BLAW 446 - EXAM 1

4/5ths rule example

A selection rate is less than 80% of he rate for the group with the highest rate is deemed evidence of disparate impact - 100 women take an exam. 50 pass and all are hired - 100 men take the same exam. 20 pass and all are hired - 80% of 50 is 40 - only 20 men passed; 20 is less than 80% of 50 - This examination has a disparate evidence of discriminatory intent - If 40 men pass the exam, it would not be conclusive that the exam caused the exclusion of men in the workforce

What is Unintentional Discrimination?

AKA disparate impact - a policy, test, or something else screens out a group of people unintentionally even though the policy looks natural - Honest at face Occurs when an employer discriminates against an entire protected class of capable prospective employees. What is a protected class? - race, color, religion, gender, national origin How does the employer discriminate against an entire protected class? - ex: a test that says you have to be a certain height when woman are naturally shorter than men If you can link screening criteria to job needs than you can have the policy

Prima facie Example with airline flight attendants

Airlines only wanted female flight attendants because women make people feel more comfortable and safe - this is discrimination because a man can equally do the job Basis for denying job would be stereotyping - Stereotyping = not allowed to because discrimination - He was too aggressive = not discrimination Customer preference does not support a BFOQ

Jacksonlewis, 2013 Personnel Files

CT personnel files act CT gives you a right to rebuttal your personnel file. Remains in file as long as file is with employer or transmitted to other employers Not every state has that right

Decline of Labor Unions and Rise of Individual Rights

Decline of Labor Unions 1. Pre-WWII: workers flocked to join labor unions 2. Post- WWII: unions viewed as too powerful Rise of Individual Rights 1. Organized labor infiltrated by communists, organized crime 2. Taft-Hartley Act created union unfair labor practices 3. Globalization causes decline of American manufacturing 4. Common and statutory law create individual employee rights 5. Labor arbitration cannot prevent exercise of individual rights 6. Individual arbitration agreements are enforceable

What is Defamation?

Defamation is the wrongful harm to a person's good reputation Plaintiff must prove that: 1. the defendant ma e a FALSE statement of FACT (not opinion) about the plaintiff; and 2. the statement was published to (heard or seen by) a THIRD PERSON Opinion is usually what is argued in a lawsuit Business defamation = false info about a business that hurts the company Can conduct investigation while informations audience is limited

EEOC. v. Dial Corp. (2006) Validating Job requirements

Dial Corp has people in the sausage packaging agree - lifting and carrying = manual work - lighting boxes high and walking a lot Work Tolerance Screen Test (WTS) - employees did 1.25 lifts per minute but the test requires working a pace that is much faster than the pace actually worked on the job Women rate of injury was lower than mens rates previous to WTS so there was no reason to add this test - before test 46% of women are hired - after test 15% of women are hired Trial court decision - no business necessity and correlation - other safety measures were more effective Appellate court upheld trail court's decision

Duty v. Boys and Girls Club of Porter County (2014) Tortious Interference with contract

Dismissal of employee's claim reinstated because she plead facts to show that a coworkers induced the employer to terminate her Duty sued because employer violated policy that protects employees from retaliation because co-worker told employer to fire them because she blew the whistle on that employer. Employer and coworker are defendant and have vicarious liability - when request for case to be dismissed, court has to assume all information is true because it is before discovery - different from defamation because statements do not have to be false

Internal Investigations

Drug Testing: testing of human blood and/or urine for the presence of controlled illegal substances. - Can drug test in SOME positions and does not mean automatic termination Federal Drug-Free Workplace Act (1988) mandates drug testing for employers receiving federal funding. Implementing mandate: Substance Abuse Testing Policies - Employees investigated if there is a reasonable suspicion of substance abuse.

What is the Equal Employment Opportunity Commission?

EEOC is an administrative agency that monitors compliance with Title VII. - enforce civil right statutes Rights enforced by the EEOC: 1. Work free from discrimination. 2. Work free from harassment. 3. Complain about job discrimination or harassmentwithout punishment. 4. Request workplace accommodations for your religion or disability.

Argereow v. Weisberg (2018) Tortious interference with contract

Employee's claim alleging that employers intimidated a hospital into rescinding a job over is sufficient to satisfy this tort Norse practitioner filed suit against former employer and new employer (Hospital). She claimed former employer provided information to new employer causing her to not be hired. They provided negative information because she testified against the former employer in a case. The company said things about her professional duties after resining

Oliver v. Orleans Parish School Board (2014) Tortious Interference with contract

Employee's judgment overturned on appeal because the employer justifiably terminated her employment pursuant to statutory authority Public employeer had to close a school because "failing schools" in district . Person's fired filed suit, Act 35 allows the transfer of failing schools. - Government actor has to follow all statutes - In order to win you must have a contract and a legally protected interest in the school board

Ringelberg v. Vanguard Integrity (2018) Surveillance and Eavesdropping

Employee-installed GPS tracking device upon former employee's car is an invasion upon one's solitude or seclusion Attorney working for Vanguard witnessed owner sexually harassing employee. Addressed him about it. Attorney fired and gave settlement so did not sue. Relationship continued though (still an issue). They installed a tracking device on his private care. Then he sued - Nevada criminal statue. Employer defense was that he was on public streets. Court said no still not allowed and employee had a strong case Private employer monitoring former employee while not at work

Criminal Records

Federal employment laws do not specifically prohibit employment discrimination based on a criminal record. - Refusing to hire an individual due to his/her arrest record may violate Title VII. NY prohibits discrimination unless the conviction is directly related to the job being sought or when granting employment would involve an unreasonable risk of safety to property or the public. Some states say you are only allowed to discriminate if it affects the scope of the job functions

Whistleblower Laws (Federal)

Federal laws provide some protection to employee's who attempt to report to the government, an employer wrongdoing or actions threatening public health and safety. Federal employee's covered by the Civil Service Reform Act. - No employer discipline or retaliation for disclosing violations of law or regulations, gross mismanagement, or gross waste of funds, or a substantial and specific danger to the public health or safety. The Office of Special Counsel has authority for investigating and pursuing claims of whistleblowers. Protection with industries that affect commercial market Civil and criminal action taken

Requests for Information from Third Parties

Implicated typically during the interviewing/hiring process. Qualified Privilege/Absence of Malice standard: communication between employers regarding prospective hires protected -no liability -if communications conducted in the absence of malice. - Malice means knowledge that your statement is false or with a reckless disregard of its truth and falsity. Deliver information without knowledge it is false

Kim Kardashian gave birth to daughter Privacy issues

Los Angeles Times Workers looked at records that can only be looked at on a need to know basis, but not the case here. They were snooping. HIPPA can fine hospital $50K per violation. This happens a lot with celebrities. People use it as an opportunity for personal gain. Companies should have policies and procedures to prevent this.

Target lawsuit Intentional Emotional Distress case

Manager humiliated employee in front of coworkers - walk go shame - cause distress to employee - handcuffed and paraded around the store with police and then fired (no actual police charges) - This happens to all employees suspected of stealing from target - Whole purpose of walk of shame is to humiliate for someone behaving in a wrongful way (not necessarily true) He had disabilities: Aspergers and Autism He later committed suicide

What is Theft of Trade Secrets?

Trade Secret is: common law tort - information of processes of commercial value - that gives a business an advantage over its competitors - Business typically protect trade secrets through confidentiality agreements - protect information that has commercial value if it has physical locks, passwords, etc. Theft occurs: - when the employee misappropriates and/or divulges the employers' trade secrets and/or proprietary information - employee takes this information to use for their own good

Personnel Files

Two major issues for employers: 1. What documents should be placed and retained in the employee's personnel file? - Applications, references, letters of recommendations, performance evaluations and disciplinary reports, attendance records. 2. Which employee's should have access to personnel files? -Limited to HR, Legal, direct supervisors, senior management. Some states (PA) give people the right to access personnel files - other you have to write a request to your file

Public Employee Labor Unions and Collective Bargaining

Wisconsin (2011-13) - law limits the collective bargaining power of state's public employees (except firefighters, police, and state troopers) - required employees to pay more for health care and pension contributions Ohio (Mar-Nov, 2011) - Exempted certain subjects from collective bargaining - Prohibited strikes - Established new procedures for dispute resolution in bargaining - Repealed in Nov. 2011 To set regulation for public employees, you need to go through the government - limited bargaining power and prohibited strikes - In certain states for certain professions - ex: teachers: kids need to be able to go to school

Themes in Employment Law

Workers' concerns or complaints in the employment relationship center around these themes historically and presently: - compensation - lack of benefits - unreasonably long hours - unsafe working conditions (Focus on ability of workers to negotiate terms and conditions of employment) Responses to concert are either: - worker self-help; or - government intervention

Workers' Self-Help

Workers' self help is important because it deals with the issue of bargaining power and relates to conservative or collective activity. Middle Ages: creation of guilds to represent workers in trades (looked like modern unions - gave you training, tips to making contracts for services, networking, benefits, insurance, savings plans) - Became to large: workers became voiceless - Self help: revolts that resulted in brutal reprisals (sabotage) ex: french putting wooden shoes in machines to break them Labor Shortages Created Better Opportunities - Plague in 14th century: decimated working population - Demand for higher wages and better conditions - Workers were in high demand providing employees with more power (but royalty found ways to prevent this)

Prima Facie Int. Discrimination Example Sam is an Arab-American, retired police officer. He applied for a job as a bank security guard. Asked few questions about his ethnicity during interview. Interviewer made comments about Arabs being hostile to American interests. Denied position. Stated reason was that it would make bank customers "uncomfortable after what happened on 9-11." Would Sam be successful if he filed a lawsuit?

Yes

Validating Job Requirements

1. Content Validity: measures whether the test actually evaluated abilities required for the job. - important tasks and aspects of the job - ex: height/weight requirements for a firefighter - Proxy for strength but not highly correlated should use strength test - Disparate impact on women but strength test is related to job performance 2. Construct Validity: measures whether the test selects employees based on the traits and characteristics required for the job. - ex: patience, leadership skills - cannot see this trait but can create a test to measure this trait 3. Criterion-Related Validity: measure whether the test correlates with the skills and knowledge required for successful job performance. - pen/paper tests to test knowledge (ex: CPA or BAR) Need to show a correlation between results of test and job performance

Types of Workplace Intentional Torts

1. Defamation (libel and slander) 2. Tortious infliction of emotional distress 3. Tortious interference with contract 4. Retaliatory demotion (treated like wrongful discharge) - demoted, not terminated but remedies look the same 5. Theft of trade secrets

Four Exceptions to private sector employers for the Employment Polygraph Protection Act

1. Employees working as consultants or contractors for national security intelligence operations. 2. Employees of private security services (armored cars, security systems). 3. Employees with direct access to controlled substances (manufacturing, sales, distributors). 4. Employees who may have been involved in an incident that resulted in economic losses. Employer needs a reasonable basis to suspect employee involvement.

EEOC Processing of Title VII Complaint

1. Initial Interview leads to either a charge being filed or no charge being filed - Initial interview: I have a complaint and here is my story 2. If a Charge is filed, the can go to voluntary mediation or fact-finding conference - If they go to voluntary mediation they can go to a settlement or then fact-finding conference - Litigation is more expensive than mediation = avoid things being in court if they do not need to be 3. The fact-finding conference can lead to a lawsuit filed by EEOC in federal court (litigate for plaintiff), a settlement, or a plaintiff's right-to-sue letter

Burden Shifting: Employer's Response to Intentional Discrimination Prima Facie Case

1. Plaintiff makes out a prima facie case of discrimination. - Ex: Fired because of discrimination 2. Employer must state legal reason for employment decision. (justification and reasoning) - Ex: No, you were fired because you were late 3. To win lawsuit, plaintiff must show: - that employer's reason was a pretext; and - that the employment decision was motivated by discrimination. - Ex: but men who were late were not fired 4. Employer wins if able to establish a bona fide occupational qualification. (BFOQ) - must have this characteristic to perform job safety and efficiently - Ex: TSA needs men and women to search civilians, therefore they may accept a women who scored lower on an exam than a man - Limited to gender, religion, and national origin. Cannot use for race or color unless you can argue for artistic purposes

To prove a prima facie case:

1. She is a member of a protected class; 2. Applied and was qualified for, or was employed in the position in question; 3. Was rejected, demoted, or terminatedfor job; and 4. Employer filled position with person not in a protected class.

Pressures on Influence of Labor Unions

1950-present: Globalization (competition in major industries - automobiles and steel - by other nations) - hurt unions the most because companies were moving production overseas 1960-present: Rise of individual employee rights which supplanted labor unions as the main source of legal protection for workers - state law and case law for individual employee (v. collective) rights (emotional distress and discrimination) The Civil Rights Act of 1964 (Title VII and employment discrimination); The Age Discrimination Act of 1967; doctrine of wrongful discharge and other employment-related torts (false imprisonment, etc.)

Fuller v. Edwin B. Stimpson Co. Inc. Seniority System Example

:aid off but four people with less seniority were retained District court = granted employer's judgment - Appeal court upheld People with less seniority took way less days off (56 v. 16) so they were more qualified Being African American was 1 factor maybe, but not the only factor

Whistleblower Laws (State)

All states and the District of Columbia have some version of a whistleblower law. Most laws only cover public sector workers. Some states cover both private and public sector workers. Public sector workers Not every state has a private sector coverage

Exercise of Statutory and Contractual Remedies - Glimer v. Interstate/Johnson Lane Corp. (1991)

ADEA claim could be subjected to compulsory arbitration clause of employment contract Court resisted this issue of Statutory and Contractual Remedies and said that even though you have an ADA claim, you do not get to choose If you have an employment contract, then you have to file that way (arbitration) even if it is a collective bargaining agreement

Commonwealth v. Hunt, Massachusetts (1842) During Industrial Revolution

At end of Industrial revolution Softened draw of criminal conspiracy statues Self-help is not a crime, however if means of activity or ends are illegal then it is not allowed

Exercise of Statutory and Contractual Remedies - Alexander v. Gardner-Dever Co. (1974)

Alexander v. Gardner-Dever Co. (1974) - Grievance/arbitration procedure in the collective bargaining verse Title VII lawsuit. Claimant did not waive Title VII by submitted to arbitration procedures Fired- racial discrimination. Employee was in a union so filed a grievance. The Grievance was rejected. Employee filed with Title VII complaint instead of arbitration. Employer goes forward with arbitration and employer won The EEOC dismissed the complain. Employee filed in court but they refuse to hear him. Supreme court decided if doctrine of remedies applies. Doctrine of elections remedies because statuary rights are different from private/contractual remedies He waived him Title VII right by filing a grievance but supreme court said that is not fair

Statuary v. private and contractual remedies

Application of Private and contractual remedies and statuary remedies for discrimination in the workplace - Statuary remedies: payback, reinstatement, compensatory damages --> have to fix, change, do this, or don't do this - private and contractual remedies: individual employment contracts, collective bargaining agreement (usually grievance procedure or arbitration)

Griggs v. Duke Power Company (1971) Disparate Impact

Before civil rights statues the company was segregated. Only black people can in labor while more opportunities for whites. In 1955 they created selection criteria and still segregated - High School Diploma required verse note In 1965 Civil rights act was passed and in effect - now all jobs were open to all races but need aptitude test In 1965-1971 blacks can transfer jobs if they pass two tests, which tends to screen black people from moving forward Census data in 1960s shows that only 30% of white men had a high school diploma and 12% of black men had a high school diploma - Disparate impact Aptitude tests = 6% pass rate for blacks and 58% pass rate for whites - these tests did not apply to the job These things made a segregated workforce even though the company says the positions are open to all people Court of appeals = no intentional discrimination, while district court said overt discrimination Supreme court = if excludes persons without job relatedness then it is prohibited (reversed court of appeals)

Cummings v. Washington Mutual Employment Polygraph Protection Act

Branch manager asked polygraph But proof he violated policy so he was terminated Court dismissed saying court has reasonable suspicion. Appeal court upheld

Davidson v. Baird (2019) Intentional Infliction of Emotional Distress

City manager in Utah: took actions and was not very popular Negative comments made by reporter and criticizing her actions Filed for defamation and emotional distress - used words making her sound highly unethical or criminal offenses Have to show statements were 1. outrageous 2. and they knew emotional distress would be caused 3. and prove the link between words and distress Consider first amendment: opinion verse political statement? She only wins if she makes a showing that these statements were in reckless disregard for the truth She did't show that it was unrelated to her work and criticizing is not outrageous. Critical and hurtful but not outrageous

Exercise of Statutory and Contractual Remedies - 14 Penn Plaza LLC. v. Pyett (2009)

Clause in CBA requiring arbitration of age discrimination claims will be upheld If you have an employment contract, then you have to file that way (arbitration) even if it is a collective bargaining agreement

Requests for Information

Contemporary Employment Policies: Employers limit communications to confirming dates of former employee's tenure; salary and wage rate and job title. - privacy issues if employer reveals too much - Facts are okay but opinions are not Best for company to get consent from employee Reasons: avoid tort liability (invasion of privacy claims). Cons: impedes free-flow of information. May spur tort of negligent hiring. Case: Penn State professor worked here for 3 years. He then went to another school. School did a background check and found that he was convicted of murdering 3 students. Got a life sentence but some how got out of it. They found out by calling Penn State

Social Media Cases Negligent Infliction of Emotional Distress

Cyberbullying lawsuit = parents sued Took pictures of her and drew hurtful things on them and commented hurtful things Instagram page = parents and students involved and so victims parents sued both the students and their parents It was an Instagram account made specifically to bully Goal is to set a precedent Result = settles with minors but not with parents involved - 2 boys and 5 girls are not being sued for libel defamation and parents are being sued for negligence In tort law you are always responsible for your own wrongdoing but proving parents violated duty of care will be more difficult (parents should be sued if they had knowledge this was happening) - Failing to supervise accurately

Requests for Medical Information

Employees enjoy federal statutory protection under the Health Insurance Portability and Accountability Act (HIPPA). - Mandates stringent policies and procedures to prevent the unauthorized use or disclosure of health and medical information (referred to as protected health information - PHI). - Restricts access to information and tracks the use and disclosure of information. We want your private information to remain private unless you disclose it

Right to Privacy

Employees have a common law remedy for invasion of privacy - protecting your right to be left alone - your dignity may be affected - each state gets to decide which privacy rights they have to have in jurisdiction (usually all four) State privacy torts are: 1. Intrusion upon seclusion 2. Public disclosure of private facts 3. Placement in false light 4. Appropriation of a name or likeness: used for commercial purposes without consent - Limite government power Ex: cameras in bathrooms, monitoring, when you are being investigated it can be false Ex: Suing 3 commanders for defamation (liable and slander). Allegations that a candidate for sheriffs position of fraud, corruption, etc. They were upset. Plaintiff got endorsement from deputies union (The Californian - 4/18/19) - asking for audit - These rumors trickle out but then people will vote against him

A brief history of employment - After the Industrial Revolution

Employees no longer had equal bargaining power with business entity employers (e.g. corporation) - Employers abused employees - Federal and state laws enacted in the 1930s (FDR's New Deal) and subsequent decades to protect workers New Deal: protects workers because employers were abusing their power (created after the great depression - crash, no employment, lots of debt, no way of paying it) - they began building highways, bridges, and tunnels to create jobs

Title VII Discrimination - Disparate Treatment or Intentional Discrimination

Employer intentionally treats employees or applicants differently on the basis of their race, color, gender, religion or national origin. - Limited BFOQ exception available to the Employer. - Gender, religion and national origin, only.

West v. C.J. Pressman Co. (2017) Surveillance and Eavesdropping

Employer's live audio surveillance of former employees and their families does rise to the level of an intrusion upon one's rights to seclusion car dealership conducted live audio surveillance of former employees AND their families. It was purposeful and there is an expectation of privacy

Liebeskind v. Rutgers University (2015) Surveillance and Eavesdropping

Employer's written computer use policy meant that employee had no reasonable expectation of privacy Computer job - he spent lots of time on the internet. The company checked his data history. They didn't look at personal accounts. The company found out he was goofing off. Court said he did not have a reasonable expectation of privacy because employer had a policy that said they can look at data history. He also could not prove they Hacked into his system. He could not prove facts and no expectation of privacy

Smart Phone Monitoring

Employer-issued smart phones. - Monitoring of off-duty activities is suspect. - Employee who was fired for disabling app on device, sued for wrongful termination, invasion of privacy. - Settled. Employer told her it would monitor off-duty activities. Common law does not typically support Employer monitoring of employee during non-working hours. Work stuff is okay, private activities isn't Case: She ddid not want her phone monitored when she was not on duty. She disabled monitoring and then she was fired. She sued. They settles and not that can only monitor on-duty hours - employment laws only apply while on duty - but not jobs that are on call (ETM, Police, Fire Fighter)

Massenburgv. Innovative Talent Solutions, Inc. (2019) Disparate Impact verse treatment

Employment agencies stool have to comply with Title VII - the job wanted someone who had experience in the industry and they would perform a background check - The woman was convicted of assault and she did not submit a resume. They told her not even to come in for an interview - Pro Se Lawsuit (represented herself without an attorney). She sued for Disparate Impact and Disparate treatment Disparate treatment was dismissed because she failed to prove a prima facie case because she could not prove she was qualified for the job No evidence that Innovative Talent Solutions is responsible

Title VII Discrimination - Disparate Impact or Unintentional Discrimination

Employment criteria or selection device disproportionately screens out employees based on race, color, gender, religion or national origin. - Business necessity defense available to the Employer. - Employee rebuts by showing that alternate option was available and not offered.

Genetic Testing

Examination of chromosomes, genes and proteins in human cells for search of defects. State human rights laws or state equal employment opportunities laws prevent use of genetic testing and predisposing genetic characteristics as a basis of employment decisions. Would limit a lot of people from working A lot of laws prevent this and protect the employee

United States v. Xi (2018) Theft of Trade Secrets

GSK employer. Employee started to copy information and send it to personal email and flash drives Sent to husband overseas. Even no longer active projects can still be used by competitors They had policies prohibiting trade secret theft Other company is accepting information and started a new company in China by her twin sister - purpose was to market and sell stolen trade secrets Xi wants to be tried separately from everyone else (motion to sever) - She did not have malicious intent while other coworkers did - In order to sever you have to show substantial prejudice - They said no because her lawyer has a change to defend her in court: there is prejudice but it is not substantial - She withdrew from conspiracy 2 years in but that doesn't matter because she committed the act

FDR and The New Deal

Great Depression gave rise to the enactment of major federal employment and labor laws, e.g.: - Social Security Act of 1935: pensions and independent resources for elderly people so they are not dependent - The National Labor Relations Act of 1935: decrease surplus of labor and employers can no longer exploit people - The Fair Labor Standards Act of 1938: right to engage in conservation activity - Federal and state Occupational Safety and Health Acts - Unemployment and workers' compensation statutes: came much later West Coast Hotel Company v. Parrish - State minimum wage challenge Walsh Haley Act = was the first minimum wage law created - If people do not have enough money, they will not spend anything, and we will never have gotten out of the great depression

Honesty Testing

Honesty Tests - a screening device to evaluate employees or applicants on workplace behaviors such as truthfulness, perceptions about employee theft, admissions of theft or drug use. - ask people questions to get a sense of ethic and emotional profile Employer should have a legitimate, work-related rationale for the testing. May include psychological profile testing. The EPPA does not prohibit honesty testing. A few states prevent their use: Massachusetts, Rhode Island and Wisconsin. May implicate concerns under the Americans with Disabilities Act or state antidiscrimination statutes. - implications under ADA: people with psychological disabilities can fail even though they should not have Intrusive test and puts employee in false night because employer can have unreasonable suspicion based on profile

Coats v. Dish Network, LLC. Off-Duty Conduct

In wheelchair and has medical marijuana. Was fired for testing positive Filed under state law after random drug test. Appellate court said not valid under state and federal laws

Ferrie crashed into a dock Substance abuse

Injured people on board --> 74 injured Mandatory test after accident In this specify crash the person was not impaired but it is mandatory directly after accident NBC News (1/9/2013)

What is Tortious Infliction of Emotional Distress?

Intentional Infliction of Emotional Distress: - an intentional (purposeful) act that is: 1. extreme and outrages that 2. results in severe emotional distress of another - Failing to act like a reasonable person. I am doing this with certainty that harm will be caused Negligent Infliction of Emotional Distress: 1. extreme and outrageous that 2. results in severe emotional distress of another - Failing to act like a reasonable person, but without definite knowledge something bad will happen Most jurisdictions have intentional and careless

What is a reasonable expectation of privacy?

Invasion of privacy lawsuits are successful where the employees have: - a reasonable expectation of privacy; and - the employer's intrusion is deliberate and intentional - Behind closed doors = employee has a high expectation of privacy - In the public = employee has a low expectation of privacy Facts that establish an expectation of privacy are: 1. restrooms, lunch rooms, lockers community spaces, downtime activity 2. have no expectation if employee is notified they do not have any 3. high expectation of your body but less on company's property 4. workspace or public? 5. aware or in secret?

IRAC Method

Issue Rule of Law that applies Applying the rule Conclusion of the case

Proof of Disparate Impact: The Four-Fifths Rule

Methodology developed by the EEOC. Compares the selection rates for the various protected classes. Disparate impact demonstrated when the proportion of the applicants from the protected group with the lowest selection rate (pass rate) is less than 80% of the pass rate of the group with the highest selection rate. -Employer may keep selection criteria if the test is sufficiently job related or correlated with successful job performance. - Title VII does not prohibit E from hiring only those who are capable of doing the job! Protected class have 80% pass rate. Have to follow this policy unless very related to job performance (can keep a policy if it matters)

Compensation Example about miners

Miners engaged in self-help remedies because that have not been paid in a while. Employer says they have been paid. Miners strike and the strike hurts the company. National Labor Relations Act provides workers with self-help remedies (usually a strike) but usually they negotiate through grievance process before strike But these workers are not striking, they are blockading the employers work space, which is not okay (too aggressive) Company has not had them arrested because creates a bad reputation for them, but they could for trespassing Self-help could also be required to department of labor to get government help. CNN - Kentucky Coal Miners Protest (1/14/20)

Exercise of Statutory and Contractual Remedies - Epic Systems Corp. v. Lewis (2018)

Mutual Arbitration Agreement requiring employment-related disputes be resolved through individual arbitration does not found to violate the NLRA because it prevented class or collective litigation claims Each person should individually represent their issues. Three employees wanted to litigate through class action lawsuit but employer will say it should be dismissed because of the arbitration agreement

Industrial Revolution

New Tools: Steel, factory, human strength, machines, fossil fuels (replacing steam) Factory systems lowered employee power because you do not need to be as talented and you are easily replaceable (less bargaining power) Rise of the employment-at-will doctrine - either party can walk away for whatever reason - Statue of Labor (old): can be fined or imprisoned for refusing to work Employees banned together in unions to negotiate with employers - if you tried to negotiate alone you would just be fired, but it is harder for a company to fire everyone Little early support by the law (criminal conspiracies) 1842: Commonwealth v. Hunt (MA) Unionized workers could only be indicted if their means or their ends were illegal Concentrated activity in and of itself was not a crime merely because it tended to "diminish the employers' gains and profits"

Health Plan Penalty ends at PSU, 2013

New York Times Did not actually end up happening Penn State is self-insured (they are their own insurance company) They wanted all employees to fill out an online questionnaire about their health. Asked for very personal information. After questionnaire, employees had to get a medical examination (blood test, weight, height, etc.) - If an employee did not participate there was $100 surcharge per month Employers are starting to get involved in personal behavior if it has an impact on them

Prima Facie Int. Discrimination Example Sam is an Arab-American, retired police officer. He applied for a job as a bank security guard. Was fired because he was aggressive and had complaints of police brutality against him. Asked many questions about his ethnicity during interview. Denied position. Bank aware of police brutality complaints. Stated reason was that he was not qualified for job. Would Sam be successful if he filed a lawsuit?

No

Reasonable Suspicion of Substance Abuse

Observed alcohol/drug abuse. Apparent physical state of impairment Incoherent mental state. Marked changes in personal behavior. Deteriorating work performance. Accidents or other actions that show that employee may be under the influence.

What is Tortious Interference with Contract?

Occurs when a third party induces a contracting party to breach a contract with another party - You need to actually have a contract - usually wrongdoer is former employer communicating with another employer Occurs when: 1. Wrongdoer knows about a valid, enforceable contract between A and B 2. Wrongdoer intentionally indues either A or B to breach the contract 3. Wrongdoer gets economic benefits from the breach Ex: Started as a sales executive recruited by the VP of the company. VP is aware of performance. The company reviews for medical benefits after 3 months, Company told her to download an app so they can track her location. They would also monitor during nonword hours. She deleted the app and was then terminated. Invasion of privacy - VP said she was disloyal and was working for another company at the same time. She got fired from the new job. Malicious interference wot contractual relationship

What is Disparate Treatment or Intentional Discrimination?

Occurs when an employer discriminates against a specific individual because of his or her race, color, national origin, gender or religion. Applicant must prove prima facie case

Post WWII Decline of Labor Unions

Peaked in 1950s - 1 in 3 private sector workers in a union 2000s - fewer than 1 in 10 eligible private sector workers in a union - 1 in 7 eligible workers were unionized 1947: Taft-Hartley Act: Unions may be charged with unfair labor practices (forcing workers to join against their will) - 7 unfair labor practices for - once unions got too large they were pushed back - ex: United Mind Worker Strike in WWII: Unions grew too large and were devastating to the economy - FLSA said employers can be sanctioned for unfair labor practices Cold War: Communist influences in certain unions ushered in the McCarthy Era 1950-60s: Organized crime ties to the Teamsters

Proof of Disparate Impact: Pool of Applicants

Prima facie case of unintentional discrimination proven by: 1. Comparing pool of qualified persons in the relevant or local labor market; and - most jobs people want to work within 1.5 hours from home. What does the population look like in that area? - Other jobs it is the entire U.S. because jobs are rare and people will move (ex: professor) 2. The employer's workforce; to - People who work for the employer have to look like the people who live in the area 3. Show that percentage of protected class employees does not reflect the percentage of that group in relevant or local labor market; and 4. Employer connection between hiring practice and disparity. - A low percentage does not prove discrimination. Have to show the employer is doing something that makes the disparity

Guns at Work Laws

Private property rights of the employer allow the employer to ban firearms from its property. - private property verse right to bear arms Approximately 25 states have passed laws that permit to store firearms in locked vehicles on the employer's premises. - can't be on my property but can be in your locked car Some states allow aggrieved employees to recover court costs and legal fees for improperly limiting firearms on the employer's premises. In at least one state, the law was not deemed in conflict with the federal Occupational Safety and Health Act, which requires the employer to provide a safe working environment. - Not allowed to have them at Penn State. Some south schools allow teachers and students to have find in class

Americans With Disabilities Act (ADA) and HIPPA

Protects disabled employees from discriminatory use of their medical records to deny them employment and advancement. - Employers want to make sure the person can do the work but sometimes they go overboard Ex: finding out the take a lot of sick days Valid: offering someone a job contingent upon passing a physical examination. - physical examinations have to do with specific functions of the job - If accommodations allow them to complete the job, then the company must provide these accommodations Invalid: General request for medical information (fishing expedition).

U.S. Supreme Court: Janus v. AFSCME (2018)

Public Employees who do not choose to join the union that represents their bargaining unit need not pay "agency fees" or their "fair share" contributions to the union Such agency fees are unconstitutional as it compels political speech in violation of the First Amendment - Considered a setback to public -employee unions in states where membership is a matter of choice, rather than a requirement, for employees of the bargaining unit Every person in bargaining unit does not have to be a union member (free-rider problem) - Free-riders get benefits from union but do not pay union dues - Agency fees: force nonmembers to pay dues but this money can't be used for political purposes - Agency few that compel political speech is a violation of first amendment in public employees

Privacy Rights in Employment

Public employees treated differently that private employees Public employees: First and Forth Amendment protection Private employees: Common law and statutory protection against an employer's invasion of their right to seclusion, solitude or the sanctity of private affairs - Unionized employees: collective bargaining agreement may grant more protection Ex: Rehab before firing (fired if relapse and no use of grievance process) Ex: Public employees (CBC - 12/23/16). Reloaded names and salaries of workers. Public has a right to obtain information of salary details but cannot have names (invasion of privacy)

Sandoval v. DISA Global Solutions, Inc. (2018) Qualified Privileged Defense to Defamation

Quality control inspector (Sandoval) Have drug screenings at company and he tested positive for cocaine DISA is a third party that did the testing Sandoval sued DISA and officer for negligence with collecting, testing, and transporting sample and defamation (because potential employers see the results as well) He is saying the test is invalid DISA defamed him by publishing his status of inactive publicly Qualified privilege and consent Trail court = DISA won Appeal court = to defeat DISA they have to prove DISA's relationship with Sandoval - Does DISA get same immunity as employer? Sandoval arguing "reckless disregard" - He had a hair test at a private lab showing he was clean - two urine tests she positive for cocaine How DISA handled the test results was not negligent. Hair test was taken later which means it was not proof of reckless disregard. Therefore, cannot say DISA acted in malaise or reckless disregard Hair test cannot be used for employment because different lab Court agreed with trial court

Important facts to know about arbitration clauses

Removes arbitration statue if it violates a federal law Savings clause: if one section of contract is illegal, they get rid of that one section and keep the rest of the contract We will compel people to arbitrate as long as it does not violate a right

International Security Management Group, Inc. v. Rolland Personnel Files

Rolland s a videographer He was supposed to record VO in a building. Videographer was accused of making a bomb threat in the building. He was found not guilty. Rolland sues security management for negligent hiring and supervising employees. One security guard testimony accused Rolland ISMG was a old provide or guard service. Panther was the new one. Accuna was working for Panther and was recommended by ISMG Accuna had been arrested but not convicted for stealing property - 23 years ago Rolland wants to us that for a basis of negligent hiring He should not have been hired to allowed to work Employer won because there was no negligence because 7 year background check. So they didn't know about this incident, Nothing in personnel file that there was a problem No duty of care owed to Rolland or cause of connection

Legal Responses to Workers' Self Help

Royal proclamation (like an executive order) requiring workers to accept same wages they received 2 years earlier Penalties for: - refusing to work (employee sanction) - leaving a job in search of a higher wage (employee sanction) - providing an offer of higher wages (employer sanction) - parliament (statute of laborers) Now there is laissez-faire: provides employees with more power

Whistleblower Laws (Federal) - penalties

Sarbanes-Oxley Act of 2002. Imposes both civil and criminal penalties for Employer (U.S. publicly traded companies) who take adverse employment actions against whistleblowers. Civil: administered by the Dept. of Labor and provides remedies such as compensatory damages, reinstatement, back pay, legal fees and costs. Criminal: Penalties include fines up to $250,000 and imprisonment of up to 10 years for natural person violators and fines of up to $500,000 for corporations.

Genetic Testing cases

School ousted child with lung disease - condition was disclosed to teachers in the school - they kicked him out of school - using genetic information to take an adverse action against him - ADA applies only to employees (GINA applies to everyone) EEOC settlement with genetic basis - Railroad company had workers that were injured - Repetitive motion would lead to injuries - Companies wanted them to of through physical exam and blood test. Blood test was for genetic testing, not the injury. - They sued and won with the union's help - They are not allowed to consider genetic testing Just because they have a marker in their genes does not mean they will get it, therefore, genetic testing is not even always valid

Seniority and Title VII

Seniority is used to determine an employee's entitlement to benefits, promotions or transfers, or job security. -Worker layoffs conducted on the basis of inverse seniority. Layoffs may have discriminatory effect if employer discriminated in hiring before the enactment of Title VII. - Section 703(h) exemption for bona fide seniority systems that are neutral, originally free from discrimination, maintained free of intentional discrimination and is a reasonable system with the particular industry. Seniority system is okay if it was originally free of discrimination and still allowing minorities to advance

Off-Duty Conduct

Some states protect employees from employment discrimination because of their lawful, non-working-hours conduct in very specific areas: 1. Tobacco. 2. Alcohol. 3. Recreational or political activities (NY) Sadly, depictions of bacchanalia (revelry or high-jinks) on social media is not covered by state or federal statutes. State tort law may provide a remedy for invasion of privacy or intentional infliction of emotional distress. People can be terminated for off-duty conduct Conversation about if this is okay or not: ex: flipping off Trump can and was on video. She was then fired

GPS Monitoring

State laws (some states, such as IL, CA, DE, CT) prevent tracking unless there is a valid law enforcement exception present (probable cause standard). - Some states say employer can monitor company cars and others say they can't - Some states allow you to monitor all the tim if you have good reason to believe they are breaking the law Employer Provided Vehicle vs Privately Owned Vehicle. - Permitted for employer provided car; there is typically no expectation of privacy because employer consents to tracking. (easier to track on employer issues devices - more difficult for private devices and off-hours) - Generally not permitted for privately owned car. Need owner's (employee) consent. - GPS on state employee's personal car suspected of falsifying records not permitted. -Statutory exception, e.g. monitoring by NYC Taxi and Limousine Commission, even if privately owned. Conduct that is happening during ordinary scope of business but some do it all the time - violates privacy Ex: New York State Department of Labor - GPS monitoring because they though there was a time sheet issue - Personally owned vehicle monitored 24/7 - He was violating policy but they violated his privacy rights because he is a government worker. - No evidence to support his dismissal - Other case was private company and came to the same conclusion

West Coast Hotel Company v. Parrish New Deal

State minimum wage challenge = $14.50 for a 48 hour work week Employer challenged and said state has no right to tell employer how to pay wages (laissez-faire) - Trial court favored employer - Appeal court favored state Supreme Court: does federal government have a right to change minimum wage? YES - Really helped women because they did not have a voice that was recognized in clothing sweatshops - Their wages were so low it barely covered the cost of living. After minimum wage they were able to support themselves and their families Removed judicial opposition

A brief history of employment - Before the Industrial Revolution

The doctrine of laissez-faire governed employment relationships - Employment subject to common law of contracts and agency law (where there was no statutory law) - Employer and employee had equal bargaining power (skilled labor giving employees power)

Surveillance and Eavesdropping

Surveillance: Observation or monitoring of behavior theory electronic equipment or other technological means - Includes: direct observation, observation by binoculars, postal interception, and other means - lesson why employer may invade s,one's privacy - balance between employer (trade secrets and safety in the workplace) and employee (rights) Eavesdropping: Surreptitiously listening into another's conversations - includes: email, instant messages, text messages - In Surveillance the employee knows but in eavesdropping the employer is doing it secretly Reasons for monitoring: avoiding theft, quality assurance, safety, trade secrets, productivity, looking for wrongdoing

Lee v. Avossa Whistleblower laws

Teacher hired y a school (he was also a lawyer) Students were telling him that they have lots of subs, everyone is getting a B, and they have not learned anything but at the end of class they have to take a state test that they have to pass 5 students and teacher/attorney went to the board of directors meeting and one student spoke After meeting principle said teacher should have brought the issue to him first Teacher also transpired a student with oral consent from parent but school policy says they need written consent Students called parents to come to school Leigh's law firm was going to handle it. He made many complaints about students being mistreated School district told Leigh not to get involved and to stop Leigh seeks whistleblower protection After that he was told he violated multiple school policies (insubordinate) He went under investigation for ethical misconduct also said he pit a politically inappropriate question on an exam (Donald Trump is president and we are screwed), but there was no set curriculum for the class He was terminated: then he filed a 10-count complaint and claimed protected class discrimination because he is African American Cannot hold district liable for worker acts School won - case dismissed - cannot connect whistleblowing to him changing the rules They have private capacity here - used their authority to conspire against him as officials

Administration of Polygraph

The EPPA requires that any polygraph test be administered by a validly licensed examiner. Operator may not ask questions relating to religious beliefs, opinions on racial matters, political beliefs or affiliations, sexual behavior, or beliefs concerning or affiliations with labor unions. - can only ask questions that have to do with the situation Those being asked to submit to polygraph testing due to economic loss exception are entitled to due process. - economic losses = monetary losses - stolen or destroyed property Employer may not discharge, discipline or otherwise deny employment to an individual solely on the basis of polygraph test results. - results is not sole basis for termination - need additional information Must have additional evidence to support adverse employment actions.

Polygraph Testing

The federal Employment Polygraph Protection Act of 1988 restricts the right of private employers to administer them to their employees, unless they fall within one of four exceptions. The EPPA (Employment Polygraph Protection Act) is not applicable to public sector employers Private employers are limited but exception for public employers (police) You have the right to refuse polygraph and right to refuse is not cause for termination

Torts: The Law of Personal Injury

Torts: The law of personal injury (civil wrongs) Workers' claims against employer for personal injury caused intentionally or negligently: - Defamation - Invasion of Privacy - Infliction of Emotional Distress Employer Response to Workers' concerns: - Immunity via workers' compensation insurance = rehabilitation and go back to work (if employee does this they give up the right to sue unless harm is really horrible) - Independent contractor status = no vicarious liability for employer - National Labor Relations Act preemption = easier to sue private employer than public employer - Tortious Interference with Contract - Theft of Trade Secret/Injunctions

What is Equal Opportunity in Employment?

The right of all employees and job applicants: - to be treated without discrimination; and - to sue employers if they are discriminated against.

Penn State's Privacy policies

This is generalized - some jobs have additional specialization Personally identifiable information All faculty, students. staff, third-party vendors, instructors, scholars, etc. May be disclosed to third parties but usually keep it private Privacy principles, expectations Policy - AD53

Some states require employers to conduct criminal record background checks on applicants for certain positions:

Those who work with vulnerable populations - children, the elderly. Those who work in private security - armed guards, dog handlers, private detectives. Those who work in security-sensitive positions at tertiary institutions. Those who work in nuclear power plants. Those who work in state lotteries.

Defenses to Defamation

Three major defenses: 1. Truth is generally an absolute defense 2. Privileged (or immune) Speech: - Absolute: judicial and legislative proceedings = witnesses tell what they know even if they are mistaken, do not self-meson as long as in good faith (not purposefully lying) - Qualified: employee evaluations of investigations = finding of fact 3. Immunity = testimony is critical or critical

Title VII of the Civil Rights Act

Title VII prohibits discrimination against workers on the basis of: 1. Race 2. Color 3. Religion 4. Gender (now extended to pregnancy) 5. National Origin Do all employers have to follow Title VII? - Interstate commercial activity or 15 or more employees - Local ordinances usually fill the gaps (or state laws) What kind of employment decisions does Title VII prohibit? - all employment decisions (vacation, promotion, demotion, hiring, etc.) How does Title VII erode the employment at-will doctrine? - becomes a bad reason or an illegal reason to terminate an employment relationship Every person ends up being in a protected class - gender = men or women - race = black or white - Just have to show hostility is there

Compensation Example about transgender women

Two women suing Florida Government agencies because there are exclusions on health insurance Should not discriminate regarding medical concerns for gender related services These women are suing the state, but usually when suing the state, the state has to consent to be sued. Does congress have the ability to regulate a state employer? Case involves federalism so it will probably go to the supreme court Rewire News - Florida won't cover transgender healthcare. Two Trans-women are suing (1/14/20)

Bona Fide Seniority System

Under Section 703(h), a seniority system is bonafide(lawful) if: 1. It is neutral on its face - applied equally to all groups. 2. It is free from intentional discrimination from its inception. 3. It is negotiated and maintained free from intentional discrimination. 4. It is reasonable in light of ordinary industry practices. (makes sense in industry)

University of Missouri Case Smartphone monitoring

University of Missouri tracks student attendance with phones - Tracking student athletes - Voluntarily agree to do this - have to download app - It is on but is it appropriate while they are not in class? They are always tracking - could be used to accuse of wrong-doing. Near a crime scene - Mandatory for first-year students this year - They will help if student does not have an iPhone - Public University: Breaks 4th amendment (not true of private universities) - Should be narrowly tailored rather than tracking all the time