Employment Law - Midterm - Manetta

Adverse Employment Action

*An economic or tangible loss of employment.* May include: 1. Fired (terminated) 2. Demotion 3. Failure to get increase 4. Denied Promotion 5. Refusal to hire 6. Disciplinary Action

What are the 3 tests that can be used to determine whether an individual is an employee or an independent contractor?

1) The Common Law Test 2) The Economic Reality Test 3) The Hybrid Test

Right-To-Sue Letter

Issued by the EEOC to plaintiff (employee) after it makes determination of the plaintiff's EEOC charge. Whether the EEOC found for the plaintiff or not - once they receive Right to Sue they can now bring a lawsuit. >>>> Must do so within 90 days

Two types of trials

Jury Bench (by the Judge)

Is a Plaintiff in a Disparate Impact Discrimination Case entitled to a Jury Trial?

NO

Back Pay

Pay from the date of termination until the time of resolution of the case. A type of remedy

Intrusion on Seclusion:

State, common law claim, Plaintiff must show: 1. Intrusion into a private place, conversation, or matter 2. In a manner highly offensive to a reasonable person NOTE: can only prove the tort if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place conversation or data source.

How can a defendant (employer) defend against a Disparate Impact Discrimination Claim?

Show that the policy/practice that was allegedly causing a disparate impact and thus allegedly discriminatory was: 1) valid (it was job related) AND 2) consistent with business necessity

What are some examples of public employers?

State and Federal Governments County and City Governments School Boards

The Hybrid Test

Test used to distinguish an employee from an independent contractor. 1. Combines elements of both the common law and the economic reality test 2. Courts consider the economic realities of the working relationship but generally accord particular weight to the employer's right to control the work. 3. As a result line between Hybrid Test and Common Law test - very murky.

How can an employer avoid a claim of Negligent Hiring/Retention?

The Employer is responsible for exercising a "Duty of Reasonable Care" in the selection or retention of employees.

What is the law in New Jersey that protects against discrimination?

The New Jersey Law against Discrimination (NJLAD)

According to McDonnell Douglas who has the burden of establishing a Prima Facie Case of employment discrimination?

The Plaintiff

According to McDonnell Douglas, once the defendant shows a legitimate nondiscriminatory reason for their action what happens next?

The burden of proof shifts back to the plaintiff to show that the reason he defendant has given for their action was "simply a PRETEXT for discrimination."

According to McDonnel Douglas, once the plaintiff shows a prima facie case of discrimination what happens next?

The burden of proof shifts to the defendant to show a "legitimate, non-discriminatory reason" for the action they took.

To successfully sue a private employer for invasion of privacy, according to the Restatement (Second) of Torts, §652, what must the plaintiff, employee, prove?

The employee must prove: i. That the employee had a reasonable expectation of privacy in the place searched; ii. The employee did not consent to the search; and iii. The invasion of privacy is highly offensive to the reasonable person.

According to the Fair Credit Reporting Act, what must an employer do while conducting the check?

The employer must: i. Provide notice to; and ii. Receive authorization from: 1) The applicant or employee in order to procure a credit report for employment purposes. NOTE: Violations of this statute can result in damages as well as attorney's fees and costs, as well as punitive damages in the case of willful violations.

Under the rule of Respondeat Superior, what must a plaintiff show for an employer to be vicariously liable (automatically) for a tort committed by his employee?

The injured plaintiff must prove all of the following: a. That the employer/employee relationship exists AND b. The Tortious Acts of the servant occurred within the "Scope of Employment." IN SUM: a) Once the injured plaintiff demonstrates that an employer/employee relationship exists between the defendant and the employer>> b) the plaintiff must also show that the defendant caused her injuries while doing something he would ordinarily do under the employer's direction and guidance and that benefits the employer. c) If the defendant injured the plaintiff while doing something that wasn't part of his ordinary work, respondeat superior may not apply to the employer, even if the defendant was on the clock when the injury occurred.

Implied Contract Exception to Employment-At-Will

When a document that was not intended to be a Contract will be interpreted to be one. This will create an exception to the At-Will doctrine with regard to termination. 1. Example: A Policy Manual (Wooley claim)

Can a single incident be enough to prove hostile environment sexual harassment?

YES - standard is "severe OR pervasive" - if 1 incident is so egregious - will also look at context comment was made in.

What is meant by a "Pretext" for discrimination

The reason asserted for by the defendant for their alleged discriminatory action was not true. It can be shown directly - by showing the action was intended to be discriminatory or indirectly by showing the defendant's reason should not be believed.

Can harassment be based on incidents that do not occur at work or when employees are "off work?"

YES. If the conduct occurs at a work related event - e.g. an office party, work retreat, work conference. If it is related to work but happens outside of work it is illegal harassing conduct.

Do courts ever NOT follow precedent?

Yes - but rarely

Is an employer (the company) responsible when an employee has proven a case of hostile work environment harassment by their supervisor?

Yes - the employer (company) is strictly (automatically) liable.

Who cannot be employed?

a. *Children* - restrictions imposed by both federal and state law to protect children's well being b. *Undocumented Workers* - restrictions imposed not for the workers themselves, but for the economic protection of other workers.

How can an employer conduct a background check in NJ?

i) Requests for criminal history records information for purposes of employment must be made on prescribed forms signed by the subject of the request. ii) In addition, the employer must certify that: 1) It is authorized to receive criminal history information in conformity with the regulations; 2) The records will be used solely for the purpose of determining the subject's qualifications for employment; 3) The records will not be disseminated to persons for unauthorized purposes; 4) The employer will comply with all regulations; 5) The employer will give the subject of the inquiry adequate notice to complete or challenge the accuracy of the records provided; 6) If asked by the subject of the inquiry, it will give him a reasonable period in which to correct or complete the records provided by the State Bureau of Investigation; and 7) It will not presume guilt for any pending arrests or charges indicated on records received from the Bureau.

Inherent Tension for Public Employers in Privacy cases

i. Duty to ensure the efficient and proper operation of the workplace VS. ii. Public Employees' reasonable Expectation of Privacy

Who is a Public Employer?

i. State and Federal Government ii. County governments iii. School Boards

When are two employers consider Joint Employers of an employee?

i. There is an arrangement between the employers to share the employees services, OR ii. One employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee, OR iii. The employers are not completely disassociated with respect to the employment of a particular employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.

Tangible Employment Action

significant change in employment status: 1) hiring 2) firing 3) failing to promote 4) reassign employee 5) don't give raise or bonus 6) not getting good work assignments

Under Respondeat Superior, when does an employer/employee relationship exist?

*Control by the employer over the employee is critical to establish this* - see tests previously reviewed e.g. Control Test i) The defendant must be an employee of the employer, meaning that the employer can tell the defendant when to work, where to work, what to work on, and for how long. ii) In most cases, respondeat superior *will not apply to independent contractors,* because someone who hires an independent contractor usually does not have the power to tell the contractor when, where, how, or how long to work.To hold an employer to be liable for an employee's negligence or bad actions, the injured plaintiff must prove all of the following: i.

Discola v. Kay (NJ 1982)

*Court recognizes potential for a Negligent Retention Claim but rejects Respondeat Superior claim* *FACTS* 1) Plaintiff was a child who was accidentally shot in the neck by defendant Kay while visiting his uncle's house located at a Camp for Boy Scouts, 2) Plaintiff brought suit against the shooter, his uncle and the Boy Scouts, who was the employer of the shooter and the uncle. *ISSUES* 1) Respondeat Superior Claim: Whether the defendant employer was liable for the injury suffered by the plaintiff under the doctrine of Respondeat Superior? 2) Negligent Hiring/Retention Claim: Whether a employer owes a duty of reasonable care to third persons in hiring and retaining employees whose aggressive or reckless characteristics or lack of competence in the performance of their employment duties may endanger third parties? *HOLDINGS* 1) Court rejects Respondeat Superior Claim. Individuals were not acting "within the scope of their employment" - thus employer cannot be liable under this theory. 2) Court recognizes that it is possible the plaintiff may have a claim based on Negligent Hiring/Retention because the shooter and the uncle were acting "Outside the Scope of their Employment". Court doesn't determine if the employer is liable but states that to determine this a jury must follow the Negligent Hiring/Retention 2 Part Analysis of: i) Did the employer have the knowledge and foreseeability of the harm to third persons posed by the employee? ii) Whether through the negligence of the employer in hiring (or retaining) the employee, the latter's incompetence, unfitness or dangerous characteristics proximately caused the plaintiff's injury?

How can you distinguish Disparate Treatment and Disparate Impact claims for discrimination?

*Disparate Treatment* - Intentional discrimination - usually claim is by 1 plaintiff *Disparate Impact* - Need not be intentional - usually claim is made by a group of employees (a "class")

Wooley v. Hoffmann La Roche

*ESTABLISHED IMPLIED CONTRACT EXCEPTION TO EMPLOYMENT AT WILL* 1) Wooley was fired for poor performance 2) Wooley claimed that the way and for what the company fired him for was not in the Employee Handbook (Policy Manual) given to all employees 3) Wooley claimed that the "promises" made in the employee handbook created an implied contract between himself and Roche such that they could not fire him without following what the policy manual said. (an implied contract exception to the Employment at Will Doctrine)

Griggs v. Duke Power Co (US 1971)

*ESTABLISHED THE ORDER AND BURDEN OF PROOF FOR A DISPARTE IMPACT CASE OF EMPLOYMENT DISCRIMINATION* 1) Plaintiffs were African American and brought suit against Duke claiming their requirement of a high school diploma or passing an intelligence test as a condition of hiring or transfer to specific jobs was discriminatory because it had a discriminatory adverse impact against African Americans 2) Court holds that intent is not required to prove a case of disparate impact under Title VII*

Deal v. Spears (F.2d 1992)

*Federal Wiretapping Case* *Facts:* 1) Spears, defendants, owned a convenience store which was attached to their residence. Shared the same phone line. 2) Spears had asked employee, Deal, to limit personal calls on phone or would have to monitor. 3) Spears Store was robbed and suspected Deal had been involved. 4) Put recording device on phone to listen to Deal's conversations 5) While listening to Deal's phone calls found out she had sold keg of beer at cost to her boyfriend - did not substantiate robbery 6) Spears fired Deal for selling beer at lower cost *Issue:* Did Spears violate Deal and her boyfriend's expectation of privacy under the Federal Wiretapping Statute? *Holding:* Spears had violated the statute because: 1) Deal had not consented to being taped through an implied consent because she had been told calls would be monitored or that she knew the extension was tied to their home phone - i.e. she had an expectation of privacy in her personal phone calls! 2) Spears was not immune to the statute - their claim that they had a legitimate business reason for listening in to try and catch the robber was not valid. They actually listed to all calls regardless of business interests. i.e. the scope of the search was well beyond the boundaries of the ordinary course of business.

Under Negligent Hiring/Retention, what is critical to create a duty and its eventual breach?

*Foreseeability is essential* to create such a duty and its eventual breach - i.e. The employer could have foreseen that its conduct unreasonably enhanced a hazard that would be injurious to those coming within the range of the hazard. Ask: Whether the employer, knowing of its employee's (or an applicant's) unfitness, incompetence or dangerous attributes when it hired or retained the applicant/employee, should have reasonably foreseen the likelihood that the employee through his employment would come in contact with the members of the public such as the plaintiff, under circumstances that would create a risk of danger to such persons because e of the employee's qualities.

How does a plaintiff prove a case of Disparate Impact Discrimination and what is the Order of Proof (Burden Shifting)?

*From the Griggs v. Duke Power Case* The *Standard (rule) to show Disparate Impact* is: *Plaintiff has initial burden to show:* 1. There was a Policy/Practice that appears to be Neutral on its face ("facially neutral") 2. Even though the Policy was facially neutral, the policy/practice had a disparate impact on a protected class a. Show through statistics *Burden shifts to Employer to show:* 1. Policy/Practice was: a. Job Related (i.e. Valid: a good predictor of job performance) AND b. Consistent with Business Necessity *Burden shifts back to Plaintiff to show:* 1. Even though policy/practice valid and consistent with business necessity, there were other policy/practices that have less discriminatory impact and will still meet he employer's business needs.

For *Lie Detector (Polygraph) Tests* how is invasion of privacy analyzed in both the public and private employment sectors and under NJ and Federal Law?

*Generally: Employers may not force employees to take lie Detector Tests* a) *New Jersey Law* i. With limited exceptions, it is a disorderly persons offense for any employer in New Jersey to influence, request or require an employee or prospective employee to take or submit to a lie detector test as a condition of employment or continued employment. N.J.S.A. 2C:40A-1, 29 U.S.C. §2002. b) *Federal Law* *Employee Polygraph Protection Act (EPPA)* 1) When are you required to take PT? a) Applying for law enforcement positions 2) Are they reliable? a) Unpredictable - unreliable b) Not admissible in court - because wholly unreliable c) People can "beat" a polygraph and others fail that are actually telling the truth d) Evidence scientifically - not trustworthy 3) Congress felt need to pass law on subject * Federal law: Applies ONLY to Private Employers* It is Illegal for most employers to : i. Require ii. Request iii. Suggest iv. Cause someone to take v. a lie detector test 4) NOTE: The federal statute DOES NOT apply to government employers, but based upon their Constitutional rights, public employees may only be subjected to polygraph tests in limited circumstances (i.e., national defense and security clearance, etc.).

How does an employment Relationship differ from an Independent Contractor Relationship?

*Has to do with control*: An independent contractor performs a contract independent of, or free from, control by the other party an employee does NOT.*

How does a plaintiff (in a private, non-class action complaint) make a claim for a case of Disparate Treatment Discrimination and what is the Order of Proof (Burden shifting)?

*Holding from McDonnell Douglass Case* *Plaintiff has Initial Burden:* Must make a *Prima Facie Case of Discrimination* Must Show: 1. They are a member of a "Protected Class" (protected under Anti-Discrimination Laws) 2. They are/were qualified to perform the job in question to the Employer's satisfaction 3. They suffered an Adverse Employment Action 4. Others who were not in the Protected Class were treated more favorable (e.g. Employer kept taking applicants) *Burden then Shifts to Defendant* 1. To show, in defense, that they had a *Legitimate Non-Discriminatory Reason for the Action* *Burden Shifts Back to Plaintiff* 1. To respond to employer's defense, by *showing that the reason presented by the employer was simply a "Pretext" for discrimination.* Can Show Pre-text: a. Directly - show actual reason was discriminatory OR b. Indirectly - show defendant's reason should not be believed

Is an Employer vicariously liable for claims in a Negligent Hiring/Retention Case?

*NO* Unlike under Respondeat Superior, the claims against the employer are NOT vicariously, but are directly attributable to the employer - i.e. claim is "Direct" liability because they are the negligent party.

Is a bona fide seniority system that has an adverse impact on a protected group discriminatory?

*NO* - the statue specifically excludes bona fide seniority systems from being considered discriminatory

What is the rule in NJ for Private Employers with regard to Privacy and Drug Testing?

*New Jersey Drug Testing* 1) In New Jersey, the Supreme Court has approved of drug testing in the private sector, finding that the right of privacy was outweighed by the competing public interest in safety, when an employee who attempts to perform his duties impaired by drugs would impose a threat to co-workers, the workplace and the public at large. Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992).

O'CONNOR V. ORTEGA (U.S. 1987) PUBLIC EMPLOYER PRIVACY CASE

*PUBLIC EMPLOYER PRIVACY CASE - THE CONSTITUTION APPLIES!* FACTS: 1) Ortega was medical doctor at a public (government funded) state hospital. 2) Hospital became concerned about Ortega's management of the program - especially that he had allegedly had sexually harassed employees. 3) Hospital suspended him with pay to investigate the allegations. 4) While Ortega on leave, allegedly to take an inventory and secure state property, Hospital searched Ortega's office, which he usually kept locked and seized some personal items from his desk and file cabinets that were used against him when he was discharged. Issue: Whether the defendant, Hospital's, search of Ortega's office (especially his desk_ was unreasonable and therefore violated the 4th amendment of the Constitution (violated Ortega's right to a reasonable search and seizure)?

What is a Ban the Box Law?

*Prohibits employers from making inquiries into an individual's criminal history in the initial stages of the application process.* i. Exceptions apply for law enforcement or other positions that require a clear criminal history ii. BUT: May make such inquiries at later stages of the hiring process iii. May make offer of employment contingent on a satisfactory background check

What is the analysis to determine if a Property Search of an employee in the Public Sector is illegal (i.e. whether the search violated the 4th Amendment of the Constitution)?

*Property Searches in the Public Sector Follow a Basic Analysis:* i. *Is there a reasonable expectation of privacy?* IF NO >> No further analysis - search not illegal ii. IF there IS a reasonable expectation of privacy >>> For a search to pass Constitutional muster, i.e. it is "reasonable" under the 4th amendment, the search must be reasonable in: 1. Its Inception AND 2. Scope

For *Computer Monitoring* how is invasion of privacy analyzed in both the public and private employment sectors?

*Public Employees:* All questions come down to whether employee has reasonable expectation of privacy against search and seizure? i. Work Computer - probably not ii. Home computer - probably iii. Policy barring use for personal use - probably no expectation of privacy iv. No such policy - fact specific inquiry *Private Employees*: Reasonable expectation of privacy i. Work Computer - Probably not ii. Home Computer - probably iii. Policy barring use for personal use - probably iv. No policy - fact specific

For *Drug Testing* how is invasion of privacy analyzed in both the public and private employment sectors?

*Public Employment Context:* i. Follow 4th Amendment Analysis - balance the government's interests with the individual's expectation of privacy (See Privacy in Public Context on another slide) ii. There is no federal statute outlawing employer drug testing. For many positions in the federal government, it is mandatory. iii. The Supreme Court established a "special needs" exception to the warrant requirement for drug testing public employees (customs agents in Von Raab) or private railroad employees (in Skinner) who were subject to a federal administrative agency's regulations. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). b. *Private Employment Context* i. 4th Amendment does not apply - Generally, Private Employers may administer Drug Tests without invading employee's privacy 1) Exceptions: a. Collective Bargaining Agreement b. State or Local Law prohibits drug testing ii. Otherwise private employers may administer drug test.

For *video surveillance,* how is invasion of privacy analyzed in both the public and private employment sectors?

*Public Employment*: Follow test from O'Connor v. Ortega. i. Most cases fail because they do not meet first prong - there is no reasonable expectation of privacy b. *Private Employment:* i. Generally employers can use video surveillance ii. Should, however, practice certain safeguards including: 1) Employees should be notified of the surveillance; 2) Places where employees have an expectation of privacy should not be monitored (restrooms, changing rooms, etc.);

McDonnell Douglass v. Green

*SETS FOR TH THE ORDER AND BURDEN OF PROOF IN A RACE DISCRIMINATION CASE UNDER TITLE VII* 1) Green, former employee of MD, protested against MDs employment practices and was arrested 2) MD advertised for positions that were open of kind that Green had formerly worked in 3) Green's application for employment to MD was rejected 4) Green Files race discrimination charge with EEOC claiming MD violated Title VII when they didn't reemploy him

Immutable Characteristic

*Something you cannot change* Most discrimination cases are based on an immutable characteristic and thus it will be obvious without any further investigation you are in a protected category so plaintiff will not have to prove the employer knew of their protected status - it is assumed they knew it.

According to the Supreme Court, who is considered an Employer?

*Test relies on Control:* 1) Whether the organization can hire or fire individuals or set the rules and regulations of the individual's work whether and to what extent the organization supervises the individual's work 2) whether the individual reports to someone higher in the organization 3) whether and to what extent the individual is able to influence the organization 4) whether the parties intended that the individual be an employee, as expressed in written agreements or contracts 5) whether the individual shares, profits, losses and liabilities of the organization.

The Economic Reality Test

*Test used to distinguish an employee from an independent contractor. * 1. Focuses on the economic circumstances of the working relationship to determine whether the worker was dependent on the employer for work. If dependency existed, then the worker was an employee. 2. The critical inquiry should focus on whether the worker is economically dependent on the business to which her renders service or is, as a matter of economic (reality), in business for himself. 3. Courts apply a totality of the circumstances approach to evaluate the economic reality test

The Common Law Test

*Test used to distinguish an employee from an independent contractor.* 1. Relies on traditional agency law principles a. Which hold that it depends heavily on the level of control that a company exercises over the manner and means by which a worker performs his/her job. 2. An employment relationship exists: if the employer reserves the right to control not only the result to be achieved, but also the means to be used to attain the result. 3. An independent contractor relationship exists: where the employer reserves only the right to control the ends to be achieved. 4. To assess the level of control, courts give considerable weight to the amount of supervision that the employer has a right to exercise over the worker.

What is the EEOC?

*The Equal Employment Opportunity Commission*: an agency created by Title VII to investigate and prosecute charges of discrimination under Title VII of the Civil Rights Act of 1964

Can an employer have an irrational hiring practice or policy and the court still does NOT find that it is discriminatory?

*YES* - if the plaintiff cannot show a policy/practice had an adverse (disparate) impact on a group protected by an anti-discrimination law - they have not met their initial burden and do not have a claim.

What are the two ways can bring a "privacy" claim?

1) Common Law - private employers 2) U.S. Constitution - if there is State Action

TAYLOR V. METZGER rationale?

1) Employee can prove case of racial hostile environment because the remark was considered "severe" enough to be offensive because of a) the relationship of employees (i.e. high ranking officer made remark - gives racially hostile tone to the whole department) b) the connotation of the remark was so unambiguously demeaning. 2) Employee can prove intentional infliction of emotional distress. Apply 3 part test: a) Was there "intentional and outrageous" conduct by defendant? Yes - because it was supervisor making the remark and his intent to cause emotional distress could be inferred from his remark b)Was distress suffered by the plaintiff severe? Yes - went to doctor - diagnosed with PTSD c) Was there proximate cause (nexus or connection) between the conduct and the distress? Yes - look at the average person in the plaintiff's situation - an African American - and yes - the remark was so bad for a person in this circumstance to suffer severe distress.

What are 4 bases for a claim of discrimination based on sex?

1) Height, Weight and Physical Ability Requirements (Adverse Impact on Women) 2) Pregnancy 3) Sexual Harassment 4) Disparate Treatment case of Sex Discrimination

New Jersey Pregnant Workers Fairness Act

1) Prohibits discrimination based on pregnancy 2) Pregnancy defined as: Pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth. 3) Requires employers to provide reasonable accommodations to pregnant employees that requires them based on the advice of her physician including: a) bathroom breaks b) Temporary transfers to less strenuous work periodic rest c) assistance with manual labor d) job restructuring or modified work schedule NOTE: Employer does not have to accommodate if it will create an undue hardship.

What are the 2 types of sexual harassment

1) Quid Pro Quo 2) Hostile Work Environment Sexual Harassment

What type of damages is an employer (company) responsible for when a supervisor is found guilty of hostile environment sexual harassment against an employee?

1) They are "strictly liable" (automatically) for equitable damages (reinstatement, back pay, front pay) 2) They may also be "vicariously" liable under agency principles for compensatory damages (e.g. pain and suffering). 3) The employer will NOT be liable for punitive damages unless the harassment was authorized, participated in, or ratified by the employer. (i.e. upper management actually participated in the harassment or was willfully indifferent to it).

What 3 ways could a plaintiff in NJ bring a claim of discrimination based upon Pregnancy?

1) Title VII of the Civil Rights Act 2) Pregnancy Discrimination Act (Federal Law) 3) New Jersey Pregnant Workers Fairness act.

Sources of Law of Privacy Rights for Employees

1) United States Constitution 2) Privacy Act - applies to federal employees only c. State Constitutions d. State Statutes e. Case law (i.e. common law) f. Collective Bargaining Agreements

Exceptions to the Employment-at-Will Doctrine

1. *Contract* a. Express Contract i) Collective Bargaining Agreement (Union Contract) b. Implied Contract 2. *Statutory Exceptions* (e.g. Anti Discrimination laws) 3. *Constitutional Exceptions* (Free Speech - in govt. employee context) 4. *Tort Theories* a. Violation of Public Policy b. Abusive Discharge 5. *Implied Covenant of Good Faith and Fair Dealing*

Respondeat Superior

1. *Employment doctrine that states that, in many circumstances, an employer is only responsible for the actions of employees acting within the "Scope of Employment."* a. The phrase means, *"let the master answer,"* and is also known as the *"master-servant"* rule. b. A type of *vicarious liability,* which allows a third party to be held liable for a defendant's negligence in some cases, even if the third party wasn't there when the injury occurred and did not cause the injury or make it worse.

Examples of Discovery

1. *Interrogatories - Written Questions* a. E.G. List each reason why you terminated your client. 2. *Request Documents or other evidence* a. Plaintiff's complete file (performance reviews etc.) b. Electronic discovery (emails, tweets etc.) c. Defendant can ask for plaintiff's diary 3. *Depositions* a. Ask witnesses including plaintiff to give testimony b. To lock witness into their story for when actually go to trial - use it to impeach witness at trial if they say something different.

How does a court analyze whether an employee had a *"Reasonable Expectation of Privacy"* in the thing/area searched?

1. Fact specific inquiry and depends upon factors such as: a. The extent of access by others b. Whether the employee keeps personal items in the area searched; and c. Whether there is any workplace policy regarding personal use of work space.

What is the process for filing a Charge of Discrimination with the EEOC?

1. Plaintiff (employee) *Files a Charge of Discrimination* within 180 or 300 days (if provided by state statute) of the date the discriminatory act occurred. EEOC prepares and sends to defendant 2. Defendant (employer) responds to charge by filing a *Statement of Position* denying discrimination 3. *Mediation* Cannot force them to submit to it or settle 4. *Investigation:* If parties refuse to go to mediation or it is unsuccessful, EEOC investigates the claim 5. *Determination*: After investigation the EEOC makes a determination for or against the plaintiff. >>>>>> *Issues a Right-To-Sue to the plaintiff* 6. *After plaintiff receives Right-To-Sue Letter, they can file a claim in Court* >>>>>>Must do so within 90 days

8 types of potential remedies available to the plaintiff

1. Reinstatement to Job 2. Injunction 3. Back Pay . 4. Front Pay 5. Compensatory Damages 6. Punitive Damages 7. Attorney's fees 8. Court Fees >>> Plaintiff is awarded a sum to compensate them for what it cost them to bring the case. Monies spent could be for: a. Expert Witness Fees b. Depositions etc.

What are some of the Statutory Exceptions to the Employment-At-Will Doctrine?

1. Statutes (Laws passed by Congress): Congress makes terminating employees for very specific reasons illegal Examples: Title VII, ADEA, ADA: Companies cannot fire employees because of any of the categories protected under these laws, e.g. race, religion, gender, disability, age, etc. 2. National Labor Relations Act: Companies cannot fire someone for engaging in union activity. 3. Whistleblower Statutes - (e.g. NJ CEPA): Company cannot fire someone because they "blew the whistle" on an employer who was violating a law.

What is State Action and why is it required in Public Employee Privacy Cases?

1. The Bill of rights was implemented to protect citizens from unbridled government action - not private! 2. Thus generally, employees, in the private employment setting do not have constitutional protections based on the Equal Protection Clause or how they choose to affiliate politically. 3. Generally, only when there is state action, as in the public employment context, do employees have the Bill of Rights Protections. 4. Thus for employees in the private workplace, they must rely upon non-constitutional, statutory and tort based theories for speech, conduct and political protections - if they exist at all.

How long does an employee have to file a charge of discrimination with the EEOC after the discriminating event has occurred?

180 days or 300 days (if plaintiff is first required to file charge with state agency)

How long after a plaintiff receives a Right to Sue letter from the EEOC do they have to file a lawsuit?

90 days

City of Ontario v. Quon

>COURT ADDRESSES WHETHER THE PLAINTIFF (Quon's) FREEDOM FROM UNREASONABLE SEARCH AND SEIZURE UNDER THE 4TH AMENDMENT HAD BEEN VIOLATED 1) Quon was part of the City of Ontario Police Department - was disciplined for using a pager given to him by the City to text for personal reasons (and which had sexually explicit information on it). 2) City had performed an audit because of overages on the amount of texts that were being used by the department. Wanted to know if employees need more allowance for texts or whether they were using the pagers too much for personal reasons

Hostile Environment Sexual Harassment

A form of sex discrimination where unwanted (unwelcome) conduct (comments, touching, posters etc.) that is either severe OR pervasive creates a hostile or offensive working environment. The behaviors may be committed by one or more of the following: supervisors, coworkers, clients, customers.

Quid Pro Quo Sexual Harassment

A form of sex discrimination whereby a supervisor makes unwanted sexual advances to a subordinate employee in exchange for a change in terms or conditions of employment

What can a Private Employer do to minimize liability for invasion of privacy?

A private employer should: i. Notify all employees that all lockers, desks, purses, briefcases, and lunch boxes are subject to search at all times; ii. Provide the locks used on all company property and avoid the use of employee-owned locks; iii. Notify all employee's that their personal property is subject to search upon leaving the premises, NOTE: In certain situations, even in the absence of notice, the employers ownership and control of the work space or equipment may defeat an expectation of privacy.

When is an employee *NOT* working within the *Scope of Employment?*

According to the Restatement (second) of Agency §228 *Conduct of a Servant is NOT within the scope of employment*: a) if it is different in kind from that authorized b) far beyond the authorized time or space limits, or c) too little actuated by a purpose to serve the master.

When is an employee working within the *Scope of Employment?*

According to the Restatement (second) of Agency §228 1) *CONDUCT OF A SERVANT IS WITHIN THE SCOPE OF EMPLOYMENT IF, AND ONLY IF:* a) it is of the kind that he / she is employed to perform; b) it occurs substantially within the time and space limits; c) it is actuated, at least in part, by a purpose to serve the master, and d) if force is intentionally used by the servant against another, the force is not unexpected by the master.

How does an Employment Relationship differ from an Agency Relationship?

An agent is authorized to negotiate or make contracts with 3rd persons on behalf of another - a principal an employee is NOT.

When is an Employer liable for Negligent Hiring?

An employee must show: a. The employer knew, or in the exercise of ordinary care, should have known, that the job applicant would create an undue risk of harm to others in carrying out job responsibilities. AND Must also show that the employer could have reasonably foreseen injury to the third party. b. Through the negligence of the employer in hiring/retaining the employee, the employee's incompetence, unfitness or dangerous characteristic proximately cased the injury to the plaintiff. i. Example: employer who knows of an employee's pre-employment drinking problem and violent behavior may be liable to customers assaulted by that employee.

Constitutional Exception to Employment-At-Will

An employer cannot fire an employee for exerting their rights under the Constitution. (Most of the rights come from the Bill of Rights: exercising right to free speech, for refusing to submit to unlawful search and seizure, etc.)

How does the Disparate Impact Theory of Discrimination work?

An employer will be liable for discrimination against an employee(s): i. When an employer's "facially neutral" employment practices (policy), such as hiring or promotion examinations, though neutrally applied, ii. have a significantly adverse or disparate impact on a protected group AND iii. the employment practice in question is NOT shown to be: 1) "job related" AND 2) "Consistent with the business necessity" of the employer. iv. NOTE: Whether the employer "intended" to discriminate is not relevant!

How does the Disparate Treatment theory of discrimination work?

An employer will be liable for discrimination against an employee(s): i. When they treat some individuals less favorably than others because of a protected category 1) Under Title VII this will be: race, color, religion, sex or national origin

What section of the Constitution is most relevant for issues of Invasion of Privacy?

Bill of Rights 4th Amendment: protection against unreasonable search and seizure

What are the 2 different theories of proving discrimination?

Created by the Supreme Court interpretations of Title VII. Later codified (made into statutory law) by the Civil Rights Act of 1991 (which amended the Civil Rights Act of 1964). *There are 2 basic Theories of Discrimination* i. Disparate Treatment ii. Disparate Impact

Injunction

Court directs the defendant to do something - i.e. stop discriminating. A type of remedy.

Under the Economic Reality Test, what does the court consider when determining the "Totality of the Circumstances"?

Courts apply a totality of the circumstances approach to evaluate the economic reality test that could include considering the following factors: a) The degree of the employer's right to control the manner in which the work is to be performed b) The worker's opportunity for profit or loss depending upon managerial skill c) The worker's investment in equipment or materials required for his task or his employment of helpers d) Whether the service rendered requires a special skill e) The degree of permanence of the working relationship i) In evaluating the permanency factor the seasonal nature of the work is not dispositive. Instead, courts have found a sufficiently permanent relationship where workers return to a farm from seas to season. f)Whether the service rendered is an integral part of the alleged employer's business. i) The inquiry should focus on the nature of the work performed by the worker and NOT on the percentage of total work that they accomplish. As long as the work performed represents an "essential part" of the alleged employer's business, this factor weighs in favor of employee status.

TREASURY EMPLOYES UNION V. VAN RAAB (US 1989) Whether Drug Testing violated 4th Amendment Reasonable Search and Seizure

DRUG TESTING 4TH AMENDMENT REASONABLE SEARCH AND SEIZURE CASE FACTS: 1) Defendant was the Customs Service. They wanted to start drug testing of 3 categories of employees: a) Drug enforcement officers b) Employees who handle firearm c) Employees with access to classified info 2) Union sought injunction - stopping new policy from being carried out ISSUE: Whether the defendant's policy violated the 4th amendment right to reasonable search and seizure? (Remember - Constitution applies because government (public) employer) HOLDING: Court finds drug testing of all 3 categories of employees was legal (i.e. passes 4th Amendment test)

Punitive Damages

Defendant gets punished for intentionally (willfully or maliciously) violating the law a. Amount awarded is supposed to be punitive - the defendant must be hurt a bit b. Will often look at financial size of company when determining the amount - to make them feel it. Small company award less than large company.

What type of sex discrimination case could be brought if women claim that Height, Weight or Physical Ability requirements are discriminating against women?

Disparate Impact Employer could defend by showing that the requirements are job-related.

Employment-at-Will

Employer can terminate an employee at any time for any or no reason at all.

How may an employer possible avoid vicarious liability for compensatory damages (but not equitable) when an employee proves that there had been hostile environment sexual harassment by their supervisor?

Employer could possibly avoid compensatory damages for hostile environment sexual harassment if it had ALL of the following: 1) a well publicized anti-harassment policy 2) effective complaint structures 3) training/monitoring mechanisms in place to deal with harassment.

For *Background Checks* how is invasion of privacy analyzed under NJ Law?

Employers may obtain certain criminal conviction records from the State Bureau of Identification for the purposes of determining the subject's qualifications for employment, volunteer work or other performance of services. Any person or entity may obtain: 1) All records of convictions in New Jersey State Courts, 2) All records of pending arrests and charges for violations of New Jersey laws, regardless of age, unless the records have been expunged pursuant to law.

What is the Reasonable Woman Standard?

Established in the Lehman Case (NJ Supreme court case) - for Hostile Environment Sexual Harassment. It is an objective standard - what would a person in the protected category feel about the conduct? Would they think it is offensive. In the Lehman case - since the plaintiff was a woman - standard is the Reasonable "Woman" standard

TAYLOR V. METZGER (NJ Supreme Ct. 1988) (intentional infliction of emotional distress and racial hostile environment harassment case)

FACTS: Police officer is called "Jungle Bunny" by her supervisor the sheriff. She seeks apology he refuses to give it. She suffers emotional distress and PTSD. ISSUES: 1) Can a single racial derogatory comment by a supervisor create a racially hostile work environment under the NJLAD? 2) Can a single racial derogatory comment be the basis for claim of intentional infliction of emotional distress Holding: Yes to both questions

Why is it a good idea for an employer to conduct Background Checks for all incoming employees?

Failure of an employer to conduct a criminal background check of a prospective employee may be evidence of negligent hiring.

Pregnancy Discrimination Act

Federal Law Prohibits Discrimination against women in employment based upon pregnancy, childbirth or related medical conditions. NOTE: Women who are disable due to pregnancy must be treated in the same manner as other disabled workers. If an employer does not provide disability benefits or paid sick leave to other workers, it is NOT required to provide them to pregnant women.

Employee Polygraph Protection Act (EPPA)

Federal law that makes it illegal for private employers to: a) require b) request c) suggest d) cause an employee or applicant to take a polygraph test (lie detector) OR use the results of such tests, except in limited circumstances. Those are: 1) if there is an ongoing investigation involving economic loss or injury to the employer's business, so long as certain procedures at satisfied. Rationale for protection: Employees were suffering adverse employment actions as a result of "failing" a polygraph test, even though they were generally not considered by experts to be scientifically valid. NOTE: THE ACT DOES NOT APPLY TO PUBLIC (GOVERMENT) EMPLOYERS - THEY CAN USE THE CONSTITUTION IF THEY FEEL POLYGRAPH TESTING IS BEING MISUSED.

What are the trial courts for the Federal and NJ Court Systems?

Federal: U.S. District Court State: NJ Superior Court - Law Division

On what basis can an employee at will be terminated?

For any reason or no reason at all (Employment-At-Will Doctrine)

For *E-mail Monitoring* how is invasion of privacy analyzed in both the public and private employment sectors?

Governed by the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2520 b. Similar to telephone communications under the Federal Wiretapping Act. Employer can monitor if done in the regular course of business or if the employee consents. c. An employer can ensure that its employees "consent" by issuing a policy statement to all employees, informing them of the monitoring program, its purposes and justification.

LEHMAN (Hostile Environment Sexual Harassment - NJ) - Holdings

HOLDING: An employee states a case for hostile work environment sexual harassment when he/she alleges: 1) discriminatory conduct 2) that a "reasonable" person "of the same sex" in the "plaintiff's position" would consider (reasonable woman standard) 3) sufficiently severe OR pervasive 4) to alter the conditions of employment by creating an intimidating, hostile, or offensive working environment.

O'CONNOR V. ORTEGA HOLDING AND RATIONALE

HOLDING: Not completely decided. Sent case back down for further evidence on: 1) the purpose of the search 2) scope of the search to determine if the search was reasonable. RATIONALE: Must balance employee's expectation of privacy against the government's need for supervision, control and efficient operation of the workplace. To do this, apply the following 2 part analysis: 1) DID THE PLAINTIFF HAVE A REASONABEL EXPECTATION OF PRIVACY AS TO HIS OFFICE AT HIS WORKPLACE? a) Court holds that he did have a reasonable expectation of privacy because Ortega could lock his office, he did not share the office, he worked for the hospital for 17 years and he had personal items in his office and hospital didn't have policy of discouraging employees from keeping personal items at workplace, AND they did not, as they said ever take an inventory of his office. 2) WAS THE SEARCH REASONABLE? Look at 2 things to determine this: a) What was the purpose of the search at its inception? Look at if the search was done to turn up evidence that the employee was guilty of workplace misconduct or to retrieve a work-related file. Remember - they said it was to inventory and secure state property. b) Was the scope of the search as actually conducted reasonable and related to the circumstances which justified the search in the first place. Court finds that from the record of evidence they were given that they cannot determine if the scope of the search at its inception nor as conducted was reasonable - that is why they remand for further evidence.

LEHMAN V. TOYS R US(NJ 1993) Hostile Environment Sexual Harassment

HOSTILE ENVIRONMENT SEXUAL HARASSMENT case under the NJLAD FACTS: Supervisor harassing other employees, touching, comments etc. Then starts to harass plaintiff making comments and touching her. She complains to HR and to higher up boss. They do nothing. She eventually leaves - can't handle working at company any more. ISSUES: 1) How does a female state a claim for hostile environment sexual harassment? 2) what is the employer's (company) legal responsibility for a supervisor's sexual harassment of an employee?

How can an Employer show he has met his Duty of Reasonable Care (and thus avoid a claim of Negligent Hiring/Retention)?

Having each prospective employee fill out an employment application form and then checking into the applicant's work experience, background, character and qualifications. 1) This would be "evidence" of due care in hiring. 2) The scope of the pre-employment investigation into the prospective employee's background should correlate to the degree of opportunity the prospective employee would have to do harm to third persons. 3) NOTE: Such an inquiry DOES NOT bar respondeat superior liability!. 4) NOTE: The hiring of an individual with a criminal record does not by itself establish the tort of negligent hiring.

What was the Issue I the Quon Case?

Issue: Whether the City's audit of Quon's text messages was a violation of his 4th Amendment right against unreasonable search and seizure?

Why is there no warrant required to search public employee's things/areas even if there is an expectation of privacy?

IF there is a reasonable expectation of privacy - must balance it against the government employer's need to supervise the employee and operate efficiently. 1. Because of these government interests, unlike other issues of search and seizure under 4th Amendment, no warrant is required for workplace searches, nor must the employer establish probably cause for a search of the employee's work space. a. The Supreme Court created this special needs exception from the warrant and probable cause requirements for workplace searches.

Remedy

If plaintiff wins will get some kind of relief for wrongdoing of defendant. If plaintiff loses - gets nothing. There are several kinds.

Attorney's Fees

If plaintiff wins, gets awarded fees plaintiff owed to their attorneys But instead of plaintiff paying out of other damages awarded, the defendant will have to pay 1/3 of the damages award to the plaintiff (who will give to attorney) on top of the awarded amount

When will the *Scope* of the search will be reasonable?

If the search is reasonably related to its objectives and not unnecessarily intrusive.

When is a search *Reasonable at its Inception*?

If the search, before it is conducted, is necessary for a work related purpose such as retrieving a file OR there is reasonable basis to believe that the search will provide evidence of work-related misconduct.

Discovery

Involves asking for information from the other side. Helps both sides evaluate the case for their side - possibly to help reach settlement. Most time consuming part of the case - can take 2-3 years

Which Branch of the Government is supposed to make Policy?

Legislative

Which case provided a rule for the order and allocation of proof in a private, non-class action suit claiming employment discrimination?

McDonnell Douglass v. Green (U.S. 1973)

What can an employer do to try and defend against an implied-contract exception (i.e. a Wooley Claim) to employment-at-will, when it has a policy manual (employee handbook)?

Must Prominently Display a Clear Disclaimer in the Policy Manual which States "This does not create a contract and employees are at-will"

Sexual Harassment (general definition)

Must have: 1) unwelcome behavior that is either a) sexual in nature OR b) based on Gender Note: does not have to be sexual in nature so long as it is directed at someone because of their sex. 2) The behavior must: a) either the terms or conditions of employment (a tangible employment action) b) create a hostile or offensive work environment

Does the Constitutional protection for privacy apply to both Public and Private employees?

NO 1) Privacy rights under the Constitution only protect employees working in the *Public Sector* (for the government). 2) Do NOT cover employees working for a private employer because challenged actions are not governmental actions. NOTE: The Bill of Rights was implemented to protect citizens from unbridled government action - not private! Therefore there must be "state action" - i.e. in the public employment context for these rights to be in question.

Are Sexual Orientation or Marital Status categories that are protected from discrimination under Federal Law?

NO But the NJLAD does protect these two categories

Does an employer have to provide the requesting employee the accommodation the employee has requested or would prefer?

NO - Employer must only show that they have "offered" a reasonable accommodation that removes the hardship - it does not have to e the one the employee proposes or likes.

Do employees in the Private Sector have a good chance of having an expectation of privacy while at work?

NO - because they cannot assert the Constitutional Protection Public Sector employees can because there is NO state action.

In order for the harassment to be illegal, must it be "sexual" in nature?

NO - it simply needs to be based upon a person's sex. For example If a supervisor is dating a subordinate and favoring that employee. The other employees can sue for sexual discrimination because they are not being treated the same even though there is no "sexual" issue with the woman suing?

Does the Reasonable Woman standard apply in hostile environment cases under Title VII (the federal law)?

NO - the Reasonable Woman standard was developed under the NJ Law Against Discrimination - other states may have adopted the standard but under Title VII (the federal law) standard is the Reasonable "Person" - this is broader than the Reasonable Woman - as it asks what all reasonable people would feel - even though someone in a particular protected category might feel more offended than the reasonable person.

Is it illegal to date coworkers?

NO. A company may have a policy prohibiting it but it is not illegal. Policy may be instituted to prevent favoritism or a situation resulting in sexual harassment.

Is religion an immutable characteristic?

No

Is sexual harassment exclusively a male vs. female situation?

No - can be male on male, female on female, just needs to be based on sex

Does Title VII apply to ALL private sector employers?

No - only those with 15 or more employees

In a Hostile Environment Sexual Harassment Claim - does their have to be economic loss (monetary, benefits etc.) to show an adverse employment action took place?

No - the negative impact to the workplace is the adverse employment action

Can a plaintiff file a lawsuit of employment discrimination directly in court?

No - the plaintiff must first file a charge of discrimination with the EEOC

What are the 5 categories of prohibited discrimination under Federal Law?

Race Color Sex Religion National Origin

Before an attorney files a lawsuit on behalf of a client what should he do to possibly settle before going to court and/or obtain the defendant's position and determine the potential validity of the client's claim?

Send a Demand Letter

What must a plaintiff, employee, show to make a Prima Facie Case of Religious Discrimination?

Plaintiff has the initial burden to show (Prima Facie Case): 1) They have a bona fide religious belief that conflicts with an employment requirement 2) Informed the employer of such conflict, AND 3) Suffered an adverse employment action Burden then shift to the employer to show: 1) A legitimate, nondiscriminatory reason for the adverse employment action. Burden then shifts back to the plaintiff to show: 1) that the reason offered by the employer is merely a pretext for discrimination.

Court Fees

Plaintiff is awarded a sum to compensate them for what it cost them to bring the case.

Age Discrimination in Employment Act (ADEA 1967)

Protects those individuals who are 40 years and older from discrimination

Americans with Disability Act (ADA 1990)

Protects those individuals with disabilities from discrimination

TREASURY EMPLOYEES V. VAN RAAB: Rationale

Rationale for Holding: To determine if drug tests are legal under the 4th Amendment right to a "Reasonable" Search and Seizure must use the following analysis: 1) *DID THE PLAINTIFF HAVE A REASONABLE EXPECTATION OF PRIVACY IN THE THING BEING SEARCHED?* a) Court finds the categories of employees in question have a diminished expectation of privacy - even with respect to searches of their own person (in this case their body!) because of the nature of their jobs -these employees who are directly involved in this type of work can't expect to keep personal information that bears directly on their fitness private. 2) *WAS THE SEARCH REASONABLE?* Apply a balancing test: balance the public interest in the Service's testing program against the privacy concerns implicated by the test to determine if the search was reasonable. a) Court finds that although the drug testing might infringe some privacy expectations, those expectations do NOT outweigh the government's compelling interest in the safety and the integrity of our borders. NOTE: The court did state that for the last category - exposure to confidential information - the groups of employees included to be tested may have been too broad - that they may not actually have been dealing with confidential information - and that the lower court needs to get more information to determine which groups should properly be included.

What type of proof must a plaintiff provide in a Disparate Treatment claim of discrimination?

Requires proof of the employer's discriminatory motive i. Need to show there was an "Intent" to discriminate (i.e. treat the employee differently because of their protected category)

What type of proof must a plaintiff provide in a Disparate Impact claim of discrimination?

Requires: i. Proof of adverse effect on a protected group AND ii. The employer is unable to show that he challenged practice is: 1) Job related for the position in questions AND 2) Consistent with Business Necessity

Can Acts Forbidden by the Employee be within the Scope of Employment?

Restatement (Second) of Agency, §230 states: i. An act, although forbidden, or done in a forbidden manner, may be within he scope of employment

Privacy: Definition

Restatement (Second) of Torts §867: Any person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to others is liable to the other.

Why did congress make a separate category for color under Title VII?

There are cases where the plaintiff and defendant are of the same race but one is a different color and they are discriminated against because of this.

How long do the U.S. Supreme Court Justices Serve?

They have lifetime appointments

How is an employment relationship created?

This is created through an express or implied agreement of parties whereby the employee agrees to perform services or to do work under the direction or control of the employer for compensation. 1) In the Past was called: Master-Servant relationship. 2) Employee is hired to work "under the control" of the employer. 3) Can only be created with the consent of both parties.

Negligent Hiring/Retention

This is used to impose liability in cases where an employee commits an intentional tort, almost invariably outside the scope of employment, against a customer or the general public where the employer knew or should have known that the employee was incompetent, violent, dangerous or criminal.

What ARE some possible ways for a private sector employee to assert a privacy claim?

Through Privacy Torts (under the common law) 1) Invasion of Privacy 2) Intrusion on Seclusion OR 3) Private employers may create a reasonable expectation of privacy.

What laws does Sexual Harassment (in either form) violate?

Title VII - federal law - it is form of sex discrimination NJ - the NJLAD - form of sex disxriminaiton

What law was passed in 1964 to protect individuals against discrimination?

Title VII of the Civil Rights Act of 1964

Compensatory Damages

To compensate the plaintiff for pain and suffering of the defendants discriminatory actions. Includes: a. Pain and Suffering (emotional distress) b. To prove - maybe show went to therapist or psychiatrist. Needs to be legitimate c. Jury will decide how much of an award to provide d. The judge cannot give guidance - must be based on the evidence - NOT on precedent.

Mediation

Unbiased 3rd party - tries to bring parties together to settle case and avoid litigation costs.

Invasion of Privacy

Unreasonable publicity given to the private life of another - recognized tort in 30 jurisdictions. To prevail, plaintiff must show: 1. Fact disclosed was private in nature 2. The disclosure was made to the public 3. The disclosure was one that would be highly offensive to a reasonable person 4. The disclosed fact was not of legitimate concern to the public AND 5. The one who disclosed the fact did so with reckless disregard of the private nature of the fact disclosed.

Why is it important to determine who the Employer is?

Usually very obvious. a. Important to answer this question when assigning liability under the law - especially when determining who is covered under a particular act - for example: i) Title VII - applies only to employers with 15+ employees ii) ADA - applies only to employers with 20+ employees b. Typical cases where an issue arises is: when it is not clear whether an organization should be classified as an "employer" or an "employee c. Sometimes there might be more than one "employer" and thus must determine who is responsible for the questioned illegal act. d. Becomes a difficult question to tackle when individuals with ownership interest in a firm, such as partners.

What was the ruling (holding) in the Quon Case?

When a search is conducted fro non-investigatory work-related purposes OR for the investigation f work-related misconduct - a government employer's warrantless search is reasonable if it is: 1) Justified at its inception AND 2) the Scope of the search was reasonable (i.e. the measure adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search).

Mitigating the damages or Mitigation

When judge deducts any pay made while not working for defendant from back pay owed to the plaintiff. Judge may take away all back pay if the plaintiff has not made a reasonable effort in their job search.

What does National Origin mean under Title VII?

When you are born in a foreign country but also could be when you are born in the U.S. but are of a specific Ethnic origin.

What case set forth the standard for the Implied Contract Exception to Employment-At-Will?

Wooley v. Hoffmann-La Roche (NJ 1985)

If the EEOC makes a determination that the plaintiff has not shown discrimination, does the EEOC have to issue a Right to Sue letter?

YES

In a Disparate Treatment Case, is the plaintiff entitled to a Jury Trial?

YES

Are there any exceptions to the documents protected under the Privacy Act?

YES - 11 Exceptions - which include i. Use by officers or employees of the Agency that maintains the records who have a need or the records in the performance of their agency duties ii. Court Order for the records

Does an employer have to agree to an employee's request for accommodation due to religious observances?

YES - an employer MUST provide a reasonable accommodation unless there is an Undue Hardship. HOWEVER - The employer is NOT required to violate a seniority provision of a Collective Bargaining Agreement or impose undesirable shifts on nonreligious employees, or call in substitute employers to make the accommodation for a religious observance. These are not "reasonable."

Can a person sue for hostile environment harassment if is it not based on sex?

YES - can sue based upon one of the other protected categories - race, religion, age etc. Follow basically the same analysis as with hostile environment sexual harassment.

How can Employment Relationships be terminated?

a. *If the relationship is created for a definite period of time (e.g. through a contract) - the employer cannot terminate the contract at an earlier date without justification* i. For example: 1. Nonperformance of duties 2. Misrepresentation or fraud in obtaining the employment 3. Disobedience of proper direction 4. Disloyalty 5. Theft or other dishonesty 6. Possession or use of drugs 7. Misconduct 8. incompetence b. *If the relationship set up does not have a definite duration - it is terminable "at-will."*

What are an employer's potential Defenses Charges of Disparate Treatment Discrimination under Title VII and other Anti-Discrimination Statutes?

a. *No discrimination*: shows that there was a legitimate business reason for the action b. *BFOQ (Bona Fide Occupational Qualification)*: nature of the job requires the different treatment: It is not an unlawful employment practice for an employer to hir an employee on the basis of religion, sex or national origin when such is a bona fide occupational qualification. This defense is construed very narrowly - ie. It is hard to prove. i. NOTE: Race is never a BFOQ ii. Age sometimes might be iii. Gender - very rare iv. Religion- e.g. for a Priest v. Usually - preference of clients/customers is NOT a defense to discrimination

Generally what are the 3 types of employees?

a. At-Will Employees b. Contractual Employees c. Unionized Employees

Answer filed by Defendant

a. Defendant will deny/admit allegations b. States why plaintiff does not have a case under the law

Which Statutes use the Common Law Test to determine the type of relationship that exists between an individual and his employer?

a. ERISA b. NLRA c. Federal Insurance Contributions Act d. Federal Unemployment Tax Act.

Who are potential defendants in employment case?

a. Employer b. Supervisor/Manager c. Human Resources personnel

Complaint filed by Plaintiff

a. Gives plaintiff's version of the facts (allegations) b. Applies the law to their facts

For *Telephone Communications* how is invasion of privacy analyzed in both the public and private employment sectors?

a. Governed by the Federal Wiretapping Act 18 U.S.C. §§2510-2520 i. General Rule: 1) It is illegal to intercept oral and electronic communications. ii. Exceptions: 1) An employer may monitor a firm's telephones in the ordinary course of business through the use of extension telephones; and 2) There is prior consent to the interception. b. Business calls can be monitored within the "ordinary course of business" exception. c. Personal calls can only be monitored only to the extent necessary to determine that the call is personal, and then the employer must cease listening.

Why is it important to understand who is an "Employee" and an "Employer"?

a. Legislatures and courts do not care about who an employee is or who an employer is in the abstract - but only in the context of a specific law, policy or doctrinal issue. b. Result - is that the definitions of the terms "employee" and "employer" vary from statute to statue, and sometimes even within a particular state, courts might adopt more expansive or limited definitions depending on the particular issue involved. c. Statutes impose obligations on employers with respect to employees that are not imposed with respect to independent contractors.

NJ State Court System

a. N.J. Superior Court - Law Division (Trial Court) b. N.J. Superior Court - Appellate Division c. N.J. Supreme Court - 7 justices

Privacy Act

a. Provided federal employees limited protection from the dissemination of personal records without the prior written consent of the employee. i) Protects disclosure of any record "contained in a system of records." 1. BUT - does not prohibit disclosure of any information independently obtained and does not cover personal knowledge and memories. b. Also bars disclosure of information about federal employees unless it is required under the Freedom of Information Act.

Motion for Summary Judgment

a. Requested by Defendant: Stating why complaint completely without merit b If judge grants, the case will be dismissed before even go to trial

Can Criminal or Tortious Acts by the Employee be within the Scope of Employment?

a. Restatement (Second) of Agency, §231 states: i. An act may be within the scope of employment although consciously criminal or tortious

What are the steps in an Anatomy of a Lawsuit?

a. Step 1: Complaint filed by Plaintiff b. Step 2: Answer filed by Defendant c. Step 3: in NJ - required Mediation If Mediation fails > d. Step 4: Discovery e. Step 5: Motion for Summary Judgment f. Step 6: If motion for SJ fails >Trial g. Step 7: Decision for Plaintiff or Defendant h. Step 8: Appeal

Which Statutes use the Economic Reality Test to determine the type of relationship that exists between an individual and his employer?

a. The FLSA b. FMLA c. OSH Act d. EPPA e. Title VII f. ADEA g. ADA

Under the Common Law Test, what other factors, besides control, will the court look at to determine if an individual is an employee or independent contractor?

a. The skill required b. The source of the instrumentalities and tools c. The location of hate work d. The duration of the relationship between the parties e. Whether the hiring party has the right to assign additional projects to the hired party f. The extent of the hired party's discretion over when and how long to work g. The method of payment h. The hired party's role in hiring and paying assistants i. Whether the work is part of the regular business of the hiring party j. Whether the hiring party is in business k. The provision of employee benefits l. The tax treatment of the hired party

What must a plaintiff show to bring a "Prima Facie" case of Negligent Hiring/Retention against an employer?

a. There was a *(legal) Duty* b. There was a *Breach (of the duty)*: c. *Causation*: Whether the employer's negligence in hiring the employee, the employee's incompetence, unfitness or dangerous characteristics proximately caused the injury. d. *Damages*: To the plaintiff as a result of the negligence of the employer by breaching its duty.

Which Statutes use the Hybrid Test to determine the type of relationship that exists between an individual and his employer?

a. Title VII b. ADEA

Federal Court System

a. U.S. District Courts - (Trial Court) b. U.S. Court of Appeals (Circuit courts) > c. U.S. Supreme Court

When does the issue of Joint Employment arise?

a. Under the FLSA, more than one employer can be held jointly and severally liable under for failure to pay minimum wage and overtime properly. b. Department of Labor regulations provide that if the employee is employed jointly by two or more employers, all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the Act.

What are some specific areas where privacy in the private employment context has been an issue?

a. Video Surveillance b. Computer Monitoring c. Telephone Communications d. Email Monitoring e. Drug Testing f. Lie Detector Tests g. Background Checks

What *types of conduct* would be within the *Scope of Employment?*

iii. Restatement (second) of Agency, §229 - furt tells us *THE KIND OF CONDUCT That is WITHIN SCOPE OF EMPLOYMENT* 1) To be within the scope of employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized. 2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered: a) whether or not the act is one commonly done by such servants; b) The time, place and purpose of the act; c) The previous relations between the master and the servant; d) The extent to which the business of the master is apportioned between different servants; e) Whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant; f) Whether or not the master has reason to expect that such an act will be done g) the similarity in quality of the act done to the act authorized; h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant; i) the extent of departure from the normal method of accomplishing an authorized result; j) whether or not the act is seriously criminal