Employment law

Foley factors

In the employment context factors apart from consideration and express terms may be used to ascertain the existence and content of an employment agreement, including "the personnel policies or practices of the employer: found in handbook, the employee's longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged. If the parties reach no express or implied agreement to the contrary, the relationship is terminable at any time without cause. The presumption that an employment relationship of indefinite duration is intended to be terminable at will is therefore subject, like any presumption, to contrary evidence, This may take the form of an agreement, express or implied, that the employment relationship will continue indefinitely, pending the occurrence of some event such as the employer's dissatisfaction with the employee's services or the existence of some cause for termination. The Cleary v. American Airlines, Inc. that termination of employment without legal cause after long service offends the implied in law covenant of good faith and fair dealing contained in all contracts, including employment contracts. (longtime employee can only be terminated by just cause). (Only longevity does not count, but can be considered.)

Workplace Injuries Duty to provide a safe workplace When does the injury have to arise?

Injury arises out of the course of employment.

What are some intentional torts?

Intentional or Reckless Infliction of Emotional Harm False Imprisonment Assault Battery Negligent Hiring and Supervision

Common-Law Agency Doctrine/ "Right to Control" test

the dominant test for determining whether an individual is a statutory employee under most federal and state anti-discrimination employment laws.

For most white collar exemptions what must the employer establish Salary basis

the employee is paid on a "salary basis"(salary basis test) The employee must be paid a predetermined & fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed. the mere fact that you are paid a salary doesn't make you exempt

An employee has a protected privacy interest against employer intrusion into:

the employee's physical person, bodily functions, and personal possessions; and physical and electronic locations, including employer provided locations, as to which the employee has a reasonable expectation of privacy.

For most white collar exemptions what must the employer establish Duties test

the employee's work predominantly involves exempt duties (duties test) The employee's job duties must primarily involve executive, administrative, or professional duties as defined by the regulations.

An employee has a reasonable expectation in the privacy of a physical or electronic work location provided by the employer if:

the employer has provided express notice that the location or aspects of the location are private for employees; or the employer has acted in a manner that treats the location or aspects of the location as private for employees, the type of location is customarily treated as private for employees, and the employee has made reasonable efforts to keep the location private

To state a claim against a corporate officer for intentional interference with corporate contractual relations with another, a plaintiff must allege and prove what elements?

the existence of a valid contractual relationship intentional interference with that relationship A third party accomplished through improper means or for an improper purpose a causal effect between the interference and damage of the relationship damages

In determining whether a hired party is an employee under the general common law of agency,what do we consider

the hiring party's right to control the manner and means by which the product is accomplished.

Restatement elements of an employee

the individual acts, at least in part, to serve the interests of the employer the employer consents to receive the individual's services; and the employer controls the manner and means by which the individual renders services, or the employer otherwise effectively prevents the individual from rendering those services as independent businessperson.

Freedom of Speech and public employment Pickering v. Board of Education What must be balanced?

the interest of the public employee, as a citizen, in commenting upon matters of public concern v. the interest of the state as an employer in promoting the efficiency of the public services it performs through its employee.

whether the communication privilege was abused is a question for ...

the jury

What must you assess when determining whether a defendant's inference with a contractual relation was improper

the nature of the actor's conduct the actor's motive the interests of the other with which the actor's conduct interferes the interest sought to be advanced by the actor the societal interest in protecting the freedom of action of the actor and the contractual interests of the other the proximity or remoteness of the actor's conduct to the interference the relations between the parties

Protected employee privacy interests include:

the privacy of the employee's person (including aspects of his physical person, bodily functions, and personal possession) as well as the privacy of the physical and electronic locations, including work locations provided by the employer, as to which the employee has a reasonable expectations of privacy the privacy of the employee's information of a personal nature the privacy of the employee's information of a personal nature disclosed in confidence to the employer

Police of intentional inference with contractual relations

the tort of intentional interference with contractual relations serves as a remedy for contracting parties against interference from outside intermeddlers.

What is employer liability determined by?

the totality of the circumstances surrounding the hiring and whether the employer exercised reasonable care.

Bascom v. Henkel distinction

No authority No meeting of the minds No one ever said it was a contract for one year (during cross examine)

FLSA definition of workweek

All time the employee was required to be on the employer's premises

FLSA definition of an Employee

"Employees are those who as a matter of economic reality are dependent upon the business to which they render service."

ERISA definition of an Employee:

"any individual employed by an employer."

Exemptions from minimum wage and overtime coverage White collar exemptions

"white collar" exemptions for executive, administrative, professional (lawyers, doctors, teachers, and nurses), and computer employees, as well as outside salespersons section 213 (a)(1)

A restraint is reasonable only if it:

(1) is no greater than is required for the protection of the legitimate interest of the employer Limit enforcement of broad restraints on competition protection against misappropriation of the employer's trade secrets or of confidential customer lists, or protection from competition by a former employee whose services are unique or extraordinary. (2) does not impose undue hardship on the employee (3) is not injurious to the public

In determining whether an employee's conduct warrants forfeiture under the faithless servant doctrine, New York courts applies two standards

(1) the first standard requires that misconduct and unfaithfulness...substantially violate the contract of service (2) the second standard requires only that an agent act adversely to his employer in any part of a transaction or omit to disclose any interest which would naturally influence his conduct in dealing with the subject of his employment compensation is limited to the time period of disloyalty

Under New York law, how can an employer alleging a breach of the common law duty of loyalty against an employee choose whether to seek damages

(1) through an accounting of the disloyal employee's gain (profit disgorgement: restitution) (2) As a calculation of what the employer would have made had the employee not breached his or her duty of loyalty to the employer.

Protected Employee Privacy Interest Against Employer Disclosure of Employee Personal Information

(a) An employee has a protected privacy interest in personal information related to the employee that is provided in confidence to the employer in the course of the employment relationship (b) An employer intrudes upon the privacy interest stated in subsection (a) by providing or allowing third parties access to such employee information without the employee's consent. For purposes of this Section, third parties include an employer's employees or agents who have no legitimate business reason to access the information (c) An employer does not intrude upon the privacy interest stated in subsection (a) if the employer is compelled by law to provide or allow a third party access to the employee information described in the subsection

Wrongful Employer Intrusions

(a) An employer is subject to liability for a wrongful intrusion upon an employee's protected privacy interest if the intrusion would be highly offensive to a reasonable person under the circumstances. (b) An intrusion is highly offensive under subsection (a) if the nature, manner, and scope of intrusion are clearly unreasonable when judged against the employer's legitimate business interests or the public's interests in intruding.

Injunctive Relief- Employee Breach of Agreement

(a) An employer may not obtain specific performance of the employee's promise to work. (b) An employer may obtain injunctive relief to enforce any other obligation expressly stated in the employment agreement if the employer satisfies the traditional requirements for obtaining equitable relief.

protectable interests for restrictive covenants

(a) a restrictive covenant is enforceable only if the employer can demonstrate that the covenant furthers a legitimate interest of the employer (b) An employer has a legitimate interest in protecting, by means of a reasonably tailored restrictive covenant with its employee, the employer's: (1) trade secrets, as defined in 8.02, and other protectable confidential information that does not meet the definition of trade secret, (2) customer relationships, (3) investment in the employee's reputation in the market, or (4) purchase of a business owned by the employer

The 6 factors that asses the true nature of the employee/ Independent Contractor relationship

1) the nature and degree of the alleged employer's control as to the manner in which the work is to be performed; 2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee's investment in equipment or materials required for his task, or his employment of workers; 4) whether the service rendered requires a special skill; 5) the degree of permanency and duration of the working relationship; 6) the extent to which the service rendered is an integral part of the alleged employer's business. KEY

Interns Department of Labor ("DOL") 6 Factors to determine whether interns are employees under the FLSA.

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; 2. The internship experience is for the benefit of the intern; 3. he intern does not displace regular employees, but works under close supervision of existing staff; 4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded; 5. The intern is not necessarily entitled to a job at the conclusion of the internships; and 6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship

Two dominant approaches help explain the reach of the first amendment.

1. the primary purpose of the first amendment is the protection of the preconditions for public debate. this view was thought limited to those matters of government and public affairs directly relevant to an informed citizenry intelligently exercising its franchise. 2. The first amendment includes expressions about philosophical, social, artistic, economic,literary, or ethical matters. under this view, the first amendment values unrestrained debate for an instrumental reason: it is more likely to yield an enlightened public. human expressive activity is valued because it may contribute to a sense of personal autonomy or to the full development of the human potential.

Causes of Workplace violence

10% homicides More than 40% transportation-related 30% slips, falls, or being struck by an object or equipment

Typically, how long are Ohio's restrictive covenants

2 year time frame

What is the statute for violation of first amendment right for a public employee

42 U.S.C. 1983

Rule from Collins v. Rizkana (Ohio's wrongful discharge case)

A cause of action may be brought for wrongful discharge in violation of public policy based on sexual harassment/discrimination. a general or indefinite hiring is terminable at the will of either party, for any cause, no cause, or even in gross or reckless disregard of any employee's rights, and a discharge without cause does not give rise to an action for damages.

Theory of negligent hiring

A claim for negligent hiring "is based on the principle that an employer is liable for the harm resulting from its employee's negligent acts 'in the employment of improper persons or instrumentalities in work involving risk of harm to other.'"

Disclaimer in an employer manual concerning job security

A clear and prominent disclaimer needs to be inserted in the policy manual The inclusion in a very prominent position of an appropriate statement that there is no promise of any kind by the employer contained in the manual; that regardless of what the manual says or provides, the employer promises nothing and remains free to change wages and all other working conditions without having to consult anyone and without anyone's agreement; and that the employer continues to have the absolute power to fire anyone with or without good cause. (disclaimer of any promise of job security)

Modifications of unreasonable restrictive covenant: BLUE LINE

A court may modify or delete provisions in an overbroad restrictive covenant in an employment agreement and then enforce the covenant as modified unless the agreement does not allow for modification or the employer lacked a reasonable and good-faith basis for believing the covenant was enforceable.

P.E. exception The nature of a promise that can give rise to a P.E. exception to the employment-at-will doctrine:

A demonstration of detrimental reliance on specific promises of job security.

Exception to the at-will doctrine public policy

A discharge cannot clearly violate an express statutory objective or undermine a firmly established principle of public policy. It is an exception to the at-will doctrine that in some instances the employer's discharge violates public policy and justifies compensation to the employee.

what might form a basis for a valid fraud claim even in the context of wrongful termination:

A misrepresentation not aimed at affecting termination of employment, but instead designed to induce the employee to alter detrimentally his or her position in some other respect.

Mers v. Dispatch Printing Company Promissory Estoppel

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

When will a restrictive covenant be subjected to specific enforcement?

A restrictive covenant will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer's legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee

Henkel v. Educational Research Council of America

Absent facts of circumstances indicating that an employment agreement is for a specific term an employment contract which provides for an annual rate of compensation but makes no provision as to the duration of the employment is not a contract for one year but is terminable at will by either party. The facts and circumstances surrounding an at-will agreement should be considered to ascertain if they indicate what took place, the parties' intent, and the existence of implied or express contractual provisions which may alter the terms of discharge.

Volunteers

Agent under the full control of their principals are treated as employees by the common law for purposes of vicarious liability, regardless of whether they perform their work without compensation. Some courts have held, however, that those who work voluntarily without compensation are not employees for purposes of certain employment laws.

INTRUSIONS INTO ELECTRONIC "LOCATIONS" Electronic Communications Privacy Act

An ECPA violation requires an "interception" of the communication, i.e., obtaining the contents of the communication during transmission- thus limiting the statute's applicability to email systems where interception usually occurs after the message has been sent and stored. The ECPA contains an exception for services providers and authorized users. Employer have successfully used this exception for accessing information stored on their own networks.

The employment relationship is not terminable at will by an employer if:

An agreement between the employer and the employee provides for a definite term of employment; or An agreement between the employer and the employee provides for An indefinite term of employment and requires cause to terminate the employment; or A promise by the employer to limit termination of employment reasonably induces detrimental reliance (promissory estoppel) by the employee; or A binding policy statement made by the employer limits termination of employment; or The implied duty of good faith and fair dealing applicable to all employment relationships limits termination of employment; or Other established principles recognized in the general law of contracts limits termination of employment.

Workplace privacy: general rule

An employee can bring common law privacy claims for wrongful intrusions into "work location provided by the employer, as to which the employee has a reasonable expectation of privacy.

Wing v. Anchor Media, LTD of Texas

An employee handbook may be changed at any time. Absent fraud in the inducement, a disclaimer in an employee handbook stating that employment is at will precludes an employment contract other than at will based upon the terms of the employee handbook.

Claims against employees Damages- Employee Breach of Agreement

An employee who breached any obligation that the employment agreement clearly states is a basis for damages liability is subject to liability for that breach of contract. The employer may recover damages for foreseeable economic loss that the employer could not have reasonably avoided, including any reasonably foreseeable consequential damages and the expenses of reasonable efforts to mitigate damages.

Damages and Restitution- Employee Breach of Tort Based Duty or Fiduciary Duty

An employee who breaches a tort-based duty or any fiduciary duty the employee owes the employer is subject to liability for foreseeable harm to the employer caused by the breach, including the expenses of reasonable efforts to mitigate damages, less damages that the employer could reasonably have avoided.

Auer v. Robbins

An employee will be considered to be paid "on a salary basis" if under his/her employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his/her compensation, which amount is not subject to reduction because of variations in the quality or quantity of work performed.

Rule from Burlington Industries, Inc. v. Ellerth

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.

Discharge in Retaliation for Refusing Privacy Invasions

An employer who discharges an employee for refusing to consent to a wrongful employer intrusion upon a protected employee privacy interest under this chapter is subject to liability for wrongful discharge in violation of well-established public policy under chapter 5.

Novosel v. Nationwide Insurance Co.

An important public policy is in fact implicated wherever the power to hire and fire is utilized to dictate the terms of employee political activities Made a public policy exception for an employee who was dismissed for refusing to join a company's lobbying effort because he privately opposed the company's stance on the issue.

What is the policy of using an objective standard?

An objective standard avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings.

Rule from Ohanian v. Avis Rent A Car System, Inc.

An oral promise of lifetime employment is unenforceable under the statute of frauds

When must the decision to terminate the employee for good cause/ good faith must be made?

At the time the decision to terminate the employee's employment

Balancing test: Intrusion upon seclusion

Balance the employee's privacy interest against the employer's interest in order to determine whether to uphold the programs. Example: balancing the employee's privacy interest against the employer's interest in maintaining a drug-free workplace in order to determine whether a reasonable person would find the employer's program highly offensive.

Balancing test for determining how far an employee may purse self-help opposition while remaining within the protection of section 704(a)

Balance the purpose of the Act to protect persons engaging reasonably in activities opposing of sexual discrimination, against Congress' equally manifest desire not to tie the hands of employers in the objective selection and control of personnel.

What is not included in the regular rate?

Bonuses awarded at the employer's sole discretion, gifts, employee benefits, and stock options are not included in the regular rate.

Theory of negligent retention

Claims for negligent retention on are based upon the premise that an employer should be liable when it places an employee, who it knows or should have known is predisposed to committing a wrong, in a position in which the employee can commit a wrong against a third party. foreseeability gives rise to a duty of care that is not outweighed by policy considerations of employment opportunity. opportunity for gainful employment may spell the difference between recidivism and rehabilitation, but it cannot predominate over the need to maintain a safe workplace when specific actions point to future violence.

Ohio's elements for wrongful discharge

Clarity Jeopardy Causation Overriding justification

Common Law theory of implied in fact contracts

Common law believed presumption that the parties' writing and the official law of contract are the definitive elements of the agreement.

What is the purpose of the "right to control test?"

Courts developed the right to control test for the purpose of determining when it is appropriate to impose respondeat superior (strict) liability on a principal, as a master, for the torts of an agent, as a servant.

Default Rule of an At-Will Employment Relationship

Either party may terminate an employment relationship with or without cause unless the right to do so is limited by a statute, other law or public policy, or an agreement between the parties, a binding employer promise, or a binding employer policy statement.

How do you determine whether the employee can use on-call time effectively for his/her personal purposes.

Did the employee have to remain on or about his employer's place of business, or some location designated by his employer? or was the employee free to be at his/her home or at any place or places he/she chose, without advising his/her employer? This does not imply that the employee must have substantially the same flexibility or freedom as he would if not on call, else all or almost all on-call time would be working time, a proposition that the settled case law and the administrative guidelines clearly reject.

First amendment during the 1800's and the first half of the 1900's

During the 1800's and the first half of the 1900's, the view prevailed that a citizen may have a constitutional right to talk politics, but he has no constitutional right to be a policeman

City of Ontario v. Quon

Employees generally are treated as having a lesser expectation of privacy in company-owned equipment than in their own computers or other possessions. Privacy expectations in communications made on electronic equipment owned by a government employer (privacy expectations enjoyed by employees when using employer-provided communication devices.

PERSONAL AUTONOMY Intrusions upon Employee Personal Autonomy

Employees have protected interests in personal autonomy outside of the employment relationship Such interests include: engaging in lawful conduct that occurs outside of locations, hours, and responsibilities of employment and does not refer to or otherwise involve the employer or its business; adhering to political, moral, ethical, religious, or other personal beliefs or expressing such beliefs outside of locations, hours, and responsibilities of employment in a manner that does not refer to or otherwise involve the employer or its business; or belonging to or participating in lawful associations when that membership or participation does not refer to ot otherwise involve the employer or its business.

What test does the restatement use for assessing employment status?

Entrepreneurial Control Test

Wrongful Discharge in Ohio based on Contractual Exceptions Henkel v. Educational Research Council of America

Established that employment-at-will exists in Ohio

Retaliation for Assertion of statutory rights Anti-retaliation provision

Every federal and most state employment laws contain some form of express anti-retaliation provision.

Kelsey v. Motorola importance

First court that recognized public policy claim for termination resulting from filing of worker's compensation claims.

For employers to record, calculate and pay wages, what must they first determine?

For employers to record, calculate and pay wages, they must first determine what does and does not qualify as working time.

Is there publication where a defendant communicates a statement directly to a plaintiff, who then communicates it to a third person.

Generally No. Exception: if a defamed person was in some way compelled to communicate the defamatory statement to a third person, and if it was foreseeable to the defendant that the defamed person would be so compelled, then the defendant could be held liable for the defamation.

How is an act conducted within the scope of employment?

Generally, if an act is connected either directly or indirectly with the business of the employer (designed to benefit the employer's business), that act is conducted within the scope of employment.

Cotran v. Rollins Hudig Hall International What constitutes "cause" or "good cause"

Good cause: fair and honest reasons, regulated by good faith on the party of the employer, that are not trivial, arbitrary or capricious unrelated to business needs or goals, or pre textual. A reasoned conclusion, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.

Rule from Guz v. Bechtel National, Inc.

Good faith and fair dealing If you have guidelines you have to follow

How can a employer still be liable even if the employee reasonably did not take advantage of the corrective system?

If the employee is intimidated and receives threats from harasser.

Defamation Lewis v. Equitable Life Assur. Society ELEMENTS OF A DEFAMATORY STATEMENT:

In Order for a statement to be considered defamatory, it must be communicated to someone other than the plaintiff, it must be false, and it must tend to harm the plaintiff's reputation and to lower him or her in the estimation of the community.

Rule from Bowden v. Young Actual Intent case

In order for a willful tort to be outside the exclusivity of the Mississippi Workers' Compensation Act (MWCA), the employer's action must be done with ACTUAL INTENT to injure the employee A mere willful and malicious act is insufficient to give rise to the intentional tort exception to the exclusive remedy provisions of the MWCA.... Reckless or grossly negligent conduct is not enough to remove a claim from the exclusivity of the MWCA

Kelly v. Carthage Wheel Co. (Case within Henkel)

In order to constitute a contract of employment for a year, it is not essential that the agreement shall contain express words of employment for that specific period. The intention of the parties in this respect, as in all others, must be gathered from the whole instrument, or agreement. Where there is a contract of hiring for a year and at the expiration of that time the employee is continued in the same service of the employer without any new or different arrangement, a contract for another year, upon the same terms and conditions, arises by implication of law

Kelsay v. Motorola, Inc. Public policy

Involves judicial implication of a private civil remedy for employees who have been retaliated against for the assertion of a statutory claim. Acknowledged the common law principle that parties to a contract may not incorporate in it rights and obligations which are clearly injurious to the public. When a discharge contravenes public policy in any way the employer has committed a legal wrong. However, the employer retains the right to fire workers at will in cases "where no clear mandate of public policy is involved."

Freedom of Association and Public Employment McLaughlin v. Tilendis

Landmark case supporting the right of public employees to organize and join unions unless illegal intent. Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees.

When does liability attach for intrusion upon seclusion?

Liability attaches only when the intrusion is substantial and would be highly offensive to "the ordinary reasonable person."

Is there compensation time in the private sector?

NO Comp time in the private sector except within the same week (two 20 hour shifts allows for comp time)

Yunker v. Honeywell, Inc. What is negligent hiring predicated on?

Negligent hiring is predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others

Do Courts allow employers to offer attractive inducements and benefits to the workforce and then withdraw them when it chooses, no matter how sincere its belief that they are not enforceable.

No

Do promises of future benefits or opportunities without a specific promise of continued employment support a promissory estoppel exception to at-will employment.

No

Does an employee have a general right to walk off the job whenever workers suspect a safety hazard?

No

Does an employer enjoy an absolute or totally unfettered right to discharge even an at-will employee.

No

Does an employer's authority over its employee include the right to demand that the employee commit a criminal act to further its interests

No

Does the FLSA overtime pay requirements define administrative?

No

Does the first amendment prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities.

No

If an employee is covered by worker's compensation, can he/she sue (bring a tort) for the injury?

No

Should an employee have the right to prevent his or her employer from pursuing its business because the employee PERCEIVES that a particular business decision violates the employee's personal morals, as distinguished from the recognized code of ethics of the employee's profession.

No

Do parties to an oral employment-at-will agreement have a duty to act in good faith?

No Malicious acts are not recognized as an exception.

May an employer coerce compliance with unlawful criminal acts by discharging an employee who refuses to follow such an order?

No To hold that one's continued employment could be made contingent upon his commission of a felonious act at the instance of his employer would be to encourage criminal conduct upon the part of both the employee and employer and serve to contaminate the honest administration of public affairs. Even in the absence of an explicit statutory provision prohibiting the discharge of a worker on such grounds, fundamental principles of public policy and adherence to the objectives underlying the state's penal statutes require the recognition of a rule barring an employer from discharging an employee who has simply complied with his legal duty and had refused to commit an illegal act.

When is an affirmative defense to vicarious liability to a victimized employee for actionable hostile environment created by a supervisor not available?

No affirmative defense is available, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Do all of the prongs of the 3- prong test for a restraint being reasonable have to be met?

No, A VIOLATION OF ANY PRONG RENDERS THE COVENANT INVALID

Can an employer avoid its obligation under the FLSA by dopting a policy prohibiting employees from working overtime when its work assignments effectively require overtime work.

No, An employer cannot avoid its obligation under the FLSA by adopting a policy prohibiting employees from working overtime when its work assignments effectively require overtime work.

If the employer contents to intrusion does the employer violate the employee's privacy?

No, If the employee consents, the employer does not violate the employee's privacy

Does the first amendment expressly mention freedom of association?

No, The First Amendment does not expressly mention freedom of association. The Amendment's express protection of free speech, assembly and the right to petition government implicitly includes the guarantee of free association.

When public employees make statements pursuant to their official duties, are the employees speaking as citizens for First Amendment purposes?

No, When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

Are constitutional claims under the first and fourth amendment actionable against private employers?

No, constitutional claims (first and fourth amendment) are not actionable against private employers.

Are corporate agents liable for ortious interference with the corporation's contracts?

No, corporate agents are not liable, unless they acted solely for their own benefit with no benefit to the corporation

What is included in the regular rate?

Non-discretionary bonuses, commissions, and piece rate pay are included in the regular rate.

Mers v. Dispatch Printing Company Implied Contract

Ohio recognizes exceptions to at-will-employment Oral assurances manuels

Bright v. Houston Northwest Medical Center Survivor, Inc.

On-call time is not working time

Standard of good cause

POE: More likely than not

Borse v. Piece Goods Shop, Inc.

Pennsylvania common law recognizes a cause of action for tortious intrusion upon seclusion One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Whistleblowers Geary v. United States Steel Corp. importance

Pennsylvania recognizes a common law claim for wrongful termination in violation of public policy

Privacy Surveillance

Several states prohibit employers from hiring detectives to spy on employees for any purpose, or at least for the purpose of interfering with the exercise of labor rights.

What a plaintiff must show to support that the retaliation produced injury or harm:

Plaintiff must show that a reasonable employee would have found the challenged action materially adverse, "which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Have to separate significant from trivial harms. Minor annoyances will not deter victims of discrimination from complaining to the EEOC, the courts, and their employers.

importance of the Ponticas case

Ponticas case is the first Minnesota case that recognized a cause of action based on negligent hiring.

Some courts don't use DOL 6 factor test for determining whether interns are employees, they use the ______ test

Primary Beneficiary test Whether the intern or the employer is the "primary beneficiary" of the relationship.

Workplace Privacy: does the employee have a reasonable expectation of privacy When does privacy issues commonly arise?

Privacy issues commonly arise in the context of investigations into employee misconduct.

Anti-retaliation provision protects an individual from what type of retaliation

Protects an individual not from all retaliation, but FROM RETALIATION THAT PRODUCES AN INJURY OR HARM.

Public Policy cause of action; protection of Whistleblowers Performance of public obligations: Jury Duty Nees v. Hocks

Public policy is not centrally located in a particular statute, but must be gleaned from a variety of state statutory and constitutional provisions.

What standard is used to show that retaliation produced an injury or harm

Reasonable employee: the provisions standard for judging harm must be objective. An objective standard is judicially administrable.

Three main categories of Wrongful discharge in violation of public policy

Refusal to perform an illegal act Exercising statutory right Performing a public duty

Rule from McInerney v. Charter Golf, Inc.

Rejected the approach taken in Ohanian, holding an oral promise of lifetime employment unenforceable under the statute of frauds A writing is required for the fair enforcement of lifetime employment contracts

Public Policy cause of action; protection of Whistleblowers Refusal to perform assignment in contravention of public policy Tameny v. Atlantic Richfield Co.

Requires the court to determine whether in some circumstances employee refusals to perform assigned work contravenes public policy. The plaintiff must articulate how that law (and the plaintiff's actions) advances a public, rather than a private interest, as listed in section 5.02.

Anti-retaliation provision Participation clause

Section 704(a) of title VII prohibits discrimination against an employee or applicant "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title."

Anti-retaliation provision Opposition clause

Section 704(a) of title VII prohibits discrimination against an employee or applicant "because he has opposed any practice made an unlawful employment practice by this title."

Rule from Garcetti v. Ceballos

So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. Many citizens do much of their talking inside their respective workplace, and it would not serve the goal of treating public employees like "any member of the general public," to hold that all speech within the office is automatically exposed to restriction.

What legislation uses the economic reality test?

Social Welfare legislation

What type of speech occupies the highest rung of the hierarchy of first amendment values and is entitled to special protection.

Speech on public issues

Givhan v. Western Line Consolidated School District

Supreme Court decision on the free speech rights of public employees. The Court held unanimously in favor of a school teacher fired for her critical remarks in conversations with her principal. Speech protected by the first amendment

Clearly v. American Airlines, Inc.

Termination of employment without legal cause [ after long service] offends the implied-in-law covenant of good faith and fair dealing contained in all contracts, including employment contracts. Longtime employee can only be terminated by just case

Ohio's elements for wrongful discharge Clarity

That a clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law.The reason for discharge has to be prohibited by statute. Ex. R.C. 2907.06

Ohio's elements for wrongful discharge jeopardy

That dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy. the issue that most often arises under the jeopardy analysis, and upon which the courts are split, is whether the public policy tort should be rejected where the statute expressing the public policy already provides adequate remedies to protect the public interest. (availability of remedies) This issue of adequacy of remedies is confined to cases "where right and remedy are part of the same statute which is the sole source of the public policy opposing discharge. In cases of multiple-source public policy, the statute containing the right and remedy will not foreclose recognition of the tort on the basis of some other source of public policy, unless it was the legislature's intent in enacting the statute to preempt common-law remedies.

Privacy Medical examinations

The ADA, 29 U.S.C. section 12112(d), restricts an employer's ability to conduct a pre-employment medical examination.

FLSA: Defining Compensable working time

The FLSA does not set a limit on the numbers of hours a day or week an individual can work, other than to require payment of the overtime premium for work in excess of 40 hours a week.

Who is the FLSA enforced by

The FLSA is enforced by the Wage and Hour Division of the Department of Labor (DOL)

How is the FLSA structured?

The FLSA is structured on a workweek basis. (requires time and a half pay "for a work week longer than 40 hours."

How much does the FLSA require employers to pay their employees over a 40 hour work week?

The FLSA requires employers to pay a premium rate of 1.5 times their regular rate for each hour worked in excess of 40 hours in a week. overtime calculation includes both the regular rate and hours work is based on each workweek.

First Amendment Protection of Government Employee Expression and Association

The First Amendment guarantees freedom of speech and assembly

Portal to portal

The Supreme Court has held that the FLSA required compensation for time spent by employees traveling from "portal to portal"

Kelsey v. Motorola holding

The Supreme Court held that the retaliatory discharge of an employee for pursuing a workmen's compensation claim offended the public policy of Illinois as manifested in the Workmen's Compensation Act. The Court also held that such a discharge constituted a tort and gave rise to compensatory and punitive damages to prevent the discharging of employees for filing workmen's compensation claims.

Implied in Fact Contracts Foley v. Interactive Data Corporation

The absence of an express written or oral contract term concerning termination of employment does not necessarily indicate that the employment is actually intended by the parties to be at-will, because the presumption of at-will employment may be overcome by evidence of contrary intent. It must be determined, as a question of fact, whether the parties acted in such a manner as to provide the necessary foundation for an implied contract, and evidence may be introduced to rebut the inferences and show that there is another explanation for the conduct.

Hochstadt v. Worcester Foundation: when is enough, enough How far an employee may purse self-help opposition while remaining within the protection of section 704(a)

The actions cannot go beyond the scope of protected opposition. The actions cannot damage the basic goals and interest of the foundation.

Rule from Crawford v. Metropolitan Government of Nashville (opposition clause and self help case)

The anti retaliation provision of Title VII extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation.

The test for Promissory Estoppel

The appropriate test involves the promisor's subjective interpretation of the promise. The promisor's construction of what it meant by making the promise is controlling.

Henkel v. Educational Research Council of America The facts and circumstances surrounding an at-will agreement should be considered to ascertain if they indicate what took place, the parties' intent, and the existence of IMPLIED OR EXPRESS CONTRACTUAL PROVISIONS WHICH MAY ALTER THE TERMS OF DISCHARGE Factors to determine the agreements EXPRESS AND IMPLIED terms concerning discharge

The character of the employment, custom, the course of dealing between the parties', company policy, or any other fact which my illuminate the question can be considered by the trier of fact in order to determine the agreement's explicit and implicit terms concerning discharge.

Henkel v. Educational Research Council of America The facts and circumstances surrounding an at-will agreement should be considered to ascertain if they indicate what took place, the parties' INTENT, and the existence of implied or express contractual provisions which may alter the terms of discharge. Factors to show INTENT

The character of the employment, custom, the course of dealing between the parties, or other fact which may throw light upon the question" can be considered by the jury in order to determine the parties' intent.

BDO Seidman v. Hirshberg

The common law standard of reasonableness for employee agreements not to compete (determining the validity of employee agreements not to compete) applies a 3-pronged test.

Whether an employee's speech addresses a matter of public concern must be determined by . . .

The content , form, and context of a given statement.

What is the difference between negligent hiring and negligent retention

The difference between negligent hiring and negligent retention focuses on when the employer was no notice that an employee posed a threat and failed to take steps to insure the safety of third parties.

What is the critical question under Garcetti?

The critical question under Garcetti is "whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.

What is the ultimate determinant in finding employee v. independent contractor is the economic dependence.

The degrees the workers depend on the employer.

How must an employee's expectation of privacy be assessed?

The employee's expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees and business and personal invitees. Instead, offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits.

Who bears the burden of establishing that an employee's position satisfies the requirement for an exemption?

The employer bears the burden of establishing that an employee's position satisfies the requirements for an exemption. problem with this: employers do not in general track the hours worked by salaried employees; so the employer will often lack documentation of hours worked when salaried employee have been found to misclassified as overtime-exempt. unless the employer can provide accurate estimates, it is the duty of the trier of facts to draw whatever reasonable inferences can be drawn from the employees' evidence as to the amount of time spent in these activities in excess of the productive working time.

Ohio's elements for wrongful discharge overriding justification

The employer lacked overriding legitimate business justification for the dismissal.

P.E. What must the employer's representation be determined by?

The employer's representation is to be determined by what the "promisor should reasonably expect" the employee to believe the promise means if expected action or forbearance results. whether the employer should have reasonably expected its representation to be relied upon by its employee and, if so, whether the expected action or forbearance actually resulted and was detrimental to the employee.

Joint Employers 7 Factor for determining whether garment workers are jointly employed by the "jobber"

The extent to which the workers perform a discrete line-job forming an integral part of the putative joint employer's integrated process of production or overall business objective; Whether the putative joint employer's premises and equipment were used for the work; The extent of the putative employees' work for the putative joint employer; The permanence or duration of the working relationship between the workers and the putative joint employer; The degree of control exercised by the putative joint employer over the workers; Whether responsibility under the contract with the putative joint employer passed without material changes from one group of potential joint employees to another; and Whether the workers had a business organization that could or did shift as a unit from one putative joint employer to another.

INTRUSIONS INTO ELECTRONIC "LOCATIONS" Wiretap Act

The federal wiretapping statute prohibits "interceptions" of telephone calls and other communications without the consent of at least one party (ohio), but other states require the consent of both parties. Generally, courts are disinclined to find implied consent.

Restatement elements of an Independent Contractor

The individual in his or her own interest exercises entrepreneurial control over important business decisions, including whether to hire and where to assign assistants, whether to purchase and where to deploy equipment, and whether and when to provide service to other customers

The provisions of a manual concerning job security shall be considered binding unless. . .

The manual elsewhere prominently and unmistakably indicates that those provisions shall not be binding unless there is some other similar proof of the employer's intent not to be bound.

What kind of contract does a manual create?

The manual is an offer that seeks the formation of a unilateral contract, the employees' bargained for action needed to make the offer binding is their continued work when they have no obligation to continue. The continued services is sufficient to establish acceptance and consideration. Reliance is presumed under the circumstances.

What is the time for establishing causation between the protected activity and the adverse action.

The protected activity and the adverse action must be very close (temporal proximity) in order to establish causation.

Ohio's elements for wrongful discharge causation

The plaintiff's dismissal was motivated by conduct related to the public policy.

Is public policy defined by the statute?

The public policy is defined by the statute, and the court engages in the traditional enterprise of deciding whether a private right of action is necessary to effectuate the scheme and consistent with the legislative design.

Restatement view on independent contractors

The restatement takes the view that the right to control the physical performance of the job is the central element of status as an independent contractor.

What relevant factors are considered regarding the hiring party's right to control the manner and means by which the product is accomplished.

The skill required The source of the instrumentalities and tools The location of the work The duration of the relationship between the parties Whether the hiring party has the right to assign additional projects to the hired party The extent of the hired party's discretion over when and how long to work The method of payment The hired party's role in hiring and paying assistants Whether the work is part of the regular business of the hiring party Whether the hiring party is in business The provision of employee benefits Tax treatment of the hired party

What are the sources of public policy?

The sources of public policy include legislation; administrative rules, regulations, or decisions, and judicial decisions.

Purpose of a anti-retaliation provision

The statute's primary objective is to avoid harm to employees.

Whistleblowers Palmateer v. International Harvester Co. importance

There is no public policy more important or more fundamental than the one favoring the effective protection of the lives and property of citizens. Policy: persons acting in good faith who have probable cause to believe crimes have been committed should not be deterred from reporting them by the feat of unfounded suits by those accused.

What Act uses the Economy Realities Test.

This is used under the Fair Labor Standards Act of 1938 ("FLSA")

How do you calculate overtime pay?

To calculate the overtime premium, an employer must first calculate the regular-rate of an employee's pay

Policy of free speech rights of public employees

To ensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity for employee grievances not afforded by the first amendment to those who do not work for the State.

To establish that a corporate officer interfered as a third party in the company's contract with another, what must the plaintiff plead and prove

To establish that a corporate officer interfered as a third party in the company's contract with another, the plaintiff must plead and prove that the officer "acted solely in furtherance of his or her personal interests so as to preserve the logically necessary rule that a party cannot tortiously interfere with its own contract.

Wrongful interference with contractual relations Gruhlke v. Sioux Empire Fed. Credit Union, Inc. TO prevail on a claim of tortious interference what must there be?

To prevail on a claim of tortious interference there must be a triangle: a plaintiff, an identifiable third party who wished to deal with the plaintiff, and the defendant who interfered with the contractual relations.

Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC

Under New York law, the measure of damages for a violation of a restrictive covenant is the loss sustained by reason of the breach, including "the net profits of which the plaintiff was deprived" by the defendant's acts.

Employee Inventions rights of employees to inventions

Unless otherwise agreed between the employer and the employee, when an employee has not been hired or assigned to do inventive work, the employee has the right to patent an invention the employee creates, even if the invention is created during working hours or with the use of the employer's resource Unless otherwise agreed between the employer and the employee an employee hired or assigned to do inventive work has presumptively assigned to the employer any patents on inventions relating to the work for which the employee was hired.

If Congress used the term employee without defining it, what is the intended definition?

When Congress has used the term employee without defining it, it is intended that Congress is describing the conventional master-servant relationship.

Is a federal court the appropriate forum when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest

When a public employee speaks not as a citizen upon matter of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in relation to the employee's behavior.

Employment-at-Will

When an agreement is silent as to duration it is presumptively at-will, absent an express or implied limitation on an employer's otherwise unfettered ability to discharge an employee.

When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate BALANCING of . . .

When an employee speaks as a citizen addressing a matter of public concern, the FIrst Amendment requires a delicate BALANCING of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny.

Employees or Employers EEOC factors that are relevant to the inquiry whether a shareholder is an employee

Whether the organization can hire or fired the individual or set the rules and regulations of the individual's work Whether and, if so, to what extent the organization supervises the individual's work Whether the individual reports to someone higher in the organization Whether and, if so, to what extent the individual is able to influence the organization Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts Whether the individual shares in the profits, losses, and liabilities of the organization

Bascom v. Shilito (Case within Henkel) Implied Contract

Where one rendering service for another under a monthly employment says to his employer that he desires to have his employment made more permanent, and thereupon specified amount per year is agreed upon, payable in semi-monthly installments, a hiring for a year may be inferred. Express words that the employment should continue for a year are not essential If a contract of employment express words of employment for a specific period of time, the person can only be fired for just case.

in certain circumstances, an entity can be a joint employer under the FLSA even when it does not hire and fire its joint employees, directly dictate their hours, or pay them what are the 6 factors

Whether Liberty's premises and equipment were used for the plaintiffs' work; Whether the contractor corporations had a business that could or did shift as unit from one putative joint employer to another; The extent to which plaintiffs performed a discrete line-job that was integral to Liberty's process of production; Whether responsibility under the contracts could pass from one subcontractor to another without material changes; The degrees to which the Liberty Defendants or their agents supervised plaintiffs' work; and Whether plaintiffs worked exclusively or predominantly for the Liberty Defendants

Must all of the DOL 6 factors to determine whether interns are employees under the FLSA be met?

Yes, all 6 factors have to be satisfied

Policy of wrongful/ tortious interference

Without the protection of the third party element of the tort, virtually every supervisory decision affecting employment status would be subject to judicial challenge through the Trojan horse of the intentional interference tort.

Misrepresentation Fraud and deceit Hunter v. Up-Right, Inc.

Wrongful termination of employment ordinarily does not give rise to a cause of action for fraud or deceit, even if some misrepresentation is made in the course of the employee's dismissal.

Do Promissory Fraud cases allow recovery for tort?

Yes

Do employees have a right not to be subjected to wrongful employer intrusions upon their protected privacy interests.

Yes

Is a teacher a public citizen?

Yes

Is compensation time allowed in the public sector?

Yes

Woolley v. Hoffmann-La Roche, Inc. Can Implied contract agreements- employment agreements (manuals or handbooks) be implied contracts.

Yes

Do professional employee owe a special duty to abide not only by federal and state law, but also by the recognized codes of ethics of their professions.

Yes That duty may oblige them to decline to perform acts required by their employers.

Can an independent contractor sue for an injury that arises out of the course of employment?

Yes, A bona fide independent contractor is not covered by workers' compensation. CAN SUE.

Is a citizen who works for the government a citizen?

Yes, A citizen who works for the government is nonetheless a citizen. Therefore, the first amendment limits the ability of the public employer to condition employment of that employee on the forfeiture of constitutional rights.

Is Promissory E. applicable and binding to oral employment-at-will agreements?

Yes, P.E. is applicable and binding to oral employment-at-will agreements when a promise which the employer should reasonably expect to induce action or forbearance on the part of the employee does induce such action or forbearance, if injustice can be avoided only by enforcement of the promise.

May an employer discharge an employee who refuse to work?

Yes, UNLESS the refusal is based on a clear mandate of public policy

Must an employer have cause for terminating an employee

Yes, an employer must have cause for terminating An unexpired agreement for a definite term of employment, or An agreement for an indefinite term of employment requiring cause for termination

Faragher v. City of Boca Raton Is an employer vicariously liable for actionable discrimination caused by a supervisor?

Yes, but the employers has an affirmative defense looking to the reasonableness of the employer's conduct as well as that of a plaintiff victim.

Must all relevant factors be assessed and weighed regarding the hiring party's right to control the manner and means by which the product is accomplished.

Yes, no one factor being decisive

An employee has a cause of action for wrongful discharge when the discharge is contrary to . . .

a clear mandate of public policy.

Protected Employee Privacy Interest in Information of a Personal Nature

a) An employee has a protected privacy interest in information relating to the employee that is of a personal nature and that the employee has made reasonable efforts to keep private. (b) An employer intrudes upon this protected privacy interest requiring that the employee provide information described in this subsection (a) or by obtaining the information through deceit.

When an employer of a substantial number of employees circulates a manual that, when fairly read, provides that certain benefits are an incident of the employment (including, especially, job security provisions), the judiciary, instead of "grudgingly" conceding the enforceability of those provisions should construe them in in what way?

accordance with the reasonable expectations of the employees.

Production vs. Administrative work

administration category, which falls within the administrative exception or the production/sales work, which does not the border between administrative and production work does not track the level of responsibility, importance, or skill needed to perform a particular job.

Competition by the employee with current employer

an employee breaches the duty of loyalty to the employer if, without the employer's express or implied consent, the employee, while employed by the employer, works for a competitor or otherwise competes with the employer. Competition with the employer includes solicitation of the employer's customers to divert their business to a competitor and recruitment of other employees to work for a competition, but does not include reasonable preparation by an employee or group of employees to compete with the employer. (Jet Courier Case)

Example of how the employer exercised reasonable care to prevent and promptly correct sexual harassing behavior

anti-harassment policy: the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.

Balancing test of firing an employee for good cause.

any workable formulation of good cause needed to strike a balance between an employer's need to have sufficient latitude to operate its business efficiently and profitably, and the employee's interest in continued employment.

FLSA's "Hot Cargo" Provision

authorized the government to seize goods manufactured in violation of the FLSA.

29 U.S.C. section 217: collective actions, which are opted in. Provided by statute.

brought by the department of labor (injunctive action). Not very expensive.

29 U.S.C. section 216 (C) collective actions, which are opted in. Provided by statute.

brought by the secretary of labor (back wage claims)

29 U.S.C. section 216(b) collective actions, which are opted in. Provided by statute.

brought by the secretary of labor (back wage claims). Expensive cases

Connick v. Myers

case on the free speech rights of public employees, it began to limit Givhan and its predecessors by sketching out a test for whether the employee's speech was on a matter of public concern.

Collins v. Rizkana Public policy exception to the employment at will doctrine:

cause of action for "wrongful discharge". An employer who wrongfully discharges an employee in violation of a clearly expressed public policy will be subject to an action for damages.

Exceptions to the "Salary Basis" Test

deductions for absences from work "for one or more full days for personal reasons, other than sickness or disability." Deductions for absences "of a day or more occasioned by sickness or disability" in accordance with a bona-fide plan or policy employees "need not be paid for any workweek in which they perform no work." penalties imposed in good faith for infractions of safety rules of major significance, i.e. those involving the prevention of serious danger in the workplace or to other employees full workweek or multiple-period suspensions for violations of non-safety-related work rule charging partial-day absences against accrued leave time, provided no salary deductions occur if accrued leave is exhausted partial-day deductions for intermittent or reduced- schedule leaves pursuant to the Family and Medical leave act

Intentional Torts What is the exception to worker's compensation

deliberate intent Examples: removing safety guard was considered deliberate intent to injure someone. supervisor and employee: Supervisor chasing employee with a baseball bat is a deliberate intent to injure someone

What considerations are relevant when determining if an act is conducted within the scope of employment

did the officer's act occur substantially within the time and space limits authorized by the employment were the actions motivated, at least in part, by a purpose to serve the employer were the actions of a kind that the officer was hired to perform. must be determined whether the interference was improper

Whirlpool Corp. v. Marshall, Secretary of Labor GENERAL DUTY CLAUSE:

each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

Test for joint employment under the FLSA 4 Factors

emphasizes control over essential terms and conditions of employment The alleged employer's authority to hire and fire the relevant employees; The alleged employer's authority to promulgate work rules and assignments and to set the employees' conditions of employment: compensation, benefits, and work schedules, including the rate and method of payment; The alleged employer's involvement in day-to-day employee supervision, including employee discipline; and The alleged employer's actual control of employee records, such as payroll, insurance, or taxes

Refusal to violate professional obligations Pierce v. Ortho Pharmaceutical Corp. What must we balance in recognizing a cause of action to provide a remedy for employees who are wrongfully discharged

employee; Employees have an interest in knowing they will not be discharged for exercising their legal rights employer; Employers have an interest in knowing they can run their businesses as they see fit as long as their conduct is consistent with public policy public. The public has an interest in employment stability and in discouraging frivolous lawsuits by dissatisfied employees.

Competition with a current or former employer

employees are under a common law duty not to compete against their employer, but the duty does not apply to former employees. A departing employee may not solicit his employer's customers but he may advise the customers of his intention to leave and set up a competing business

O'Connor v. Ortega: Invasion of Privacy Tort

employees can bring common law privacy claims for wrongful intrusions into "work locations provided by the employer, as to which the employee has a reasonable expectation of privacy

Production vs. Administrative work Production work

employees directly producing the good or services that is the primary output of a business primarily functional

Production vs. Administrative work Administrative work

employees performing general administrative work applicable to running a business administrative functions such as management of employees through a human resources department or supervising a business's internal financial activities through the accounting department are functions that MUST BE PERFORMED no matter what the business produces. primarily conceptual

Davis v. J.P. Morgan Chase & Co.

employees who work in bona fide executive, administrative, or professional capacities are exempt from the FLSA overtime pay requirements.

Prevailing Wage Laws Who is subject to federal wage statutes?

entities that contract with the federal government on public projects are subject to federal "prevailing wage" statutes.

Restrictive Covenants Enforcement of Restrictive covenant in employment agreement

except as otherwise provided by other law or applicable professional rules, a covenant in an agreement between an employer and a former employee restricting the former employee's working activites is enforceable only if it is reasonably tailored in scope, geography, and time to further a protectable interest of the employer,

Compensation Wage and Hour Laws FLSA

he principal federal law regulating compensation and work hours is the Fair Labor Standards Act of 1938 (FLSA)

Policy of employer manual

honesty: if would be unfair to allow an employer to distribute a policy manual that makes the workforce believe that certain promises have been made and then to allow the employer to renege on those promises.

In Wrongful termination claims, what do courts typically expect plaintiffs to explain?

how the cited legislation reflects a fundamental public policy interest why common law protection of the plaintiff's conduct is important to advancing or preserving that public policy interest.

How can a disclaimer in an employer's manual be ineffective?

if the wording is ambiguous or if the disclaimer was not adequately communicated to the employee. needs to be clear needs to attract the attention of the employee (front page)

Two- step framework for fourth amendment claims against employers (factors of REASONABLENESS)

inception must be reasonable:(Ordinarily, a search of an employee's office by a supervisor will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file. scope of intrusion must be reasonable: Where an employee has a legitimate privacy expectation, an employer's intrusion on that expectation for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.

Policy of increasing minimum wage

increase leads to job loss because when increases in the minimum wage reduce available hours, the resulting disemployment might be borne disproportionately by those who were both least skilled and least affiliated in the workplace opposing view: evidence of job loss is weak, which suggests the impact on jobs is small. low-wage jobs are an important stepping stone to better work opportunities in the future. If the reduction in hours worked means fewer jobs, not just fewer hours per job, then a minimum wage increase might reduce the present value of expected lifetime income for low-wage workers, even if upon enactment it increased their current-year income

Policy of wrongful discharge in Ohio

it would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge any employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statue. In Ohio, a cause of action for wrongful discharge in violation of public policy may be brought in tort.

whether a communication is privileged is a question of ...

law for the court to decide

Elements of fraud

misrepresentations (have to know when the misrepresentation is made) defendant's knowledge of the statement's falsity intent to defraud (to induce action in reliance on the misrepresentation) Justifiable reliance resulting damage

When representing an employee with a wrongful termination in violation of public policy claim, an attorney, after collecting the facts, what must the attorney identify?

must identify sources of law that establish a public policy.

Is workplace compensation exclusively physical injury or psychological injuries?

no recovery for a psychological injury or mental injury if there is not also a physical injury other states say just mental injury is fine exception: deliberate intent

Does the FLSA allow employers in lieu of overtime pay to provided "compensatory time," i.e., paid time off equivalent to the hours of overtime work.

no, The FLSA does not allow employers in lieu of overtime pay to provided "compensatory time," i.e., paid time off equivalent to the hours of overtime work.

The FLSA contains 3 core substantive obligations which include:

payment of a prescribed minimum wage As of January 2016, the federal minimum wage is $7.25 Must be paid in cash or negotiable instruments the wage paid can include the reasonable cost, as determined by the Secretary of Labor, to the employer of furnishing such employee with board, lodging or other facilities, if such board, lodging or other facilities are customarily furnished by such employer to his employees An employer may not, however, set off against the required minimum wages the value of goods, including gas and supplies from the company store, furnished to employees. payment of an overtime premium (1 ½ times the employee's basic rate of pay) for work in excess of 40 hours in any work week prohibition of employment of children under the age of 12, with special exceptions for certain types of agricultural work and child actors

Elements of intrusion upon seclusion

physical intrusion into a place where the plaintiff has secluded himself or herself bathroom maybe? use of the defendant's senses to oversee or overhear the plaintiff's private affairs, or Some other form of investigation or examination into plaintiff's private concerns

Example of how an employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. An employer cannot satisfy the second prong of the affirmative defense when the employee promptly uses the employer's complaint system. An employee's failure to utilize a fair, reasonable internal procedure to report harassment will be fatal to a harassment claim.

Policy of the recognition of a fraud cause of action in the context of wrongful termination

recognition of a fraud cause of action in the context of wrongful termination of employment not only would contravene the logic of foley, but also potentially would cause adverse consequences for industry in general.

Policy of worker's compensation

reduce injury on the job. occupational safety and health act, and workers compensation played a vital role in this policy opposed to the scale.

Rule from Meritor savings bank v. Vinson

ruled (9-0) A claim of "hostile environment" sexual harassment is a form of sex discrimination that is actionable under Title VII. The language of Title VII is not limited to "economic" or "tangible" discrimination. Equal Employment Opportunity Commission Guidelines fully support the view that sexual harassment leading to non-economic injury can violate Title VII.

Burlington Northern v. White (Participation Clause case) anti-discrimination provision (employment related discrimination)

seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. Seeks to prevent injury to individuals based on who they are (status) Has a basic objective of "equality of employment opportunities" and the elimination of practices that tend to bring about "stratified job environments"

Burlington Northern v. White (Participation Clause case) anti-retaliation provision (extends beyond workplace or employment related retaliatory harms)

seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees. primary purpose: maintaining, unfettered access to statutory remedial mechanisms" seeks to prevent harm to individuals based on what they do (conduct) But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace.Were all such actions and harms eliminated the anti retaliation provisions objective would NOT be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm OUTSIDE the workplace. The scope of the anti retaliation provision extends beyond workplace-related retaliatory acts and harms.

A worker is employerd in a bona fide administrative capacity if . . .

she/he performs work "directly related to management policies or general business operations" and "customarily and regularly exercises discretion and independent judgment. work directly related to management policies or general business operations consists of "those types of activities relating to the administrative operations of a business as distinguished from 'production' or, in a retail or service establishment, 'sales work."

Is worker's compensation a state or federal based law?

state

Wieman v. Updegraff: First case to turn around/ offer protection under the First Amendment.

struck down on due process grounds an oath requiring public employees to affirm the absence of past affiliation with the Communist Party irrespective of whether the employee had knowledge of any unlawful or subversive activity by that organization.

FLSA definition of employ

suffer or permit to work

Two elements of the affirmative defense of whether an employee is subject to vicarious liability to a victimized employee for a hostile environment created by a supervisor

that the employer exercised reasonable care to prevent and promptly correct 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.

When claiming tortious interference with a contractual relationship, what must the plaintiff plead and prove

that the officer acted outside the scope of employment

what must be inferred from the intent element of an intentional tort?

the "intent" element of an intentional tort must be inferred from the facts and circumstances

Pickering v. Board of Education holding

the Supreme Court held that in the absence of proof of the teacher knowingly or recklessly making false statements the teacher had a right to speak on issues of public importance without being dismissed from his or her position. The Supreme Court noted that similar speech is not protected if it contains false statements knowingly or recklessly made.

Shelton v. Tucker

the court invalidated as an impairment of the first amendment-protected associational rights an Arkansas statute that required public school teachers to make annual disclosure of their organizational affiliations.

What must an employee have to show in order to have a general right to walk off the job whenever he/she suspects a safety hazard.

they have a good faith, reasonably grounded feat of "a real danger of death or serious injury" there is insufficient time due to the urgency of the situation to eliminate the danger through resort to regular statutory channels "Where possible," they "have sought from the employer, and been unable to obtain, a correction of the dangerous condition." constructive discharge: allows employees to quit their employment in circumstances where reasonable persons would not continue working without the quit being treated as a voluntary separation.

New York's faithless Servant doctrine

to prove a violation of New York's faithless servant doctrine, an employer is not obligated to show that it "suffered provable damages as a result of the breach of fidelity by the agent

Lane v. Franks

truthful Testimony under oath by a public employee outside the scope of his ordinary duties is speech as a citizen for First Amendment purposes even when the testimony relates to his public employment or concerns information learned during that employment. the "mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not transform that speech into employee rather than citizen speech

How many definitions does the law recognize of malice in defamation cases

two Common law definition best for employer-employee relationship malice exists where the defendant made the statement from ill will and improper motives, or carelessly and wantonly for the purpose of injuring the plaintiff Actual malice

INTRUSIONS INTO ELECTRONIC "LOCATIONS Stored Communications

unauthorized access to electronic communications while they are in electronic storage is addressed in the Stored Communications Act (SCA). SCA violations tend to arise in the context of unauthorized access of an employee's personal email from a third party server. personal email address, but not work email.

Privacy Lie Detectors

under the Employee Polygraph Protection Act, private and government employers are generally restricted in their use of a lie detector, or any other similar device that is used for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual EXCEPTION: unless the employer provides security services or lawfully handles controlled substances, lie detectors are permitted only for testing of incumbent employees in connection with "an ongoing investigation involving economic loss or injury to the employer's business."

How are the federal minimum wage laws and the prevailing wage different?

unlike the federal minimum wage law, the "prevailing wage" is not a single federal rate, but a rate calculated at the state and county level that takes into account the type of service provided. what do they pay plumbers in northeast Ohio wages should be equal:don't want government contractors or construction companies in a race to the bottom to get the bid by paying less than what anybody else pays.

Under the portal-to-portal act amendments, what activities are generally non-compensable

walking, riding, or traveling to or from the actual place of performance of the principal activity activities which the employee is employed to perform activities which are preliminary or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. Activities performed either before or after the regular work shift, on or off the production line are compensable if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed are not specifically excluded.

social benefits of a minimum wage increase

wealth redistribution minimum wage laws offer a politically feasible, if less than optimal, means of effecting progressive wealth redistribution to the less well-off, because political majorities will support "making working pay" where they will not vote for outright wealth transfers strengthening workplace affiliation higher wages will improve incentives for marginal workers to leave welfare rolls and enter (and remain) in the workforce.

What is the ultimate question in determining the scope of employment?

whether or not it is just that the loss resulting from the servant's act should be considered as one of the normal risks to be borne by the business in which the servant is employed.

Common Law Duty of Loyalty Jet Courier Service, Inc. v. Mulei

while still employed by an employer, the employee is subject to a duty of loyalty to act solely for the benefit of the employer in all matter connected with his/her employment. pre-termination solicitation of those customers for a new competing business violates an employee's duty of loyalty. Look at the nature of the employee's preparation in determining a breach of duty of loyalty.