Employment Law Outline - Sachs - Fall 2009

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EMPLOYMENT LAW - Fall 2009 I. Introduction
← ←A. What is Employment? ←Answer will dictate the degree to which one thinks government intervention is appropriate.
(1) Private Contract – [Hands Off] EMPLOYMENT IS A MUTUALLY BENEFICIAL PRIVATE CONTRACT BETWEEN TWO COMPETENT PARTIES AND WE SHOULD BE SKEPTICAL OF LEGAL INTERVENTIONS PREVENTING THE PARTIES FROM ARRIVING AT THEIR PREFERRED DECISION Adkins v. Children’s Hospital of the District of Columbia o Held an act that provided for the establishment of a wage board to hold hearings and investigate the wages of women and children in various jobs, to examine living standards and determine the wages necessary to maintain women and children in good health and morals, and then to establish minimum wages and made it unlawful (misdemeanor punishable by fine and imprisonment) for any employer to pay a lower wage in DC, to be an unconstitutional interference with the freedom of contract of the 5th Amendment’s due process clause. (See Lochner.) o Court relies on precedent; freedom of contract, including in the employment relationship, though not absolute, is the rule (and found examples of earlier restrictions on the freedom of contract that have been upheld inapplicable). The principles of Lochner have been refined, but not overturned – “To sustain the individual freedom of action contemplated by the Constitution, is not to strike down the common good but to exalt it; for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members.” o Act reflects Congress’s purpose to ensure workers receive a sufficient/living wage. It is not clear what a sufficient wage is, HOWEVER it is clear that Congress is NOT CONTENT TO RELY ON THE LABOR MARKET (it does not believe that the wages bargained for between employee and employer will be sufficient in all cases, and so sometimes must be set by a wage board.) o Holding, by contrast, relies on a policy assumption of an EFFICIENT LABOR MARKET – “The feature of this statute which…puts upon it the stamp of invalidity is that it exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with his business, or the contract or the work the employment engages to do. The declared basis, as already pointed out, is not the value of the service rendered, but the extraneous circumstance that the employee needs to get a prescribed sum of money to insure her subsistence, health and morals. The ethical right of every worker man or women, to living wage may be conceded.… And with that principle and with every legitimate effort to realize it in fact, no one can quarrel; but the fallacy of the proposed method of attaining it is that it assumes that ever employer is bound at all events to furnish it. The moral requirement implicit in every contract of employment, viz, that the amount to be paid and the service to be rendered shall bear to each other some relation of just equivalence, is completely ignored. The necessities of the employee alone are considered and these arise outside of the employment, and the same when there is no employment, and as great in one occupation as in another. Certainly the employer by paying a fair equivalent for the service rendered, though not sufficient to support the employee, has neither caused not contributed to her poverty. On the contrary, to the extent of what he pays he has relieved it. In principle, there can be no difference between the case of selling labor and the case of selling good. If one goes to the butcher, the baker and the grocer to buy food, he is morally entitled to obtain the worth of his money but he is not entitled to more. If what he gets is worth what he pays he is not justified in demanding more simply because he needs more; and the shopkeeper, having dealt fairly and honestly in that transaction, is not concerned in any peculiar sense with the question of his customer’s necessities.” o Policy Consideration: What does an employer owe an employee in the employment relationship? The court holds that you get what you pay for, not what you need, in a fair


exchange of labor for wages. The distortion of the bargain by Congress is unconstitutional. See also Gilmer v. Interstate/Johnson Lanes o Unequal bargaining power is not a sufficient reason to invalidate an agreement to arbitrate claims, rather the parties will be held to their bargain and the contract invalidated only on the customary grounds of fraud, duress, unconscionability, etc. (2) Relationship of Unequal Bargaining Power – [Intervention is Appropriate] EMPLOYMENT IS A CONTRACT, BUT IS ANIMATED BY UNEQUAL BARGAINING POWER, SO THE LEGISLATURE SHOULD INTERVENE TO EQUALIZE THE BARGAINING POSITIONS, OTHERWISE THE WORKER WILL BE SUBJECT TO UNACCEPTABLE CONDITIONS. West Coast Hotel Co. v. Parrish o Upholds an act stipulating a minimum wage for women and children in Washington state as CONSTITUTIONAL – Adkins is overruled. State’s power to regulate prevails. o Court relies on the view that freedom of contract is a qualified right and “[l]iberty implies an absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.” o Notes the unequal bargaining power of the parties  this is the fundamental departure from Adkins; given the asymmetry of bargaining power, government intervention is appropriate. o The government can regulate in this area: “In dealing with the relation of employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression.” o Policy Argument: [In light of the Depression] – “What these workers lose in wages the taxpayers are called upon to pay. The bare cost of living must be met. … The community is not bound to provide what is in effect a subsidy for unconscionable employers. The community may direct its law-making power to correct the abuse which springs from their selfish disregard of the public interest.” Here the court takes a different view of the employment relationship, invokes a public component. See also US v. Darby (3) Public Institution – [State/public is an involved third party] THE EMPLOYMENT RELATIONSHIP SHOULD NOT BE CONSTRUED IN PRIVATE CONTRACTUAL TERMS, IT IS IN SOMEWAY A PUBLIC INSTITUTION (THE PUBLIC IS A THIRD PARTY SO DEEPLY IMPACTED BY EMPLOYMENT CONTRACTS THAT THE CONTRACT TAKES ON A PUBLIC ASPECT.) THE STRONGEST POSITION HERE VIEWS EMPLOYEES AS THE “FINGERS OF THE FEDERAL GOVERNMENT” ENLISTED TO ENFORCE PUBLIC POLICY GOALS. Egbuna v. Time-Life Libraries, Inc. o It is appropriate for Congress to partner with employers to effectuate public policy, including immigration policy which determines that an employee is “qualified” not based on his ability to work, but rather on his eligibility to work. Nees v. Hooks o In some cases, like termination for compliance with jury duty, “the will of the community” will override managerial discretion and termination will not be allowed. Novosel v. Nationwide o “The special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy.” (That is – the form of authority shaping lives in practice is just as often private, so we will take a constitutional claim and make it into a tort claim.) Wilson v. Southwest Airlines o Profit motive is not a sufficient essence of business for the purposes of the BFOQ analysis,

 


thus employers may be required to forego profit in order to advance a social good Americans with Disabilities Act o Requires employers to take affirmative and sometimes costly steps to advance the employment opportunities of disabled individuals in accordance with Congressional/public policy. Unlike Title VII, for example, which allows employers to determine whether an individual is “qualified” as they come, the ADA requires the employer to consider what steps can be taken to enhance the ability of applicants and employees to be productive/meeting the justifiable job requirements. Dunlop v. Gray-Goto, Inc. o NO WAIVER for FLSA rights – these are private rights granted in the public interest to effectuate a legislative policy! o Compare Gilmer v. Interstate/Johnson – judicial forum can be waived. Procedural waivers are fine, substance cannot be waived.

← ← ←B. Who is an Employee? 
THE DEPENDENCY OF EMPLOYEES GIVES RISE TO THE OBLIGATION ON THE PART OF THE EMPLOYER ARTICULATED IN WEST COAST HOTEL. Secretary of Labor v. Lauritzen o Migrant pickle farmers are “employees,” subject to the protections of the Fair Labor Standards Act (and thus eligible to bring suit to enforce minimum wage, record-keeping and child labor provisions), not “independent contractors” outside of the FLSA’s protections. o FLSA distinction between “employee” and “independent contractor” turns on “economic reality” – that is, whether “employees are those who as a matter of economic reality are dependent upon the business to which they render service.” o Criteria of economic dependency: (1) the nature and degree of the alleged employer’s control as to the manner in which the work is to be performed; (2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee’s investment in equipment or materials required for his task, or his employment of workers; (4) whether the service rendered requires a special skill; (5) the degree of permanency and duration of the working relationship; and (6) the extent to which the service rendered is an integral part of the alleged employer’s business o “They depend on the defendants’ land, crops, agricultural expertise, equipment, and marketing skills. They are the defendant’s employees.” AN INDIVIDUAL MAY OR MAY NOT BE VIEWED AS AN EMPLOYEE DEPENDING ON PUBLIC POLICY CONSIDERATIONS, REGARDLESS OF THE CIRCUMSTANCES OF HIS WORK Egbuna v. Time-Life Libraries, Inc. o An individual with an expired visa is not “qualified to work” as an employee and thus eligible for the anti-retaliation protections of Title VII for assisting a coworker in a sexual discrimination suit.


II. Employment at Will
←Key Question: What does employment at will mean in different contexts, does it work
and does it make sense?

← ←A. Background: Default Rules ←Consider whether these rules make substantive sense and the implications in terms of 
incentives for the parties in selecting a particular rule. Methods of Choosing the Correct Default Rule: o (1) Hypothetical bargain approach: court should set the default rule according to what they think the parties would have bargained for. [Epstein trusts that most parties would enter into at will.] o (2) Penalty default approach: intentionally set the rule as the opposite of what the parties would want – so that the party best positioned to insist on a particular term does so, requiring bargaining and leading to better informed contracts. [Under this theory the default rule should be just cause, so that the employer (party with more info) would need to bargain for at-will.] o (3) Preference soliciting approach: leave the ultimate choice to the parties, but out of a need to set some default rule, choose the one from which it is easiest to opt out of. Problems with the At Will Default Rule: o (1) Lack of information – employees don’t know that employment at-will is the default so they don’t actually bargain around it at all. o (2) Employee Signaling/Market for lemons – employees don’t bargain around employment at will because it looks like they’re signaling that they are not actually good at the job (and thus that they reasonably anticipate being terminated under the at-will default) o (3) Employer Signaling/Adverse Protection – employers don’t want to offer job security for risk of attracting employees who need this sort of protection (attracting the lemons above) Questions to Ask in Assessing the Default Rule: o (1) Is it the right substantive rule? o (2) Does the rule create positive bargaining incentives?

← ← ←Default rule: AT WILL 
ABSENT A CONTRARY UNDERSTANDING, EMPLOYMENT IN THE UNITED STATES IS AT WILL AND TERMINABLE WITHOUT CAUSE AND WITHOUT NOTICE. REASONS ARE IRRELEVANT! “The essence of the employment at will presumption is that the decision to discharge an employee is best left to the managerial prerogative and will not be reviewed in a judicial forum. The other side of the rule is that an employee may resign at any time, for any reason, or for no reason at all.” (Veno v. Meredith) “Generally, in the absence of a contract or legislation to the contrary, an employer can discharge an employee at any time and for any cause. Conversely, an employee can quit at any time for any cause. Such termination by the employer or employee is not a breach of contract and ordinarily does not create a tortuous cause of action.” (Nees v. Hooks) See Skagerberg v. Blandin Paper Co. o Employment relationship is at will – court reads in the default rule, despite the parties’ obvious contrary intent. o “Permanent employment” typically means terminable at will; however, the term “will be held to contemplate a continuous engagement to ensure as long as the employer shall be engaged in business and have work for the employee to do and the latter shall perform the service satisfactorily. This seems to be the established rule in case the employee purchases the employment with a valuable consideration outside the services which he renders from day to day.” Exceptions to At Will Employment o (1) Contractual agreements o (2) Tort claims o (3) Statutory protection


Given all of these exceptions it is not clear that at-will is truly the default rule in American employment law. o Query – when do we have a default rule with a wide range of exceptions as opposed to no background rule and a whole host of different rules contingent upon the relevant context? Questions in Exceptions Cases: o (1) Do we have an exception to at will employment? o (2) If the employment relationship is something other than at will, what is it? What does just cause mean in that particular context? o Contrary rule: JUST CAUSE NATURE OF THE CONTRARY RULE IS LESS CLEAR – NON-AT WILL EMPLOYMENT MEANS THERE IS SOME SET OF LIMITATIONS ON THE EMPLOYER’S ABILITY TO DISCHARGE; SOME PROTECTIONS OFFERED TO THE EMPLOYEE AND A NEUTRAL THIRD PARTY DECISION MAKER MUST ASSESS THE SUFFICIENCY OF THE REASONS. REASONS DO MATTER! “The terms ‘just cause’ and ‘good cause,’ ‘as used in a variety of contexts…have been found to be difficult to define with precision and to be largely relative in their connotation, depending on the particular circumstances of each case.’ Essentially, they connote ‘a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power.’” (Pugh v. See’s Candies) Lingering question – is just cause subjective good faith or objective good cause? B. Contract Erosions of Employment at Will THE CONTRACTUAL EXCEPTION TO THE AT-WILL DEFAULT RULE MAY STEM FROM AN EXPRESS OR IMPLIED AGREEMENT OR SUFFICIENT CONSIDERATION But See Veno v. Meredith o The at-will employment default rule can be overcome by express or implied contract or where an employee provides sufficient consideration in addition to the services for which he was hired. o Here broad, aspirational statements are not sufficient to overcome the presumption of atwill employment and there was insufficient consideration to find an implied in law contract. CONTRACTUAL TERMS REMOVING THE EMPLOYMENT RELATIONSHIP FROM THE AT-WILL DEFAULT NEED NOT BE IN AN EMPLOYMENT CONTRACT, PER SE. THE COURT MAY LOCATE CONTRACTUAL TERMS IN:


Oral representations (including casual conversations) o Hetes v. Schefman & Miller Law Office · At will employment is the default expectation, but an enforceable contract for cause can arise from employers’ policy statements and oral representations, even a casual assurance like plaintiff’s understanding: “I had a job as long as I did a good job” · Policy Consideration: How is the court to know what a “good job” is? o Ohanian v. Avis Rent a Car System Inc. · Plaintiff was told he would have a job unless he “screwed up badly,” meaning just cause. The court held that just cause could be found without breach as a result of business necessity. · Policy Question: If business necessity constitutes just cause, how valuable is a just cause provision? Workplace Policy Manuals o Demasse v. ITT Corp. · “While employment contracts without express terms are presumptively at will, an employee can overcome this presumption by establishing a contract term that is either expressed or inferred from the words or conduct of the parties” – including in a policy manual · Modification of an implied-in-fact contract requires more than continued work – employees must be provided notice and must signal affirmative consent (may require bargaining). · Policy Consideration: Collective action problems involved in the bargaining requirement. o Wooley v. Hoffman-La Roche, Inc. · “An implied promise contained in an employment manual that an employee will be fired only for cause may be enforceable against an employer even when the employment is for an indefinite term and would otherwise be terminable at will.” · Employers can include a disclaimer in the policy manuals indicating that nothing contained within should be understood to confer any promises. · Policy Considerations: Decision turns on a fraud-on-the-market type understanding of employment manuals not requiring that individual employees rely, but rather trusting that all employees have paid sufficient consideration in the way of lower wages, etc. in exchange for the manual’s guarantees. COURTS MAY IMPLY CONTRACTUAL TERMS WHERE THE PARTIES DO NOT


Chiodo v. General Waterworks Corp. o While the parties agreed in the contract for sale that Chiodo would be employed as a manager for 10 years and the company’s counsel did not believe they could fire him for any reason during that fixed period, the court implies a standard of conduct into an employment relationship that is not at will. The court provides the employer the ability to discharge for cause even though it was not bargained for! o “Under a contract of employment for a stated term it is to be assumed that the parties intended that the employee would conform to the usual standards expected of the employee, and that he would render honest, faithful and loyal service in accordance with his ability. If there is a willful and substantial failure to adhere to those standards it would be justifiable cause for the employer to discharge him.” o “But the overall view taken appears to be this: that although the plaintiff’s conduct may not have been exemplary in all respects, he was a good manager as evidenced by the fact that the operation of the company had been profitable under his leadership; and that after friction developed between him and other officers of the company as to various aspects of the management, the latter sought to dredge up accusations of misconduct to justify discharging him. But his explanations of whatever irregularities may have existed were sufficiently reasonable and acceptable under the circumstances that the defendant failed to meet its burden of showing justification for his discharge.” Grouse v. Group Health Plan o Promissory estoppel applies to offers of even at-will employment. o “What we do hold is that under the facts of this case the appellant had a right to assume he would be given a good faith opportunity to perform his duties to the satisfaction of respondent once he was on the job. He was not only denied that opportunity but resigned the position he already held in reliance on the firm offer which respondent tendered him. Since, as respondent points out, the prospective employment might have been terminated at any time, the measure of damages is not so much what he would have earned from respondent as what he lost in quitting the job he held and in declining at least one other offer of employment elsewhere.” o Policy Concerns: Does this holding establish a mandatory probation period? AFTER DETERMINING THAT THERE IS A CONTRACTUAL EXCEPTION TO THE AT-WILL DEFAULT RULE, THE COURT WILL LOOK TO THE CIRCUMSTANCES TO DETERMINE THE NATURE OF THE CONTRACTED-FOR PROTECTIONS Pugh v. See’s Candies o An implied promise for just cause determination could be found in “the duration of appellant’s employment, the commendations and promotions he received, the apparent lack of any direct criticism of his work, the assurances he was given, and the employer’s acknowledged policies. While oblique language will not, standing alone, but sufficient to establish agreement, it is appropriate to consider the totality of the parties’ relationship: Agreement may be ‘show by the acts and conduct of the parties, interpreted in light of the subject matter and surrounding circumstances.’” [Subsequent decisions pulled back on this to some extent.] Independent consideration is not necessary – merely an evidentiary tool. o Burden Shifting Regime: · (1) Plaintiff must demonstrate a prima facie case for wrongful termination (i.e. without good cause) · (2) Defendant must demonstrate good cause · (3) Plaintiff has the opportunity of rebuttal to show that the proffered good cause is pretextual. o Court must distinguish between good and bad reasons. The nature of just/good cause depends on:


· ·

(1) The nature of the contract between the parties as determined by the jury (2) Fair and honest cause or reason, regulated in good faith (may imply process rights and may imply that the fair reason is the real reason) · (3) Non-interference with legitimate exercises of managerial discretion Policy Consideration: This shifts some discretion over the employment relationship from the employer to the courts. Query whether this is a good shift of authority.

C. Tort Erosions of Employment at Will THE COURT MAY FIND A TORT-BASED EXCEPTION TO EMPLOYMENT AT WILL BASED ON SOME UNDERSTANDING OF “PUBLIC POLICY” – EMBRACING A PUBLIC CONCEPTION OF EMPLOYMENT Nees v. Hooks o “…there can be circumstances [like jury duty] in which an employer discharges an employee for such a socially undesirable motive that the employer must respond in damages for any injury done.” o “The jury system and jury duty are regarded as high on the scale of American institutions and citizen obligations. If an employer were permitted with impunity to discharge an employee for fulfilling her obligation of jury duty, the jury system would be adversely affected.” o Policy Considerations: Which community interests are this important? Whose interference is problematic? Is this a fair burden for the employer to bear? Consider Rogers v. San Antonio and USERRA’s insertion of just cause termination for 1 year. HOWEVER, COURTS OFTEN CONSTRUE THE PUBLIC POLICY TORT EXCEPTION TO AT-WILL EMPLOYMENT NARROWLY Wright v. Shriner’s Hospital o The court will find an exception to the default rule of at-will employment “when employment is terminated contrary to a well-defined public policy” including termination for: · Asserting a legally guaranteed right (e.g. filing a workers’ compensation claim) · Doing what the law requires (e.g. serving on a jury), or · Refusing to do what which the law forbids (e.g. committing perjury); and · In retaliation for his cooperation with a law enforcement investigation concerning his employer. o Public policy exception to at-will employment is narrow. o Court declines to infer public policy for the medical profession’s code of ethics. o Policy Consideration: What is the distinction between public policy (legislative rules) and public interest (incentivizing reporting for patient health?) Ball v. Gambro, Inc. o “All that is required [to bring a cause of action for retaliatory discharge] is that the employer discharge the employee in retaliation for the employee’s activities, and that the discharge be in contravention of a clearly mandated public policy,” HOWEVER; in house counsel do not have a claim under the tort of retaliatory discharge, which is only a narrow exception to the default rule. o By allowing for this suit, the court would shift the burden of compliance with the rules of professional obligations from the attorney to the employer – instead, the court places the entire burden on the attorney. Brunner v. At Attar o Court will find the narrow exception to the rule of at-will employment only where the employee is terminated to due to refusal to commit an illegal act OR where the employee is terminated so that the employer can avoid making certain pension payments. Court refused to create another exception for performing volunteer work at the Houston AIDS foundation. If such an exception is to be created, that is a matter within the province of the


Texas Supreme Court. EMOTIONAL DISTRESS/OUTRAGEOUS CONDUCT, ETC. MAY PROVIDE AN EXCEPTION FROM THE AT-WILL DEFAULT RULE – however, most claims are thrown out due to an onerous standard Agis v. Howard Johnson Co. o Announced Rule: Liability or severe emotional distress without bodily harm will follow where plaintiff establishes four elements: o (1) that the actor intended to inflect emotion distress or that he knew or should have known that emotion distress was the likely result of his conduct o (2) that the conduct was ‘extreme and outrageous,’ was ‘beyond all possible bounds of decency’ and was ‘utterly intolerable in a civilized community’ o (3) that defendants’ actions caused the distress o (4) the distress suffered was severe and of a nature ‘that no reasonable man could be expected to endure it’ o Policy Concern: Is the real concern arbitrariness? And if so, is that concern consistent with an at-will regime? Bodewig v. K-Mart, Inc. o Two versions of outrageous conduct: o (1) Intentional conduct, the very purpose of which is to inflict psychological and emotional distress o (2) Non-intentional conduct resulting of the breach of an obligation that attaches to the relationship between the parties o Policy Consideration: As in ITT and Nees, this is a choice the employer cannot require of the employee – cannot force the employee to make a choice between quitting and being subjected to outrageous conduct D. Statutory Protections These are the most intrusive exceptions on the at-will default rule. COURT WILL CONSIDER THE BROAD PURPOSES OF STATUTORY ENACTMENTS IN DETERMINING WHO IS ELIGIBLE FOR PROTECTIONS Valerio v. Putnam Associates o Statutory anti-retaliation protections of the FLSA may arise when an employee makes an internal complaint (though this does not include all internal grumblings). o This effects the FLSA’s purpose of encouraging employee to enforce their rights AND to reach informal, internal settlements on disputes. Schaeff Incorporated v. NLRB o NLRA protects the rights of workers to unionize – workers who exercise this right cannot be retaliated against, and the NRLB/court will scrutinize the employment decisions of employers even when they contend that that were made for economic reasons. Rogers v. City of San Antonio o Statutory imposition of for cause termination for employees returning from military service for one year: conduct or the application of some other legitimate non-discriminatory reason, where the employer bears the burden of showing that the cited conduct is reasonable cause for discharge AND the employee had notice or else that the job would have been eliminated anyway. o Policy Consideration: Why do the other federal leave statutes not include a similar provision? Is military service of a higher rank in our scheme of public priorities for employment than non-discrimination? E. Good Faith Limitations on Employment at Will THE COURT MAY IMPLY A ‘GOOD FAITH’ DUTY IN AT-WILL EMPLOYMENT AGREEMENTS


Fortune v. National Cash Register Co. o “We hold that NCR’s written contract contains an implied covenant of good faith and fair dealing, and a termination not made in good faith constitutes a breach of the contract. … NCR’s right to make decisions in its own interest is not, in our view, unduly hampered by a requirement of adherence to this standard. In so holding we are merely recognizing the general requirement in this Commonwealth that parties to contracts and commercial transactions must act in good faith toward one another. Good faith and fair dealing between parties are pervasive requirements in our law; it can be said fairly, that parties to contracts or commercial transactions are bound by this standard.” o Policy Consideration: Is this consistent with an at-will regime? Is there a difference between bad faith and good cause?!


III. Employee Speech & Privacy

A. Employee Speech and Political Participation EMPLOYMENT DECISIONS CANNOT BE BASED ON PARTY AFFILIATION FOR GOVERNMENT EMPLOYEES, WITH FEW EXCEPTIONS FOR SENIOR, POLICY-MAKING POSITIONS Rutan v. Republican Party o Unless party affiliation is an appropriate requirement for the position involved for some higher-up policy positions, the 1st Amendment forbids any government official from basing promotion, transfer, recall and hiring decisions on party affiliation because conditioning public employment on the provision of support for the favored political party inhibits protected belief and association. A GOVERNMENT EMPLOYER’S INTEREST IN MANAGING MUST BE BALANCED AGAINST EMPLOYEE’S INTEREST IN CITIZEN/UNOFFICIAL SPEECH; SINCE A GOVERNMENT EMPLOYER CONTROLS JOB-RELATED SPEECH, EMPLOYMENT CLAIMS CANNOT THUS BE CONSTITUTIONALIZED. Garcetti v. Ceballos o Pickering precedent holds that an employee’s 1st amendment rights must be balanced against the government employer’s management rights. o Two step inquiry: (1) Was the employee speaking as a public citizen on a matter of public concern? (2) If yes, does the government have a justification for treating the employee differently from any other member of society? o Touchstone: speaking in official capacity (because when employee speaks in official capacity, there are no infringements on rights that would have been enjoyed as a private citizen.) o “Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment and promote the employer’s mission.” o While public employees retain their 1st Amendment rights to speech as a citizen addressing matters of public concern, it does not empower them to constitutionalize the employee grievance – the 1st Amendment does not shield the employee from disciplinary action. COURTS MAY IMPLY THAT EMPLOYEE SPEECH/BELIEF IS PROTECTED IN THE PRIVATE SECTOR AS WELL See Novosel v. Nationwide Insurance Co. o Public policy can be derived of constitutional principles and applied to private employers o “Although Novosel is not a government employee, the public employee cases do not confine themselves to the narrow question of state action. Rather, these cases suggest that an important public policy is in fact implicated wherever the power to hire and fire is utilized to dictate the terms of employee political activities.” o Employees have a non-constitutional claim where a corporation conditions employment upon political subordination. o Inquiry: o (1) Whether, because of the speech, the employer is prevented from efficiently carrying out its responsibilities; (2) Whether the speech impairs the employee’s ability to carry out his own responsibilities; (3) Whether the speech interferes with essential and close working relationships; and (4) Whether the manner, time and place in which the speech occurs interferes with business operations. o Balancing: (a) the nature of the actor’s conduct; (b) the actor’s motive; (c) the interests of the other with which the actor’s conduct interferes; (d) the interests sough to be advanced by the actor; (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other; (f) the proximity or remoteness of the actor’s conduct to the interference and (g) the relations between the parties.



May reflect a concern that private corporations not distort the political process (rather than concern for this employee’s speech rights)

B. Employer Privacy Rights on and Off the Job EMPLOYEE HAS LIMITED PRIVACY IN PROTECTIONS IN THE WORKPLACE AND THUS EMPLOYEES MAY BE SUBJECT TO SEARCH OF PERSONAL BELONGINGS/SPACE UNDER SOME CIRCUMSTANCES o O’Connor v. Ortega · Is there a reasonable expectation of privacy in the workplace?  Fact-based, case-bycase analysis · If yes, then examine whether the search was reasonable based on a balancing of the employee’s reasonable expectation of privacy and the employer’s interest in supervision, control and reasonable operation of the workplace. · No warrant or probable cause requirement – just broad reasonableness under all the circumstances standard, where both the inception and the scope of the intrusion must be reasonable. · Policy Consideration: How does this implicate the public/private spheres – can you really leave everything at home to avoid the invasion? o K-mart v. Trotti · Actionable invasion of privacy in Texas must consist of an unjustified intrusion of a plaintiff’s solicitude or seclusion of such magnitude as to cause an ordinary individual to feel severely offended, humiliated or outraged.” · Policy Consideration: Should the invasion of privacy track the 4th Amendment in the way that the employee speech tracks the 1st Amendment in Novocel? Why are the employer’s interests not balanced here? EMPLOYERS MAY INVADE THE PRIVATE SPHERE OF OUTSIDE ACTIVITY/RELATIONSHIPS o Brunner v. Al Attar · Employee privacy in personal life activities/affiliations NOT PROTECTED by the narrow public policy exceptions to employment at will (i.e. refusal to commit an illegal act and employers’ motive to avoid pension payments.) · Policy Question: How east is it to draw the line between politics and privacy in this regard? o But See Rulon-Miller v. IBM · Privacy interests may be bestowed by company contractual policy – which provides for employee privacy with regard to outside activity not impacting work – and also IIED tort claims which require extreme and outrageous conduct, found here. · Policy Consideration: What does “privacy” mean? EMPLOYEES MAY BE SUBJECT TO DRUG TESTING o Skinner v. Railway Labor Executive’s Association · Upheld FRA regulations providing for mandatory blood and urine testing of railroad employees involved in certain train accidents and discretionary breath and urine tests to employees who violate certain safety rules with a warrant, probable cause or individualized suspicion against a 4th Amendment challenge. · While drug testing of this sort does constitute a “search” under the 4th Amendment, whether or not it is lawful depends on its reasonableness, which is determined by balancing an individual’s 4th Amendment rights against the promotion of a legitimate government interest. · “By and large, intrusions on privacy under the FRA regulations are limited. To the extent transport and like restrictions are necessary to procure the requisite blood, breath, and urine samples for testing, this interference alone is minimal given the employment context in which it takes place. Ordinarily, an employee consents to significant restrictions in his freedom of movement where necessary for his



employment, and few are free to come and go as they please during working hours. Any additional interference with a railroad employee’s freedom of movement that occurs in the time it takes to procure a blood, breath or urine sample for testing cannot, by itself, be said to infringe significant privacy interests.” · Particularly diminished privacy interests due to the fact that this is a regulated industry. · Dissent believes the opinion is wrongly motivated by the war on drugs and minimizes the individual privacy interests at stake. But See Sanchez v. Georgia Gulf · Suit for damages for physical and mental pain and suffering, loss of income, loss of reputation and medical expenses in connection with the plaintiff’s termination following an allegedly positive drug test result for a cocaine metabolite. · State drug testing statute prescribes mandatory guidelines for testing, which require specific testing procedures (after one positive test, another must be done) and a review – failure to comply defeats the statutory purpose and thus the standards are mandatory, regardless of the fact that the relationship was at will. · Policy Consideration: Could we move to a position where, via the logic of Novocel, we import a requirement of due process into all situations like this, such that even without the state statute, the employee could not be fired without some process? This would clearly obliterate the at will rule.

WITH ONLY NARROW EXCEPTIONS, EMPLOYEES ARE RESPONSIBLE FOR THEIR UNLAWFUL CONDUCT THAT OCCURS ‘ON THE JOB’ Thatcher v. Brennan o Respondeat superior follows where the employer either authorized the act prior to or ratified the act after its commission, or the act was committed within the scope of employment, which is determined by tests like (1) whether the employee’s conduct is ‘so unlike that authorized that it substantially different,’ (2) whether the act complained of is committed in the prosecution of the employer’s business and within the scope of the employee’s authority; (3) whether such act is in the furtherance of the business of the master and as an incident to the performance of the duties of the character or kind which he was employed to perform; (4) whether the act was done in the course of and as a means of accomplishing the purposes of the employment and, therefore, in furtherance of the master’s business. o “In the instant case, Brennan was authorized, expected, and even required to drive an automobile as part of his employment. However, he was not authorized to assault other persons, and there is nothing in the previous relationship between Brennan and Mead Johnson which would indicate that such conduct was acceptable.” o However, where an employee has a propensity for violence that the employer knew or should have known about but in disregard of the rights of persons with whom the employee could reasonably be expected to come into contact, hired the employee either negligently or with callous disregard for the rights of such persons. o Personality test results indicating aggression is not sufficient to meet the standard above. o Policy Consideration: Do the three conceptions of employment have something to say about our feelings on whether or not personality testing is appropriate? DESPITE AT-WILL EMPLOYMENT RELATIONSHIPS, (FORMER) EMPLOYEES MAY HAVE CLAIMS AGAINST EMPLOYERS WHO MAKE PUBLIC THE REASONS FOR EMPLOYMENT DECISIONS, ETC. Zinda v. Louisiana Pacific Group o Defamation is communication which harms the reputation of another so as to lower him in the estimation of the community or deter third persons from associating or dealing with him o Defamation may be privileged where defendant is acting in furtherance of some interest of societal importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff.


In the case of absolute privilege: motives do not matter In the case of conditional/”common interest” privilege (which is based on the policy that one is entitled to learn from his associates what is being done in a manner in which he or she has an interest in common and attaches in the employment relationship – “Employees have a legitimate interest in knowing the reasons a fellow employee was discharged. Conversely, an employer has an interest in maintaining morale and quieting rumors which may disrupt business”): motives matter and this privilege may be abused and lost · Abuse of privilege: May occur (1) because of the defendant’s knowledge or reckless disregard as to the falsity of the defamatory matter; (2) because the defamatory matter is published for some purpose other than that for which the particular privilege is given; (3) because the publication is made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege [but incidental communications are okay]; (4) because the publication includes defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged; or (5) the publication includes unprivileged matter as well as privileged matter. Sigal Construction v. Stanbury o Any statement can amount to actionable defamation, unprotected by the First Amendment, if it reasonably implied a false assertion of fact and the statement is made with the level of fault required for recovery, by public or private actors. o Qualified privilege: where plaintiff shows that defendant has acted with common law malice (greater level of ill will than negligence – something like reckless disregard), defendant has abused, and thus lost the privilege. o “In short, this is a case of pure ‘rumor’ or ‘gossip’ or ‘scuttlebutt’ conveyed as fact, without any disclaimer or explanation, coupled with Littman’s erroneously leading the prospective employer to believe he had worked on a project with Stanbury.”

· ·


IV. Employee Duties and Promises
←A. Duty of Loyalty and Trade Secrets 
BACKGROUND WHO SHOULD BEAR THE COSTS OF TRAINING AND PRODUCTIVITY? Becker distinction: 2 categories of employee training o (1) Specific training: only valuable to the particular job. Because these expenses will be recouped, employers should be willing to pay for these expense in exchange for slightly lower wages VERSUS o (2) General training: valuable to many employers, which employers will not be willing to pay for because if it did an employee would be able to leave immediately to an employer willing to pay the full market wage. Key distinction for courts: (1) employment restrictions that protect employers when they disclose valuable information to employees or make expensive investments in training and (2) restrictions that prevent employees from using general on-the-job training that they have already paid for, so employees pay for this training in the form of lower wages than would be received otherwise. EVEN AT-WILL EMPLOYEES ARE SUBJECT TO THE DUTY OF LOYALTY Jet Courier v. Mulei o Part of the duty of loyalty is a duty of the agent not to complete with the principal concerning the subject matter of his agency, but this duty is limited by society’s interest in fostering free and vigorous economic competition. o To accommodate the tension between honesty and fair dealing and free and vigorous economic competition, employees may prepare or make arrangements to compete with their employers prior to the termination of the employment relationship without breaching their fiduciary duty of loyalty. BUT: · Pre-termination solicitation of customers is not preparation and violates the duty of loyalty · Pre-termination solicitation of co-workers (even where unsuccessful) may violate the duty of loyalty depending on the nature of the employment relationship, the impact or potential impact of the employee’s actions on the employer’s operations, and the extent of any benefits promised or inducements made to co-workers to obtain their services for the new competing enterprise. o Profitability is not relevant in the duty of loyalty analysis – the question is whether employee acted solely for the benefit of employer, giving due regard to right to make preparations. o Employee is not entitled to any compensation during the period in which he has breached his duty of loyalty. o Policy Considerations: Is the duty of loyalty consistent with at-will employment? Is the duty of loyalty asymmetric? Pepsico v. Redmond o Illinois Trade Secret act provides that a court may enjoin the ‘actual or threatened misappropriation of a trade secret’ in order to protect standards of commercial morality and encourage invention and innovation while maintaining the public interest in having free and open competition in the manufacture and sale of unpatented goods. o A claim of trade secret misappropriation follows where a plaintiff can demonstrate that a defendant’s new employment will inevitably lead him to rely on plaintiff’s trade secrets

← ←B. Enforcement and Non-Competition Clauses 
AGREEMENTS NOT TO COMPETE ARE ENFORCEABLE WHERE “REASONABLE” TO BALANCE THE COMPETING PUBLIC AND PRIVATE INTERESTS Karpinski v. Ingrasci o Covenants not to compete are subject to an overall reasonableness test in light of public policy considerations which militate against sanctioning the loss of a man’s livelihood  fact dependent inquiry concerning the territorial extent, the temporal reach and the


substantive restrictions. Policy Consideration: Why subject agreements not to work to so much more scrutiny than agreements to work? Rem Metals Corp. v. Logan o Oregon Rule: non-competition agreements will be enforced only where they · (1) Protect a legitimate interest of the employer and · (2) Are reasonable in scope and duration. o Employers have a legitimate interest in protecting training that imparts information especially related to the employers business, as opposed to general skills, but this law may be difficult draw. o Non-competition agreements are enforceable only to the extent that the relate to competitive use, for a time, of information or relationships which pertain peculiarly to the employer and which the employee acquired in the course of employment (trade secrets) rather than the unique personal qualities of the employee o Policy Consideration: Should the court be able to convert this contracts case into something like a trade secrets case? But See DISSENT IN Outsource International v. Barton & Barton Staffing o [Majority holds agreement enforceable because it is reasonable.] o Dissent: Competent adults should be held to their bargains in the absence of fraud, duress and unconscionability – Posner believes that reasonableness is a proxy for all of these. o Illinois law’s hostility to non-competes is outdated. “The original rationale had nothing to do with restraint of trade in its modern, antitrust sense. It was paternalism in a culture of poverty, restricted employment, and an exiguous social safety net. The fear behind it was that workers would be tricked into agreeing to covenants that would, if enforced, propel them into destitution. This fear, though it continues to be cited, has no basis in current American conditions. Later, however, the focus of concern shifted to whether a covenant not to compete might have anticompetitive consequences, since the covenant would eliminate the covenantor as a potential competitor of the covanetee within the area covered by, and during the term of, the covenant. … It would be unlikely for the vitality of competition to depend on the ability of a former employee to compete with his former employer. So unlikely that it would make little sense to place a cloud of suspicion over such covenants, rather than considering competitive effects on a case by case basis. At the same time that the concerns behind judicial hostility to covenants not to compete have waned, recognition of their social value has grown. The clearest case for such a covenant is where the employee’s work gives him access to the employer’s trade secrets. … A covenant not to compete is much easier to enforce, and to the extent enforced prevents the employee, during the time and within the geographical scope of the covenant, from using his former employer’s trade secrets. A related function of such a covenant is to protect the employer’s investment in the employee’s ‘human capital,’ or earning capacity. … The employer may give the employee training that the employee could use to compete against the employer. If covenants not to compete are forbidden, the employer will pay a lower wage, in effect charging the employee for the training. There is no reason why the law should prefer this method of protecting the employer’s investment to a covenant not to compete.” o “The Illinois courts appear to place the burden of proving that the covenant meets one of the two criteria of validity on the employer. In effect, Illinois requires the employer to prove that the covenant not to compete serves a social purpose. Such a requirement is inconsistent with the idea of freedom of contract, which animates contract law and a corollary of which is that courts do not limit the enforcement of contracts to those the social point of which the court can see. They enforce a contract unless there is some reason to think it imposes heavy costs on third parities, offends the moral code, fails to comply with formal requirements (such as those imposed on some contracts by the statute of frauds), or doesn’t embody an actual deal between competent consenting adults.” o

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OR COMMON LAW RULES REGARDING THE EMPLOYMENT RELATIONSHIP Ingersoll-Rand v. Ciavatta o Under the common law rule, an invention is the property of the inventor who conceived, developed and perfected it and this is not undermined simply by the fact that the inventor is employed unless an employee is hired to design a specific invention or solve a specific problem. o Where the employee is not hired specifically to design or invent, but nevertheless conceives of a device during working hours with the use of the employer’s materials and equipment, the employer is granted an irrevocable but non-exclusive right to use the invention under the ‘shop right rule,’ which grants an employer a royalty or fee, a nonexclusive and non-transferable license to use an employee’s patented invention. o Invention assignment contracts in the employment context are valid except where they unreasonably obligate an employee in each and every instance to transfer the ownership of the employee’s invention to the employer. o Hold over clauses pertain to inventions following the termination of the employment agreement and are enforceable when reasonable based on all of the circumstances in a 3prong test: · (1) Does not extend beyond any apparent protection that the employer reasonably requires – narrowly construed with the burden on the employer; · (2) Does not prevent the inventor from seeking other employment, and · (3) Does not adversely impact the public o A hold over agreement is enforceable where it simply protects the legitimate interests of the employer, imposes no under hardship on the employee and is not injurious to the public – balancing of the interests is appropriate. o Public interests include fair competition and fostering creativity, invention and innovation.


V. Prohibitions on Status Discrimination
←A. Disparate Treatment 
TITLE VII IMPOSES A BURDEN SHIFTING REGIME FOR INDIVIDUAL ALLEGATIONS OF DISCRIMINATION McDonnell Douglas Corp. v. Green o Title VII Order and Burden of Proof: o (1) Complaintant carries the initial burden of establishing a prima facie case of racial discrimination by showing that: · (i) He belongs to a racial minority · (ii) He applied and was qualified for a job for which the employer was seeking applicants · (iii) Despite his qualifications, he was rejected and · (iv) After his rejection, the position remained open and the employer continued to seek applicants from persons of complaintant’s qualifications. o (2) Burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection · However, per Burdine, this requires only that the employer raise a general issue of fact of whether it discriminated, while the complaintant retains the burden of persuasion, which per Hicks requires proving the ultimate fact of intentional discrimination in order to prevail. o (3) Complaintant has a rebuttal opportunity to demonstrate that the employer’s articulated reason is pretextual with evidence like dissimilar racial treatment with respect to the articulated reason and other evidence like statistics regarding the general policies and practices of the employer. o Policy Consideration: Does a required “legitimate, non-discriminatory” reason serve to make a just cause rule for racial minorities? PATTERN OR PRACTICE DISCRIMINATION SUITS AGGREGATE CLAIMS IN ORDER TO BROADLY FULFILL THE AIMS OF TITLE VII AND THUS STATISTCAL EVIDENCE IS APPROPRIATE Hazelwood School District v. United States o To prevail in a Title VII pattern or practice suit, the government must establish by a preponderance of the evidence that racial discrimination was the employer’s standard operating procedure, the regular rather than the unusual practice. (N.B.: no evidence necessary to show an individual applicant was discriminated against – allows for broader fulfillment of the goals of Title VII.) o Gross statistical disparities may alone constitute prima facie proof of a pattern or practice of discrimination – but this requires a determination of which numbers are relevant.

RACE) IS SO ESSENTIAL TO JOB PERFORMANCE THAT A MEMBER OF THE OPPOSITE SEX COULD NOT DO THIS JOB. Wilson v. Southwest Airlines o The BFOQ provides that “it shall not be an unlawful employment practice for an employer to hire (an employee) … on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. o Inquiry: · (1) Does the particular job under consideration require that the worker be of one sex only – is sex so essential that a member of the opposite sex could not do the same job? · (2) If so, is that requirement reasonably necessary to the ‘essence of the employers business – is the qualification scrutinized important to the operation of the business such that it would be undermined if a member of the opposite sex were hired?


The exception is narrow and captures qualifications that are necessary for authenticity, like an actress. o The essence of a business is NOT to make a profit for the purposes of this analysis  means that employers are giving up profits for a purported greater social good o Policy Consideration: Why should customer preferences not be relevant? The public/private distinction is strongly implicated here – this is about changing the preferences not just the employment environment, otherwise the exceptions would swallow the rule. o Policy Consideration: How far should Title VII go? The court notes: “This case has serious underpinnings, but it also has disquieting strains. These strains, and they were only that, warn that in our quest for non-racist, non-sexist goals, the demand for equal rights can be pushed to silly extremes. The rule of law in this country is so firmly embedded in our ethical regimen that little can stand up to its force except literalistic insistence upon one’s rights. And such inability to absorb the minor indignities suffered daily by us all without running to court may stop it dead in its tracks. We do not have such a case here only warning signs rumbling from the facts.” Dothard v. Rawlinson o Overt discrimination may be justified subject to the bona fide occupational qualification (BFOQ), where sex is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise · This is a narrow exception to the general prohibition of discrimination on the basis of sex and it does not shield regulations based on gender stereotypes. o Policy Consideration: Should considerations that look like employee preferences matter? Does Title VII require the employer to change some jobs? o C. Disparate Impact TITLE VII PROHIBITS BOTH DISCRIMINATORY TREATMENT AND DISPARATE IMPACT REQUIREMENT Griggs v. Duke Power Co. o Title VII proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. o The employer has the burden of showing the touchstone – business necessity (that a practice that operates to exclude based on race is job related) otherwise such practice is prohibited, regardless of lack of discriminatory motive – it is the consequences that matter. o Effect of the act is not to ban employment tests, but those tests must not impose artificial, arbitrary or unnecessary barriers to employment Dothard v. Rawlinson o Title VII requires the removal of artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. o Facially neutral standard may violate Title VII due to a disparate impact. o Burden of proof: · (1) Plaintiff must establish a prima facie case by showing that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern. · (2) The employer then has the burden of showing that the employment standards are job-related · (3) The plaintiff has the opportunity to show that other methods could be used to serve the employers interest without creating the same discriminatory effect Ricci v. DeStafano o Title VII prohibits both disparate treatment and disparate impact. o Disparate treatment requires a showing by the plaintiff that employer had a discriminatory intent or motive for taking a job-related action. o Under the 1991 CRA, disparate impact requires a prima facie showing by the plaintiff that the employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin. An employer may defend by



o o o o

demonstrating that the practice is job-related for the position in question and consistent with business necessity. But, the plaintiff may still prevail by showing that the employer refuses to adopt an alternative practice that has less disparate impact and still serves the employer’s legitimate needs. Employers may violate the disparate treatment violation in the name of compliance with the disparate impact provisions only with a strong basis in evidence of disparate impact liability [imported from the equal protection context] (on all three steps of the disparate impact burden shifting regime) [Scalia Concurrence]: To what degree does compliance with disparate impact violate equal protection? [Ginsburg Dissent]: The proper test should be good faith. Policy Consideration: What is the difference between a racially conscious decision and a racially motivated decision? Policy Consideration: What CAN be done to correct the sort of institutional discrimination that Title VII has still not been remedied (as evidenced by the performance differential on the test given)?

D. Reasonable Accommodation THE ADA REQUIRES EMPLOYERS TO MAKE REASONABLE ACCOMMODATIONS TO INDIVIDUALS WITH DISABILITIES IF THE INDIVIDUALS CAN PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB WITH THE ACCOMMODATIONS. Sutton v. United Airlines o Rule: Pursuant to the ADA, no covered employer [employer, employment agency, labor organization, or joint labor-management committee] shall discriminate against a qualified individual [disabled individual who, with or without reasonable accommodate, can perform the essential job functions of the employment position] with a disability [(a) physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having an impairment] because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment. o Whether an individual is disabled [(a)] is an individualized inquiry, which is to be determined based with reference to corrective measures. o A particular job is not a major life activity. o Subsequent Amendments: In determining whether an individual is disabled for (a) of the definition, mitigating/corrective measures are not to be taken into account. When determining whether someone is regarded as disabled for (c) of the definition, an individual meets the definition if they establish that they have been subjected to an action prohibited under the Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. US Airways v. Barnett o Ordinarily he ADA does not require trumping a seniority system – the plaintiff must show more, i.e. special circumstances, typical exemptions, etc. to demonstrate that the assignment is a reasonable accommodation despite the conflict with the seniority rules. o The ADA requires neutral treatment not the preferential treatment that would follow from overriding a neutral seniority rule. o [Scalia Dissent] – concern that this power of showing “special circumstances” can in effect be a power to undermine bona fide employment systems, not just sham seniority programs. The point of the ADA is to remove the barriers that exist because of the disability, not the general employment barriers. E. Sexual Harassment SEXUAL HARASSMENT WILL BE ACTIONABLE UNDER TITLE VII EITHER FOR QUID PRO QUO CONDUCT OR HOSTILE WORK ENVIRONMENTS Meritor Savings Bank v. Vinson




Sexual harassment in violation of Title VII includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, and can be either (1) directly linked to the grant or denial of an economic quid pro quo, or (2) have the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment (since Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule and insult), provided that it is sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment. That sexual activity was “voluntary” does not matter – the gravamen of sexual harassment claims is that the alleged sexual advances were unwelcome.

IN THE CASE OF HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT, CONDUCT MUST BE OBJECTIVELY HOSTILE TO A REASONABLE PERSON AND SUBJECTIVELY ABUSIVE TO THE VICTIM Harris v. Forklift Systems o To be actionable under Title VII, hostile work environment conduct must be (1) such that a reasonable person would find it hostile or abusive and (2) subjectively perceived as abusive by the victim. o Whether an environment is ‘hostile’ or ‘abusive’ can be determined only be looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. HOSTILE ENVIRONMENT SEXUAL HARASSMENT CAN BE WAGED AGAINST AN INDIVIDUAL OF THE SAME SEX Oncale v. Sundowner Offshore Services o Title VII’s prohibition against workplace discrimination because of sex is broad enough to capture same sex harassment, provided it meets the Harris standard. o Policy Consideration: Court acknowledges that sexual harassment are easily considered in the paradigmatic male superior/female worker situation motivated by sexual desire and notes this would easily be extended to the male/male context with credible evidence that the harasser was a homosexual. · The Schultz article further discusses this paradigm problem and states that it is both over-inclusive (too much sexual conduct is prohibited) and under-inclusive (misses actions that have nothing to do with sexual desire). · She recommends an alternative competence paradigm (the function of harassment is to undermine the competence of women in order to maintain masculinity of jobs). VICARIOUS LIABILITY IS POSSIBLE FOR HOSTILE ENVIRONMENTS CREATED BY A SUPERVISOR Faragher v. City of Boca Raton o An employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate authority over the employee, but the employer may raise an affirmative defense (except where the discrimination resulted in employment action) (1) that the employer exercised reasonable care to prevent and correctly promptly any sexually harassing behavior and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. o This standard is consistent with the purposes of Title VII since the purpose is not redress, it is avoiding the harm in the first place. o Policy Consideration: Do we want private employers to be able to kick the court out with internal policies?


VI. Regulation of Compensation

CONGRESS CAN REGULATE WAGES VIA THE COMMERCE CLAUSE United States v. Darby o Upholds the FLSA (following West Coast Hotel, which overruled Adkins) o “While manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of the commerce.” o Due process is no longer fatal to wage regulation “…it is no longer open to question that the fixing of a minimum wage is within the legislative power and that the bare fact of its exercise is not a denial of due process under the 5th more than under the 14th Amendment”– employment is a public institution! Carr & Krueger, Myth and Measurement Contrary to the standard economic model, minimum wage might actually have a positive impact on employment. (1) Increase in the minimum wage does not adversely impact employment. (2) Increase in the federal minimum wage did not adversely impact teenage employment. (3) Statistical evidence regarding teenage employment impacts are no more compelling that evidence point in the opposite direction. (4) Increases in the minimum wage generate a ripple effect leading to pay raises for workers who previously earned wages above the new minimum. Increases in the minimum wage are not offset by reduced fringe benefits. (5) Increases in the minimum wage have reduced wage dispersion. FAIR LABOR STANDARDS ACT REQUIRES THAT EMPLOYERS PAY A MINIMUM WAGE (AS PERIODICALLY STIPULATED) AND 1.5X THE REGULAR RATE OF PAY FOR WORK IN EXCESS OF 40 HOURS PER WEEK. THIS IS NOT ENTIRELY STRAIGHTFORWARD. QUESTIONS: WHAT IS “WORK” FOR FLSA PURPOSES? o ON-CALL TIME THAT THE EMPLOYEE CAN USE EFFECTIVELY FOR HIS OWN PURPOSES IS NOT WORK (and thus is not compensable under the FLSA) o Bright v. Houston Northwest Medical Center · Plaintiff was still able to use on-call time effectively for his own purposes when he was restricted to the extent of (1) not being intoxicated/impaired, (2) always being reachable by pager and (3) always being able to arrive at the hospital in about 20 minutes at ALL TIMES – because effectively for his own purposes does not mean the same flexibility or freedom that the employee would enjoy were he not on call. · Contrarily, firemen required to remain on the employer’s premises were not and thus were working for FLSA purposes. · [Dissent notes that the employee is not thus able to truly participate in the community and that this duty should be shares so he had some possibility for reprieve.] · Policy Consideration: What about blackberries and other electronic leashes? · Policy Consideration: Are we concerned about the ability of the employer to interfere with the employee’s private life/sphere? WHAT IS THE “WAGE” FOR FLSA PURPOSES AND HOW MUST IT BE CALCULATED? o THE FLSA REQUIRES THAT EMPLOYEES RECEIVE THE MINIMUM WAGE FOR THE HOURS WORKED EACH WEEK o Marshall v. Sam Dell’s Dodge · The workweek is the relevant period – “Regardless of the total pay received by an employee, the Act requires that each employee receive, each week, an amount equal to the minimum wage times the number of hours worked.” · Bonuses count only against the minimum wage in the week they are paid · Fringe benefits are treated as wages unless they are provided primarily for the benefit or convenience of the employer. o NOT ALL FRINGE BENEFITS MAY BE OFFSET AGAINST OVERTIME PAY DUE o Dunlop v. Gray-Goto, Inc.


The Act stipulates categories of pay that are not considered in the regular rate of pay which can be used to off-set overtime compensation – (1) extra compensation at a premium rate for extra hours over 8 in a day; (2) extra compensation provided at premium compensation for Saturday, Sunday and holidays; and (3) extra compensation paid at a premium rate for hours beyond those normally required. THIS ARE ALL OVERTIME PAYMENTS! · Parties cannot agree by contract to waive their FLSA rights – these are rights in the public interest and waiver is impermissible because it would thwart the legislative purpose! WHO IS COVERED UNDER FLSA PROTECTIONS? o EMPLOYEES PERFORMING MANAGEMENT FUNCTIONS ARE EXEMPT FROM COVERAGE! o Davis v. Mountaire Farms, Inc. · FLSA exempts employees in a “bona fide executive capacity” which is designated by four elements: (1) compensated on a salary basis; (2) primary duty is management ; (3) customarily and regularly directs the work of two or more others; and (4) has authority to hire/fire or make suggestions regarding hiring/firing/status that are given particular weight. · Chicken crew leaders are exempt managers · Policy Consideration: Assuming the crew leaders meet the exemption test, what is the rationale and what impact does the changing economic structure have on our sense of whether this is still accurate?



VII. Unemployment
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A. Unemployment and Unemployment Insurance CONCEPT: UNEMPLOYMENT IS NOT PAID BECAUSE YOU LOST ONE JOB, BUT RATHER BECAUSE YOU CANNOT FIND ANOTHER! Unemployment programs are typically state-managed systems, funded by a payroll tax. First established in Wisconsin in 1932. Federal government enacted a New Deal program to encourage other states to follow suit (See Stewart Machine Co.). In every state, eligibility depends on earning a certain amount, working a certain number of weeks, or some combination, during a preceding base period. These eligibility requirements are intended to measure the worker’s prior attachment to the work force. In most states, claimants must wait a week before collecting benefits. Full-time workers are typically eligible for 26 weeks of benefits. Benefits typically are 50% of weekly wages up to a statutory maximum. Most states set their cap as one-half to two-thirds of the average weekly wages in the state. Because of the cap on benefits, average UI benefits replace only one-third of prior wages. Some states give additional, nominal benefits for dependents. The general policy has been for unemployment insurance to be a limited response to the problem of unemployment. In the main, unemployment insurance is designed to provide temporary, partial wage replacement to experienced workers who become unemployed through no fault of their own. All states require recipients to actively search for work and accept suitable employment when found. BUT unemployed workers with a definite recall date general are eligible for UI benefits without actively searching for another job. Policy Consideration: What does it say that we have a tax on employers in order to compensate individuals who cannot get a job? UI RECIPIENTS MUST ACCEPT AND BE AVAILABLE FOR A NEW JOB WHEN FOUND Knox v. Unemployment Compensation Board of Review o Statute provides that “An employee shall be ineligible for compensation for any week … in which his unemployment is due to failure, without good cause, either to apply for … or to accept suitable work.” o Furthermore, an employee may not attach conditions to his acceptance of work as to render himself unavailable for suitable work and willingness to be employed conditionally does not necessarily meet the test of availability. o Plaintiff’s desire to protect his seniority and indication that if/when given the opportunity is an unacceptable condition rendering him ineligible for benefits. o Policy Consideration: What sort of incentives does this create? o Policy Consideration: What is suitable replacement work? WORKERS WHO QUIT THEIR JOBS WITHOUT GOOD CAUSE ARE GENERALLY DISQUALIFIED FROM BENEFITS In many states disqualification lasts for the duration of the unemployment experienced despite urgings from the Department of Labor that disqualification should last only for the average length of time necessary to find suitable work (6 weeks) since longer periods are likely subject to market forces beyond the worker’s control, not the disqualifying act. Disqualification raises many of the same issues seen in wrongful termination and discrimination. A STATE CAN MAKE PREGNANCY A DISQUALIFCATION Wimberly v. Labor & Industrial Relations Commission o State statute provides for disqualification where the worker leaves work voluntarily without good cause attributable to his work or employer. o The Federal statute provides discretion to states to stipulate the administrative rules, but there is some uniformity. “First, all States require claimants to earn a specified amount of wages or to work a specified number of weeks in covered employment during a 1-year base period in order to be entitled to receive benefits. Second, all States require claimants be “eligible” for benefits, that is, they must be able to work and available for work. Third,

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o o

claimants who satisfy these requirements may be disqualified for reasons set force in state law. The most common reasons for disqualification under state unemployment compensation laws are voluntarily leaving the job without good cause, being discharged for misconduct, and refusing suitable work.” Pregnancy is treated in various ways by the states – states may adopt a neutral rule that incidentally disqualifies pregnant or formerly pregnant claimants as part of a larger group and this is allowable provided the rule does not discriminate against pregnancy exclusively. Policy Consideration: Who is similarly situated to a pregnant woman?

PRESERVATION OF A FAMILY UNIT CAN CONSTITUTE GOOD CAUSE TO PREVENT DISQUALIFICATION MacGregor v. Unemployment Insurance Appeals Board o Some states provide that good cause extends beyond employment related reasons to capture imperative and compelling personal reasons. o Lack of legally recognized marriage does not prevent a claimant from demonstrating that compelling familial obligations provide good cause for leaving employment MISCONDUCT IS GROUNDS FOR UNEMPLOYMENT INSURANCE DISQUALIFICATION But See McCourtney v. Imprimis o “Misconduct is limited to conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed misconduct.” o Plaintiffs actions were motivated by a willful regard for her child, not a willful disregard for her employer, thus she is entitled to benefits o “The economic burden this conclusion places on the employer is a necessary cost of the legislature’s humanitarian concern for the welfare of persons unemployed through no fault of their own.” o Dissent views this as an unfair catch 22 for the employer – put up with the absenteeism or pay for the resulting unemployment – other social welfare programs should address childcare issues, not the unemployment statute o Policy Consideration: Is this really about employment law or is this about family law and the childcare system? Should the unemployment system support childcare? Two problems with basing social welfarist childcare protections in employment – (1) incentivizing employers to not hire women who disproportionately bear the burden of care and (2) exclude people who don’t have a job. o Policy Consideration: Should employment have a role in providing social goods? B. Federal Regulation of Plant Closings Bluestone & Harrison, The Deindustrialization of America Plant closing costs extend beyond the loss of employment to a decline in health and welfare, which can exacerbate the problem since “feelings of lost self-esteem, grief, depression, and ill health can lessen the chances of finding reemployment; this failure, in turn, can exacerbate the emotion distress, generating a cycle of destruction.” There is also a ripple effect in the community. “The primary effects are, of course, visited on those closet to the production unit that ceases operations. The unit’s own employees lose salaries and wages, pensions, and other fringe benefits; supplier firms lose contracts; and the various levels of government lose corporate income and commercial property tax revenue. These in turn result in a series of secondary effects including decreased retail purchases in the community, a reduction in earnings at supplier plants, and increased unemployment in other sectors. Finally, these events


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produce tertiary effects in the form of increased demand for public assistance and social services, reduced personal tax receipts, and eventually, layoffs in other industries, including the public sector. What begins as a behind-closed-doors company decision to shut down a particular production facility ends up affecting literally everyone in town.” Policy Consideration: The more we root in employment, the more severe are the effects of unemployment. Is the loss of a job just that or is it a loss of identity as well? Policy Consideration: Who should bear these costs? Depends on your vision of employment? WARN Act Requires employers of more than 100 employees to give their workers and local government officials 60 days’ advance notice of plant closings or mass layoffs, with two major exceptions: (1) a faltering company can give less than 60 days’ notice if it had been actively seeking new financing to keep the plant open and in good faith believed that notice would jeopardize negotiations and (2) where there are unforeseeable business circumstances (such as a client’s sudden and unexpected termination of a major contract, and natural disasters. WARN Act violations are liable for up to 60 days’ back pay and benefits, attorneys’ fees and civil penalties UNFORESEEABLE CIRCUMSTANCES EXCEPTION Roquet v. Arthur Andersen o A business circumstance may be reasonably unforeseeable if it was caused by some sudden, dramatic, and unexpected action, or by conditions outside the employer’s control. When determining whether a mass layoff was caused by unforeseeable business circumstances, courts evaluation whether a similarly situated employer exercising reasonable judgment could have foreseen the circumstance that caused the layoff. Thus, a company will not be liable if, when confronted with devastating occurrences, it reacts the same way that other reasonable employers within its own market would react. o Foreseeability turns probability not possibility, because the WARN act was not intended to force financially fragile, but economically viable employers to provide notice and close its doors on the mere possibility – since this would force premature layoffs and harm the individuals the act intends to protect o Dissent notes that this should not be all or nothing, but the notice period should be reduced from 60 days to provide as much notice as is practicable under the circumstances, with the trigger date occurring on the date that the mass layoff is reasonably foreseeable. o Policy Consideration: Even when working well, all this provides is notice, is that enough?

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VIII. Workplace Injuries and Diseases
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Introduction Bureau of Labor Statistics monitors workplace deaths (range from 6,632 and 5,534 annually) and accidents (irregular decline). However, accuracy of the data is questioned and there is evidence of an undercounting problem. Costs of workers’ compensation programs have increased, to 1.76% of payroll of $87.4B in 2004. The goals of government health and safety programs are (1) the prevention of workplace injuries and illnesses, and (2) the compensation of workers. Four methods to achieve: (1) labor market, (2) tort suits, (3) workers’ compensation and (4) safety and health laws. Traditional tort recovery was difficult, Roosevelt said because work out of which accident arose was “done for the employer, and therefore ultimately for the public, it is a bitter injustice that it should be the wage worker himself and his wife and children who bear the whole penalty.” Policy Consideration: If you take for granted that the employees should not bear the whole burden, does that mean the employers should instead? A. Workers’ Compensation

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About 96% of workers are covered by workers’ compensation, though some states allow for exemption for employers with a limited number of employees, certain industries and certain occupations and in Texas the whole program is elective. Workers who are independent contractors or not engaged in the normal trade or business may not be protected. Most states require employers to provide full medical benefits, this has become extraordinarily expensive. Fee schedules imposed in an attempt to limit expenses are controversial. Cash benefits vary. Temporary total disability benefits are paid to a worker is entirely unable to work for the healing period and in most jurisdictions are 2/3 of the worker’s pre-injury wage, subject to maximum and minimum amounts. Temporary partial disability benefits are paid to those who are able to return to work but with limitations on the amount or intensity of work that can be performed during the healing period and are generally 2/3 of the difference between the worker’s preinjury wage and the current earnings, subject to a maximum. Permanent partial disability benefits are controversial and take two forms: (1) Scheduled PPD benefits are paid for specified injuries on the statute (i.e. loss of arm = 312 weeks benefits) and (2) Nonscheduled PPD benefits are paid for unlisted permanent injuries. Permanent total disability benefits are assigned for particular injuries (i.e. loss of two arms) – relatively uncommon Death benefits are paid to the survivor of a worker killed on the job. TO RECEIVE COMPENSATION, A WORKER MUST SHOW THAT THE INJURY WAS WORK RELATED. TEST: (1) AN INJURY; (2) RESULTING FROM AN ACCIDENT THAT; (3) AROSE OUT OF EMPLOYMENT AND (4) IN THE COURSE OF EMPLOYMENT. THE “IN THE COURSE OF EMPLOYMENT” MAY INCLUDE WORK-RELATED SOCIAL ACTIVITIES o Ezzy v. Workers’ Compensation Appeals Board · No recovery may be had where the injury arises from voluntary participation in athletic activities, but where activities are a reasonable expectancy of, or are expressly or impliedly required by the employment related injuries are compensable. · Whether an activity is a reasonably expectancy of employment depends on (1) whether the employee subjectively believes that his or her participation in an activity is expected by the employer and (2) whether that believe is objectively reasonable. WHERE THE EMPLOYMENT EXPOSES THE WORKER TO INJURY FROM THE ELEMENTS IT ARISES OUT OF EMPLOYMENT (“Actual Risk Test”) o Hanson v. Reichelt · The workers’ compensation act is to be construed liberally in favor of the employee


Actual risk governs injuries from exposure to the elements. If the nature of the employment exposes the employee to the risk of such an injury, the employee suffers an accidental injury arising out of and during the course of the employment. It makes no difference that the risk was common to the general public on the day of the injury, the question is whether the employment exposes the employee to the risk. ARISING OUT OF EMPLOYMENT REQUIRES A CAUSAL CONNECTION o Chicago Board of Education v. Industrial Commission · “Occupational disease” means a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment. Such aggravation shall arise out of a risk peculiar to or increased by the employment and not common to the general public. A disease shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease. The disease need not to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence. · Whether mental illness qualifies as an occupational disease depends upon whether the employee can establish the risk to which he was exposed arose out of and in the course of his employment and has a clear causal relationship to the disability suffered. The disease must flow from the risk as a rational consequence. · A causal connection between the employment and the disability must be established by showing that the employment exposed the employee to an identifiable condition of the employment that is not common and necessary to all or to a great many occupations. Stated differently, mental disorders not resulting from trauma must arise from a situation of greater dimensions than the day to day emotional strain and tension which all employees must experience. · Policy Consideration: Should we allow workers’ compensation benefits for employees who suffer mental harm as a result of layoff? Same question as asked with childcare – in the absence of a broad social welfare program, does it make sense to tie this to employment? EXCLUSIVITY IS ONE OF THE FOUNDING PRINCIPLES OF WORKERS’ COMPENSATION. IN EXCHANGE FOR A NO-FAULT SYSTEM (WHICH BENEFITED WORKERS), WORKERS’ COMPENSATION BECAME THE EXCLUSIVE REMEDY AGAINST THE EMPLOYER FOR A WORKER INJURED ON THE JOB (WHICH BENEFITED EMPLOYERS). THERE ARE SEVERAL EXCEPTIONS THAT ALLOW AN INJURED EMPLOYEE TO BRING A TORT SUIT AGAINST THE EMPLOYER OR ANOTHER PARTY. WHERE WORKER CAN SHOW ‘INTENTIONAL WRONG’ WORKERS’ COMPENSATION IS NOT THE EXCLUSIVE REMEDY o Millison v. Du Pont · NARROW exception: intentional wrong · Intent = substantial/virtual certainty of the harm, reviewed based on the context. · Conduct in knowingly exposing plaintiffs to asbestos clearly amounts to deliberately taking risks with employees’ health, the mere knowledge and appreciation of risk, even with a strong probability, is not substantial certainty and thus will not be found to be an intentional wrong in order to overcome the exclusive remedy bar. · However, tolerating in the workplace conditions that will result in a certain number of injuries or illnesses is different than actively misleading the employees who have already fallen victim to those risks of the work place and such intentionally-deceitful action goes beyond the bargain struck by the Compensation Act.




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OSHAct covers virtually all private sector employees (exceptions: federal employees, state and local employees and small employers/farms) – written with the intention of imposing safety standards Enforcement with the OSHAct is done through compliance inspections, but these are done with relative infrequency. There are two types of inspections: (1) programmed inspections at highhazard industries and workplaces and (2) unprogrammed inspections triggered by accident reports. However, the standards are not specific: §5(a) subjects employers to a general duty to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” and requires further that each employer comply with the standards promulgated under the Act. o There are four elements to a general duty claim: (1) The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed; (2) the hazard was recognized; (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible method to correct the hazard. A recurring issue is what criteria should be used in creating standards – the most prominent proposals are (1) technological feasibility, (2) economic feasibility, (3) benefits to workers’ health or safety, and (4) cost-benefit analysis CONSIDERATION OF TECHNOLOGICAL AND ECONOMIC FEASIBILITY IS APPROPRIATE See AFL-CIO v. Brennan o OSHAct is meant to upgrade working conditions, not to completely eliminate hazardous occupations (though this would be the most certain way of eliminating hazards). o There are surely industrial activities of little social utility that involve such great hazards that there total elimination may be appropriate o The Secretary may consider technological feasibility, but cannot dismiss a standard when the technology looms on the horizon/will be available in the near future because the OSHAct is “technology forcing” o Because Congress did not intend to protect employees by putting their employers out of business with either requirements for non-existent protective devices or by making financial viability generally impossible, so economic feasibility should be considered too – financially burdensome is fine but prohibitively expensive is not. Standards whose cost alter the competitive structure of the industry or be unenforceable due to widespread noncompliance maybe economically infeasible. o Policy Consideration: Is it appropriate to allow for the operation of the economy to trump the functioning of the statute? OSHA MUST HAVE A WARRANT TO INSPECT WORKPLACES


Marshall v. Barlow’s Inc. o The purpose of the 4th Amendment is to protect against unbridled, arbitrary government intrusion at home and business. o That an employee is free to report, and the Government is free to us, any evidence of noncompliance with OSHA that the employee observes furnishes no justification for federal agencies to enter a place of business from which the public is restricted to conduct their own warrantless search. o Ex parte warrants do not impose an undue burden on the inspection process – they just need to show reasonable need for conducting the investigation o Policy Consideration: Does it really make sense to provide the protections applicable in the criminal context to regulatory safety arena or is there a false equivalence? THE OSHAct INCLUDES A RIGHT TO REFUSE TO WORK IN NARROW CIRCUMSTANCES AND A RELATED RIGHT AGAINST RETALIATION Whirlpool Corp. v. Marshall o The statutory scheme is intended to provide swift remedy, but in the event it is not sufficient to protect workers, when (1) the employee is ordered by his employer to work under conditions that the employee REASONABLY believes pose an imminent risk of death or serious bodily injury, and (2) the employee has reason to believe that there is INSUFFICIENT TIME or opportunity to either seek effective redress from his employer or apprise OSHA of the danger, then the employee may refuse to expose himself to the dangerous condition without being subject to ‘subsequent discrimination’ by the employer. This right is extremely constrained, you must pursue the statutory channels first – this is not a broad walk-off right. o This standard comports with the preventative function – it would seem anomalous to construe the Act from prohibiting an employee, with no other reasonable alternative, the freedom to withdraw from a workplace environment that he reasonably believes is highly dangerous o Employees who refuse to work forego their pay, but cannot be discriminated against


IX. Employee Leave

Leave time is important in that it plays a role across broader workplace issues like gender disparities. Leave time is regulated by many state and federal laws – Family Medical Leave Act, ADA (as a reasonable accommodation), Pregnancy Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, etc. FAMILY MEDICAL LEAVE ACT (FMLA) MOST IMPORTANT FEDERAL LEAVE-TIME LAW; REQUIRES EMPLOYERS WITH 50+ EMPLOYEES TO GRANT UP TO 12 WEEKS OF UNPAID LEAVE EACH YEAR TO ELIGIBLE EMPLOYEES WHO HAVE SERIOUS HEALTH CONDITIONS THEMSELVES, WHO NEED TO CARE FOR A NEWLY BORN OR ADOPTED CHILD, OR WHO NEED TO CARE FOR A SPOUSE, CHILD, OR PARENT WITH A SERIOUS HEALTH CONDITION. PREGNANCY IS NOT A PER SE SERIOUS HEALTH CONDITION, BUT IN CERTAIN CONTEXTS CAN BE ONE ENTITLING AN EMPLOYEE TO FMLA LEAVE Whitaker v. Bosch Braking Systems Division o The FMLA provides covered employees up to 12 weeks leave time for serious health conditions or to care for family members, which can be taken either intermittently or on a reduced schedule when medically necessary. o The FMLA requires continued benefits and reinstatement to a comparable position upon return. o Eligibility for FMLA leave requires: (1) a serious health condition (or other qualifying circumstance); (2) that prevents the employee from performing her job duties; and (3) provision of reasonable notice to the employer. o Serious health condition means “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” o Pregnancy is a serious health condition only if it produces a period of incapacity or if prenatal care is sought. o Whether the pregnancy prevents performance of job duties is context-dependent – two women with normal pregnancies may be exposed to different risks because of different job duties. o Policy Consideration: In the ADA context, we examine disability based on a broad class of jobs, here the examination is with the pregnancy and the job at hand. Why? COURTS MAY STRETCH THE INTERACTION BETWEEN THE ADA AND THE FMLA TO ALLOW FOR EMPLOYEE LEAVE UNDER COMPLICATED CIRCUMSTANCES – THE FMLA MAY PROVIDE LEAVE FOR A BROADER SET OF MEDICAL CIRCUMSTANCES THAN WOULD BE PROVIDED UNDER THE ADA Byrne v. Avon Products o The ADA prohibits discrimination of a qualified individual with a disability (one who can perform the essential functions of a job with and without reasonable accommodation) because of the disability. An accommodation of NOT WORKING is not reasonable under the ADA, except in the case of some intermittent conditions like lupus. o The FMLA affords leave time for qualifying conditions with notice to the employer. o Notice of a serious mental health condition could take the form of a noticeable change in behavior or can be excused where the condition is unforeseeable and thus the employee is incapable of providing notice/notice is infeasible. o Policy Consideration: Is it appropriate for the court to take into consideration the protections offered by one statute in construing another? USERRA Governs leave for members of the uniformed services in connection with their service duty USERRA LEAVE ENTITLES EMPLOYEES TO NON-DISCRIMINATION BUT ONLY IN THE SAME NON-SENORITY RIGHTS AND BENEFITS AS OFFERED TO EMPLOYEES ON OTHER TYPES OF LEAVE

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See Rogers v. City of San Antonio o USERRA was enacted to encourage noncareer service in the uniformed services by eliminating or minimizing disadvantages to civilian employment, to provide prompt reemployment upon return from service, and to prohibit discrimination. o Employers with a seniority system must restore returning service members to their place on the “escalator” (i.e. where they would be had they not left to serve). o VRA precedent could allow for two readings of the antidiscrimination provision: (1) Broad: anything missed as a result of absence is a denial of a benefit, thus service members on leave should be treated as if they were constructively present or (2) Narrow: benefits must be facially neutral so that benefits accrued for maternity leave are similarly accrued for military leave. o Service members will NOT be considered constructively present for non-seniority workplace benefits and need only be treated in the same way as other leave programs – preferential treatment is not necessary.


X. Enforcement of Employment Rights
←A. Common Enforcement Issues 
Enforcement takes various forms – sometimes by the individual employee, sometimes by government agencies. Class actions are sometimes allowed. Sometimes there are fines. Sometimes there are punitive damages allowances. PROVISION OF ATTORNEYS’ FEES TO THE PREVAILING PARTY ARE AWARDED ON A DIFFERENTIAL BASIS DEPENDING WHETHER PLAINTIFF OR DEFENDANT Christianburg Garment Co v. EEOC o Title VII Presumption: prevailing plaintiff is ordinarily awarded attorney’s fees except in special circumstances due to equitable considerations tied to the fact that: (1) plaintiffs are the instruments of Congress for the vindication of a policy of the highest priority and (2) such an award operates against a party found to be in violation of federal law. o Attorney’s fees may be awarded to a prevailing defendant at the discretion of the court upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. STATE LAW CLAIMS MAY AMPLIFY THE RIGHTS PROVIDED BY FEDERAL LAW Bahramipour v. Citigroup Global Markets, Inc. o CA UCL prohibits any unlawful, unfair or fraudulent business act or practice and incorporates other laws and treats violations of them as unlawful business practices independently actionable under state law. o Under some circumstances, this may result in an extended statute of limitations and expanded restitution o Policy Consideration: To what degree are we comfortable with allowing state and local governments to alter the applicability of federal employment regimes? UNDER-ENFORCEMENT MAY RESULT FROM A COLLECTIVE GOODS PROBLEM Weil, Individual Rights and Collective Agents There is an enforcement gap between the law on the books and the employment reality. There will be under-enforcement when it was left to the workers due to (1) a public goods problem [benefit to the collective is greater than to the individual] and (2) the cost of exercising rights [workers use a CBA to assess and the cost to the individual may be higher than their benefit]. Could be resolved by collective agent which would solve the public goods problem by aggregating preferences and spreading the costs. An effective collective agent would have (1) aligned interests, (2) method for efficient information collection, and (3) method for protecting against retaliation. B. Arbitration of Employment Disputes

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There are two types of arbitration: (1) interest arbitration (unusual in the US employment sector) where a neutral body establishes the rights or terms between parties who cannot agree by themselves and (2) grievance/rights arbitration (long history in unionized labor) where a statute or contract has set out the rights and terms, but the parties cannot agree on how they apply in a particular context. Arbitration involves informal hearings and loose rules of evidence RESOLUTION OF FEDERAL STATUTORY CLAIMS CAN BE SUBJECT TO COMPULSORY ARBITRATION UNDER CERTAIN CIRCUMSTANCES Gilmer v. Interstate/Johnson Lane Corp. o Statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA, which endorses a liberal policy favoring arbitration agreements and was intended to place arbitration agreements on the same footing as other contracts, unless Congress has evinced a clear intention to preclude a waiver of judicial remedies for particular rights. o Policy Consideration: If you can’t waive your federal rights (under the FLSA, for example)


o o

why can you waive judicial remedy? Policy Consideration: What does the employee get in exchange for waiving these procedural rights? Policy Consideration: Are these agreements ever “voluntary”? Is this a reasonable choice to force upon the employee – arbitrate claims/waive access to a judicial forum or no job?

FAA APPLIES TO EMPLOYMENT CONTRACTS Circuit City v. Saint Clair Adams o The exception to non-applicability is narrow for seamen, railroad employees and other classes of workers engaged in foreign or interstate commerce ARBITRATION OF STATUTORY CLAIMS MUST MEET CERTAIN MINIMUM REQUIREMENTS IN ORDER TO BE ENFORCEABLE Armendariz v. Foundation Health o Mitsubishi dictum was prescriptive – in agreeing to arbitrate a statutory claim, the plaintiff does not forego any substantive rights, simply submits to their resolution in an arbitral forum. o Procedural requirements: (1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access.


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