Employment Law

Trade Secrets Springfield Rare Coin Gallaries v. Mileham

In this case pricing on the coins was not considered a trade secret. Requirements for considered "trade secret:" developed over a period of time developed at great expense kept under lock and key In the absence of that information, it is generally readily available and can't restrict

Lemmerman v. A.T. Williams Oil Co.

the sole issue on this appeal is whether the Court of Appeals correctly affirmed the trial court's conclusion that plaintiff Shane Tucker was an employee of the defendant, A.T. Williams Oil Company. The issue is not affected by the fact that the minor may have been illegally employed because the Act specifically includes within its provisions illegally employed minors. Schneiderman, who had the authority to hire and fire employees, hired the minor plaintiff to do odd jobs as needed in defendant's service station store business.

Presentation How Radovich and McNeil helped pave the way for expanded "employee" rights in the NHL

Collective Bargaining Agreement (CBA)-written legal contract between an employer and organized labor...regarding wages, hours, and terms and conditions of employment.

Work and Society

"We are what we do"

Good Cause Quit Jamie v. Director, Department of Employment Security

"good cause" connotes a reason for rejecting work that would be deemed by reasonable men and women as valid and not indicative of an unwillingness to work. "good cause" for voluntarily leaving employment has also been defined as that which results from circumstances producing real and substantial pressure to terminate employment and which under the circumstances would compel a reasonable person to act in the same manner. A cause attributable to the employer is one which is produced, caused, created or is the result of actions by the employer and also includes inaction by the employer. The company moved to the suburbs and the claimant then got a ride from another employee for about one and a half months. After that employee left, the claimant had no means to get to work, and was forced to quit.

National Origin Fragante v. City & County of Honolulu

**narrow BFOQ for national origin in some limited restaurant and entertainment circumstances. district court found that the oral ability to communicate effectively and clearly was a legitimate occupational qualification for the job in question.

Procedure Filing a charge of employment discrimination

*charge must be filed with the EEOC within 180 days after the "occurence" of the alleged unlawful employment practice, unless there is a state or local antidiscrimination law similar to Title VII, with its own procedures for investigating and resolving complaints. In those cases, the procedure is modified, to encourage resolution of claims at the local level. *charges may be filed with either the EEOC or the state or local agency. if the charge is initially filed with the state or local agency, an EEOC charge may be filed up to 300 days after the occurrence or 30 days after notice of termination of local proceedings, whichever comes first. If the charge is filed first with the EEOC, it must defer to local proceedings for 60 days before undertaking its own investigation. *After a Title VII charge has been filed, the EEOC must serve notice of the charge on the respondent within ten days. The EEOC then investigates and determines if there is reasonable cause to believe discrimination has occurred. If cause is found, the EEOC attempts conciliation. If no conciliation can be reached, the EEOC may bring a civil action in U.S. district court. If no cause is found, or if within 180 days of the filing of the charge there has been no conciliation or civil action filed by the EEOC, the EEOC notifies the complainant in a "right to sue" letter. The charging party has 90 days after receipt of the right to sue letter to bring a civil action in federal district court. *all district court proceedings under Title VII are de novo. If the court finds an unlawful employment practice, it may enjoin the practice and grant affirmative relief including reinstatement, retroactive seniority, and back pay. Compensatory and punitive damages also may be awarded, up to $300,000 for companies with more than 500 employees. Section 706(g) limits back pay to two years before the filing of the charge with the EEOC. The court may also award attorneys' fees to prevailing parties.

4 Administrative levels of social security disability adjudication

1) 1st administrative level-initial application/determination-state agency/disability determination section 2) 2nd administrative level reconsideration-state agency/disability determination section 3) 3rd administrative level-administrative law judge hearing-office of disability adjudication and review 4) 4th administrative level-appeals council ***federal court appeal

Preston v. Wisconsin Health Fund

A male executive's romantically motivated favoritism toward a female subordinate is not sex discrimination even when it disadvantages a male competitor of the woman. such favoritism is not based on a belief that women are better workers, or otherwise deserve to be treated better than men; indeed, it is entirely consistent with the opposite opinion. But when as in this case no reason is given why men might be expected to discriminate against men, the plaintiff, to raise a triable issue of discrimination, must present some evidence beyond the bare fact that a woman got a job that a man wanted to get or keep. All that is left is the undeveloped evidence of the raises given to the other women.

Amador v. Unemployment Insurance Appeals Board

Amador declined to perform grosscutting on tissue removed from live patients. She explained that in her view grosscutting exceeded her capabilities as a histotechnician. The claimant's conduct must evince culpability or bad faith. The conduct may be harmful to the employer's interests and justify the employee's discharge; neverthe less, it evokes the disqualification for unemployment insurance benefits only if it is wilful, wanton or equilly culpable. If a claimant's reasons for refusing work constitute good cause sufficient to justify resignation, it follows that they should also justify the less drastic step of refusing a work assignment.

Because of Race Rogers v. American Airlines, Inc.

American Airlines prohibits employees in certain employment categories from wearing an all-braided hairstyle. Rogers alleged that the policy violated her rights under the Thirteenth Amendment under Title VII and under 42 U.S.C. section 1981 in that it discriminated against her as a woman, and more specifically as a black woman. An even-handed policy that prohibits to both sexes a style more often adopted by members of one sex does not constitute prohibited sex discrimination. Rogers failed to allege sufficient facts to require defendants to demonstrate that the policy has a bona fide business purpose.

Kotch v. Board of River Port Pilot Commissioners

Appellants here have had at least fifteen years experience in the river, the port, and elsewhere, as pilots of vessels whose pilotage was not governed by the State law in question. Although they possess all the statutory qualifications except that they have not served the requisite six months apprenticeship under Louisiana officer pilots, they have been denied appointment as State pilots. The object of the entire pilotage law is to secure for the State and others interested the safest and most efficiently operated pilotage system practicable. Held that the practice appellants attack is the kind of discrimination which violates the equal protection clause of the Fourteenth Amendment.

Aramark Facility Services. v. Service Employees International Union

Arbitration decision cannot be challenged unless against public policy. Constructive knowledge-Aramark essentially argues that two facts gave it constructive notice of immigration violations: (1) the no-match letters themselves and (2) the employees' responses (or lack thereof). Narrow scope. The main purpose of the no-match letters is not immigration-related, but rather is simply to indicate to workers that their earnings are not being properly credited. Employers do not face any penalty from SSA, which lacks an enforcement arm, for ignoring a no-match letter. The IRS also imposes no sanctions stemming from the no-match letters. It requires no additional solicitations of an employee's SSN unless it sends a "penalty notice" to the employer indicating that the SSN is incorrect-a notice Aramark does not contend it received. The IRS also does not require any reverifcation of a worker's documents following receipt of a mismatch notice from the SSA. Aramark provided a short turn-around time for their employees to provide appropriate documentation.

Bammert v. Don's Super Valu, Inc.

Bammert was not fired for her participation in the enforcement of the laws against drunk driving; she was fired for her husband's participation in the enforcement of those laws. Discharges for conduct outside of the employment relationship by someone other than the discharged employee are not actionable under present law. The public policy generally favoring the stability of marriage, while unquestionably strong, provides an insufficient basis upon which to enlarge what was meant to be, and has always been, an extremely narrow exception to employment at will.

Post-Employment Restrictions Future Employment Estee Lauder Cos., Inc. v. Batra

Batra was very high up in the company, in charge of research and production internationally. Batra was paid $100,000 to enter into this contract, was 1yr, broad (encompassed the entire country), but if he did not compete they would pay him his salary without working. Batra while working for Estee was doing work for a competing company. Solicited another employee to work for another company. Makes a decision to leave Estee, CA doesn't recognize a non-compete agreement. Therefore, Batra filed a lawsuit in CA. The contract itself called for NY law to apply. Which jurisdiction has a substantial relationship? Would an injunction be proper? Court said the world-wide restriction was ok. Court engaged in "blue-penciling," where a court will reform a contract agreement. The court says they will fix it...in the area of non-compete agreements. If the court can take an "unreasonable term" by just deleting the unreasonable language and leaving the remainder of the language in there. ***Reasonably tailored in scope (what kinds of competition was cut out); the geography and length of time are considered. Require consideration, if sign at the beginning of work, employment is consideration. If fired courts will take that in consideration. In NE (doesn't allow blue penciling): 1) agreement must be reasonable-not injurious to the public (removing from the public someone that is needed) 2) if it is not greater than reasonably necessary to protect the employer in some legitimate interest. (protected against unfair competition (are you taking confidential information or pricing information that is important to business), good-will (when an employee has substantial contacts with employers clients), confidential information and trade secrets) 3) not unduly harsh upon the employee (look at geographical and time restrictions)

Year-Round jobs Zambrano v. Reinert

Cannery Rule was in conflict with two federal statutes and violated the Equal Protection Clause of the Fourteenth Amendment. Cannery Rule merely sets forth requirements for being eligible to receive unemployment compensation, and Zambrano concedes that he did not meet those requirements. Therefore, he never had any wage credits or benefit rights to cancel or reduce in the first place, and accordingly, the application of the Cannery Rule in this case does not violate FUTA.

Appearance Grooming Kelley v. Johnson

Commissioner had promulgated Order No. 71-1, which established hair-grooming standards applicable to male members of the police force. violative of respondent patrolman's right of free expression under First Amendment and his guarantees of due process and equal protection under the Fourteenth Amendment. Here the county has chosen a mode of organization which it undoubtedly deems the most efficient in enabling its police to carry out the duties assigned to them under state and local law. Such a choice necessarily gives weight to the overall need for discipline esprit de corps, and uniformity.

Example-Jane

Constitutional right to free access of court.

Unlawful Discrimination

Disparate-intent to discriminate Disparate Impact-practices seem neutral on face but has discriminatory impact

Donovan v. DialAmerica Marketing, Inc.

District court misapplied the relevant legal test for determining "employee" status under the FLSA, held that the court erred in concluding that the home researchers were not employees of DialAmerica. On the other hand, held that the district court did not err in its conclusion that the distributors were independent contractors rather than employees. Test: 1-degree of the employer's right to control the manner in which the work is to be performed 2-employee's opportunity for profit or loss depending upon his managerial skill 3-the employee's investment in equipment or materials required for his task, of his employment of helpers 4-whether the service rendered requires a special skill 5-the degree of permanence of the working relationship 6-whether the service rendered is an integral part of the alleged employer's business

Breach of Implied Terms

Duty of Loyalty In general, an employee is required to refrain from: 1) competing with the employer during the period of employment, 2) appropriating the employer's trade secrets or other confidential information, and 3) otherwise using the employer's resources in such a way as to further potentially competing ends.

Workers Compensation Federal dealing with certain specific employees, but it is a state beast. All 50 states have some form of workers compensation. Required in all states except Texas. "Larson on Workers Compensation"

Employees lose the ability to sue employer directly outside of what is covered under workers comp. Goals of work comp: *prompt medical and income benefit to employees regardless of fault. *reduce delays. TTD-temporary total disability, paid out to injured worker who at the time is totally disabled but temporary. TPD-temporary partial disability, benefits paid during a period of reduced earnings caused by a job related injury. The benefits cease when the worker returns to full wages or is found to be eligible for permanent total or permanent partial benefits. PTD-permanent total disability, never going to be able to go back to work again. PPD-permanent partial disability, injury permanent but can still do some work. Lose fingure (scheduled injury), back (whole body). Death benefits-awarded to survivors of workers who die from a work related injury or illness. The amount of award is based on the worker's earnings and number of dependents. Medical benefits-all worker's compensation acts require medical aid to be furnished without delay, typically with no co-payment by the worker. Covered medical services include first aid, physician services, surgical and hospital care, nursing care, medications, medical supplies, appliances, and prosthetic devices. Most states also pay for vocational rehabilitation. MMI-maximum medical improvement, point at which employee is stabilized. Location and rehabilitation-work at a new job even if can't return to previous job with same employer. *previous job with same employer *new job with same employer *new job with different employer impairement-medical conclusion based solely upon health status. disability-is a legal term representing the effects of impairment. injury has to arise out of and in the course of employement. looks at cause and origin of injury, risk created by job, hazard from nature of employment. injury take place within the employment period, and while the employee is fullfilling work duties.

Discharge for Misconduct Pesce v. Board of Review

Every justifiable discharge does not disqualify the discharged employee from receiving unemployment benefits. Misconduct has been defined as conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer had 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 to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. Held that a finding of misconduct is improper where there was no showing of an unreasonable and improper course of conduct from which could be imputed a lack of proper regard for the employer's interests.

Workplace harassment Disability accommodation Family & Medical Leave Act compliance Employee handbooks Human resource policies and practices Wage and hour issues Workplace investigations Drug and alcohol testing Disciplinary action and termination Reductions in force Employment-at-will/wrongful discharge Employment agreements Restrictive covenants and confidentiality agreements Severance agreements Waivers and releases Unemployment compensation claims

FMLA, ADA, ADEA, FLSA, OSHA, COBRA, etc.

Chamber of Commerce v. Whiting

Federal immigration law expressly preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ...unauthorized aliens." Concluded that the State's licensing provisions fall squarely within the federal statute's savings clause and that the Arizona regulation does not otherwise conflict with federal law, held that Arizona law is not preempted.

Genetic Discrimination

GINA

Breach of Contract Gordon v. Matthew Bender & Co.

Gordon had a contract (not specific) to sell in territory. Told he would be terminated if he didn't meet sales quota in new territory. Fired If have a contract but with no specific time terms, except satisfactory performance, does that change "at will" employment to something else. When the language "good cause" is thrown into the contract (objective standard) limits employers ability to terminate employee. Has to be a good reason to terminate employee. "satisfactory performance" is subjective standard, no standard set to judge performance...whatever employer thinks..."terminable at will" employment Cause: misconduct, mis-malfeasance,

Because of Sex Jespersen v. Harrah's Operating Co., Inc.

Harrah's implemented a "beverage department image transformation" program. Part of the program consisted of new grooming and appearance standards, called "personal best" program. The program applied equally to both sexes, including a standard uniform. Unequal burdens: when an employer's grooming and appearance policy does not unreasonably burden one gender more than the other, that policy will not violate Title VII. The policy does not single out Jespersen. It applies to all of the bartenders, male and female.

Harrassment

In 1980 the EEOC issued guidelines specifying that sexual harassment constituted a form of sex discrimination prohibited by Title VII. unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Regardless of whether the harassment is an economic quid pro quo, it will violate Title VII if the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. Quid pro quo sexual harassment occurs when agreement to engage in sexual activity is made a condition of employment. Hostile environment sexual harassment exists when statements or conduct of a sexual nature creates an environment of intimidation, insult, or ridicule. Unwelcomeness and not consent is the standard for determining whether unlawful harassment had occurred.

McDonnell Douglas Corp. v. Green

Issue concerned the order and allocation of proof in a private, non-class action challenging employment discrimination. The complainant in Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. May be done by showing: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection.

medical screening

Medical Evaluations under the Americans with Disabilities Act

Wards Cove Packing Co. v. Atonio

Must prove application of specific employment practice being used that is creating disparate impact.

Presentation #Metoo Movement and the workplace

National conversation on sexual harassment men and women generally agree on what sexual harassment is but disagree on how often it occurs.

Drug testing National Treasury Employees Union v. Von Raab

Not a 4th amendment violation to request employees to drug tests. Government has demonstrated that its compelling interests in safeguarding our borders and the public safety outweigh the privacy expectations of employees who seek to be promoted to positions that directly involve the interdiction of illegal drugs or that require the incumbent to carry a firearm. We hold that the testing of these employees is reasonable under the Fourth Amendment.

Pugh v. See's Candies, Inc.

Oral contract, nothing in writing. can you create an employment contract from something that is not written? Court concluded yes, as a matter of law, can have an implied in fact contract. Ok, to have contract that is indefinite, mutual understanding, Totality of relationship between employer and employee can establish contract: personal policies, employees long work history, practices of relationship, lack of criticism of his work, assurances given to employee, once determined their was a contract, employer has to prove

Wal-Mart Stores, Inc. v. Dukes

Pay and promotion decisions at Wal-Mart are generally committed to local managers' broad discretion, which is exercised in a largely subjective manner. Wal-Mart permits store managers to apply their own subjective criteria when selecting candidates as support managers which is the first step on the path to management. A class representative must be part of the class and possess the same interest and suffer the same injury as the class members. The Rule's four requirements-numerosity, commonality, typicality, and adequate representation-effectively limit the class claims to those fairly encompassed by the named plaintiff's claims. This case is commonality; requires the plaintiff to demonstrate that the class members have suffered the same injury. Required significant proof that Wal-Mart operated under a general policy of discrimination. The only corporate policy that the plaintiffs' evidence convincingly establishes is Wal-Mart's policy of allowing discretion by local supervisors over employment matters. Wal-Mart's policy is against having uniform employment practices-just the opposite. An employer's undisciplined system of subjective decisionmaking can have precisely the same effects as a system pervaded by impermissible intentional discrimination.

Ricci v. DeStafano

Petitioners allege that when the CSB refused to certify the captain and lieutenant exam results based on the race of the successful candidates, it discriminated against them in violation of Title VII's disparate-treatment provision. The City counters that its decision was permissible because the tests "appeared to violate Title VII's disparate-impact provisions." Standard constrains employers' discretion in making race-based decisions: it limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

Disparate Impact

Prima facie case: 1) show application of specific employment practice has created disparate impact; if practices are impossible to disaggregate, courts will analyze the decisionmaking process as one practice. (isolate and identify) Evidence generally offers some type of statistical analysis. *burden shifts to employer to prove business necessity of employment practice and related to job. *shifts back to employee to prove there are alternative employment practices that could achieve same business necessity without undue burdens on employer and employer has refused to adopt. Burdens put on employer in regards to alternative practices are relevant.

Guest Speaker: Sean Cuddigan Social Security Disability Practice Social Security Income

SSDI: 4 (non-medical) general rules to determine if receive SSDI (must meet one) 1) meet the 20/40 and be fully insured 2) you have not become (or would not become) age 31, have at least 1/2 of the quarters, and fully insured 3) you had a period of disability before age 31 and are disabled again at age 31 or later, have QC's in at least 1/2 of the calendar quarters, and fully insured 4) you are disabled by blindness and fully insured Receive min $1,197 max $2,607 Medical requirements: no job can do SSI: (non-medical) requirements: 1) resources-max of $2000 for individuals, $3000 for couples Medical requirements: no job can do Receive $750/Medicaid

Presentation The Hatch Act

Senator Carl Hatch of New Mexico who objected to the political involvement of federal employees championed the legislation. In 1940 Congress extended the Act to apply to employees of state and local governments that receive federal funds.

Employee Liberty

Society recognizes other values, such as privacy, freedom of expression, and freedom from sexual harassment. Increased employee liberty epitomizes changing perceptions of he proper relationship between employers and employees.

Social Security's Definition of Disability (medical requirements for SSDI and SSI)

Statutory Definition: "The inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 5 Steps: 1) substantial gainful activity (not make more than $1,180 2) severe impairment 3) Does the claimant's impairment(s) meet or equal a listing (if the claimant meets or equals a listing, she will be found disabled at Step 3. If not, the inquiry will move on to step 4). 4) can he perform his past relevant work 5) if she cannot do her PRW, are there other jobs in the national economy that she can do? 6) quasi step: drug addiction and alcoholism cases. Benefits cannot be paid if drug addiction and/or alcoholism is material to a finding of disability.

Quik 'N Tasty Foods, Inc. v. Division of Employment Security

The determination of good cause is a question of law, and there are two elements of good cause--reasonableness and good faith. The phrase attributable to his work or to that employer means that it must be the work or employer himself that creates the condition making it unreasonable to expect this employee to continue work. Held, reversed the Commission's decision that Wendy Foley left her job voluntarily with good cause attributable to her work or to her employer.

Kadlec Medical Center v. Lakeview Anesthesia Associations

The LAA shareholders worked with Dr. Berry--an anesthesiologist and former LAA shareholder--at Lakeview Medical, where the defendants discovered his on-duty use of narcotics. In referral letters written by the defendants and relied on by Kadlec, his future employer, the defendants did not disclose Dr. Berry's drug use. Plaintiffs allege that the defendants committed two torts: intentional misrepresentation and negligent misrepresentation. Affirmative misrepresentations-the defendants owed a duty to Kadlec to avoid affirmative misrepresentations in the referral letters. In Louisiana, "although a party may keep absolute silence and violate no rule of law or equity, if he volunteers to speak and to convey information which may influence the conduct of the other party, he is bound to disclose the whole truth." However, once a party volunteers information, it assumes a duty to ensure that the information volunteered is correct. Held that the letters from the LAA defendants were affirmatively misleading, but the letter from Lakeview Medical was not. A duty to disclose does not exist absent special circumstances, such as a fiduciary or confidential relationship between the parties, which, under the circumstances, justifies the imposition of the duty. Defamation claim if communicated negative information. Concerns about protecting employee privacy weigh in favor of not mandating a potentially broad duty to disclose.

Title VII of the Civil Rights Act of 1964

The Supreme Court held that the Commerce Clause and the Fourteenth Amendment authorized Congress to enact the statute.

Price Waterhouse v. Hopkins

The important aspect of the statute is its preservation of an employer's remaining freedom of choice. Conclude that the preservation of his freedom means that an employer shall not be liable if it can prove that, even if it had not taken gender into account, it would have come to the same decision regarding a particular person mixed reasons (mixed motives cases) affirmative defense-yes we would have taken this action anyhow. If defendant can prove conduct not discriminatory, then the plaintiff will be limited to the relief they can get (primarily compensatory damages). Generally cannot get reinstatement.

Occupational Safety and Health Act (OSHA)

The initial safety and health standards were industry-developed consensus standards and federal standards already established by other, less comprehensive laws. New standards were to be promulgated through informal notice and comment rulemaking by the Secretary of Labor, with only the vaguest statutory directions as to the level of protection to be afforded to workers and the costs to be imposed on the economy. Part of labor department First, 5(a)(1) requires the employer to keep its place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm to its employees. Second, 5(a)(2) requires the employer to comply with promulgated OSHA standards. Establish a violation must have: 1) hazard 2) industry recognizes hazard 3) hazard was one that is likely to or actually does cause death or serious harm 4) feasible means to eliminate or materially reduce the hazard

The unemployment insurance system Federal/State System

The main goals of the program include: 1) sustaining consumption for workers and their families; 2) helping recipients to make efficient job choices during a period of financial stress; and 3) minimizing the adverse incentives that may accompany partial wage replacement. *helping to stabilize the overall economy Eligibility: 1) "monetary standard" that determines whether a worker had sufficient employment during some defined base period; 2) "nonmonetary standard" that determines whether the worker had an acceptable reason for his or her job separation; and 3) "continuing eligibility standards" that determine whether the worker continues to be unemployed and thus eligible for benefits. "monetary standard"- "nonmonetary standard"-to ensure that workers cannot voluntarily quit their jobs or be fired for cause and collect unemployment insurance; instead, workers must have lost their jobs "through no fault of their own." "continuing eligibility standards"-ensure that unemployment insurance recipients remain able and available for work while collecting unemployment benefits. These standards are usually grouped under three headings: 1) availability to work; 2) active job search; and 3) refusal of suitable employment.

Pregnancy

The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability to work.

Employees' Duties to the Employer Breach of Contract by an Employee Handicapped Children's Education Board v. Lukaszewski

There are reasons that you can get out of a contract and one reason could be an employee's ill health. But if the court deems it to be self-induced then she cannot get out of contract. In this particular case Lukaszewski found a higher paying job that was closer to home. She had already signed another contract and had buyer's remorse and was distressed from her decision. The court found that she self-imposed the distress, it was not from the employment itself, therefore, she cannot get out of her contract.

EEOC v. Consolidated Service Systems

Title VII is a federal anti-discrimination law There is no direct evidence of discrimination. The question is whether the circumstantial evidence compels an inference of discrimination-intentional discrimination ("disparate treatment," in the jargon of Title VII cases), for the EEOC has not appealed from the district court's rejection of its disparate-impact theory of liability. Title VII is concerned about process, not the outcome. Title VII governs ads...not the placement of them. "disparate impact"-neutral on its face, but discriminatory to a group. Mr. Hwang relies on word of mouth to obtain employees rather than reaching out to a broader community less heavily Korean. It is the cheapest method of recruitment. "Knowledge of a disparity is not the same thing as an intent to cause or maintain it." It is not enough to have an intent have to act on it.

Retaliation

Title Vii protects employees from retaliation by their employers as punishment for exercising their rights and seeking protection under the statute.

Pennsylvania State Police v. Suders

To establish hostile work environment, plaintiffs must show harassing behavior sufficiently severe or pervasive to alter the conditions of their employment. To establish constructive discharge the plaintiff must make a further showing: she must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may defend against such a claim by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus. Tangible employment action-constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Fall within the special province of the supervisor who has been empowered by the company as an agent to make economic decisions affecting other employees under his or her control. When a supervisor's harassment of a subordinate does not culminate in a tangible employment action, it is less obvious that the agency relation is the driving force. When no tangible employment action is taken, the employer may defeat vicarious liability for supervisor harassment by establishing, as an affirmative defense, both that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Starbucks Corp. v. Superior Court

Unsuccessful job applicants at Starbucks allege that the Starbucks employment application contains an "illegal question" about prior marijuana convictions that are more than two years old.

McDonnell Douglas test

Used for circumstantial evidence more often (one reason behind the challenged defendant's conduct) stage 1: plaintiff bears the burden of proving by a preponderance of evidence that they applied for an employment opportunity, they were qualified, and did not receive it. By not getting the position one could infer some type of discrimination. Creates a prima facie case. Creates a rebuttable objection by defendant stage 2: defendant must produce evidence that stage 3: plaintiff has ultimate burden of persuading the fact finder that the defendant's explanation is pretext for some type of discrimination

Fair Labor Standards Act

Wages: 1-establishes a minimum wage applicable to all employees of covered employers, 2-provides for mandatory overtime payment for covered employees who work more than 40hrs a week. 3-a business is covered if it meets the definition of an enterprise, or if it is an individual business which meets the commerce test. *determine company is an enterprise, courts look at 3-part test: (1) perform related activities (2) under unified operations or common control (3) for a common business purpose. *$7.25 an hour - Federal Hours: requires that employees be paid for all hours worked, at minimum wage for the first 40hrs worked in a week and at time and a half their regular rate of pay for all hours in excess of 40 per week. Child Labor: restricts the employment of children under the age of 18 and limits the conditions under which they may work. Dictates that employees must be at least 16yrs old to work in most non-farm jobs and at least 18 to work in non-farm jobs declared hazardous. Youths 14 and 15 years old may work outside school hours in various non-manufacturing, non-mining, non-hazardous jobs under specified conditions. Exempt workers: (salary limit test, salary basis test, and the duties test) *Executive exemption-must have the primary duty of managing the enterprise or a recognized department or subdivision *administrative exemption-primary duty must be the performance of office or nonmanual work directly related to management policies or general business operations of the employer or the employer's customers *professional exemption-"learned professional" and "creative professional" tests *computer employees-primary duty is to perform work requiring theoretical and practical application of highly specialized knowledge in computer systems analysis, programming and software engineering. *outside sales-primary duty is making sales, or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer.

Providing Disparate Impact

What constitutes a "disparate impact" sufficient to be considered discrimination? What constitutes job relatedness or business necessity. Adverse impact and the "four-fifths rule." A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact. Smaller differences in selection rate may nevertheless constitute adverse impace, where they are significant in both statistical and practical terms or where a user's actions have discouraged applicants disproportionately on grounds of race, sex, or ethnic group.

Disparate Impact/Adverse Impact Griggs v. Duke Power Co.

Whether employer is prohibited by Title VII, from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly have been filled only by white employees as part of a longstanding practice of giving preference to whites. The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. Neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Burden of proof rests on employer.

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC

Whether the Establishment and Free Exercise Clauses of the First Amendment bar such an action when the employer is a religious group and the employee is one of the group's ministers. *interferes with the internal governance of the church depriving the church of control over the selection of those who will personify its beliefs. By imposing the unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. The power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. *exception applies only to suits by or on behalf of ministers themselves. Perich filed a charge with the EEOC alleging that her employment had been terminated in violation of the ADA. *The ADA prohibits an employer from discriminating against a qualified individual on the basis of disability. It also prohibits an employer from retaliating against any individual because such individual has opposed any act or practice made unlawful by the ADA or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the ADA.

Yanowitz v. L'Oreal USA, Inc.

Yanowitz alleges that after she refused to carry out an order from a male supervisor to terminate the employment of a female sale associate who, in the supervisor's view was no sufficiently sexually attractive or "hot." She was subjected to heightened scrutiny and increasingly hostile adverse treatment that undermined her relationship with the employees she supervised and caused severe emotional distress that led her to leave her position. Whether an employee's refusal to follow a supervisor's order that the employee reasonably believes to be discriminatory constitutes "protected activity" under the FEHA for which the employee may not properly be subjected to retaliation, when the employee objects to the supervisor's order but does not explicitly tell the supervisor or the employer that she believes the order violates the FEHA or is otherwise discriminatory.

Cloutier v. Costco Wholesale Corp.

alleged that Costco failed to offer her a reasonable accommodation after she alerted it to a conflict between the no facial jewelry provision of its dress code and her religious practice as a member of the church of body modification. Held Costco had no duty to accommodate Cloutier because it could not do so without undue hardship.

Burlington Northern & Santa Fe Railway Co. v. White

anti-retaliation provision-forbids an employer from "discriminating against" an employee or job applicant because that individual "opposed any practice" made unlawful by Title VII or "made a charge, testified, assisted, or participated in" a Title VII proceeding investigation. *materially adverse to a reasonable employee or job applicant.

Disability Sutton v. United Air Lines, Inc.

applies employers with 15 or more employees ADA-general prohibition on employment discrimination. No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to a job application, procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Disability is a physical or mental impairment that substantially limits one or more of the major life activities of the individual, a record of such an impairment, or being regarded as having such an impairment. Amendment says mitigating measures does not bar an individual from a claim, however, the ameliorative effects of ordinary eyeglasses and contact lenses shall be considered. *Major life activity: include, but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, thinking, communicating, and working. Also includes the operation of a major bodily function (functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions). *Working as a major life activity: an individual must have an impairment that prevents or severely restricts that individual from doing activities that are of central importance to most people's daily lives. *Minor and transitory impairments: excluded from the definition of disability in the ADA. The transitory impairment is an impairment with an actual or expected duration of 6 months or less. *Episodic conditions and conditions in remission: an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active *Regarded as having an impairment: individual establishes that he or she has been subjected to an action prohibited under this 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. *Reasonable accommodation: is any change or adjustment to the job or work environment that permits a qualified applicant or employee with a disability to: -participate in the job application process, -perform the essential functions of a job, or -employ the benefits or privileges of employment equal to those enjoyed by employees without disabilities. *Generally, an employer does not need to provide one unless the employee asks. *If the employer believes a medical condition is causing a performance or conduct problem, it may ask the employee how to solve the problem. **Hardship Exception: the employer is required to provide accommodation unless considered undue hardship, generally that means a significant difficulty or expense. *The employer cannot ask a person who is disabled the nature/severity of the disability. Can not ask them to have a medical examination. *Can ask if the individual can perform the job with or without reasonable accommodation. *Employers can ask the individual to describe or demonstrate how the individual would perform. Once made an initial job offer can require disabled individual to have medical examination but only if require every employee to have a medical examination. Once started work cannot require medical examination unless require all employees have medical examination. Safety Concerns: direct threat, based upon objective evidence. Basic Case: *direct evidence of discrimination *McDonnell Douglas/pretext case -employer subject to statute -individual has disability within meaning of the statute -with or w/o reasonable accommodation, individual can perform the essential functions of the job - Employer defenses to ADA claims: -no knowledge -business justification -employee misconduct -employer defenses are subject to pretext claims.

Immigration Reform and Control Act (IRCA)

applies to all employers, regardless of size or industry. It prohibits employers from hiring undocumented workers and provides civil penalties of $250 to $2000 for each undocumented worker hired. For subsequent offenses, penalties of up to $10,000 may be assessed and for a "pattern of practice" of violations, the employer is subject to a $3000 criminal fine and six months imprisonment. Documents on face-not required to determine if they are falso documents as long as they provide.

Christopher v. Smithkline Beecham Corp.

employee whose primary duty is making sales within the meaning of 29 U.S.C. section 203(k) and who is customarily and regularly engaged away from the employer's place or places of business in performing such primary duty.

Eckis v. Seah World Corp.

benefits are not limited to simply performing normal duties. employee at work during regular work hours trained, doing for employer's benefit. under worker's compensation, could not sue employer.

Discrimination Based on Factors Other Than Race or Sex Religion Reed v. Great Lakes Cos.

cannot discriminate against someone based on person's religion reasonably accommodate any bona fide religious beliefs. Duty to accommodate is not absolute; the cost to the employer must be considered. An employee is not permitted to redefine a purely personal preference of aversion as a religious belief. Title VII imposes a duty on the employer but also a reciprocal duty on the employee to give fair warning of the employment practices that will interfere with his religion and that he therefore wants waived or adjusted.

Employee v. independent contractor

common law principles: level of control the employer has over a service or product-whether they define what is being done and how it is accomplished. method of compensation-receiving a steady paycheck or pay at the end of the project. if the worker supplies his/her own equipment, material, or tools. if the worker has the ability to choose to perform the work if the worker has control over their hours if the work is temporary or permanent. FLSA (fair labor standards act) economic realities test-how dependent is the worker on the work

Age Smith v. City of Jackson

contend that salary increases received violated the Age Discrimination in Employment Act of 1967 because they were less generous to officers over the age of 40 than to younger officers. Issue-whether ADEA could be brought under Title VII...Supreme Court held ADEA does authorize recovery under disparate impact. statute that governs similar ideas and uses similar language of another statute likely intends new statute will have similar determinations. Differences to ADEA: reasonable factor other than age. ADEA focuses on effects of actions by employer rather than motivation. applies to employers with 20 or more employees no reverse discrimination in the ADEA Employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. In this case not only did petitioners thus err by failing to identify the relevant practice, but it is also clear from the record that the City's plan was based on reasonable factors other than age. *Member in protected age category *qualify for job *suffered adverse act *position either remains open or was filled by someone younger or similarly situated person who was younger treated more fairly burden shifts to employer (ie. plaintiff has ultimate burden to prove employer's reason is pretext

Bona Fide Occupational Qualification Defense (BFOQ)

defense to intentional discrimination to hiring claim. it is not unlawful for an employer to differentiate in hiring on the basis of 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. *generally speaking race and color never receive BFOQ exception* The following situations do NOT warrant the application of the BFOQ exception: (1) refusal to hire a woman is based on the assumption of employment characteristics of woman is based on the assumption of employment characteristics of women in general (e.g., turnover rate higher among women); (2) refusal to hire is based on sex stereotypes (e.g., women cannot be aggressive salespersons); (3) refusal to hire is based on the preference of co-workers, clients, customers, or the employer; and (4) the fact that the employer may have to provide separate facilities. *Consumer Privacy BFOQ exception: how vulnerable individual is that gives rise to privacy BFOQ exception. Healthcare presents unique situations that justify BFOQ exceptions. *Authenticity Based BFOQ exception: restaurants, etc.

Woolley v. Hoffmann-La Roche, Inc.

employee handbook issue Woolley no contract initially, then handbook distributed to company...company wanted to make sure everyone received it was "important." Defined termination, didn't have "we can fire for any reason" Woolley was terminated, used handbook for procedures that have to be followed...court said yes handbook established a contract. In determining the manual's meaning and effect, must consider the probable context in which it was disseminated and the environment surrounding its continued existence. The mere fact of the manual's distribution suggests its importance. If an employer does not want a manual to be binding, needs to include statement of such!

polygraph test

employee polygraph protection act

psychological and personality testing

employer can use

Presentation Equal Employment Opportunity Commission

enforce federal laws dealing with discrimination private employers with at least 15 employees for 20 weeks Title VII

Bona Fide Occupational Qualification (BFOQ)

exceptions to the nondiscrimination obligation: 1) religion, sex, or national origin (but not race) is a BFOQ reasonably necessary to the normal operation of the business; 2) the employer acts pursuant to a bona fide seniority or merit system, or measures earnings by quantity or quality of production; 3) the employer acts on the results of a professionally developed ability test that is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin. 4) differences in pay based upon sex are authorized by the Equal Pay Act of 1963

"At-Will" termination and Public Policy Exception

extremely narrow must have a: statute, regulation, important to the public policy of the jurisdiction and the employee being fired would run afoul of this policy NE does recognize a public policy limit to employment at will. Jackson v. Morris Communication Corp. unless a constitutional, regulatory, or statutorily scheme; an employer may terminate an at-will employee for any reason at any time.

Privacy Hernandez v. Hillsides, Inc.

hidden camera common law tort of intrusion: 1) defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. 2) the intrusion must occur in a manner highly offensive to a reasonable person.

nepitism

hiring without regard to their merit...i.e. family members, friends of family members. Federal statute-

Equal Protection Clause

in order to have a claim under the constitution needs to be a government employer.

Negligent hiring Malorney v. B.&L Motor Freight, Inc.

ineffectiveness, inaccuracy, intrusiveness, and undesireability of many of the commonly used employee selection criteria. The issue certified is whether defendant had a duty under the circumstances of this case to investigate Edward Harbour's non-vehicular criminal record and to verify his negative response regarding criminal offenses which he furnished on his employment application prior to emplolying him and furnishing him an over-the-road truck with sleeping facilities. to impose such a duty would be against public policy by placing too great a burden on employers. The existence of legal duty is not dependent on foreseeability alone, but includes considerations of public policy and social requirements. general duty degree of care a resonable person would exercise under reasonable circumstances.

Discrimination Title VII

is one of the eleven titles of the landmark Civil Rights Act of 1964 It outlaws discrimination in employment based on race, color, religion, sex, or national origin. Barred discrimination in voting rights, public accommodations, education, use of federal funds, and employment. The Supreme Court held that the Commerce Clause and the Fourteenth Amendment authorized Congress to enact the statute. Applies to private employers with 15 or more employees, also applies to federal, state, and local government employers. Exclusions from Act include: 1) educational institutions owned or supported by a religious organization and employing members of that religion; 2) businesses operating on or near an Indian reservation and giving preferential treatment to Indians; and 3) members of the Communist Party. EEOC 1972-expanded the Act's coverage and increased the EEOC's enforcement power. Pregnancy Discrimination Act of 1978-bases of pregnancy, childbirth, and related medical conditions. Civil Rights Act of 1991-overruled Supreme Court cases related to burden of proof and other issues, granted the right to a jury trial, and added compensatory and punitive damages to the available relief. Lilly Ledbetter Fair Play Act of 2009-expanded the ability of plaintiffs to recover for pay discrimination.

Affirmative Action and Reverse Discrimination

nothing contained in Title VII shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group.

Wilson v. Southwest Airlines Co.

presents the important question whether femininity, or more accurately female sex appeal, is a bona fide occupational qualification BFOQ for the jobs of flight attendant and ticket agent with Southwest Airlines. Two step BFOQ test: (1) does the particular job under consideration require that the worker be of one sex only; and if so, (2) is that requirement reasonably necessary to the "essence" of the employer's business. First level of inquiry is designed to test whether sex is so essential to job performance that a member of the opposite sex simply could not do the same job. Second level is designed to assure that the qualification being scrutinized is one so important to the operation of the business that the business would be undermined if employees of the "wrong" sex were hired. Ability of the airline to perform its primary business function, the transportation of passengers, would not be jeopardized by hiring males.

Perry v. State

prohibited acts, employee engaged in an act that has been specifically prohibited by the employer. most courts will allow compensation if employee was doing act in good faith to benefit employer traveling to and from work generally not covered by worker's compensation unless employer supplied transportation and employee is required to use. Horse-play or skylarking, injury occurs when screwing around at work...generally not. If you injure a non-participant they can be covered.

Suitable work Lester v. Department of Employment Security

reason to refuse work has to be for a real substantial reasonable circumstances not predicated by mere convncience.

ADA

regulates the way companies conduct medical examinations and inquiries of applicants and employees. Applies to employers of 15 or more. The only permissible inquiries are about the ability of the applicant to perform job-related functions. After a conditional offer of employment an employer may require an "employment entrance examination, but must be given to all employees in a job category regardless of disability. Then kept in separate file.

Systemic Discrimination/Statistical Proof

statistical analysis have served and will continue to serve an important role in cases in which the existence of discrimination is a disputed issue.

Caregiver Discrimination Back v. Hastings on Hudson Union Free School District

stereotyping about the qualities of mothers is a form of gender discrimination, and whether this can be determined in the absence of evidence about how the employer in question treated fathers. Courts said don't need comparative evidence for men in a sexual stereotype case. Conclude that a jury could find, on the evidence proffered, that Brennan and Wishnie's cited justrifications for their adverse recommendation and evaluation were pretextual, and that discrimination was one of the motivating reasons for the recommendations against Back's tenure.

At-Will employment A basic premis of employment law

terminable at will, for any reason, without cause and with no judicial remedy. Can be employer or employee decision

Lysak v. Seiler Corp.

termination was not improper because she was pregnant but because she lied when she gave information that she did not intend to have any more children. Later when pregnant manager felt she had lied to her and he couldn't trust her any further. cant get in trouble for lying in answering a illegal question.

Employment Law

very policy effected law

Public policy exception very narrow

when a discharge is contrary to a fundamental and well-defined public policy evidenced by existing law. Must be evidenced by a constitutional or statutory provision, or administrative provision. discharge for conduct outside employee-employer relationship by someone other than employee currently not actionable.

Continuing eligibility-availability Petty v. University of Delaware

whether claimant, concededly unable to work as a custodian, was otherwise able to work and available to work during her remaining six months of pregnancy so as to be eligible for unemployment benefits. Due to Ms. Petty's medical condition, she was not able to perform any job for which she was qualified by her training and experience. Since claimant presented no evidence of other job skills beyond that recounted by the court, the court's conclusion are both factually and legally correct.

Discharge Contractual Exceptions to Employment At Will

whistle blower protections-government employee protection who reports illegal/bad acts within the govnerment from retaliation