Ch. 37, 38,39,40,41 study guide

A's liability for A's torts

(A is always liable for their own torts)

Fully disclosed

(A is not personally liable)

Partially disclosed

(A is personally liable)

Undisclosed

(A is personally liable)

(1) The plaintiff must establish a prima facie case of discrimination:

(A) She is a member of a protected class. ▪ (B) She applied for and was qualified for the job (or promotion, etc., depending on the factual circumstances of the controversy) and met the employer's legitimate expectations. ▪ (C) She was rejected by the employer. ▪ (D) The employer continued to seek applicants or filled the position with a person outside the protected class.

Liability for misclassification

(can include back pay, fines, etc.)

Whistleblower laws

(usually provide either antiretaliation protections or financial incentives; though Dodd-Frank provides both) ▪ These laws typically apply only in specific situations or contexts, however, resulting in a patchwork approach - there is no universal whistleblower protection law ▪ State whistleblower laws ▪ Separate and independent defense is available to employers

A's liability on contracts

A can be personally liable on a contract that they negotiate for P depending upon the degree to which they disclose the arrangement to the third party ▪ Three types of agency: • Fully disclosed (A is not personally liable) • Partially disclosed (A is personally liable) • Undisclosed (A is personally liable)

For A's negligence: respondeat superior (form of vicarious liability)

A must be an employee • Third party must suffer physical injury • A must have been acting within the scope of their employment, such that the A's tortious conduct was: o Related to their duties as an employee of the P; o Occurred substantially within reasonable space and time limits; and o Motivated, at least in part, by a purpose of serving the P. ▪ Frolics and detours ▪ Going-and-coming rule

Restatement (Third) of Agency

Agency exists on the state statutory level, influenced heavily by the _____

(1) The public policy exception (2) Implied contracts (3) Covenant of good faith and fair dealing

Common law exceptions

ABC Test

Creates a presumption that all workers are employers; this is a rebuttable presumption that the employer can establish by showing that (A) the individual is free from direction and control (both in the contract and in fact); (B) the service is performed outside the ordinary course of business; and (C) the individual is engaged in a trade or occupation that is customarily viewed as independent, of the same nature as that involved in the service that the worker performs for the employer.

o Manifest and consent (including the objective reasonable person standard) o Control o Formalities

Creation of an Agency Relationship

Theories of discrimination

Disparate treatment (McDonnell Douglas standard) Mixed motives (Hopkins standard) Disparate impact (Griggs standard)

(1) professionals who require specialized study and certifications, such as attorneys, physicians, teachers, and accountants; (2) management or supervisory employees; (3) computer programmers and engineers; and (4) employees subject to certain certification and regulatory requirements, such as insurance adjusters or dental hygienists.

Examples of exempt employees include

o Exempt employees

Executive, administrative, and professional employees do not generally need the FLSA's protections and are "____" ▪ To be considered exempt, an employee must make a minimum annual salary of $47,476 per year, or $913 per week. Those earning more than $134,004 are classified as highly compensated employees and are always presumed to be ____. ▪ In classifying an employee as covered or ____, employers must take into account multiple factors that are known as the duties test: ▪ Liability for misclassification (back time to the employee, fines paid to the government, etc.)

• Education or skill level or certifications required for the position, salary level, and compensation method (i.e., commission versus hourly); • Amount of physical labor required; • Amount of repetitive tasks (e.g., performing an unskilled task over and over again, as does a clerk in a company mailroom); and • Degree of supervision required by the employer.

In classifying an employee as covered or exempt, employers must take into account multiple factors that are known as the duties test:

Remedies

Include an injunction (a court order to cease from engaging in a particular unlawful practice or an order compelling a party to act), reinstatement, compensatory damages in the form of back pay, retroactive promotions, and requirements that the employer take certain actions in order to remedy patterns or practices resulting in discrimination. Punitive damages (intended to deter future conduct of employers) are available only when a plaintiff proves that a private employer acted with malice, in retaliation, or with reckless disregard to the employment discrimination laws.

Labor unions and collective bargaining

National Labor Relations Act (NLRA) (1935) o Union formation - collective bargaining units o Union functions

Employee agents

Principals are generally liable for employees' acts and omissions

Independent contractor agents

Principals are generally not liable for ICs' acts and omissions

(1) The public policy exception

Protects employees from job termination if they are exercising some legal right (when employers' reasons for the termination violate public policy) ▪ Narrowly-applied: the public policy objective must be explicit and well established (usually, this means that the exception is related to an existing statute, the state constitution, or a previously established policy) ▪ Examples (refusing to commit an illegal act; exercising a legal right; performing an important act)

wrongful-termination lawsuit

So long as the termination does not fall under one of the exceptions, the employer is insulated from a _____

o False Claims Act o State laws o Whistleblower laws

Statutory exceptions

Express acts

Termination (revocation and renunciation) ▪ Expiration of fixed term (time period or an event) ▪ Satisfaction of purpose of the agency

(1) the employee has an express contract; (2) courts have fashioned a common law exception; or (3) there is a statute that provides protection to the employee (two major examples of this are whistleblower statutes and antidiscrimination laws)

Three key exceptions to the employment-at-will doctrine exist. When one of these exceptions is present, the doctrine does not apply:

Employment discrimination defined

covers the entire gamut of the employment relationship from hiring to termination

Substance-over-form test

fundamentally, the degree of control that the principal exercises over the worker. ▪ Factors include who controls the worker's hours, what salary to pay, the working conditions and responsibilities, how many customers or clients the worker is working for, who provides the tools for the worker, the degree of day-to-day supervision required or being exercised, etc.

agency transaction

involves one party acting on behalf of another

Two steps:

o (1) Employee must prove that the protected-class membership was a substantial factor in the decision-making process. o (2) The burden then shifts to the employer to offer evidence that it would have made the same employment decision regardless of the protected characteristics.

Three steps:

o (1) Plaintiff must first prove a prima facie case by showing that certain methods resulted in statistically significant differences that adversely impacted members of a protected class. ▪ To satisfy this requirement, the plaintiff frequently provides statistical data related to a testing measure. The EEOC's Uniform Guidelines on Employee Selection Criteria defines adverse impact as occurring when members of a protected class are selected at a rate less than 80% of that of the highest-scoring group. o (2) The burden of proof then shifts to the employer to provide evidence that the challenged practice is job-related for the position in question and is a business necessity. o (3) The plaintiff may still prevail if he proves that the employer refused to adopt an alternative practice that would satisfy the employer's interests without having the adverse impact.

• Three prongs in the test:

o (1) The plaintiff must establish a prima facie case of discrimination: o (2) The burden shifts to the employer, who then articulate a legitimate, nondiscriminatory reason for the discriminatory action. o (3) The burden then shifts back to the employee to show that the reason given by the employer is not the actual reason for the employment action.

Express contracts

o An _____ can be intended to displace the employment-at-will rule; these are typically for managers o _____ typically provide that the employer may terminate the employee only for "good cause," which is then defined to one degree or another in the contract o Collective bargaining agreements may provide some protections for non-managerial employees as well (e.g., by describing a process that must be used by the employer before terminating an employee)

• Employer Defenses

o Business necessity = Used to rebut disparate impact claims when a business can prove that a certain skill, ability, or procedure is absolutely necessary to the operation of the business. Discrimination is permitted even if a protected class is adversely affected. o Faragher/Ellerth defense = An employer may avoid vicarious liability by proving that a system was in place that was intended to deter, prevent, report, and correct any harassment; and the employer proves that the employee failed to take advantage of the preventative or corrective opportunities provided. o Bona Fide Occupational Qualification (BFOQ) = A provision in certain federal antidiscrimination statutes that allows discrimination based on religion, gender, or national origin when it can be shown that such discrimination is reasonably necessary to the business operation (never race). o Seniority o Employee misconduct

Fair Labor Standards Act (FLSA) (1938)

o Established minimum wage, maximum 40-hour workweek, overtime pay, and regulation of child labor o Minimum wage o Maximum workweek and overtime o Exempt employees o Child labor o State wage and hour laws

Family and Medical Leave Act (FMLA) (1993)

o FMLA is administered by the Department of Labor and applies to employers that have 50 or more employees within 75 miles. o To be eligible, an employee must have worked for the company for at least 12 months and have worked 1,250 hours during the past 12 months. o The law mandates that the employers provide up to 12 weeks of unpaid leave to employees for purposes related to family medical matters during any 12-month period. o An eligible employee may take an FMLA leave (a) when the employee needs to care for a newborn or newly adopted baby or (b) when a serious health condition affects the employee or the employee's spouse, child, or parent. o The FMLA does not require employers to pay employees on leave but does require that the employer maintain the employee's health care and other benefits. o The FMLA also affords employees certain protections related to job security: (1) Employers are restricted from taking or threatening any adverse job action against the employee because of an FMLA leave; (2) upon returning from the leave, employees are guaranteed employment in the same or a similar job at the same rate of pay; and (3) employers must reinstate an FMLA-leave employee immediately upon the employee's notification that the leave is over. o Two theories of recovery under the FMLA: the interference/entitlement theory, and the retaliation/discrimination theory. o Key employees

Americans with Disabilities Act (ADA)

o Fundamentally, the ADA seeks to eliminate discriminatory employment practices by employers with 15 or more employees against disabled persons that would prevent otherwise-qualified individuals from obtaining or continuing employment, being promoted, or obtaining benefits available to nondisabled employees. o The ADA defines disability as a physical or mental impairment that substantially limits a person's ability to participate in major life activities. o To establish a prima facie case of disability discrimination, a plaintiff must show that he (1) is disabled, (2) is a qualified individual, and (3) was subjected to unlawful discrimination because of his disability. o Employer must make reasonable accommodations (but need not suffer an undue hardship). o "Regarded-As" Test (when an impairment does not qualify as a disability, it will be treated as such by the courts when the employer treated the employee as disabled and acted adversely as a result)

Equal Pay Act

o Illegal for employers to pay unequal wages to men and women who perform substantially equal work. o Two-step test:

Employee privacy

o Monitoring of email and internet usage o Telephone and voice mail o Drug and alcohol testing o Polygraph testing

• Health care

o Patient Protection and Affordable Care Act of 2010 (ACA) and Health Care and Education Reconciliation Act of 2010 (HCERA) o If the employer does provide a health care plan, two federal statutes regulate certain aspects of administering the plan:

Retirement and health care benefits

o Pensions and tax-deferred retirement savings accounts o Employers not required to offer these; but if they do, they must comply with the Employee Retirement Income Security Act (ERISA) (1974)

• Vicarious liability of employers

o Recall (from Ch. 38) that employers are typically liable for the tortious actions of their employees when they are acting within their scope of employment. In 1998, the US SC decided two companion cases that extended vicarious liability to employers for sexual harassment under certain circumstances. o The Court held in the Faragher and Ellerth cases that an employer could be held vicariously liable for sexual harassment by an employee when a nonsupervisory co-worker is the harasser if the employee can prove that the employer was negligent in either: (1) discovering the conduct, or (2) failing to respond to a sexual harassment complaint made to a supervisor. o If the harassing employee is a supervisor, then the employer is strictly liable for any sexual harassment claim if the harassment culminates in a tangible employment action such as termination or transfer to a less desirable job. o If the harassment does not result in a tangible employment action (e.g., demotion), employers may avoid liability via the Faragher/Ellerth defense by proving that a system was in place that was intended to deter, prevent, report, and correct any harassment. The employer must also prove that the employee failed to take advantage of the preventative or corrective opportunities that the employer provided. o Defining a "supervisor" - Vance v. Ball State (2013).

Social Security Act (1935)

o Retirement income from the federal government o Funded by employment taxes mandated by the Federal Insurance Contributions Act (FICA) o Employees are entitled to retirement benefits based on how many credits they have earned during their working life (credits are accrued as a worker progresses through his career no matter how many different employers)

Sexual Harassment

o Unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature are considered violations of Title VII if theconduct (1) occurs in the context of explicit or implicit conditions of an individual's employment or as a basis for nay employment decisions, or (2) unreasonably interferes with an individual's work performance or creates an offensive work environment. o Two theories:

• Workers' Compensation and Unemployment Benefits

o Workers' comp statutes are state statutes that provide an employee who is injured in the course of employment with a partial payment in exchange for mandatory relinquishment of the employee's right to sue the employer for the tort of negligence; funded through employer-paid insurance policies or self-funding o Workers' comp is the injured worker's exclusive remedy unless one of the following exceptions is met (in which case the employee can sue in court): o In order to trigger protection under workers' compensation laws, the injury must meet two main criteria: (1) the injury was accidental, and (2) the injury occurred within the course of employment. o Defenses to workers' compensation claims: o Regulation of workplace safety = Occupational Safety and Health Act (OSHA) (1970) o Unemployment compensation (sudden job losses) = Federal Unemployment Tax Act (FUTA) (1935)

• Title VII

o ___ applies to any private sector employer with 15 or more full-time employees, as well as to labor unions, employment agencies, and most local, state, and federal government agencies o Prohibits discrimination in the workplace on the basis of an employee's protected class membership. Specifically, the statute makes it unlawful for an employer: o Protected classes o Theories of discrimination

False Claims Act

provides antiretaliation protections, as well as financial incentives, to employees who blow the whistle on the employers' attempts to defraud the federal government

Whirlpool v. Marshall (1980)

workers have limited right to walk off the job in circumstances in which (1) the employee faces a condition that he reasonably believes will result in serious injury or death and (2) the context makes it impractical for the employee to contact administration inspectors

OSHA:

• (1) sets national safety standards; • (2) mandates information disclosure and warnings of hazardous working areas and assignments; • (3) establishes record-keeping and reporting requirements; and • (4) imposes a general duty upon employers to keep a workplace reasonably safe.

ICs

• General rule: employer is not liable for an IC's torts • One exception: the peculiar risk doctrine (which requires employers to take reasonable steps to determine the fitness of an IC to perform an inherently dangerous task)

For A's intentional torts

• Generally, no liability for P • Exception: where A's intentional tort had a close connection to serving the P

▪ Hostile work environment

• Occurs when the conduct of the harasser (or group of harassers) is of such a severe and crude nature, or is so pervasive in the workplace, that it interferes with the victim's ability to perform their job responsibilities. • The standards for proving hostile work environment are relatively burdensome and require a discriminatory activity that is beyond teasing, offhand comments, or isolated incidents. • While there is no formula for determining a hostile work environment, courts have deemed certain behaviors as a violation of Title VII. These include (1) initiating a discussion of sexual acts, activities, or physical attributes in workplace areas (such as the employee cafeteria); (2) engaging in unnecessary or excessive physical contact; (3) using crude, demeaning, or vulgar language; and (4) displaying pornographic pictures or movies. • Vicarious liability of employers • Remedies

Negligent hiring doctrine

• Occurs when, prior to hiring, the employer knew or should have known of the employee's unfitness (in other words, the employer knew or should have known that the employee may cause intentional harm within the scope of their employment) • Similar for negligent retention, when the employer knew or should have known of the employee's unfitness during their employment • Employers must take reasonable steps to protect third parties from harm at the hands of an employee • Courts are especially inclined to hold employers liable under this theory where (1) the employees are required to have a high level of public contact; or (2) the employees are entrusted with caring for vulnerable populations (e.g, the sick or the elderly).

Disparate treatment (McDonnell Douglas standard)

• Overt and intentional • Usually used when there is indirect / circumstantial evidence • Three prongs in the test:

Courts use a Title VII-based analysis for evaluating age claims (usually, disparate treatment) - for example:

• Prima facie case: (1) protected-class membership (40 or over), (2) satisfactory job performance (based on employer's legitimate expectations), (3) adverse job action such as termination or demotion, (4) replacement with someone substantially younger (or more favorable treatment toward someone substantially younger), or (5) other evidence that indicates that it is more likely than not that the employee's age was the reason for the adverse employment action. • Employer must present a non-discriminatory reason. • Employee can then try to convince the jury that the employer's stated reason is pretextual and the real reason is age discrimination.

▪ Substantially younger requirement

• The federal courts vary in their interpretation of what constitutes substantially younger, but many courts follow the general rule that the age difference must be at least 10 years in order to qualify as substantially younger.

Mixed motives (Hopkins standard)

• Used when the employment action is motivated by both legitimate and discriminatory motives. Thus, there is usually direct evidence of the discriminatory motive, rather than just circumstantial evidence of it. • Two steps:

Disparate impact (Griggs standard)

• When it first announced this theory in Griggs v. Duke Power Co., the SC recognized that intent was not always a necessary element to prove discrimination. Used when the employer has a practice, standard or test in place that disadvantages the Plaintiff's protected class in a statistically significant way. • Three steps:

Prohibits discrimination in the workplace on the basis of an employee's protected class membership. Specifically, the statute makes it unlawful for an employer:

▪ (1) To fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or ▪ (2) To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."

Defenses to workers' compensation claims:

▪ (1) the injury was intentionally self-inflicted or was the result of a knowing violation of safety rules by the employee; ▪ (2) the employee was engaged in willful misconduct or horseplay not condoned by the employer; or ▪ (3) the employee was intoxicated or using illegal drugs.

o In order to trigger protection under workers' compensation laws, the injury must meet two main criteria: (1) the injury was accidental, and (2) the injury occurred within the course of employment.

▪ Accidental injuries are injuries that occur without any intent to cause harm or injure. ▪ The course of employment requirement varies by jurisdiction, but most state courts interpret this requirement broadly and in favor of coverage of the injured worker. While cases where the employee is injured on the job at the worksite during regular business hours are clearly covered, off-premises activity is also covered so long as it is sufficiently related to the worker's employment. Even when the injury is indirectly related to the employee's job responsibilities, courts have been willing to extend workers' compensation coverage to the injured employee.

Workers' comp is the injured worker's exclusive remedy unless one of the following exceptions is met (in which case the employee can sue in court):

▪ An employer has engaged in actions that intentionally create conditions that result in harm; or ▪ An employer acts with a reckless disregard for the safety of its employees.

(2) Implied contracts

▪ An employment-at-will relationship may be converted to a contract relationship if the employer acts in a manner that would lead a reasonable person to believe that the employer intended to offer the employee protection from termination without cause ▪ Two situations of implied contract: • (1) Employee manual or bulletin (e.g., an employee handbook), where the handbook extends some protections or process that the employee would not have under employment-at-will • (2) Oral promise made by the employer, which a reasonable person would believe extends protection against termination without cause

Union formation - collective bargaining units

▪ Authorization cards ▪ Election ▪ Certify

o Union functions

▪ Collective bargaining (including good faith bargaining requirements) ▪ Grievances ▪ Strikes, picketing ▪ Illegal work stoppages ▪ Lockouts and replacement workers

Asserting an antidiscrimination claim

▪ Complaint ▪ Investigation ▪ Conciliation negotiations ▪ Lawsuit, potentially (right-to-sue letter)

o Minimum wage

▪ Currently $7.25 per hour ▪ States are at liberty to fix higher minimum wages ▪ Portal-to-Portal Act (commute time not compensable)

Operation of law

▪ Destruction of the subject matter of the agency ▪ Death/incapacity of a party ▪ Bankruptcy

o Employers not required to offer these; but if they do, they must comply with the Employee Retirement Income Security Act (ERISA) (1974)

▪ Employer must make certain disclosures related to investment risk, thereby providing transparency for plan beneficiaries ▪ Rules for conflicts of interest (e.g., limits on how much of a company's own stock can be held in a pension plan) ▪ Certain fiduciary standards for investing and managing pension plans and/or retirement savings plans ▪ Record-keep regulations and standardized vesting rules

Age Discrimination in Employment Act (ADEA)

▪ Employers that have 20 or more employees are prohibited from discriminating against employees on the basis of their age once employees have reached age 40. ▪ Courts use a Title VII-based analysis for evaluating age claims (usually, disparate treatment) - for example: ▪ The ADEA is similar to Title VII in that the protected employees are not entitled to special treatment but are included as members of a protected class when employers discriminate against them in favor of a substantially younger employee. ▪ Substantially younger requirement

o Patient Protection and Affordable Care Act of 2010 (ACA) and Health Care and Education Reconciliation Act of 2010 (HCERA)

▪ Employers with 50 or more full-time employees must purchase health care insurance for their employees or face a penalty ▪ Offers small business owners (those employing fewer than 25 full-time workers) immediate tax incentives if they offer health care coverage to their employees and pay at least 50 percent of the total costs for their employees' coverage ▪ Individuals not covered through their employer's policy are required to purchase health care insurance from a health care exchange that is set up by individual states (or groups of states)

Unemployment compensation (sudden job losses) = Federal Unemployment Tax Act (FUTA) (1935)

▪ Established a state-administered fund to provide payments to workers who have suffered sudden job loss; funded through employment taxes shared by employer and employee ▪ Intended to cover workers who lose their jobs because of economic difficulties; it is not intended to reward an employee who was terminated for cause. However, because states set their own standards and procedures, the exact eligibility requirements and the amount available vary among different jurisdictions.

Equal Employment Opportunity Commission (EEOC)

▪ Five-member commission created by the Civil Rights Act of 1964 to carry out antidiscrimination laws ▪ Plays two crucial roles: plaintiffs initially file their complaint with the EEOC, and the EEOC may intervene and join a lawsuit

P's liability for A's torts

▪ For A's negligence: respondeat superior (form of vicarious liability) -For A's intentional torts ▪ Negligent hiring doctrine ▪ ICs

Child labor

▪ For under 14 - no employment except newspaper sale and delivery. ▪ For ages 14-15 - limited hours during schools days in nonhazardous jobs (such as a busboy or dishwasher in a restaurant). ▪ For ages 16-17 - no limits on hours, but cannot work in dangerous jobs such as mining or heavy industry and other hazardous jobs as defined in FLSA regulations. ▪ Not subject to FLSA restrictions: children in family agricultural jobs and child actors.

o Key employees

▪ If an employee's salary range is in the top 10% of all salaries in the company, the FMLA classifies him as a key employee. ▪ Although key employees are entitled to the FMLA protections, employers have a right not to reinstate the employee if reinstatement would cause a 'substantial and grievous economic injury.'

o National Labor Relations Act (NLRA) (1935)

▪ Labor Management Relations Act (LMRA) (1947) ▪ Labor-Management Reporting and Disclosure Act (1959)

o State wage and hour laws

▪ Minimum paid rest periods ▪ Minimum paid meal periods ▪ Payday requirements ▪ Prevailing wages requirements

IRS's three-pronged test

▪ Not binding on courts, but can be persuasive ▪ Three prongs: (1) behavioral aspects of the agency (degree of control over what and how the worker does); (2) financial arrangements (salary, logistics of payment, etc.); & (3) working relationship (benefits and any promises or expectations of continuing employment).

Regulation of workplace safety = Occupational Safety and Health Act (OSHA) (1970)

▪ OSHA: ▪ Occupational Safety and Health Administration ▪ OSHA provisions ▪ Whirlpool v. Marshall (1980)

P's liability on contracts

▪ P is bound by a contract negotiated by their A if the A had authority ▪ Three kinds of authority: • Actual (express or implied) • Apparent • Ratification

Two theories:

▪ Quid pro quo ▪ Hostile work environment

Protected classes

▪ Race/color ▪ National origin ▪ Gender (including sexual orientation) ▪ Religion

o Maximum workweek and overtime

▪ Rate is 1.5 times the base pay ▪ The overtime rate applies to hours worked in excess of 40 hours per week

o If the employer does provide a health care plan, two federal statutes regulate certain aspects of administering the plan:

▪ The Health Insurance Portability and Accountability Act (HIPPA) sets administrative rules and standards designed to protect employee medical information and records from disclosure to a third party. ▪ The Consolidated Omnibus Budget Reconciliation Act (COBRA) mandates that employers provide continuous coverage to any employee who has been terminated even if the worker was terminated for cause. COBRA requires that the employer provide the exact same health coverage for up to 18 months. COBRA does not require employers to pay for the health plan premiums of a former employee. The employee has full responsibility for payment of all insurance premiums and fees.

o Two-step test:

▪ To establish a prima facie case, a plaintiff must demonstrate that (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions. ▪ If a prima facie case is established, the burden shifts to the employer to prove that the wage differential is justified by a preponderance of the evidence under one of four affirmative defenses: (1) a seniority system; (2) a merit system; (3) a system pegging earnings to quality or quantity of production; or (4) any factor other than sex.

(3) Covenant of good faith and fair dealing

▪ Very broad coverage, but adopted in only a minority of states ▪ States that recognize this exception protect employees from job termination (1) without just cause or (2) in bad faith or with malicious intent