an employee sacrifice privacy for paycheck.
2) If refuse to take test as an applicant, the application is not reviewed
and there is no COA for wrongful hiring.
- The MMPI remains one of the most widely used psychological tests.
- The ADA specifically prohibits certain questions.
▪ Other Tests:
LSAT, SAT, etc. Possible problem, disparate impact on one of the
protected classes. Although, Title VII allows exception for valid, standardized tests.
E. Medical Screening
1. Purpose
a) Predictive screening: attempt to ID whether indiv is at risk of developing medical
impairment in some future time which would affect ability to work.
b) Drug abuse
c) Cost containment measure: concerned w/ employee health in general; insurance costs
▪ governed by the ADA
▪ Purpose of ADA is to prevent discrimination against individuals who are disabled, or
who suffer discrimination b/c they are perceived as being disabled.
2. Medical Questionnaires
▪ ADA prohibits 1) discrimination against qualified individuals w/ a disability b/c of the
disability of such individual in regard to job application procedures, hiring, discharge,
and other terms, conditions, and privileges of employment and 2) employers from
conducting medical examination/making inquiries of a job applicant as to whether
applicant is an individual w/ a disability or as to the nature/severity of such disability.
* Only permissible inquiries = ability of applicant to perf job-related functions.
▪ ADA Restrictions:
- Prohibits employers from conducting medical exams or asking medical history
questions, pre-hire (before offer is made);
- Once a “conditional offer of employment” is made, employer is allowed to
conduct medical examination or ask medical history questions.
- However, medical questions must be narrowly tailored – job related!
Griffin v. Steeltek; issue was whether the ADA provides a COA for an individual who is
not disabled as defined under the ADA. Π answered, during application state, that he had
received workers’ comp/disability in the past for injuries that would not affect his
potential job performance (i.e., past burns). Π had no COA under ADA.
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3. ADA – Medical Examination
a) General:
1) Eligible employers: 15 or more employees (as of 1994; was 25 employees)
2) Prohibits “traditional” preemployment medical examinations and questions
3) only permissible inquiries are about ability to perform “job-related” functions
b) Π must have a disability as defined under the ADA
1. physical or mental impairment
2. substantially limits one or more major life activities
▪ major-life activity: includes, but is not limited to, caring for ones’
self, eating, breathing, waling, sleeping, etc. The basic activities a
normal person can perform w/ little or not difficulty – very broad.
▪ no clear test for “substantially limits,” but, there are factors:
a) nature and severity of the impairment;
b) duration of impairment;
c) permanent or long-term impairment.
c) Conditional offer of employment: employer is allowed to condition employment on a
medical examination.
d) Physical Ability test: not medical exams. But, these type of tests can have a
discriminatory impact. Thus, they must be job-related.
e) Medical Exams after Conditional Offer:
1. must be given to all employees;
2. must collect results and keep confidential;
3. medical criteria cannot be used to screen-out disabled applicants unless jobrelated criteria.
f) Traditional view: Applicant-Employee Examination. No Physician-Patient
relationship btw. an applicant or employee and a physician retained by an employer to
assess the health of the applicant or employee. Because the examination is not performed
for the benefit of the examinee nor is there any contemplation of treatment. Thus, no
duty to report test results, diagnoses, or refer for treatment.
g) Employment File - Medical Records: Generally, employees have no legal right to see
their file including their medical records; and despite their often sensitive nature, there
are few restrictions on the intra-company and extra-company disclosure of such records.
- governed by state law. Some states allow access but limit what is available.
Green v. Walker; Π’s husband underwent annual employment physical examination and
was qualified to work. One year later died of lung cancer. Ct. held, contrary to
traditional view, that the physician owed a duty of care to, not only the employer, but the
employee. Thus, there may be a claim, in negligence, for failure to report an imminent
danger to the employee. Although, damages may be hard to prove.
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F. Drug Testing (pg. 209-210)
▪ Constit challenges to gov’t mandated drug testing after Von Raab focused on gov. need to test.
* Such a determination is often based on nature of employees’ duties.
▪ Drug Free Workplace Act of 1988
* Each covered employer must: (employers w/ federal contracts in excess of $25k.)
~ Publish and distribute a policy prohibiting unlawful manufacture, distribution,
dispensing, possession, or use of controlled substances in the workplace;
~ Provide penalties for employees convicted of drug related violations on the job;
~ Establish employee awareness program on dangers/penalties of workplace drug abuse,
and availability of resources for drug rehabilitation and counseling.
▪ Omnibus Transportation Employee Testing Act
* Requires drug testing of employees in transportation industry and adds requirement of
random alcohol testing.
▪ ADA: test to determine illegal use of drugs shall not be considered a medical examination.
▪ Some states have enacted laws limiting drug testing.
G. Miscellaneous (pg. 217)
▪ genetic predisposition under the ADA
▪ laws enacted in over dozen states prohibit discrimination based on genetic test or information
IV. Chapter 4: DISCRIMINATION
▪ Traditionally, employers have had the right to hire whomever they pleased. As a result, these selection
methods, left unregulated, have resulted in identifiable groups, being underrepresented in the more
desirable sectors.
▪ The law plays a negative role in employee selection; while it proscribes certain practices, the law does
not prohibit irrationality per se it only prohibits employer action that is improperly motivated or has
unacceptable consequences.
▪ covers all phases of employment.
▪ Dictionary def’n: to see or make a difference between things.
▪ In employment arena, concerned w/ more than the mental process, also the actions.
- Intent: mental process (not necessary or relevant)
- Action
▪ Arguments against special protection: (1) creates discrimination against others (i.e., white male); (2) gain
advantages not on merit; and (3) more litigation.
▪ If not Title VII, other options:
1) require “just cause”; or
2) do nothing (no fed or state laws) and let market forces cure (i.e., professional sports)
▪ Why some groups are protected: (1) history of pervasive discrimination; (2) immutable characteristics.
A. Discrimination on the Basis of Race and Sex
1. Sources of Protection
a. Title VII of the Civil Rights Act of 1964
▪ prohibits discrimination based on race, color, religion, sex, and national origin.
(i) Immutable Characteristics:
▪ Protected Classes:
1) Race: originally, only those w/ ancestors from Africa, Asia and/or Native
Americans. Now, race encompasses all racial groups.
2) Color: skin
3) Religion: one’s religious beliefs or affiliation
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- cannot discriminate based on beliefs or affiliations
- do not need to belong to a specific group, or have a deity
- Groups like KKK, nazis - held to be Political, not religious, groups.
- can have a religion by one’s self.
4) Sex: gender, not sexual orientation, but includes pregnancy, child birth and
related medical conditions. (state law trend is to add sexual orientation).
5) National Origin: country from which forebears come from.
- does not require actual country (i.e., gypsys, cajuns)
▪ no discrimination unless can point to one of the protected classes
- thus, bizarre behavior, by itself, is not in violation of Title VII (i.e., not hiring
anyone w/ a seven in their social security number)
(ii) How Title VII Works
▪ applies broadly to all aspects of employment
▪ Section 703(a); defines what is illegal and what are the exceptions
- every decision regarding employment status is covered.
- covers employment agencies and labor unions
▪ Coverage:
- applies to all private employers w/ 15 or more employees.
- applies to federal, state and local gov’t empoyers.
- each State has laws that cover all other employers including small
employers. Rationale, restrict federal gov’t to larger employers.
- all employees of a covered employer are protected, regardless of their
status (i.e., management, personnel)
- Exclusion: religious educational institutions, businesses on or near
Indian reservations; Communist party.
▪ “Payroll” Approach: method under which all employees on the
payroll are counted toward meeting the jurisdictional minimum,
regardless of whether every employee worked or was compensated on
any given day.
▪ Exceptions:
1) religion, sex, or national origin (but not race) is a BFOQ reasonably
necessary to the normal operation of the business;
2) seniority or merit system;
3) professionally developed ability test that is not designed, intended or
used to discrim based on race, color, religion, N.O.
4) differences in pay based upon sex are auth. by the Equal Pay Act.
▪ Title VII has been amended 3 times:
1) Equal Employment Opportunity Act of 1972,
2) Pregnancy Discrimination Act of 1978,
3) Civil Rights Act of 1991.
▪ Procedure:
- cannot go directly to court.
1) Administrative agency (i.e., state EEOC)
- must file w/ state agency, if available.
▪ must wait 60 days before filing w/ Fed EEOC after
filing w/ state agency
- if not avail, file w/ federal agency
2) Federal EEOC – File
- cannot file until after 60 days from filing w/ State
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- if charge is initially filed w/ state agency, an EEOC charge
must be filed w/in 300 days after the occurrence of the alleged
discrimination
▪ in practice, file claims w/ state agency and federal EEOC at the same
time (the fed EEOC just sits on the claim until after the 60-day period)
3) Federal EEOC
a) Investigate the claim
- Serves notice: letter to employer; asks for response
- Employer should never respond, unless can
absolutely get rid of claim easily (i.e., person never
worked for you)
- Reality, EEOC does very little w/ claims.
b) If basis for claim, EEOC may try mediation/reconciliation.
c) If no resolution, EEOC may sue
- generally, EEOC won’t sue (no time/resource)
d) “Right to Sue” Letter
- has nothing to do w/ merits of the case.
- merely, admin. agency reviewed and won’t do
anything further.
- allows employee to pursue claim in court.
▪ can request letter after 180 days
4) 90 days file claim in court after getting right to sue letter.
▪ Administered by the EEOC
▪ Violations are brought to EEOC’s attention by agency investigation,
recordkeeping, and compliance activity as well as individual complaints.
▪ §704 – prohibits retaliation against former employees as well as current ones
▪ Cts are split on whether charges can be brought against agents of employers.
▪ Title VII Remedies:
1. Ct. order or injunction (may be issued even before Π has availed)
2. Reinstatement
3. Back-pay
4. Front-pay
5. Compensatory damages (disparate treatment cases)
6. Punitive damages (disp. treatment cases)
- must prove malice or reckless indifference to civil rights
▪ for Comp/Punitive damages, caps are imposed depending on the size
of the workforce.
7. Credit toward seniority
8. Affirmative action
9. Reasonable attorney fees and costs.
b. State Fair Employment Practice laws: every state has a law; usually do not exempt
small employers; some states have banned discrimination on more criteria than federal
law such as marital status and sexual orientation.
2. What is Unlawful Discrimination
▪ Purpose of Title VII: (per Griggs)
1) Remove barriers to employment for protected groups
2) Achieve equality of opportunity (by removing the barriers)
- not setting affirmative action quotas
▪ Disparate Treatment: overt discrimination
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vs.
▪ Disparate Impact: fair in form but discriminatory in operation; facially neutral
- Defense to Disparate Impact:
▪ job related and/or business necessity
▪ must demonstrate that the skill/requirement relates to successful job
performance – “requirement must have a manifest relationship to the
employment in question.” Griggs
- (n6, p. 237) IQ Taxi Cab Drivers – marketing device that creates disparate
impact. Most courts won’t allow. But most courts will allow requirements for
high school diploma.
▪ If this example had been “bikini wearing women” only driving cabs –
claim for disparate treatment, not impact.
Griggs v. Duke Power; post Civil Rights Act, Δ req. H.S. diploma and passage of two
standardized tests to gain certain positions at the business. Neither test was linked to job
performance. The positions which req’d the tests historically were held by white workers
and the tests/diploma req’s tended to disqualify more blacks than whites. HELD:
disparate impact because neither diploma nor tests were related to job performance.
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a. Disparate Treatment
1. Π must establish prima facie case (Burden of Persuasion remains w/ Π) =
must show that he was treated differently based on proscribed basis.
a) racial minority; (or other protected class)
b) applied for and qualified for job;
c) rejected;
d) position remains(ed) open and applicant sought.
- est. a p/f case raises an inference of discrimination
- thus, if employer cannot rebut, Π wins.
2. Employer articulates legitimate, non-discriminatory reason
- only a Burden of Production (low burden)
(i.e., employer articulated reason such as greater communication skills,
stays longer, etc.)
- if employer produces reason, the inference of discrimination is erased.
3. Π must then show that the stated reason is pretextual and that the real reason
is discrimination.
- Burden of Persuasion
- Not enough to show that the reason articulated in step #2 was a lie,
must show the true reason was discriminatory.
▪ easy burden for employers
▪ Adams concern w/ step #3 in not allowing a “lie” to carry Π’s BOP is that a lie
is not a “legitimate” reason for step #2.
▪ Step #3 can use statistics to show discriminatory practices
- Although, the problem is that you must show that this individual, the
Π, was discriminated against.
▪ Hypo: black cop alleged racial discrimination for being fired after violating an
employment practice that whites have violated and kept their jobs. Valid reason
for step #2 would include: new supervisor announcing he would enforce the
rules that the old supervisor chose not to enforce.
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b. Disparate (Adverse) Impact
▪ Intent is unimportant, thus, even unintentional discrim may be unlawful.
▪ “Actions may be repugnant, but not violate the Act.”
▪ Fair in form, but discriminatory in practice.
▪ 1991 Civil Rights Act
1. Employee must attempt to show which employment practice has
caused the disparate impact OR, if the practices are impossible to
disaggregate, the court looks at hiring practices as a whole.
- Burden of Persuasion
2. Employer must show that the challenged practice is job related AND
a business necessity.
- Burden of Persuasion
- Specifics:
a) Educational req’s:
- Generally, upheld for white-collar jobs.
- Generally, upheld for safety concerns (i.e.
pilots)
- Generally, not upheld for semi-skilled jobs.
b) Physical Traits
- valid if “Content Valid” –physical trait is
specifically required for the job.
c) Employer cannot defend w/ evidence of favorable
bottom line.
3. Π has the Burden of Persuasion to: (Albermale and Watson)
a) Show another test/practice that meets employer’s needs;
b) costs and burdens are relevant;
c) the alternative(s) is just as effective – equally fulfills job
requirements and business necessity w/o unreasonable
costs/burdens; AND
d) show alternative was proposed to the employer prior to trial
and the employer rejected the alternative.
OR
show that job req/bus nec reason is pretexual.
4. Showing racial imbalance is not enough. Must compare ratios of
allocation to the labor market from which deriving workforce.
(Ward’s Cove Packing).
▪ Two Methods to Demonstrate:
a) impact of employment practices on labor market;
b) Applicant flow: EEOC’s 4/5 rule
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3. Bona Fide Occupational Qualification (BFOQ) – Defense
▪ §703(e) Title VII: not unlawful for an employer to differentiate in hiring on the basis of
religion, sex, or national origin, if religion, sex or n/o is a BFOQ reasonably necessary
to the normal operation of the particular business.
▪ No BFOQ for RACE or COLOR of SKIN
▪ Sex – following do not warrant BFOQ exception: If refusal to hire is
1) based on assumption of employment charac. of women in general.
2) based on sex stereotypes
3) based on preferences of co-workers, clients, cust’s or the employer; AND
4) based on the fact that the employer may have to provide separate facilities.
▪ BFOQ Test:
1) Particular job requires the workers be of one sex (or religion, national origin)
- meaning sex (or religion/nat. origin) is so essential to the job that
members of the opposite sex cannot perform the job
2) Reasonably necessary to the essence of the business
- business would be undermine if hired opposite sex (n/o, religion)
- sex(or religion or national origin) linked aspects predominate
▪ Customer preferences are not a relevant consideration
- Exception to C/P: National origin in ethnic restaurants for purpose
of authenticity.
▪ For Sex BFOQ, generally, must be involved in some sex-related business
▪ Acting positions are allowed as BFOQ exceptions.
▪ BFOQs are often used for religious reasons in churches, synagogues, etc.
(see also Kern case below)
Wilson v. Southwest Airlines; S/A had a policy of only hiring women for “contact
positions” in an effort to promote their marketing scheme – sex/love. S/A argued BFOQ
because of marketing campaign. Ct. applied the Weeks test: 1) does the particular job
under consideration req. that the worker be of one sex only; and 2) is that req. reasonably
nec. to the essence of the business, and held S/A failed this test.
▪ Individualized Determination; (i.e., lifting req’s)
- must determine applicant’s ability on an individual basis (not generalized by
sex, religion, national origin)
- cannot use the BFOQ exception
Kern v. Dynaelectron Corp.; BFOQ defense for an employer’s requirement that
helicopter pilots hired to fly into Mecca be Moslem. Employer’s may have valid,
religious BFOQs.
Dothard; narrow exception to the BFOQ defense. height and weight restrictions were
struck down because “all or substantially all of opposite sex cannot perform the job.”
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B. Discrimination Based on Factors Other than Race or Sex
1. Age - ADEA (Age Discrimination in Employment Act)
▪ Origin: Not part of Title VII; Rather, part of FLSA – requires different analysis and
enforcement than Title VII claims – although, EEOC does have jurisdiction.
▪ Purpose: prohibits age discrimination in the employment, discharge, promotion, or
treatment of persons over the age of 40 and prohibits all mandatory retirement.
▪ Coverage: applies to every employer engaged in enterprise affecting commerce that has
20 or more employees (also applies to employment agencies, unions, state and local
political subdivisions, and fed. gov’t)
▪ Standing: persons over age of 40; no claims for reverse age discrimination
(n7, p. 336) bans discrimination based on age, merely, replacing one covered person w/
another is not justification – key = was the employee replaced w/ a “substantially
younger” person
▪ Disparate treatment v. Disparate impact: most courts have rejected disparate impact as
a theory of recovery under the ADEA.
▪ Affirmative defenses – Employer: (burden shits to the employer to prove a lawful,
nondiscriminatory reason for the Π’s adverse treatment)
1) BFOQ;
2) reasonable factors other than age;
3) seniority system;
4) employee benefit plan; and
5) good cause
▪ BFOQ: has the burden of proving that
1) age limit is reasonably nec. to “essence of the business” and either
2) all or substantially all individuals excluded from the job involved are in fact
disqualified OR
3) some of the individ’s so excluded possess a disqualifying trait that can’t be
ascertained except by reference to age.
▪ Public safety: most courts are sympathetic to this reason (i.e., refusal to accept
applications from persons over 40 for intercity bus drivers)
▪ Nondiscriminatory reason - Punker’s Paradise (n9, p. 336)
EEOC v. Francis Parker school; disparate impact claim. EEOC argued discriminatory selection
practice for new hires – limit salary – limits experience level (and, thus, age). Ct. rejects disp.
impact analysis for age discrimination. Thus, must apply disparate treatment analysis. Here, nondiscriminatory reason – money/budget.
[FILM: Song of a Canary – OSHA; Workers’ Comp)
2. Disability – ADA (Americans with Disabilities Act)
▪ Purpose: provide a clear and comprehensive national mandate for the elimination of
discrimination against individuals w/ disabilities.
▪ Coverage; apply to employers w/ 15 or more employees. Coverage is intended to be
broad. Applies to private employers and state and local gov’t employers. Does not
preempt existing federal and state discrimination laws that are at least as stringent.
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Enforcement procedures and remedies are the same as exist under Title VII. State laws
remain important because they may extend coverage to employers w/ 15 or less emply.
▪ Procedure:
A) Π must show he has a Disability (§3 ADA) - broadly defined. (Actual and perceived)
1) Physical or mental impairment; which
- Not included: eye color; left handed; height and weight so long as not
caused by physical disability; personality traits; environmental, cultural
or economic factors; pregnancy and related medical conditions, absent
unusual situations, are not impairments; others (p. 344) including
current illegal drug use not covered by ADA.
- HIV is covered as a disability.
2) Substantially limits; one or more
- Individualized determination, no absolute test.
1) Severity – duration – short-term vs. long-term – temporary
impairments are not covered.
2) Minor trivial impairments are not substantial limits (i.e.,
broken leg, chronic lateness, wearing glasses, spider phobia)
3) Major life activities
- basic tasks one does on a daily basis
- Disability may also include, the state of being regarded as having such an
impairment.
B) If Π can show he is disabled, the Π must also show he is a Qualified Individual
= show he can perform the essential job tasks w/ or w/o reasonable
accommodations
- requires evaluating the physical/mental demands of a particular job.
C) Reasonable Accommodation: employer must do whatever is necessary to enable the
disabled worker to perform the essential job w/ reasonable comfort. Fact-specific.
- Balance costs vs. benefits
- Accommodations that impose and undue hardship or expense are not required
- Burden of proof: employee has burden to show he can perform the job w/
certain accommodations. Then, the employer has an opportunity to prove that
the costs are excessive in relation to the benefits or the financial survival/health.
- Ideal accommodation are not required. (Vande Zande case)
- Unpaid Leaves of absence for medical treatment are, generally, reasonable
accommodations. But, must analyze if it imposes an “undue hardship” – varies
w/ each job. (see also, Pregnancy notes above)
▪ Do Not need to create new position for an individual who is not qualified. Although,
may need to slightly modify the requirements of a particular job to provide reasonable
accommodations.
EEOC v. Kinney Shoe; could also have argued not qualified.
Vande Zande v. Wisconsin Dept of Admin; no discrimination under ADA. Δ made
reasonable accommodations – allowed Π work, partly at home and made a sink available
at work. No requirement to allow employee to work, full-time at home and no req. all
employees are treated identically.
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PART III TERMS AND CONDITIONS OF EMPLOYMENT
V. Chapter 5: WAGES AND HOURS
A. Fair Labor Standards Act (FLSA)
▪ Provisions (4): All employees of covered employers
1) Minimum wage requirements
- FLSA sets minimum wage for country, but, states can enact higher rates
- Argument against minimum wage:
▪ Can force loss of jobs (i.e., fixed labor costs)
▪ Artificially depresses wages.
2) Mandatory Overtime payment
- Does not limit the number of hours an employee can work
- Exemptions: depends on degree of independence, supervisory responsibilities.
▪ Managerial; Administrative; Executive (and others – sales; parts)
- Salary: whether a person is paid salary or not is irrelevant w/ regard to
overtime. Rather, the inquiry is does that person satisfy an exemption.
3) Child Labor
4) Equal Pay
▪ Wages
- Currently, $5.15/hr., unless, new hire during probation or “tip” employee.
- Hourly basis: not necessary (i.e., piece work rates; commission sales; fixed weekly or
monthly salaries) so long as the avg. weekly salary equals or exceeds the minimum wage.
- Minimum wage, generally, is determined on a weekly basis.
- Wages need not be in cash:
▪ Can provide alternative means of payment (i.e., meals, lodging, etc. so long as
reasonable cost (not retail) and for the benefit of the employee, not employer,
and the employee consents.
▪ Hours
- FLSA requires that employees be paid for all hours worked, at mim. wage for the first
40 hours worked in a week and at a time and a half their regular rate of pay for all hours
in excess of 40 per week.
- Employees must be paid for all time they are engaged in “principal” job activities, as
well as “incidental” activities which are an integral part of their work.
▪ Portal to Portal Act: excludes preliminary and postliminary activity from
compensable time
▪ Generally, coffee breaks, waiting, staff mtgs, fire drills, and grievance mtgs.
during working hours are compensable.
▪ Generally, meal periods longer than ½ hour, scheduled maintenance shutdowns, union mtgs for internal union affairs, voting time, and absences for
illness, holidays, or vaction are non-compensable.
- Doctrines – Compensable Time:
1) Waiting to be Engaged
= idle, waiting to be working.
- Issue: is the idle time spent
a) Predominately for the benefit of the employee – not
compensated, (waiting to be engaged) OR
b) Predominately for the benefit of the employer, not free to
do whatever want to – entitled to compensation (engaged to
be waiting)
▪ Restricted Breaks: (i.e., must stay @ desk during
lunch and must answer phone if it rings), most likely
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will be entitled to compensation either under FLSA
or state law because the meal time benefits employer.
- Very fact-specific analysis.
2) Homeworker’s Exemption
- employers are free to pay according to a reasonable compensation
agreement between the parties and not pursuant to FLSA.
- Not necessary that there be complete freedom, but a lot of freedom
(Halferty v. Pulse Drug Co.)
Halferty v. Pulse Drug Co; Π worked as a telephone dispatcher out of her house.
She was paid a monthly flat amount but received no overtime. She was on-call a
considerable amount of time but had, virtually, complete freedom to do
whatever she pleased (i.e., laundry, entertain, play w/ kids, etc) so long as the
phones were covered. Held: no violation; homeworker’s exemption.
▪ Both exemptions involve “on-call” situations. Most of these situations are
handled by negotiated agreements (i.e., police, fire, nurses, etc.). But see Note
1, pg. 386.
NOTES:
▪ Avery v. City of Talladega: voluntary payment for meals does not transfer nonwork time into work time under FLSA.
▪ Bouchard v. Regional Governing Board: under the FLSA, agreements as to
compensation are not enforceable when extracted under threat of termination.
- Incidental Work vs. Preliminary/Postliminary Work (n4, pg. 387)
- Employees are compensated for:
1) Principal job activities; and
2) Incidental tasks
▪ If the incidental task is “of consequence” – principal benefit
flows to the employer – the employee should be compensated.
▪ Key Issues:
1) Who is benefiting?
2) Who controls the time? (i.e., taxi owner requiring
driver to clean-out cab at end of night before leaving
– compensable time.)
▪ If the pre/postliminary – not compensated
▪ very fact-specific
- Sleep Time (for employees on call)
- Generally, controlled by collective bargaining
- Minimum requirements:
1) On-duty less than 24 hours, compensated for full time period
2) On-duty 24 hours or more, employees may agree to exclude sleep
and meal time but cannot be more than eight (8) hours.
- Employer must provide adequate sleep facilities
- Sleep time must be uninterrupted.
▪ If sleep time is interrupted, employee is entitled to
compensation for the time actually spent working.
- Travel Time
- Commuting time is never compensable
- If from home to Work1, to get assignment, then to Work2, employee is entitled
to compensation for W1 to W2.
- Employee entitled to compensation for travel if part of primary job activities
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- Rest and Meal Breaks; if 20 minutes or less, compensable. Key: are you completely
relieved of duty (or are you restricted, see above)
- Agreements; employer/employee may agree to a “bond fide rate” that is diff. from the
employee’s regular rate of pay and is applicable to work performed only during overtime
hours. (i.e., Operating room employees , n7, pg. 389)
▪ Child Labor
- FLSA restricts the employment of children under the age of 18 and limits the conditions
under which they may work.
- Specifics:
▪ Generally, prohibits employing children under the age of 12, w/ special
exceptions for certain types of agricultural work and for actors/performers.
▪ Also, limits the type of work children over 12 may perform as well as the
hours they may work.
▪ 14 – 15 year-olds can work in office, sales, gas station (pumping gas, only) as
long as no interference w/ education, health and well-being.
- Employment must take place outside of school hours.
- While school in session, children limited in # of hours they can work
(18 per week/only 3 per day). While school not in session, work no
more than 40/week and 8/day.
▪ Minimum age, non-agricultural, jobs – 16 years of age
▪ Minimum age for hazardous jobs – 18 years of age
(i.e., mining, roofing, excavation, work w/ power saws, metal presses,
meat slicers, grinders, etc.)
- Exemptions:
1) Agricultural – family farms
2) Performers;
3) Newspaper delivery;
4) Wreath making; AND
5) employment by family in non-hazardous occupation.
- Applies to all employers, even if employer not subject to overtime and minimum wage
restrictions of the FLSA.
- State law; many states have laws, and the FLSA does not preempt, it provides that
whichever statute provides greater protection overrides.
▪ Enforcement of the FLSA
Secretary of Labor may commence either:
1) an action for civil liability (back wages, liquidated damages); OR
2) Civil money penalties for violating child labor provisions; OR
3) Injunction to restrain violations; OR
Employees can seek
4) Civil damages; OR
Dept. of Justice may bring an action for:
5) criminal penalties.
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B. Equal Pay Act
▪ Purpose: address unequal pay rates between men and women
- Equal work in same establishment requires equal pay, unless, some legitimate system
(i.e., seniority, merit system) or some factor other than sex justifies the difference.
- If unequal pay for unequal work, but, don’t allow females to obtain higher paying jobs –
Title VII COA, not EP.
▪ Cannot remedy EP violation by lowering pay of higher paid worker.
▪ Designed to allow Π to easily establish a prima facie case
▪ Not part of Title VII. Thus, no COA for unequal pay related to race, color, nat. origin.
▪ EPA passed as an amendment to FLSA
1) Requirements:
a. Π must prove a Prima facie case by showing:
i) Men and women;
- Π only has to show that one person of opposite sex makes more
(i.e., auto shop, 9 employees paid same, one male paid more)
ii) Equal work;
- substantially equal skill, effort, responsibility under similar
conditions.
▪ does not apply where males and females are performing
“similar skill…” OR decision to pay female-dominated
occupation less than it would pay a male dominated occup.
- Working conditions like hazards and surroundings are a factor.
However, time of day (Corning Glass) may or may not be a factor.
iii) Same establishment; AND
- Same est = physically separate or distinct place of business.
- Factors:
1) Central Administration;
2) Frequent interchange of employees, AND
3) Doing same work
(i.e., WalMart in Valparaiso vs. Walmart in Arizona, may be the same
business but not same establishment for EP – same admin, no i/change)
iv) Unequal pay.
- Equal rates of pay. Cannot justify by looking solely at “bottom line”
- Bence v. Detroit Health; (p. 430)
b. Burden shifts to Employer to show system (i.e., seniority; objective (cannot be
subjective) merit system) or some other factor other than sex.
- Other than sex; Valid factors: education; experience, qualifications,
bargaining power (see below). Need to look at specifics the employer is using.
Key: need actual system, systematically applied, with objective criteria.
▪ (p. 431, n 4) basing salary on what paid by previous employer plus X
amount, not valid. Such system continues discriminatory practice.
▪ (p 431, n5) Head of the household eligibility test – Benefits - factor
other than sex, but this practice continues discriminatory tradition and
not related to equal work. Probably a disp. impact case.
▪ Bargaining; probably a factor other than sex. Although, may be
disparate impact because men tend to bargain and women do not. Also,
some case law suggests bargaining is not valid factor.
Corning Glass v. Brennan; different pay rates for day and night shift inspectors. Held: violation of
EPA. Cannot remedy by opening jobs to females or lowering the wages of higher paid workers.
2) Comparable Worth: unequal work/unequal pay. Not covered by EPA. Argument is that the
job, which requires generally the same education, skills, etc., is typically restricted to a certain
gender. (i.e., janitors – male; cafeteria workers - female but janitors, typically, get paid more).
May be a Title VII coa. Argument attacking CW is unequal effort. Movement basically died at
the federal level. Some states, Oregon, Mass., Minn. passed laws.
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Chapter 6 - Health Insurance and Other Fringe Benefits
A. ERISA (Employee Retirement Income Security Act of 1974)
▪ statute aimed at private employer pension/retirement plans.
▪ Primary federal law of employee benefits – pension/retirement plans and health plans.
▪ ERISA does not require employers to offer pension/retirement plans, merely, establishes minimum
standards to protect employees from breach of benefit promises made by employers.
▪ Two main types of plans: (1) pension benefit plans; (2) welfare benefit plans (medical; hospital, sickness,
death, unemployment, vacation, day-care, etc.)
1. ERISA Preemption
▪ very broad; any state laws and state claims that have any possible connection to
pension/retirement plans are preempted by ERISA and employer health plans.
▪ States cannot pass laws affecting pension/retirement plans.
▪ ERISA even preempts state laws where ERISA is silent on pension/retirement plans.
▪ Preempts statutes and C/L.
▪ Examples: Preempts – (1) wrongful discharge state claims; (2) ESOP claims.
B. COBRA (Consolidated Omnibus Budget Reconciliation Act)
▪ requires employers w/ 20 or more employees who offer health benefits (an employer is not required to
offer health benefits) to offer continued coverage to most former employees, their dependents, and certain
others when a qualifying event occurs for at least 18 months or until coverage under another plan begins.
▪ Specifics of COBRA:
1. Notice is required to be provided by the plan administrator to any qualified beneficiary
including employees’ spouse and any children of majority (if they were beneficiaries under the
plan) as to his right to continue coverage. If notice is not provided, it may be bound to provide
coverage. Oral notice is sufficient. The requirements of notice are not specific, merely, sufficient
to allow benef. to make choice.
- Burden of Proof is on the plan admin that notice was provided.
2. Qualifying Event
a) For employee: termination from job for reason other than gross misconduct or
reduction in hours.
b) Spouses and dependents: same as above plus death of covered employee or divorce or
legal separation or employee eligible for medicare or child no longer a dependent.
c) Employer from whom employee retired becomes b/k.
- The beneficiary must elect coverage w/in sixty days after the qualifying event.
▪ Employee is required to pay for the coverage up to 102% of the average cost of the coverage.
▪ HIPPA (Health Insurance Portability and Accountability Act) – amended COBRA (p. 510)
C. Nondiscrimination in Benefits
1. Pregnancy Leave
A. Pregnancy Discrimination Act
1) Amendment to Title VII that added pregnancy to the element of “sex.”
i. Pregnancy discrimination is treated the same as sex discrimination.
2) Covers all elements of those things related to pregnancy – not just birth.
3) Employers must treat pregnant employees same as non-pregnant unless there is a
business necessity relating to employers policies or employer can establish a BFOQ
(pregnant employee simply cannot perform this job).
4) Employer is not required to change leave policies to accommodate a pregnant
employee. (Lang v. Star Herald) – Title VII does not create rights to preferential
treatment.
5) Employers are not required to provide pregnant employees w/ light duty work, nor to
engage in reasonable accommodation for their pregnancy.
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2. Family Medical Leave Act of 1993
a) Applies to employers employing 50 or more employees.
b) Requires that employers provide a leave of absence for child birth, care of children, care of
yourself or other family members.
1. Get up to 12 weeks unpaid in any 12 month period (not nec a calendar year).
c) Requirements to Take Advantage of the Act
1) “Serious” health condition = an illness, injury, impairment, or phy or mental
condition that involves inpatient care (in hospital) or continuing treatment by health care
provider. (2 or more visits relating to that condition).
 Note “health care provider” – the act does not specify physician,
chiropractor, etc…designed to be a broad definition.
* This will exempt minor illnesses that only last a few days.
* Employer may require medical certification including a second or third
opinion, at its expense.
2) Employer does not have to pay employee (unpaid leave).
* employer may require the employee to substitute any accrued paid vacation
leave, personal or family leave, or medical or sick leave for any part of the 12
week leave.
3) What Employer Must Do:
* Maintain health benefits at the same level and under same conditions as if
employee was still at work – employer cannot change costs, benefits, etc. once
you become sick.
* When your leave ends, employer must allow you to return to same or
equivalent position unless you are a high salaried employee.
* If employee fails to return for some reason other than why qualified for leave
under the Act, the employer may recover any premium paid to maintain the
employee’s coverage during leave.
4) What Employee Must Do:
* 30 days notice must be provided for the leave if it is foreseeable.
 Pregnancy, adoption, foster care, or planned medical treatment for
either your own serious medical condition, or a family member.
* If cannot give 30 days b/c not foreseeable to that extent, must ASAP.
 Notice must be sufficient for employer to understand that your leave
is related to FMLA coverage.
* Advise employer that you are taking leave and that it pertains to a serious
health condition…this provides employer w/ sufficient notice of your eligibility
to take advantage of FMLA.
 Not all employees are lawyers – thus, court does not req employee to
provide citation to statue or exact legal wording.
* If employer does not know that you are on leave b/c of FMLA status, then you
can be terminated for excessive absence.
* Exhaust all leave options provided for by employer before taking advantage of
FMLA.
5) Applies only to those who have been employed by employer for at least 12 months and
have acquired 1250 hours minimum.
d) Employers Hate This b/c:
1) Causes excessive absenteeism;
2) Cost of administration is extreme.
e) Remedies:
- lost wages and benefits plus interest; any actual monetary losses; atty fees; witness fees;
and costs.
Manuel v. Westlake Polymers Corp.;
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CHAPTER 7: CONDITIONS OF EMPLOYMENT
A. Work Environment
1. Grooming and Dress
A. Grooming
1. Rules Vary w/ Public vs. Private Employee
i. Public: 1st Amendment and liberty issues apply.
ii. Private: constitutional claims do not apply unless State Constitution allows it.
* Pursue it instead under Title VII or under state fair employment laws.
2. TEST applied for PUBLIC employer:
i. Rational Basis Test: demonstrate a rational connection between the
regulation and the state’s goal.
ii. B/C this test is so easy to meet, it can generally be said that public employers
will almost always be able to enforce grooming standards.
* Can argue that it’s based on safety, espree de corps (need for
uniformity), etc.
3. TEST for PRIVATE employers:
i. Title VII or state fair employment laws.
ii. Grooming standards can be applied so long as:
* They reflect cultural norms; and
* There is no harsher treatment inflicted on one sex over another b/c of
the standard.
- Most cases are unsuccessful for two reasons:
a) Title VII intended to prevent disrim based on immutable charac.
b) Case law - hair length doesn’t prohibit employment opportunities.
Kelly v. Johnson; police officer challenged hair grooming standards. S. Ct. held that the
standards were rationally related to the state’s goal of an identifiable, consistent police
force. Ct. analyzed hair std’s as part of the entire organization, not isolated.
B. Dress
1) To Establish Prima Facie Case π must establish that the attire must be worn as a
condition of employment and it is based on sex (e.g. women have to wear the outfit, but
men can wear a business suit.)
2) Employer, Δ, must then articulate a legitimate, nondiscriminatory reason for the
requirement.
3) Essence of the Business Test: if we change the dress code so that π does not have to
wear the outfit, will the essence of the business be changed in any way?
i. This is a test that Δs typically attempt to use as a defense.
▪ CA passed a law making it illegal for employers to require female employees to wear
skirts to work – unless wearing a skirt is part of the uniform.
EEOC v. Sage Realty; plaintiff was req to wear a revealing outfit as a lobby attendant.
She was subjected to sexual harassment by 3rd parties. There are limits to what employer
can req employee to wear esp when it is revealing or sexually provocative. Defendant
knowingly allowed the uniform requirement to continue. Held: sexual harassment.
- In some jobs, sexually provocative attire is the “essence of the job” and is a
valid requirement (i.e., playboy bunny; exotic dancers, etc.)
C. Personal Appearance
1. Can an employer require that perspective employees be “attractive”?
2. One court has held that so long as the std is applied equally to men & women -both
req’d to maintain a certain std of attractiveness, not violate Title VII.
* Analyze: Does employer’s restrictions follow “cultural norms” (not the employee’s conduct)
- Employer can ban things like earrings for men; cornrows; etc.
- Employers restrictions are often 20 yrs behind modern trends (acceptable)
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2. Harassment
1. Claims under Title VII (2) (thus, analyze as sex discrimination):
a. Hostile Environment: situation in which conduct is sufficiently severe or pervasive
(continuous) so as to alter the conditions of employment and create an abusive working
environment.
▪ Analysis:
1) Employer must have knowledge
- Employer should always have a policy/system providing
reporting and alternative reporting procedures.
- Generally, actual knowledge is required, but, some cases
support that constructive knowledge may be sufficient.
- If employee never reports OR if employee reports and steps
are taken to cure, no liability to employer.
2) Did the employer take “appropriate reasonable steps” necessary to
avoid/prevent the harassment.
- The response of the employer must adjust to the conduct of
the employee. (i.e., if employer acts, and employee continues
to harass, the employer must change its response to end the
harassment.)
- Analyze the extent of the “weirdness”
▪ Reasonable Standard – analyze from the perspective of the victim - a woman
if π is a woman and vice versa.
- Intent/Motive is irrelevant. The consequences are what is relevant.
i. Employer may be liable for harassment committed by themselves, co-workers,
or third parties (e.g. customers). But, simply because H/E is created does not
mean that employer is automatically liable.
ii. The abuse does not necessarily have to be sexual in any way.
iii. One instance may be sufficient to establish COA (if severe enough)
Ellison v. Brady; п asked to lunch by co-worker. Co-worker continued to send
disturbing notes to п. п complained to supervisor. Co-worker transferred, but,
eventually was transferred back to п's office. Held: conduct was sufficiently
severe/pervasive and п est. prima facie case.
b. Quid Pro Quo: employer conditions employment benefits on sexual favors.
▪ Employee must show she was threatened/suffered economic injury.
▪ One instance is sufficient to warrant a QPQ claim.
▪ Employer is only liable for those who have control over tangible job benefits
(e.g. employer is not liable for the guy who promises to help a π get a promotion
if she sleeps w/ him if he does not have the auth to influence such a move.)
▪ Employer may be strictly liable (for himself or person in authority even if only
one instance which was immediately remedied).
▪ Not liable for those demands by co-workers or customers (unless above)
▪ Relates to tangible or concrete job benefits.
▪ After threat/demand is made, if nothing neg happens (no tangible job benefit is
w/held), there is no QPQ claim, only a HE claim. Threats must be carried-out.
▪ Damages: compensatory/punitive damages, under Title VII, even if got raise,
etc. after the QPQ because of an intentional discrimination case under Title VII.
2. The foundation of these claims is that a person of one sex is being treated differently than
members of the other sex.
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3. Privacy
▪ Possible COA: Tort claim of outrageous conduct
- Two types: (1) intentional; (2) non-intentional but a special relationship exists btw п
and Δ (i.e., employer/employee)
▪ Public Employer
- Possible COA: Constitutional claims – 4th Amendment; searches and seizures.
▪ Analysis: Is this is an area where a person has a reasonable expectation of
privacy – freedom from intrusion.
- Factors considered: (1) whether employee has exclusive use of the
area; (2) the nature of the employment; and (3) whether office reg’s
placed the employee on notice of possible employer intrusions.
▪ Strip searches; employee does have a reasonable expectation, unless, the employer has
reasonable suspicion that employee is involved in illegal activity or the search is part of a general
system.
▪ Private Employee; no Federal constitutional protections, there may be state constitution OR tort
claim (i.e., outrageous conduct)
Bodewig v. K-Mart; п survives Δ’s MSJ after she is forced to undergo a strip search because a
customer accused her of stealing money. K-Mart has a special relationship w/ employee and thus,
even reckless conduct, may be outrageous. The customer’s conduct may have been intentional
which would also survive MSJ even w/o special relationship.
Vegra v. Puerto Rico Telephone; Δ was a public employer. п alleged invasion of privacy because
of security surveillance of work-area. Purpose of surveillance was for worker
productivity/efficiency. Held: no violation because employees had notice and no reasonable
expectation of privacy (businesses invite lesser expectation of privacy). If Δ had been private
employer, generally, free to monitor employees – broad power.
▪ Electronic Communication Privacy Act
- Makes it unlawful to intercept wire or electronic public or private communications.
(communication w/o wires is not covered – i.e., cell phone, maybe some e-mail).
- Exceptions are numerous:
1) Businesses: are allowed to monitor if done in the ordinary course of business.
Requirements: 1) Business justification; AND
2) Employee consent.
- Some states have laws permitting monitoring of phone calls.
▪ Employment Records: (pg. 611-612)
▪ Most of the regulation of employment records involves state law.
1) Privacy Act of 1974
2) Family Educational Rights and Privacy Act of 1974
3) Common law theories:
a) Defamation;
b) Invasion of Privacy; and
c) Negligence.
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4. Freedom of Expression
▪ Regulation of speech, inside the workplace or out, depends to a large extent on whether the
employer is private or public; where gov’t is the employer, the U.S. Const – 14th Amend - protects.
▪ However, the individual’s right to speak out on the job is not unlimited.
▪ 14th Amend – due process – provides protection from procedural and some substantive discipline
A) Public Employer/Employee:
▪ Analysis for Public Employer/Employee::
1) Matter of Public Concern; and
- Analyze content, form and context of entire statement
- Versus Private complaint(s) about situation or workplace (i.e., complaining
about parking place vs. the efficiency of the BMV)
2) Balance: Interests of Employee as a Citizen in commenting upon matters of public
concern vs. Gov’t Interest as an employer in an Efficient Operation
- Interest in efficiency is a broad standard; Courts give much deference to this.
- Employer’s interests/concerns (p. 616)
▪ manner, time and place are relevant
a) discipline;
b) co-worker harmony;
c) personal loyalty and confidence in the individual;
d) performance of duties; and
e) impact on enterprise (very general).
3) Is the Protected Conduct the Motivating factor by Employer
- Analyzed, Only, if the citizen’s interest outweighs the employer’s interest
Rankin v. McPherson; п was fired for commenting in support of attempt on Pres. Reagen’s life
while at work in the Sheriff’s office. Her comments were overheard and she was fired. Held:
employee’s comments were on a matter of public concern and employer fired for that reason and
comment did not interfere w/ efficient running of the office. The discharge was improper.
* The burden of caution employees bear w/ respect to words they speak will vary w/ extent of
authority and public accountability the employee’s role entails.
* Where, as here, employee serves no confidential, policymaking or public contact role, the
danger to agency’s successful function from that employee’s private speech is minimal.
Waters v. Churchill; held that the gov’t interests are greater when it acts as an employer than when
it acts as a sovereign. Example of how today’s S. Ct. would probably rule on Rankin.
▪ The exercise of 1st Amend rights does not protect employees who would have been legitimately
discharged anyway.
▪ Hatch Act; limits political activity of most gov’t employees. State “little hatch acts” –
employment decisions may not be made on the basis of party affiliation alone except for
confidential or policymaking positions. (Branti v. Finkel)
26
B) Private Employer/Employee:
▪ cannot use the 3-part constitutional analysis.
▪ Typically, the п argues wrongful discharge/termination – but, such a claim must be combined
w/ something that make it wrongful – Public policy; Title VII; ADA, etc.
- Generally, there must be a clear mandate of public policy from statute or constitution.
- Some courts (Novosel v. Nationwide) have taken a more expansive approach to P/P
▪ Analysis – Consider Type of Speech and the Forum for the Speech
Type of Speech/
Forum for Speech
Internal Forum
External Forum
Internal Matter
(i.e., parking at work;
lunch breaks, etc.)
No (protection and no
restriction on employer
to control speech)
No
External Matter
(i.e., comp. dumping
toxic waste in lake)
Some (hinges on how
serious is the external
matter)
Yes (lots protection &
employer is restricted)
Key: what is the
external matter. (i.e.,
whistleblower statutes)
Novosel v. Nationwide Insurance; п discharged, allegedly, for failing to lobby state legislature on
behalf of employer (by signing a petition). Held: remanded the case because indications that the
discharge violated state public policy violating employee’s right to political expression by
conditioning employment on the employee’s political actions.
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B. Regulation of Off-Work Activity
▪ Employer’s control over employees extends beyond workplace: personal assoc’s; political acts; lifestyle.
1) Personal Associations
▪ Theories for recovery:
(1) Promissory estoppel (no K because no bargained-for exchange, but, via
statements/handbooks there was created reliance/expectancy of privacy rights);
(2) Covenant of good-faith and fair dealing; most courts don’t apply this concept in
employment situations, but, may argue policies are implied by statements/policies.
Rulon-Miller v. IBM; women, п, was fired for having a relationship w/ a competitor’s manager
which created a conflict of interest. П brought wrongful discharge claim alleging IBM violated
its own company policies. Here, policies allowed that if there truly is a COI, IBM can discharge.
But, п’s actions (1) did not reduce her ability to perform regular job assignments; (2) did not
interfere w/ her job performance nor that of other employees; and (3) did not affect the reputation
of the company in a major way.
▪ Laws affecting Personal Associations:
1) Title VII: does not mention marital status as protected. However, there is a violation
under Title VII if employer’s rules affect one sex more than the other sex. Rules
must be applied equally. Title VII does provide protection for associations based on
race, color, religion, etc.
2) ADA: Protects associations w/ disabled persons (i.e., disabled spouse, friends, etc.)
Hypo: Employee fired for being a Nazi or KKK member.
- As a private employee: possible claims include wrongful disch; vilation of public policy
or Title VII based on religion (although, both groups classified as Political by the courts)
- As public employee: Title VII; ADA; 1st Amend Freedom of Association.
▪ Gang members; Chicago passed a rule prohibiting cops from associating w/ gang members.
Caused problems for cops w/ gang member friends, family, etc. City eventually rescinded law –
want cops familiar w/ the streets.
▪ However, if employer can show that person was involved in gang violence/criminal activity, the
employee can be discharged.
▪ Montana Freeman; No freedom from criminal activity. Can discipline/fire at will.
▪ However, assoc. w/ group like ACLU is a valid political organization, there is protection.
▪ Gov’t Employees – Where Employer is attempting to regulate off-work activity:
a) Role Model – a rational relationship between rule and purpose will probably be enough
to validate employer regulations.
▪ Police and Teachers are held to a higher standard of conduct because of their
Role Model Status
- Employer more ability to restrict speech/regulate off-work activities.
b) All other Gov’t Employees – must be a nexus btw. off-work activity and efficiency
- Employer must demonstrate a negative impact.
2. Political Activity
Nelson v. McClatchy Newspapers; Δ implemented ethics code to achieve objectivity (perceived or
otherwise) for its newspaper reporting. П violated ethics code with her strong lesbian views and
political activities. П was demoted and eventually quit bring claim. Held: Δ’s policy violated
state Fair Campaign Act, but, could not apply the act to Δ w/o violating Δ’s constitutional right to
Freedom of the Press which trumps state law.
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▪ Public sector Political Activity:
1) Hatch Act: federal statute (each state has its own “little hatch act”) which prohibits
federal employees from taking active part in political campaign.
- The position of the employee affects the regulation. High-level positions may
campaign (i.e., Pres. Bush, Cheney, Powell, etc.)
- Hatch Act controls non-policy, non-appointed positions.
2) Most all non-partisan political activities are protected under 1st Amend.)
3) Patronage dismissals must be limited to policymaking/confidential positions (Branti)
3. Lifestyle
Chambers v. Omaha Girls Club; п fired becuase she was a single women who became pregnant
and the job has instituted a Role Model Rule which prohibited single-moms. П claimed racial
discrimination (disp. Impact on black women and disp. Treatment because it was sex discrim. On
the basis of pregnancy). Held: valid Role Model Rule.
▪ Religious Organizations (i.e., Catholic church); strong opposition to gays/lesbians.
- Title VII has some application, however, there is an exception for Religious Org’s. in
which they are free to employ persons only of a certain religion/faith.
- Must be a connection between persons duty and religious values (i.e. law professor at
Notre Dame vs. Priest at a church)
- Religious Org’s can require persons beliefs be/act in accordance w/ the religious
views of the organization even if their job is not in direct connection w/ the religion.
▪ (n5, p. 657) Private employers, generally, free to discharge employees for off-duty conduct
which may damage the good will or reputation of employer.
▪ Sexual Conduct (n6, p. 657):
a) Private Employer/ee: free to regulate, especially, if role model. Unless there has
been an invasion of privacy rising to the level of a public policy violation or there
has been sex discrimination OR apply diff. standards for men and women, employers
are free to impose their sexual morals.
b) Public Employer/ee: may be challenged on Constitutional and/or statute. Generally,
employees prevail, unless, gross immorality (i.e., Omaha Role Model Rule would
fail). However, role model persons (i.e. police, teachers) have less freedom.
C. Seniority and Promotion
▪ Two main types of seniority:
1) Benefits seniority: refers to an employee’s eligibility for benefits based on length of service
and involves relations btw. the employee and the employer;
2) Competitive seniority: refers to a priority system for allocation of employment conditions and
involves relations among employees.
Namenwirth v. Bd. of Regents; п claimed she was denied tenure because of her sex. Male was granted
tenure because (1) collegiality (others liked him) – problem w/ this is that collegiality may lead to
continuing discrim. Here, the objective criteria (i.e. rsrch, publishing), the п prevailed over the male. Held:
collegiality is a valid criteria so long as it is applied consistently. Univ. claimed valid, non-discrim reason
was rsrch, but, п was better. Nonetheless, BOP shifted back to п and she failed to disprove otherwise.
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CHAPTER 8: OSHA – OCCUPATIONAL SAFETY AND HEALTH
• Compared to Title VII, OSHA, instead of general directives, have very specific rules and enforcement policies.
OSHA can issue fines, court proceedings, etc. OSHA covers employment in every state.
• Unknown Hazards – Concerns: (Movie: “Song of the Canary”)
1) Employer Liability
2) Employer Responsibility
3) Employee Responsibility
A. Introduction/Background:
1) Compliance: Employer must comply w/ two provisions of the Act (see Employer’s Duties below)
2) Standards: Act provides for promulgation of standards in one of three ways
a. §3(8): defines “standard” as a standard which requires conditions, or the adoption or use of
one or more practices, means, methods, operations, or processes,
i. Reasonably necessary or appropriate to remedy
ii. Significant risk of material health impairment §6(b)(5)
1. Must find in the workplace;
2. Employer not req to provide risk-free workplace, certain risks acceptable.
3. Employer must go as far as feasible
a. “Capable of being done” (Cotton Dust) (rej cost-benefit analysis).
Differs from Benzene on import of cost analysis. (“econ. consid”)
b. Cost is a consideration (Benzene)
c. BOP is on OSHA to show that the condition is not safe. If OSHA
succeeds, the industry has an opportunity to comment. Then the
standard is imposed. Problem is that the industry does standards
because OSHA is underfinanced and understaffed. Thus, OSHA
doesn’t know there is a problem unless industry discloses such.
d. Significant risk: must prove w/ best available evidence, not
required to prove w/ scientific certainty. (p. 723-4)
iii. Economic Cost Consideration
1. Cost-oblivious – adoption of std’s w/o regard for any cost-benefit
consideration (Cotton Dust).
2. Cost-effective – use of a formal analysis to determine the most efficient
means for attaining a regulatory goal – Best way of doing.
3. Cost-sensitive – costs, along w/ other economic factors, must be considered.
(“should we do it all” – impose a standard)
b. § 6(a): Secretary of Labor adopted existing std’s when Act was originally passed. Problem
was that many of the std’s were silly (i.e. no ice in drinking water, all toilets must be openfronted). Original std’s were only to last for the first 2 years after passage of the Act.
c. § 6(b): procedures for modifying, revoking, or issuing new standards. OR
i. Notice of proposed rule is published in Federal Register;
ii. 30-day comment period
iii. Optional Step: Secretary – advisory committee may hold public hearings.
d. § 6(c): Secretary may promulgate emergency temporary standards
i. May be est. if Secretary determines that employees are subject to grave danger from
exposure to substances or agents known to be toxic or physically harmful and an
ETS is necessary to protect them.
ii. Effective upon publication in the Federal Register, but, only for six months.
1. Cts. examine if 6mts is necessary or can wait for normal rule process
3) Variance(s):
a. §6(d): employer may petition Secretary for a variance of a promulgated standard
i. Temporary Variance: issued if employer is unable to comply because of
unavailability of workers, facilities, or equipment; taking all necessary steps to
protect employees from hazard; and has effective program for compliance ASAP.
ii. Permanent Variance: only if workplace is as safe and healthful as it would be by
compliance w/ the est. standard.
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4) Enforcement: §8(a)
5) Employer: §3(5) person engaged in a business affecting commerce who has employees, but does not
include the US or any state or political subdivision (grounded in commerce clause). An issue
sometimes arises whether a quasi-public agency is a political subdivision (p 687, n4)
6) Preemption: the Act preempts all state occupational safety and health legislation. However, if a state
has a an OSHA approved plan, the federal jurisdiction may be ceded back to the State.
7) Jurisdiction: § 4(b)(1) OSHA does not apply to “working condition of employees w/ respect to which
other Federal agencies exercise statutory auth to prescribe or enforce std’s or reg’s. 3-part test (p. 687)
B. Employers’ Duties
1) §5(a)(2) – Pre-inspection to comply with standards. (“specific” takes precedence over the “general.”
Thus, an employer may not be cited under (a)(1), unless, no specific std applies)
2) §5(a)(1) – General duty to provide safe workplace. Req employer to keep place of employment free
from recognized hazards causing or likely to cause death or serious physical harm to its employees.
a. If no specific duty under §5(a)(2), must comply w/ §5(a)(1)
b. Requirements to cite employer under 5(a)(1)
i. Recognized hazard – the industry or employer has defined a hazard and subsequent
standard; AND
1. Not a strict liability standard
ii. Feasibly preventable as recognized in the industry.
c. Occurrence of an accident or death is irrelevant
i. There can be violations w/o a death/acid or no violations w/ a death/acid
d. An OSHA violation may exist even if employer has a standards but the standard is not
followed. (although, the fine/penalty will be lessened)(i.e., labtechs required to work together
but fail to do so and one tech gets killed by electrocution)
Brock v. City Oil; court uses a reasonable interpretation standard to interpret the safety standards.
Congressional intent to provide a safe workplace.
C. Employer Liability – Fines
1) De minimis
2) Non-serious violation
3) Serious
4) Repeated
5) Willful
6) Failure to Abate
$0
$0 – 7,000
$1,000 – 7,000
$0 – 70,000
$5,000 – 70,000
$0 – 7,000/day (may be retroactive to the day of the violation)
• Why Employer’s Fight Fines:
1) Costs of fixing, if found to be in violation, can be expensive.
2) If someone is killed/injured, and violation is “willful” or “failure to abate,” employee may be
able to sue in tort
a. Some states, if co-worker willfully harmed/killed, may sue co-worker in tort.
b. Some states, if willful violation, employee may receive more under WCA
D. Employee’s Duties §5(b)
1) Employee has a duty to comply w/ standards
2) But, no enforcement procedure by the gov’t (i.e. OSHA)
3) If employee is negligent or violates safety standard, no guarantee that such conduct will prevent
employer from being liable or having to pay fines.
• Rights of Employees:
1) Free from employer discrimination for filing a complaint;
2) Right to access to certain information
i. Chemical manufacturers:
1. provide hazard information and training; And
2. records – maintain and make available (including medical information)
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E. Enforcement and Adjudication
• OSHA Inspection(s) Categories:
1) Imminent dangers;
2) Fatality and catasrophe investigations;
3) Employee complaints; and
4) Regional programmed inspections.
1) Inspections
• Warrants:
- General rule, non-consensual OSHA inspections must have a warrant
o Pervasively regulated industries do not require a warrant for a search
- Warrants may be obtained ex parte and/or w/o prior notice
- Ex parte warrants and warrants as a whole are rarely sought (understaffed)
- Thus, if employer refuses inspection, rarely is inspection actually done.
• Scope of Inspection:
- Warrantless inspection – the scope is unlimited.
- Warranted inspection – the scope is defined by the warrant
- Three competing views of scope of inspecton:
a. Narrow view: the scope of the inspection must be limited to the working
conditions of the complaining employee.
b. Broad view: there is a presumption in favor of a comprehensive inspection after
the filing of an employee complaint.
c. Middle Standard: permits a comprehensive inspection only if the Secretary
make “some showing” of why a broader search is needed.
i. Majority view
• Rationale for Requiring a Warrant:
- Major defects cannot be corrected in a short period of time;
- Most importantly, the defects are corrected which is the goal of OSHA
- Business is a private party w/ constitutional rights
- Provides a neutral party to approve inspection and removes complete power from
OSHA inspectors.
- Warrant defines the scope of the search
• Cause Required for Warrant:
a) Probable cause or evidence of a specific violation
i.
Past violation(s); Employee tip(s), etc.
ii.
Lesser probable cause standard than criminal/con law.
b) Neutral plan of Inspection – and it is this company’s turn.
- Warrants are very easy to obtain
• Situations in which Warrant Not Needed:
a) Emergency; which must involve –
i.
Imminent danger; and
ii.
Impossible to obtain consent.
b) Consent (by the employer) – express consent is not necessary (i.e., opening the door
and allowing inspector to enter the premises may be seen as implied consent). A
lack of opposition (i.e., not denied entry) is sufficient.
i.
Consent may be given by any competent official (apply agency principles).
c) Open view
d) Pervasively Regulated Industries
Marshall v. Barlow’s, Inc.;
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2) Adjudicatory Proess
• §9(a) – provides that if the Secretary believes an employer has violated a requirement under § 5
of the Act, he shall issue a citation w/ reasonable promptness.
- Reasonable promptness: requires that the citation be filed w/in 6 months of the
occurrence of a violation.
• §9(a) – req that citations be in writing and describe w/ particularity the nature of the violation.
Must pass a “fair notice test” – employer notified of the nature of the violation, the std allegedly
violated, and the location of the alleged violation.
• §10 – employer, or employee (or rep) may file notice of contest w/in 15 working days.
• §10 – if no notice of contest if filed, the citation and proposed penalty become a final order
• Pleadings are liberally construed and easily amended.
• Hearings are scheduled w/ the ALJ. No right to a trial by jury but Evid. rules apply.
• Review/appeal process (§11) is available – reviewed de novo.
• In a contest, conflicting interpretations of a st’d are deferred to the Secretary’s interpretation.
3) Anti-Discrimination Laws
UAW v. Johnson Controls; п filed complaint of sexual discrimination because she was not
allowed to work in battery manuf division of JC because of high levels of lead. Held: facially
discriminatory policy that does not survive the Safety BFOQ exception/defense – danger to a
woman herself does not justify discrimination. Holding reinforced by the PDA. JC's concerns –
fear of tort liability because following OSHA standards are not a complete defense, especially
with if child w/ defects brings a suit, merely, rebuttable presumption. Fear of fetus is no defense –
motive behind the policy is no defense.
Moses v. American Nonwovens, Inc.; п, employee, was fired because he had epilepsy and his
condition posed a direct threat/significant risk. Held: employee failed to establish: (1) his
condition was not a direct threat; and (2) that reasonable accommodations were possible.
• EEOC interpretation of Direct Threat: includes the affected individual and other
individuals. Requires determinations be made on basis of reasonable medical judgment.
• Consider: (1) duration of risk; (2) nature and severity of the potential harm; (3)
likelihood that the potential harm will occur; (4) imminence of the potential harm.
33
CHAPTER 9: DISABLING INJURY AND ILLNESS
A. Workers’ Compensation Overview
• Purpose: WC require employers to provide cash benefits, medical care, and rehabilitative services for
workers who suffer injuries or illnesses arising out of and in the course of their employment.
• Cash benefits compensate injured workers for lost income and earning capacity
• Benefits classified as:
1) Temporary total – paid for injuries that prevent employee from working until fully recovered.
2) Temporary partial – paid during a period of reduced earnings and cease when the worker
returns to full wages or is found eligible for permanent total or permanent partial.
3) Permanent total – paid to workers who are complete disabled for an indefinite time.
4) Permanent partial – paid where the employee suffers an impairment that causes a permanent
but partial loss of wages or wage-earning capacity.
5) Death benefits – provide burial expense and to pay benefits to specified dependent surivivors.
- Each category has state prescribed maximum weekly amounts and some states limit duration or
total amount or both.
• Advantage to Employer: limited liability – WC becomes exclusive remedy for the employee.
• Advantage to Employee: compensated for injuries w/o having to prove fault. All need to show is that
hurt during the course of employment.
• Problems with Workers’ Compensation:
1) Costs – administrative, lawyers, etc.
2) Reactive – not preventative
3) Fraud – tremendous amount of fraud (employees exaggerate rehab/med costs)
• Intentional Tort(s) avoid WC. (Employee may collect via regular tort liability theories)
• State law controlled and enforced.
• Insurance: Employers’ option
1) Private;
2) State funded; or
3) Self-insured
• Agreement: the employer/employee may reach a mutual agreement as to what will be paid. If an
agreement as to what will be paid cannot be reached, the claim is referred to the WC commission. (If in a
direct payment state, the employer must pay w/in X days or file a notice w/ state it is contesting).
• Coverage: not all employees are covered.
1) Compulsory coverage for private employers w/ employees
2) Elective for sole proprietors and partnerships
3) Compulsory for state agencies.
• Exceptions to Coverage:
- domestic servants, casual employees (mow lawn); real estate licensees; farmworkers; newspaper
vendors; employees of public charities; professional athletes; clergy, and railroad workers.
• Impairment v. Disability
1) Impairment: medical conclusion based solely upon health status.
2) Disability: legal term representing the effects of impairment.
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B. Workers’ Compensation Coverage
1) Employee
- Factors considered if Employee/Course of Employment:
1) Regular working hours;
2) Employer’s request;
3) Employer’s benefit; and
4) Employer’s premises.
- Even if activities are not related to regular duties, irrelevant to the analysis.
Eckis v. Sea World; п injured while riding/posing on Shamu, the whale. п wanted tort claim and
not WC coverage. Claimed not an employee because she was hired as secretary and not as a
model. Held: evaluated above factors and determined п not engaged in personal activity but rather
one that was related to, furthered, and benfited the business of her employer. If reasonable doubt
exists, courts must resolve the doubt in favor of the WC Act.
2) Course of Employment
• Personal Comfort Doctrine (PCD): an employee acts w/in the course of employment when he is
otherwise w/in the time and space limits of employment, and briefly, turns away from his work to
tend to matters “necessary or convenient to hi own personal health or comfort. (i.e., get candy bar
from vending machine while at work; make personal telephone call while at work, etc.)
- Not Covered: PCD does not apply, and an employee is not w/in the course of
employment, if the “extent of departure is so great that an intent to abandon the job
temporarily may be inferred, or the method chosen is so unusual and unreasonable that
the conduct cannot be considered an incident of the employment.
• Positional Risk Doctrine (PRD): an accident arises out of employment when by reason of
employment the employee is present at a place where he is injured through the agency of a 3 rd
person, an outside force, or the conditions of a special danger. Maria Elena’s business meeting
example-would be compensated.
- However, when the origin of the assault is purely private and personal, and the
employment in no way contributes to the incident, the PRD does not apply.
Must be a nexus/connection between job or job duties and injury (PRD)
vs.
Was the worker injured while, merely, at the workplace but the job or job duties had no
relationship to the cause of injury.
Perry v. State: two person lift rule was violated and employee was injured. Was she in the course
of her employment? Court said no b/c she violated the rule. She could sue through tort, but b/c of
contributory negligence she won’t win on that either. What is the problem with court decision?
The workers’ compensation system was set up without fault and contributory negligence didn’t
matter. However, she knew when she signed that violating the rule was grounds for termination
Goranson v. DILHR; charter bus driver drove group to Green Bay. While there driver got drunk
and jumped from balcony and hurt himself. Held: denial of WC benefits. Driver was in course of
employment, but, at the time of injyr, the accident did not arise out of the driver’s employment – it
was purely personal to him.
Weiss v. Milwaukee; π harassed by husband after employer, city, gave H her phone # and address.
Held: WCA applies as sole remedy because the act of taking such calls at work fit w/in personal
comfort doctrine and π was required to provide phone# and address to employer which led to
subsequent release of the info to the husband, thus, arose out of employment. General rule: if
assault occurs on employer’s premises and it is caused by a purely personal reason, then it is not
covered by workers’ compensation.
35
• Employer’s Request: analyze the relationship between who is asking and status of who is being
asked. Is there pressure to not refuse – does the employee have a real choice?
- Also, consider how the event is organized; are fund provided by the employer?
- (i.e., Prof. Adams is hurt while playing in the Cardozo Cup softball game. Analyze
request.) (p. 841, n4)
• Workplace Assaults: recovery for workplace assaults committed by customers and coworkers is
often barred by WCA. (p 841, n3)
• Horseplay or Skylarking: (p. 841, n6) In n6, employee was engaged in work at time horseplay
started – compensable by WCA. Contrasted with situation where employees get in fight for
reasons unrelated to work which would probably not be compensable because it, merely, occurred
at work not “but for” or “because of” work.
- Factors considered:
1) Did the employer condone the activity.
2) Did the employer have prior knowledge of the horseplay.
• The severity of the injury is not a factor for course of employment analysis.
CHAPTER 10: DISCHARGE
▪ Justifiable causes for discharge include theft; dishonesty; falsification of records; fighting on company premises;
possession or use of alcohol or drugs while on duty; insubordination; use of profane or abusive language to a
supervisor; dangerous horseplay; sleeping on the job; excessive absenteeism; refusal to accept a work assignment;
and disloyalty.
▪ Initially, all employees are employees-at-will.
▪ For an employee to bring a claim of wrongful discharge, it must be “because of” something:
- Title VII, Public Policy, Contract breach
- Some are contract claims and some are tort claims.
▪ Constructive Discharge: not a COA, by itself. Rather, it is used to satisfy the “termination” requirement of many
claims (i.e., wrongful discharge). Where an employee quits, he can attempt to use C/D.
A. Freedom of Contract/Fairness in Employment
1) Just Cause: (virtually all collective bargaining) employer cannot discipline/discharge w/o a good reason
- BOP is on the employer. Whereas, the BOP is on the employee in all other exceptions. Thus, in
arbitrations, the employer presents first.
- One proposed def’n of J/C: “whether a reasonable man, taking into account all relevant circumstances,
would find sufficient justification in the conduct of the employee to warrant discharge.”
- Another def’n: mgmt first show its interests were affected by employees actions and that discharge is the
only effective deterrence for other employees to avoid the same conduct.
B. Judicial Erosion of Employment at Will – Exceptions to the EAW doctrine
1) Public Policy
▪ P/P is often used as a “because of” for wrongful discharge tort claims
▪ P/P allowed varies by jurisdiction
a) Most Restrictive: Murphy v. American Home Products; (N.Y.) court refuses to adopt
Public policy as a “because of” for wrongful discharge. Unless, the legislature so
provides. (Adams: problem is that EAW doctrine is judicially created.). Case: п
discharged for reporting alleged accounting improprities to top mgmt.
b) Most Expansive: Novosel; must be a clear mandate. Here the clear mandate was
constitutional. Key: what is the source of the clear mandate. “one that strikes at the
heart of a citizen’s social right, duties and responsibilities.” (p. 625)
c) Other cases:
1. Petermann v. Teamsters (p 913); statute – fired for not committing perjury
2. Frampton v. Cent Indiana (p913); statute – fired for filing WC claim.
36
3.
Gantt v. Sentry Insurance (p 914); statute – court appeared to endorse a
broad view, but, never expressly decided so. п fired for supporting a coworker’s sex harr. claim and that the WCA did not bar claim.
a. Public Policy Exceptions noted:
i. refusing to commit unlawful acts;
ii. exercising statutory rights;
iii. performing public functions; or
iv. reporting an employer’s unlawful conduct. (although,
courts have distig. btw. reporting to an outside agency and
reporting internally to the company)
▪ Clear Mandate - Sources:
a) Constitution;
b) Statute;
c) Case law (most be a long, established principle (i.e., Brown v. Bd. Education, etc.)
d) Administrative Regulations; and (i.e., public health and safety regs, etc.)
e) Codes – professional conduct/ethics
- Every jurisdiction which has adopted P/P argument, will look at 1&2 (constitution
and statutes); Majority of jurisdictions will look at #3 (Case law); and clear minority
will review #4-5.
- Agency that developed the administrative regulations may also affect if it est. P/P.
- Some cases, have recognized the employee’s right to privacy as a P/P exception.
(i.e., obtaining info from a source which violates employees right to privacy)(if
employee volunteers info, п cannot later claim right to privacy)
- Discrimination has been recognized as P/P rooted in constit and statutes.
▪ п must establish a very clear mandate of public policy and be able to ID source of said policy.
▪ Whistleblower Statutes: (37 states) federal act, expanded protection for federal employees who
expose violations of law, gross mismanagement or waste of funds, abuse of auth, or substantial
and specific danger to public health or safety in gov’t agencies.
- Courts have held that the accusations must be true for the statutory and c/l protection
▪ Employee’s acquiescence in past illegal acts does not preclude a wrongful discharge claim as
against public policy (p. 924)
Balla v. Gambro (attorney ethics); in-house atty terminated after reporting the distribution of
defective kidney equipment. Held that P/P does not extend because such claims will have a
chilling effect on the atty-client relationship, would violate atty-client privilege and are not
necessary to prevent wrongdoing because atty are already professionally obligated to report.
▪ P/P only applies to discharge actions (not promotions, working conditions, etc.)
▪ Constructive Discharge: (p 928, n5) not a COA by itself. Merely, fulfills termination element of
a wrongful discharge claim. Occurs where employee suffers such hardship he has to quit. C/D
changes the “quit” into “termination”.
- Varies by jurisdiction.
- Elements:
o Employer intended to make conditions intolerable (intent is not related to
intending to make employee quit, just conditions)(if co-workers are doing
it, п must show that employer had knowledge)
o Employee forced to involuntarily quit
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2. Breach of Contract
▪ Initial refusal to recognize contract claims in wrongful discharge COA was because of a lack of
mutuality of obligation and consideration.
(a) Written Contract
▪ Analysis:
a) K for a definite term
- During the definite term employer can discharge only for (1) just cause; or (2)
material breach by employee (i.e., employee doesn’t show-up for work)
- Less common type of employment contract.
b) K w/ no definite term
- Employee-at-will
- K merely lays-out the terms/conditions of employment.
Gordon v. Matthew Bender; involved was a K w/ no definite term (“b”). Issue: are there
other statements in K that convert it into a “cause” K. Difference between “acceptable
sale performance” or “satisfactory” AND “good cause” is that “acceptable/satisfactory”
based on subjective evaluation and “good cause’ is objective. Courts are very reluctant
to modify the terms of a K (using other sources). Need very strong evidence to turn a atwill contract into a “cause” contract.
▪ (p. 932, n3); Sales rep has a written K detailing salary and commission along w/ other
terms. But, no definite term of employment. Employer later reduces commission
amount. The employee has a breach of K COA because employer needs mutual
assent/consideration to modify an existing K. However, employer may terminate the
employee and re-hire under new terms. She is still an employee-at-will under this K.
(b) Implied terms of an Oral Contract
▪ Most common form of employment contract
▪ Requirements for a valid Oral Contract:
1) Promise
- clear and unequivocal, definite (in Pugh, this req. fails)
2) Consideration
- varies by jurisdiction;
▪ Some req. additional consideration beyond taking the job
(i.e., reliance on statement (i.e, giving-up other job opport))
▪ Some do not require any additional consideration (Pugh)
3) Statute of Frauds
- Issue: what is the promise?
- If the promise cannot be performed w/in a year, it must be in writing.
- “Good cause” – can be done w/in one year
- “Permanent Employment” – can be done w/in one year (die tomorrow
or company go b/k)
- Definite term – cannot be done w/in one year and must be in writing
(i.e., employment for X years; or employment until reach age of X)
Pugh v. See’s Candies, Inc.; п worked his way up corporate ladder. П was fired,
allegedly, to appease the union. П argues employment-at-will converted in to a K
because: (1) length of service; (2) good evaluation and consistent promotions; and (3)
personnel policies and practices (in the past, although not in writing, no admin personnel
were fired w/o good cause). Ct. implies that this is “good cause” employment, but,
leaves to the jury. Ct. implies that this type of employment may vary w/ the type of
employee – (1) lower level employee require objective analysis to discharge; (2) higher
level employee may be fired for more subjective employer analysis.
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(c) Employee Handbooks and Manuals
▪ Most common type of K in an employment relationship
▪ Prior to 1980’s, courts always said that h/b were not Ks, because no consideration and
lack of mutuality of obligation.
▪ Now, courts in every state have started to enforce h/b as a K.
▪ Rationale for finding a H/B as a K:
1) Reliance (promissory estoppel theory); OR
2) Unilateral K (promise for performance)
i. With a Unilateral K, not concerned w/ mutuality of obligation.
ii. Party performing is not obligated to continue/fulfill promise
iii. Requirements for a Unilateral K:
1. Clear and Definite Promise/Statement;
2. Promise must be disseminated so that employee knows of
the promise (Reliance);
a. If employee does not know of the promise and
performs the request, employee is not entitled to
what was promised.
b. In Woolley, the court presumed reliance because
the H/B was distributed. However, other courts
require the п to prove reliance.
3. Accept offer and perform the work
a. Either start working or continue working (if
already employed at time of promise)
▪ Handbook Modifications; (p. 945, n3) Varies by jurisdiction.
- Some states, like MI, employer may change H/B at any time
- Some states, require reasonable notice prior to the changes becoming effective
- Some states, require individual notice
- If only new employees receive changes (and old employees never received
revised/updated H/B sections), one jurisdiction has held only new employees are
bound by new terms.
▪ Disclaimer; employer may avoid K by professing, in the H/B, that the H/B is not a K.
- “All that need be done is the inclusion in a very prominent position of an
appropriate statement that there is no promise of any kind by the employer
contained in the manual.” Need a clear and prominent disclaimer. (Woolley)
- General Requirements:
1) Must be in general, easy to understand terms.
2) Must be set-off and separately displayed.
Woolley v. Hoffmann-LaRoche;
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(d) Covenant of Good Faith and Fair Dealing
▪ 3rd approach used by courts for redressing wrongful discharge (in absence of K)
▪ Generally, not a very good, effective COA.
- Approximately, 12 states have recognized.
- Even where recognized, the damages are limited (typically, no Punitive)
▪ Restatement of Contracts: obligates each party to a contract to refrain from injuring in
any way the other’s right to receive the benefits of the contract.
▪ General approach, is that the employee is still an at-will employee, but, the employer
violates the covenant of G/F if he terminates the employee in bad-faith.
- CGFFD acts as a prohibition against bad-faith terminations
▪ п has the initial burden of proof
▪ Key Points:
1) Remedies: restricted to K damages, no punitive damages allowed.
- 9/12 states agree w/ this approach
- Reality, п's pursuit of good faith COA plummeted after
damages limited in most states.
2) п must mitigate damages
- п must attempt to find another job
▪ Except in situations involving highly paid executives, this COA is not
pursued. However, w/ such execs, K damages are high and it is
unlikely they will be able to find new job & mitigate damages quickly.
▪ Most jurisdictions have rejected this COA because:
1) CGFFD implies that there is some sort of K, but, the
parties generally are @-will employment; and
2) Too vague and amorphous an idea
▪ Alaska: applies CGFFD very broadly, all phases of employment
Foley v. Interactive Data Corp
Fortune v. NCR; п, salesperson, discharged after landing big deal w/ customer of NCR.
NCR terminated п before he received all his commission. Held: breach of CGFFD.
C. Other Protections from Discharge
1) Common Law
Wilson v. Monarch Paper Co; п brought claim for tortious outrage – humiliating conduct of being
demoted from V.P/Asst. to Pres to janitor. Most of the following conduct would not be
outrageous: 1) assign of duties to younger person; 2) supervisor refused to speak to п; 3)
company’s long-range plans desire to move to younger people; 4) Pres. wanted to replace п w/
younger person; 5) other mgrs not work w/ п; 6) not offered a fully guaranteed salary w/ a
transfer; 7) assignment to lowly supervisor; 8) new supervisor referred to п as old; 9) signs saying
п was ”old”’ 10) company filed counter claim. (p. 969)
- Age discrimination limits damages allowed to collect, whereas, tort of outrage provides
opportunity to get punitive damages.
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Whistleblower Statutes
A. Scope of Protection
▪ varies greatly w/ jurisdiction
▪ Michigan: broadest state statute. Applies to employees who report a “violation or suspected violation of
the law.” Thus, covers things even outside of the employment relationship (i.e., report co-worker driving
drunk and such co-worker gets stopped by police and п gets fired for reporting)
▪ States: 37 states have such laws
20 protect only public employees, only
17 protect both public and private employees
▪ Fed Employees protected by:
1) Civil Servant Reform Act;
2) Whistleblower Protection Act.
▪ Type Protections:
1) Public Employees: generally, (37 states for State employees and all states for Fed employees)
employee is protected if employer retaliates for the employee reporting violations of:
a. Laws or regulations;
b. Mismanagement;
c. Gross waste of money;
d. Abuse of authority;
e. Neglect of duty; OR
f. Endangerment of public health/safety
2) Private Employees; (only 17 states) Most, have very broad protections (similar to Michigan).
However, few states provide, only, very narrow protection (Louisiana – only environmental
laws)
▪ If actions are covered, the Act provides exclusive remedy, and the employee cannot pursue other COA
(i.e., public policy wrongful discharge). However, employee may still bring a claim like sexual
discrimination, age discrimination, etc. because such COA is separate from being retaliated against because
of “reporting” something.
B. Internal/External
1) Public Employee; generally, if public matters are protected (unless it is an internal matter such as
complaining about parking space, etc.) by the factors listed above (a-f under types of protection)
2) Private Employee; If the reporting is related to type (a) – laws/regs or type (f) – endangerment, the
conduct is probably protected. However, if reporting is related to one of the middle four, probably not
protected.
▪ Remedies vary, but, generally are a percentage (20%) of fines/monies recovered.
▪ Procedure: some states require employee to report internally, first, before going to an external, gov’t
agency.
Internal Complaints; generally, no COA for internal complaints.
o IL case: internal matter may be protected, especially, if criminal matter
- External complaints; some states require report internally, first. Other states, vary, some say
that if it is a matter of public interest, it is protected no matter where it is first reported.
C. Truthfulness
▪ Generally, public and private, as long as there is a basis for reasonably believing the statement reporting
is true, employee is protected even if it turn-out the allegation was false.
▪ Some jurisdictions, private employers, must take affirmative steps to ensure statement is accurate.
▪ CA, public employers, must sign a sworn statement that the allegations are true or have a reasonable
believe that statement is true.
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