Employment Law Outline

Published on July 2016 | Categories: Types, Business/Law | Downloads: 34 | Comments: 0 | Views: 395
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Employment Law Outline for Work Law cases and materials



Meaning of Work and the Changing of Workplace  Meaning of Work Work as a vitue o Example: Protestantism views work as parallel with self sufficiency and industriousness Work helps with self-worth o Society views unemployment as weakness o Gives the ability to provide for self, family Work and Identity o “You are what you do.” Changing Workplace Workforce Trends o Baby-boomers getting older, retiring o Other trends: Women hold steady at at half the workforce, increased diversity needed o Increased work times (more hours per year) o Unions declining o Income inequality growing o New Technology, pushing workers out of the market o Education increasingly necessary o Outsourcing increasing o Immigration into US – “exploitable workers” o Worker training: shifting to employee’s responsibility – expectation that employment relationship will not last – training = investment The “New ‘New Deal’” o Flexibility and efficiency replacing long term commitment and equity o Pay for performance rather than emphasis on seniority, employment development, and internal job ladders o New “Psychological Contract” – employees give up job security for worker training to enhance employabilioty, networking opportunity and compensation tied to markets  Effects: Reduced tenure, employee instability, shifting risk to workers  High turnover jobs: Service sector jobs – rigid control systems to buffer effect of constantly changing workforce  Corporate citizenship: incentive employees to perform well by making them “a part of the company”

Contracting and Job Security  Default rule: Employment terminable at will

o Why? Early 1900’s: Adair – Government stays out of it o Employee and Employer have equality of right (to quit or to fire, to accept employment or to hire) o Lochner: Court will not intervene in employment – Freedom of Contract  State statute limiting number of hours interferes with right of contract between employer and employees. Contracting for employment falls under 14th Amendment.  State has police powers, but they may only go so far Muller – The Court says that states can pass laws restricting the number of hours that women can work per week o Court needs to look out for women (women seen as weaker) so its OK for the states to interfere here Contract vs. At-Will Savage—An indefinite hiring is a hiring at will and may be terminated at any time, by will of either party o Plaintiff’s “consideration” – moving, giving up other employment, etc. were merely a detriment to him and not mutually understood as an “agreed exchange” or consideration. Overcoming At-Will Employment: Express Agreement (rare) o Guiliano: Employer can not “constructively terminate” an employee – must show “just cause” as employment angreement required. o Definite term contracts: employment for a definite period of time enough to overcome the “at-will preseumption, even when contract is silent on termination o “Just cause” – generally understood as poor job performance or employee misconduct  Financial reasons are insufficient to qualify as “just cause”  Modern courts willing to enforce contracts for an indefinite term with “just cause” limitations when “terms are clear.” Oral contracts: treated just like written contracts o Oral contracts face more hurdles  Puffery vs. Promise Implied Agreements: Courts will enforce certain contractual rights in situations where agreement is implied, but individual contracts are lacking o Woolley – Employee handbook is a unilateral contract  Termination provisions are company “policy” not “philosophy”  Employee’s consideration was continued employment o To avoid liability when termination occurs, the employee can put a “clear and conspicuous” disclaimer in the handbook in order to avoid appearance of contract

o Asmus: Employer can unilaterally modify a manual so long as it occurs after a reasonable time and w/ reasonable notice (though some look to see if Er reserved the power to modify in handbook). Implied-in-Fact Contracts: No mutuality and additional consideration needed. Taking job and doing it are adequate o Implied in fact promise factors: (1) personnel policies (2) longevity of service (3) Actions assuring assurances of continued employment (4) Practice of industry o Employee not terminable at will – court says need good cause” – something reasonable but less than “just cause” Implied covenant of good faith and fair dealing: Every contract imposes upon each party a duy of good faith and fair dealing in its performance and enforcement. o Fortune: Even in an at-will contract, employer can not fire an employee for the purposes of not wanting to pay him commissions that he is on the brink of receieving o Courts also recognize an “unfettered right to terminate” – “at will” is an express term in a contract, trumping any implied terms

Public Policy Protections   Work to mitigate the harshness of the At-Will rule. Public Policy places some limits of unbrideled discretion to fire an employee at-will Examples include interference of employes right to: (1) refuse to commit perjury (2) file a workers comp claim, (3) engage in union activity or (4) perform jury duty o Sheets: Court recognizes public policy exception – employee in a position that affects public safety and health o Also, employee was held to personal liability o Dissent: Court is making policy, this should be up to the legislature What is public policy? “What is right and just and what affects the citizens of the State collectively. o No clear line of demarcation o Must strike at heart of citizens “social rights, duties, and responsibilities” o Hayes v. Eateries Inc.: no exception when claim doesn’t involve a “clear and compelling public policy” (P worked for a private corp.)(purely private interests) Constructive discharge: Public policy exception requires a “wrongful discharge”, defined as when “an employer creates working conditiopns so intolerable that the employee has no option but to resign.” o Storinsky: Policy behind rule: you don’t want to give employers a “loop-hole” in order to avoid liability/litigation Statutory Protections for Whistleblowers – protects employees from retaliation for violations of a specific statute o Protections tend to emphasize public health and safety concerns

o Enron spurred new legislation covering financial harm o Day v. Staples: Whistleblower must have an “objectively reasonable belief” that reported violation was in violation of SOX Unemployment Insurance  System aims to promote more stable employment and acts as a stopgap for employees who have an attachment to the workforce o For those who lose jobs through no fault of their own and actively seek and remain able to work o Administered at the state level o 26 week standard period for jobless to collect, can be extended 13 weeks during periods of high unemployment o Those who left job voluntarily, with no work-related good cause are ineleigible to receive benefits

Employee Mobility  In General: Employers seek to take their services to the highest bidder in an era when long-term employment is no longer the “norm.” Part of the “New Psychological Contract.” Covenant Not to Compete: Prevents employee from engaging in competition with former employer for a period of time after termination of employment o Hopper: A restraint is only reasonable if: (1) it is no greater than required for the protection of the employer; (2) does not impose undue hardship on the employee; and (3) is not injurious to the public. o Policy behind it: protects trade secrets, confidential information, and against special influence obtained by the employee during the course employment over the employers customers. o Balance between protecting employees from unfair restraints and preventing unfair competition. Protecting trade secrets o Dicks v. Jensen: Two components to a trade secret. (1) information has independent economic value and is not readily ascertainable to others (2) subject to efforts that are reasonable under the circumstances to maintain its secrecy. o Types of trade secrets include: strategic elements of a business plan, formulas for products, pricing information o Commons methods for maintaining secrecy: confidentiality agreements, passcodes or passwords, restrictions on public disclosures of confidential information

Inevitable disclosure: courts may enjoin “actual or threatened” misappropriation of a trade secret. o Policy: we want to encourage innovation and invention. Without doctrine, employers may try to hide information in their employees or underinvest in innovation Employee inventions: many employers require employees to sign contracts governing the ownership of any resulting patents (either joint ownership or assigning full rights to employer) o Womack : employer’s assistance in reducing the invention to practice was not necessary to its obtaining a shop right. The principal consideration is the employee’s consent. This may be shown by either the employee’s actual consent to the employer’s use, or by the employee’s use of the employer’s time and facilities to make the invention. o Policy reasons: justified as necessary to encourage adequate employer investments – don’t want invention-owning employees to “hold-up” employer investment

Employee Privacy  Privacy in General: Touches upon a number of distinct interests: intusion upon physical space, seizure of personal effects, insuring bodily integrity, shielding communications etc. Constitutional protection for public employees o O’Connor: In public sector, case-by-case analysis necessary  Fouth Amendment applies to searches by public employers  Standard of reasonableness requires “balancing nature and quality of the intrusion on the individual’s Fourth Amendment interests AGAINST the importance of the governmental interests alleged to justify the intrusion.”  Public Employer: Invasion of legit expectations of privacy v. governments need for supervision, control and sufficient operation of the workplace Privacy of Electronic Communications o Smyth v. Pillsbury: No reasonable expectation of privacy when emailing over company email system  Liability only attaches when the “intrusion is substantial and would be highly offensive to the “ordinary reasonable person”  Company’s interest in maintaining integrity and professional email system outweigh employees interests may have in those comments o Stengart: Use of a company computer to use a private email account does not justify intrusion of privacy

Policies which allow compnays to access private email accounts further no legitimate business interests o Reasonable expectation of privacy – subjective standard – what did the person rely on to determine what would be considered private? o A search is reasonable in scope when “the measures adopted are reasonably related to the search and not excessively intrusive in light of the nature of the misconduct.” Productivity Monitoring o Employee argument: having a measure eof control over work life is eesential o maintain a sense of identity and personal dignity o Employers: have legit interest in managing business interest as they see best – have interest in increasing productivity protecting company property, providing security and preventing illegal activity (reducing liability)

Employee Voice  Employee interests in voice o Speech has “intrinsic value” – fosters individual self-realization, promotes autonomy o Promotes “informed self-governence” in the workplace o Greater job satisfaction when employees have a voice o Fosters deliberation, better decision making o Speech at workplace gives speech a forum – speech can cross social divisions Public Sector o Pickering: Court sees value in allowing certain public employees to speak freely on public matters  Doesn’t impact working relationships, job not affected, no compelling government interest o Connick v. Myers: Employee not speaking as citizen on matters of public concern but as employee on matters of personal concern – speech not protected  First amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs o Threshold test: Is speech a matter of public concern? o Garcetti: When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.  New test: Look to the role of the speaker first before looking at the content.  Assurance that public employees have whistleblower protections Private Sector Employees

o Novosel v. Nationwide: Public employee analysis can apply, public policy issues at stake. Can’t condition employment on political subordination. Nontraditional Mechanisms for Collective Voice o Indentity Caucuses – address concerns of “minority groups” like gays, women, people of color  Based upon common interests arising out of social identity groups  Challenge discrimination and changing employer practices o Worker Centers – Community based membership organizations  Nonprofit orgs committed to building democratic organiztions that are accountable to the interests, needs, and goals of the workers being organized o Employee Involvement programs –most are initiated to increase productivity or quality in response to global comptetition.  Designed to make the workplace collaborative between manager and works rather than adversarial

FMLA  FMLA in general: providea relief to employees by allowing those who qualify to take unpaid leave to care for anew child, sick children, spouses or parents, or for the workers own serious illness. Provisions and Effects To qualify, employee must: o Work more than 1250 hours in a year o Have worked for employer for at least one year o Work for an employer that employs more than 50 employees Qualified employees are entitled to: o Take up to 12 weeks of unpaid leave to care for (1) child or adopted child (2) care for a child, spouse or parent who has a serious health condition (3) for one’s own health condition o Employee entitled to be restored to the same position as when they left o Entitled to retain health benefits NOT Entitled to seniority while on leave Employee must provide 30 days notice, when feasible Policy debate: Stronger leave legislation will allow women to better handle competing demands o Mother cut out of labor pool becayse they can’t work the “good jobs” – 40 hour plus per week  Proportionality for part time work  Restructure work schedule: Flextime  Restructure family responsibilities

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Extensive state support for childcare Encouragement of Education

Workplace Regulation  The Regulation of Wages and Hours o Fair Labor Standards Act: Establishes a federal minimum wage and imposes financial penalities on employers who required employees to work more than the statutory norm o Enacted during the New Deal to quell labor unrest  Hire more workers at shorter hours to alleviate unemployment o Wages: Minimum wage provides employes can’t pay less than 7.25 an hour  Overtime: Employers must pay 1.5x rate for hours worked in excess of 40 per week  Neither min wage or overtime can be waived by provate agreement Covered Work o Individual coverage test: employee covered if engaged in commerce or production of goods for commerce in a given week.” o Enterprise coverage test: All employees covered if (1) enterprise engaged in production of goods for commerce (2) has two or more employees (3) gross sales or business volume of $500k or in a public facility, hospital, res care facility, or educational institution. o Employees vs. Independent contractors – label doesn’t matter – look at “economic realities of employment”  Relevant factors:  Degree of control that employee has over her work  Emplyees opportunity for profit or loss depending on his managerial skill  Employees investment in equip or materials necessary for task  Whether special skill required for services  Degree of permanence of working relationship  Whether the service rendered is an integral part of the alleged employers business o Exemptions from Coverage: cover minimum wage and overtime provisions of the act  Lower end exemptions:  Seasonal amusement and reactional businesses  Certain fishing and aquatic business employees  Most agriculutural workers  Publishers of small newspapers

Domestic workers

High End Exemptions Executive employees – those whose primary duty consists of management of the enterprise or one of its subdivisions o Primary duty managing enterprise or a subdivision thereof o Direct the work of two or mor other employers o Has the authority to hire and fire  Administrative employees – primary work consists of office or nonmanual work related to management policies or general business operations AND has a primary duty which includes exercise of discretion and independent judgment with matters of signifigance  Professional Employee  Learned o Primary duty requires knowledge of an advanced type o In the field of science or learning AND o Knowledhe ius customarily acquired by a prolonged course of specialized instruction Creative:Primary duty is work requiring invention, imagineatoin, originality, or talent ina recognized field of artistic or creative endeavor  Computer Professionals: Paid on a compensated hourly rated of more than 27.63  Outside sales employees  Paid by Commission  Hihghly Compensated Employees: Paid at least $100k a year and perform duties of a professional, executive, or admin employe o Covered work and enforcement  Meal periods – Not covered under FLSA but some states do cover them  Training – covered when for benefit of the employer  Travel time – Portal to Portal Act – home to work commute not covered but while traveling on travel, etc is compenselable  Preliminary and Postliminary Activites – Not an integral part of the principal job activites and are not compensable unless made so by contract Workers’ Compensation  In general: Goal is to prevent income support for victims o Schemes exist to provide prompt assistance to injured workers regardless of fault 

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Benefits and Procedures o State laws differ o Federal laws establish separate somensatipn schemes for certain workers o Employers may purchase insurance, participate in state system or self-insure Who is an employee? Single most import factor is whether purported employer has right to control actions of employee Arises out of and in the Course of Employment o Test for work-related injury o Prows: Horseplay still covered under test  In cases such as this cases look to (1) extent and seriousness of deviation (2)completeness of the deviation (is it comingled with employee work actrivites?) (3)extent to which horseplay practice has become accepted part of employment (4) Extent to which some horseplay should be expected o Houser: physical or mental injuries caused by a mental or emotional stimulus; excessive and unexpected mental anxiety; or stress, tension, or worry attributable to the employment can justify an award of benefits, but the ordinary mental stresses and tensions of one’s occupation do not because emotional stress, to some degree, accompanies the performance of any contract of employment o Eckis v Sea World – Worker injured while performing work outside of normal job duties, but nonetheless still performed “at work” can’t sue in tort – workers comp is her exclusive remedy o Cole – Plaintiff can’t sue for conduct (emotional stress) that can be expected to occur with substantial frequency in the work enviornment

Arbitration  In general – replacing litigation as the primary source of dispute resolution o Arbitration clauses included in employee contractsas a condition of employment o Arbitration does not alter employee rights, but rather the forum where substantive employee rights are adjudicated o Use of system on the rise – up to 23% in 2003 Enforceability o Three bases for disputing arbitration agreements 1) Under FAA\ 2) Must satisfy certin minimum standards of due process 3) Utilize state law contract principles – unconscionability, bad faith, lack of consideration, lack of assent Under the FAA, an agreement is enforceable if it is valid and the dispute falls within the scope of the agreement Due Process – standards for assessing enforceability

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o Five criteria: (1) provides for neutral arbitrators (2) provides for more than minimal discovery (3) requires a written award (4) provides for all types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs OR any arbitrtators fees OR expenses as a consition to access to the forum Judicial Review: Arbitration decision are final and unappealbale – save for a few narrow exceptions o Where award was procured by currption or fraud//undue means o Where there was evident partiality or corruption by arbitrators o Where arbitrators guilty of misconduct in refusing to postpone hearing o Where arbitrators exceeded their powers or so imperfectly executed them that mutual, final and dfinite award upon the subject matter submitted was not made

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