Balancing Employer and Employee Interests

Uniform Trade Secrets Act (UTSA)

48 states have some statutory trade secrets scheme based on the UTSA. Most have to do with whether the info was READILY ASCERTAINABLE and whether the employer took SUFFICIENT PRECAUTIONS TO KEEP IT SECRET.

Defamation

(1) A false and defamatory statement, (2) published to a third party, (3) with fault amounting to at least negligence, (4) that causes some harm or is otherwise actionable.

False Light

(1) D published information widely, (2) publication identifies P, (3) placing P in "false light" that would be (4) highly offensive to reasonable person, and (5) D was at fault. Like defamation but slightly different. The same privileges apply. Not really covered.

Trade Secrets

(1) Information that has value to a business because it is secret and (2) is subject to reasonable efforts to maintain secrecy (definition according to USTA). Trade secrets may be various forms of intellectual property or other information such as formulas, patents, client information, etc. They last forever, and what really matters is their secrecy.

Covenants not to Compete - Protectable Interests

(1) Trade secrets or other confidential information, (2) customer relationships, (3) investment in the employee's reputation in the market (including training), and (4) purchase of a business owned by the employee.

Non-disclosure Agreement

A contract through which the parties agree not to disclose information covered by the agreement. An NDA creates a confidential relationship between the parties, typically to protect any type of confidential and proprietary information or trade secrets. As such, an NDA protects non-public business information. Many employers use these now. They've risen in popularity but are hard to enforce. They also often contain penalty clauses. Used a lot in entertainment agreements.

O'Connor v. Ortega (SCOTUS 1987)

A physician was fired for sexual harassment and attempting to coerce employees to give him money for a computer. During the investigation, but before his firing, the employer searched his office and found mostly personal things while Ortega was on administrative leave. He was later fired. The employee alleged an unreasonable search in violation of the Fourth Amendment. The Court said that probable cause or a warrant is not necessary for a public employee to search an employee's office. Rather, the privacy interests should be balanced against the government interest. Use the two-part test: (1) was there a reasonable expectation of privacy and (2) was it reasonable in inception and scope? Here, the privacy interests were far less than the government interest. The search was not that extensive.

Augat, Inc. v. Aegis, Inc. (MA 1991)

A stockholder at Isotronics, a subsidiary of Augat, left and formed Aegis. Aegis' founder, a former employee at Isotronics, then offered an Isotronics employee a position at Aegis along with other managers there. The current Isotronics employee met with several other employees to solicit them to join the second. Although at will employees may plan to leave employment without telling their current employer, they cannot solicit the employer's customers or current employees to work for a competitor. This employee breached a duty of loyalty by doing this while still employed at Isotronics. A top managerial employee may not solicit the departure of his employees to work for a competitor. Had he waited until after he left or allowed Aegis' founder, who was no longer employed at Isotronics to do it, then no duty would have been breached.

Defamation - Fault

Accidental and reasonable revelation would not rise to level of defamation.

Common Law Privacy Protections for Private Employees

According to the Restatement, there are four types of privacy claims in the private setting under the common law: intrusion on seclusion, appropriation, public disclosure of private fact, and false light. For private employees, the Fourth Amendment does not directly apply, but each tort has its own test. Some of the Fourth Amendment principles have crossed over such as a "reasonable expectation of privacy." The private employee privacy torts all have a higher standard than for public employees, meaning that private employees have less protection. There are also statutory privacy provisions.

Unreasonable Publicity (Public Disclosure of Private Facts)

Action requires that (1) conduct would be highly offensive to a reasonable person and (2) not be of legitimate concern to the public. This is a similar action to defamation, except the claim may be true, so that means the same privileges apply.

Borquez v. Robert C. Ozer, P.C. (CO 1996)

An associate was discharged from a law firm after revealing he was gay, and his partner had AIDS to boss. He kept this part of his life secret. After having to miss a deposition to visit his partner in the hospital, it was necessary for him to tell his boss. His boss, Ozer, then told his wife who spread the information to the rest of the firm. He was then fired. Firm asserts that he was going to be fired anyway for economic reasons not because he was gay. Here, the disclosure of the information was clearly highly offensive and not of public concern here. Sexual relations are generally very private, having nothing to do with the public, and it was highly offensive to reveal his sexuality to the entire firm. The associate did not waive his right to privacy by telling his boss. He exceeded the scope of his waiver by telling his wife who told others.

Edmondson v. Shearer Lumber Products (Idaho 2003)

An employee at a Lumber company was terminated for being opposed to the company's stance on elk preservation. Here, the court rejects the argument that the First Amendment can be used as a source of public policy in a wrongful discharge claim. Employment is at will, and the First Amendment only applies to government actors in the public sector.

Zinda v. Louisiana Pacific Corp. (WI 1989)

An employee may have failed to properly disclose the specifics of his prior injury in an employment application. It is not exactly clear whether he did or not intentionally falsify the forms. He was terminated for falsification of employment forms. The company published the firing in the company newsletter. The information published in the company newsletter was conditionally privileged as a communication of common interest concerning the employer-employee relationship, but there is a question for the jury as to whether it was too widely published. Court said the employer did not abuse the privilege by overpublishing as a matter of law. Other employees have an interest in knowing why an employee was fired.

Novosel v. Nationwide Insurance Co. (3d Cir. 1983)

An employee was fired for refusing to participate in a lobbying effort for his employer for a political stance he opposed. He was then fired. Although suppression of speech by government actors is generally only protected by the First Amendment, here there is a wrongful discharge action for a violation of public policy as an exception to the employment at will rule with the First Amendment as the source of policy. The court lays out a four part inquiry that should be used on remand: (1) Whether, because of the speech, the employer is prevented from efficiently carrying out its responsibilities; (2) whether the speech impairs the employee's ability to carry out his own responsibilities; (3) whether the speech interferes with essential and close working relationships; (4) whether the manner, time and place in which the speech occurs interferes with business operations.

Shop Right

An implied right of an employer to use in business without charge an invention discovered by an employee during working hours and with the employer's material and equipment.

Intrusion on Seclusion

An intentional intrusion upon the solitude or seclusion of another in which there was (1) a reasonable expectation of privacy and the intrusion was (2) highly offensive to a reasonable person. It is the right to be free from the wrongful intrusion into one's private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.

Other Defamation Defenses

Apart from privileges and truth, some other defenses of defamation include opinion, consent, and retraction.

Other Public Electronic Monitoring Cases

Attaching GPS to moving vehicle without warrant violates Fourth Amendment (Jones). Police cannot search cell phones without warrant because of vast information regarding a person's life stored in it (Riley). Police cannot trace location through cell phone metadata without a warrant (Carpenter).

Garcetti v. Ceballos (U.S. 2006)

Ceballos, a deputy district attorney for Los Angeles, found serious misrepresentations in search warrant affidavits. He reported it and sent a memo around regarding his findings but was retaliated against by being reassigned, transferred, and denied a promotion. While his expressions may have concerned a public issue here, they were made as part of his official duties as a district attorney and not as a citizen. The memo was also internal. Government has an interest in managing its operations by transferring Ceballos how it saw fit. Whistleblowing laws will adequately protect Ceballos had he chose to report. The dissent here argues the Pickering balancing test should not disappear simply because the speech was within Ceballos' job responsibilities.

Employee Voice

Closely related to dignitary interests, employee voice has to do with the employee's ability to express concerns without fear of retaliation. In the public sector, this is usually protected by the First Amendment. In the private sector, it is the common law and statutes. Some courts have held that the First Amendment may be used as a source of a public policy violation as an exception to employment at will, but the majority view is that the First Amendment does not apply to suppression of speech by private actors.

Autonomy Privacy Interest

Closely related to privacy, employees may have a claim for employers invading their autonomy for off-duty conduct. Autonomy interests include engaging in lawful off-duty conduct, and holding or expressing "political, moral, ethical, religious or other personal beliefs" outside of work. Employer may be liable for discharging employee because of something that violated autonomy interest UNLESS the employer had reasonable good faith belief that autonomy interest interfered with a legitimate business interest.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Privacy

Constitutional protections do not apply directly to private employees, but some of the same ideas apply from statutes and the common law. The Supreme Court has identified two main types of privacy interests: (1) individual interest in avoiding disclosure of private matters and (2) independence and autonomy in making important decisions. There is higher privacy protection for public employees than private employees because of the Fourth Amendment.

Common Interest Privilege - Intraoffice Communications

Courts differ on whether intercorporate communications constitute publication under meaning of defamation. Some require more.

Blue Pencil Method

Courts use the blue pencil method to enforce a contract but rewriting it slightly. Rather than striking down the contract over a small violation, the court enforces it but changes it a bit.

Covenants not to Compete

Covenants not to compete are agreements between employer and employee that restrict employees from working for a competitor within reasonable limits under certain circumstances. While these agreements are allowed, the courts generally view them with a high level of scrutiny. However, courts are much more receptive to them than they used to be. There is a tension between free market for labor and the employer's interest in protecting IP and client lists and recouping training costs. These covenants usually only apply to highly skilled workers.

Requirements for Covenants not to Compete

Covenants not to compete must be (1) in writing, (2) part of an employment contract, (3) based on reasonable additional consideration, (4) REASONABLE in purpose, geographical restrictions, and time, and (5) not against public policy.

Dignitary Interests

Dignitary interests are the rights and interests of employees, including what sorts of employee conduct constitute violations of their rights that there may be a remedy for.

Chambers v. American Trans Air Inc. (IN 1991)

Employee at American Trans Air resigned after a dispute with her employee. She was unable to secure employment and later discovered it was because her prior reference said that she was not a good employee. Specifically, she had a family member call pretending to be an employer asking about her. She alleged defamation when they did not have good things to say. The court said that the employers had a common interest privilege in discussing employee job performance here. The privilege was not abused because they were not motivated by ill will, did not overpublish, or have actual malice.

Rullon Miller

Employee at IBM was dating someone who became an employee at the company's competitor. They were not even in important managerial roles. She was then fired. She won a wrongful discharge claim but only because the firing violated an implied employee contract. The employee handbook ensures that employees had privacy right and could not be fired for "off the job" behavior that does not affect the company's business interests.

Wornick Co. v. Casas (TX 1993)

Employee at organization that prepared military rations for the DOD was fired for having a bad attitude, not performing certain tasks, snapping at employees, etc. She believed she was fired to prevent her from revealing unethical government practices. She was escorted off the premises by a security guard immediately after her termination. She did not succeed on IIED claim because simply terminating an employee and escorting her out is not "outrageous" conduct, even if it caused severe emotional distress. Both are required. A normal firing cannot be the basis of an IIED claim unless done in a truly outrageous way because then every employee who suffered emotional distress for being let go could claim IIED.

Employer versus Employee Interests in Regulation of Voice

Employee interests in voice include self-realization, autonomy, self-governance in the workplace, providing information to the public, and concerns of promoting democracy. Work is a leading forum for public discourse. Employers have an interest in overseeing and managing their organization, ensuring employee compliance, and having freedom of contract and the ability to hire and fire employees at will without fear of litigation. These interests should be balanced to ensure efficiency in the employment relationship.

Stengart v. Loving Care Agency, Inc. (2010)

Employee used personal email but work laptop to send emails to attorney, that were privileged, regarding her employment discrimination claim against her employer. Employer viewed her emails through a stored cache, which they did not warn their employees of. Court says that the employee had a reasonable expectation of privacy in her private emails on a web-based account because she took clear steps to shield the communication by using a different account that was password protected. She also did not save the password on her computer. Additionally, the aspect of attorney client privilege further bolsters that her emails were private. Companies can regulate use of workplace computers and work email, but they have no reason to read personal emails just because they were sent on a work laptop.

Smyth v. Pillsbury

Employee who used company email to send threatening emails to supervisor had no reasonable expectation of privacy. The messages were targeted at an actual representative of the company using work systems.

Wommack v. Durham Pecan Co. (5th Cir. 1983)

Employee, a general laborer at a company that produces pecans, discovered a novel way to get the worms out of pecans using ultraviolet light and soaking them in yellow food coloring. He allowed his employee to use his idea and they developed it into an actual working machine. The employee made a patent application in his own name. The court held that the employer had a right to the invention because he had a valid shop right in which there was a mutual understanding that the invention was created for the employer's benefit using employer property/labor during employer time. Wommack consented that his idea be used and the two exchanged consideration. This was also an implied license.

Personal Relationships

Employees generally have not much protection for adverse employment action because of off duty activities and have even been fired because of who they associate with or are in a relationship with. Neither of the following cases even involved employees dating actual colleagues, supervisors, underlings, or anyone who they worked with. The courts still allowed employers to fire because of it. Here, employment at will prevails over autonomy.

Electronic Monitoring

Employers do this a lot now to ensure employees do their jobs, prevent wrongdoing, prevent theft, prevent discrimination, and protect trade secrets and other IP. The same privacy rules generally apply here. This section focuses on employee email. Also, the SCA applies in the private (and possibly public) context. Some employers feel they have a duty to monitor email. Generally, it is okay to monitor work email but not private email, even if used on work equipment.

Genetic Testing

Employers may gain genetic information through testing or requesting medical information through other means. There has not been very much litigation in this area, but the Genetic Information Nondiscrimination Act (GINA) aims to prohibit using genetic information in hiring decisions.

Employee Voice - Speech Concerning a Public Issue

Even within a public sector job, if the speech does not concern a public issue, First Amendment protection will not apply. Public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.

Katz v. United States (1967)

Expanded the 4th amendment protection against illegal searches to cover electronic surveillance. Government electronically listening to and recording words of Katz in a phone-booth violated his reasonable expectation of privacy that he relied on. This constituted a search and seizure under the Fourth Amendment. The court followed a two-part test: (1) was there a subjective expectation of privacy? (2) was it reasonable?

Defamation - Abuse of Privilege

For qualified or conditional privileges, they may be overcome if the privilege is abused in a variety of ways such as ill will, over-publication, malice, etc. Abuse of privilege does not apply to absolute privileges. o The defendant's knowledge or reckless disregard as to the falsity of the defamatory matter (malice) o The defamatory matter is published for some purpose other than that for which the particular privilege is given (ill will) o The publication is made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege (over-publication) o The publication includes defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged o The publication includes unprivileged matter as well as privileged matter

Saturn Systems v. Militare (CO Court of Appeals 2011)

Former employee of a debt collection agency had access to a database that contained records of confidential information of debtors. The information was protected by username and password. Saturn also only releases the information to clients and sales agents. At his new job at CB Solutions, a competitor of Saturn, the employee accessed 15 client accounts from Saturn's database, which he could use to develop a marketing and business plan. According to the court, the debtor information was a trade secret because it had value to the company because it was secret and the employer made reasonable efforts to make it secret by maintaining it in a database that only employees had access to protected by a password and not providing anyone other than clients, employees, and sales agents with access. It was misappropriated even though it wasn't used because it was acquired by someone who knew it was acquired wrongfully. The former employee could have used this information to develop a marketing or business plan. The court considered factors such as (1) Information known outside business, (2) information known in business, (3) precautions taken by holder of information, (4) value in holder having information, (5) effort or money expended into obtaining or developing info, (6) amount of time or expense it would take for others to obtain or duplicate.

Common Law and Statutory Protections for Private Employees Voice

Generally, constitutional protections do not apply to non-state actors. Therefore, in the private sector, employees must rely on the common law and statutes. · Wrongful Discharge due to a Violation of Public Policy

Employee Voice - Speaking as a Citizen Not as Part of Job Duties

Generally, employee speech is protected if it is made as a citizen not as part of official duties. Sometimes employees have a duty to speak, such as police officers being required to testify. Can they be fired for what they say? There is a circuit split regarding whether this case applies to public university professors scholarship (academic freedom). The dissent argues that whistleblowing laws would not provide adequate protection. There are many factors and requirements that must be met for such protection to kick in. There is also stronger protection for external speech. For example, sending a memo to the press will have more protection than an internal one to a supervisor.

IIED versus Employment at Will

Generally, firing is something expected in the workplace even though it may cause severe emotional distress. Allowing an IIED claim for termination would go against employment at will. Only if the manner of the termination is outrageous will it give rise to IIED. For example, making someone where a dunce cap in front of everyone and humiliating them for hours. Also, compare to wrongful discharge in violation of public policy.

Employee Wellness Programs

Generally, there are concerns that employers might abuse medical information that they obtain. In one case, they required employees to where fitness trackers that recorded tons of information. There is not much good regulation here. Some EEOC lawsuits argue GINA and ADA violations.

Defamation - Harm

Harm will usually be assumed if statement suggests you are unfit for your profession.

Hopper v. All Pet Animal Clinic Inc. (Wyoming 1993)

Hopper agreed orally to employment at All Pet, and then later signed a covenant not to compete in the business of small animal medicine for 3 years within 5 miles. Her supervisor heard a rumor that Hopper was going to buy a competing vet business and fired her. She later bought a different business and her business there increased drastically and took many clients from All Pet. The court ruled that although covenants not to compete should be carefully scrutinized, there was a valid employment contract here that included a non-compete agreement, with sufficient consideration since she was offered a raise as reasonable additional consideration. The covenant was reasonable in purpose and geography but not time. The employer had a right to protect the investment of training her along with the clients and relationships that she made as a vet at All Pet. Additionally, as a national Animal clinic, it was not unduly restrictive to not allow her to work within 5 miles in small animal medicine. However, 3 years was too long of a restriction.

IIED - Humiliation and Harassment

IIED claims often stem from humiliation and harassment. Usually it is repeated and ongoing rather than just one incident. Before Title VII, IIED was what people used for sexual harassment claims.

Employee Voice - Balancing Test

If the speech concerned a public issue and was not part of the employee's official duties, then the employee's interest in speaking should be balanced against the employer's interest in suppressing that speech.

Bodewig v. K-Mart Inc. (Oregon 1981)

K-Mart checker was accused by customer of taking her money. She was then searched, forced to strip, and humiliated. She never took any money as the customer later discovered she was mistaken. The employee suffered sleepless nights, cried, and became nervous after the incident. She was then demoted and forced to quit. Here, a jury could have found that she suffered severe emotional distress and that the conduct was outrageous and intended to cause emotional distress. It exceeded the normal bounds of social interaction. In addition, she was susceptible because she was a young shy woman.

K-Mart Store No. 7441 v. Trottie (TX 1984)

K-Mart provided employees with lockers. One employee's purse was gone through, though nothing was taken. The purse was in one of the lockers and locked with her own personal lock. The employee policy said it could search lockers. Generally, it was reasonable to assume employer could search lockers on its property, but employee using her own lock was enough to support jury's finding of an invasion of privacy. It was reasonable for her to expect privacy if she provide her own lock. There was a reasonable expectation of privacy here and the search meets the higher standard of highly offensive to a reasonable person too.

Duty of Loyalty

Managerial employees have a duty of loyalty to their employers to not do things such as solicit employees or clients away from the company while they are still employed that go directly against the employer's interests. After they leave, it is a different matter. Like covenants not to compete and inevitable disclosure, it usually only applies to high-level managerial employees only.

Appropriation of Likeness

Must show that (1) permission for use of your identity was not given, (2) D used some protected aspect of your identity, and (2) use of identity was for D's immediate and direct benefit. Celebrities often sue over this. Consider the Bette Midler singer impersonator, Vanna White robot look-alike, Michael Jordan, and Johnny Carson "Here's Johnny" toilets. It is often wrapped up with trademark law.

Connick v. Myers (U.S. 1983)

Myers sent around a questionnaire after she opposed a transfer to a different division about employee processes, office morale, transfer policy, political opinions, and grievances. The court held that there is a threshold requirement to the Pickering test that the speech must concern the public. This was not a matter of public concern here but an internal grievance. The questionnaire was not sufficiently public but was more insubordination by an employee. Myers' discharge was not a violation of the First Amendment. Had she sent the questionnaire to a reporter, that would be different. If it is a matter of public concern, the employer and employee interest should still be balanced.

ECPA (Electronic Communications Privacy Act)

Restricts the interception or monitoring of oral and wire communications unless the interception or monitoring is undertaken for a business purpose or by consent. Employers may monitor employees' emails and communications with some exemptions. CPA does not really apply to employment context because it only covers "interceptions" of electronic communication.

IIED - Power Imbalance

Often in the employment context, employers abusing their power may give rise to IIED claims. Employees have little that they can do to stop for fear of retaliation.

IIED - Intentional or Reckless Outrageous Conduct

Only conduct that goes beyond all bounds of human decency in civilized society. In employment context, what the relationship is will often determine what conduct is outrageous. It is often very fact specific. Courts say not outrageous to fire people even though this is humiliating. But firing them in an outrageous way could be IIED. Or should employers be held to a higher standard because they hold the power (Bodewig strip search was enough)?

IIED - Sensitive Plaintiffs

Outrageousness may arise from a defendant's action in the face of knowledge that the plaintiff is "peculiarly susceptible to emotional distress, by reason of some physical or mental condition." But the employee usually must give notice of this. If the defendant does not know, he is not liable for plaintiff's hypersensitivity. But if defendant's conduct is objectively outrageous, he is liable for all the damage even if not foreseen ("eggshell skull"). This may include exploiting an employee's particular situation or gender/race bias.

Pure Power Boot Camp v. Warrior Fitness Boot Camp

PPBC accessed former employee's emails after finding his password displayed after he founded his own bootcamp company. They found communications regarding his forming a competing business while he was employed. While the ECPA does not apply since there was no interception, the SCA might apply if the employer accessed stored communications without authorization. The key issue under SCA is whether there was authorization to monitor. The employee had a reasonable expectation of privacy that his emails would not be gone through after leaving employment. He had a subjective belief that was objectively reasonable. He was not giving consent by making his password findable and received no notice his emails would be gone through. Under SCA, this was unauthorized access of stored communications. PPBC cannot use these emails it found in litigation.

Stored Communications Act (SCA)

Part of the Electronic Communications Privacy Act that extends to the privacy of stored communications, such as e-mail. E The SCA covers stored electronic communications accessed by the defendant without authorization.

Hollomon v. Keadle (Arkansas 1996)

Physician assistant alleged that her boss had repeatedly harassed her by calling her names, making derogatory remarks, and even threatening to kill her with his mob connections. The court said there was not enough here for an IIED claim. Words, even abrasive profanity, generally are not enough. If she wasn't happy in her job, she could have left earlier, but she remained for two years. If she was particularly sensitive to the employer's remarks, she should have made that known to him. She chose her own path here.

Defamation - Absolute Privilege

Privileges that apply no matter what. They cannot be overcome. They include spousal statements, judicial testimony, statements made by high government officials or legislators during legal proceedings, and statements made during political broadcasts or speeches.

Defamation - Conditional Privilege

Privileges that may be overcome by a showing of abuse, such as the common interest privilege.

Constitutional Privacy Protections for Public Employees

Protecting privacy claims is about protecting individual autonomy and freedom from intrusion or embarrassment. It is rooted in dignity, and it stems from an implied constitutional right that is overt for public employment but still relevant for private employment, though not controlling. Defining privacy rights is complicated by employment relationship and advent of technology. It usually stems from the Fourth Amendment. (1) Was there a reasonable expectation of privacy, both subjective and objective (Katz test), and (2) was the search itself reasonable in inception and scope (Ortega)?

Defend Trade Secrets Act

Provides for a federal cause of action for trade secrets violations, and largely reflects the law developed in state courts with a couple of exceptions. It mainly establishes a federal forum for trade secret actions. It disfavors inevitable disclosure.

Defamation - Unprivileged Publication

Publication can just be speaking or writing. It does not have to be widely circulated. Certain communications that are privileged will not succeed on defamation action, such as if the common interest privilege applies.

Pepsico, Inc. v. Redmond (1995)

Quaker and Pepsico are competitors in the soft drink industry. A high-level employee at Pepsico took a similar job at Quaker. Because of the employee's important position and years of experience at Pepsico, Pepsico was worried that the employee could inevitably spread a number of trade secrets that he had access to. PepsiCo provided ample evidence that the employee possessed specialized and highly confidential information about PepsiCo's pricing, distribution, and promotional plans that would inevitably be relied on by him at his new position at Quaker. There is a high probability that the employee would inevitably rely on trade secrets learned at Pepsico in his Quaker position due to his knowledge. The court enjoined the employee from working for Quaker for several months to protect Pepsico's trade secrets even though the employee never misappropriated them.

Skinner v. Railway (1989)

Railroad workers caused accidents, so their urine was tested for drugs. The Fourth Amendment applies to this search, but it was reasonable because the government had a compelling interest to regulate safety and employees in this industry should expect heavy regulation.

Covenants not to Compete - Rule of Reason

Reasonableness prong of formal requirements includes: (1) the purpose of the agreement (why), (2) geographical restrictions (where), and (3) the length of time (when).

City of Ontario v. Quon (U.S. 2010)

SWAT officer used a city-issued pager, in which there was a limit on the number of communications allowed, for personal sex-related messages. He also repeatedly went over the limit. Quon knew that the pager was subject to audits by the employer. Quon may have had a reasonable expectation of privacy, but the search did not violate the Fourth Amendment because it was not excessively intrusive, and the employer had an interest in discovering if the texts were work-related. His privacy interest here was limited.

National Treasury Employees Union v. Von Raab (1989)

Similar case as Skinner in which certain categories of employees had to submit to drug test resulted in court saying that government interest outweighed employee privacy interest.

Intentional Infliction of Emotional Distress (IIED)

Situations that usually give rise to IIED include abuses of authority, harassment, exploitation of employee's particular situation, sexual and racial harassment (now covered by Title VII). It is a high bar to meet that requires two elements: (1) intentional or reckless OUTRAGEOUS conduct that causes (2) SEVERE emotional distress. Don't overspot it. Not every instance of abuse, harassment, or bad conduct rises to the level of IIED.

Wrongful Discharge in Violation of Public Policy of Protecting Speech

Some courts have found that the First Amendment may be used as a source of a public policy violation as an exception to the employment at will rule. However, the MAJORITY says this cannot be since it is applying the First Amendment to private actors. Connecticut and California give some First Amendment protection to employees in the private sector. How broad is protection in private sector if it exists? How do you deal with contemporary forms of process for LGBT activism or neo-Nazism?

Distinguishing Different Professionals in Covenants not to Compete

Some professionals have different rules. Attorneys essentially never are subject to non-compete agreements. Doctors as well because restraining their mobility would deprive the public of essential services. Low skilled workers, such as Jimmy John's sandwich makers, have been subject to these covenants, but they generally will not pass the test for these types of workers because they are not reasonable. Highly skilled workers, such as the vet in Hopper, more likely will be subject to such an agreement because of the high investment in training them, customer relationships, and knowledge of trade secrets.

Biometrics

Some states have regulated biometric information, such as fingerprints, facial recognition, etc. but not much. Consider privacy concerns. Technology is making this much easier in the workplace.

Inevitable Disclosures

Sometimes courts will enjoin employees from employment for periods of time when they did nothing other than move jobs to a competitor because of their knowledge of trade secrets. This usually only applies to high-level employees. Inevitable disclosure is essentially a noncompete agreement that the court grants after the fact. It is controversial for this reason since it SEVERELY restrains employee mobility and punishes employees merely for having mere knowledge of trade secrets. It is also just more difficult to show because there will usually be an NDA anyway.

Defamation Qualified Privileges other than Common Interest

Statements made during government reports or proceedings, by lower government officials, citizen testimony during legislative proceedings, self-defense statements or statements made to avoid harm to others, statements between employers regarding an employee (job reference), and reviews and fair criticism.

McCavitt v. Swiss Reinsurance America Corp. (2d Cir. 2001)

Swiss officer was involved in a relationship with another Swiss officer, but it did not affect their work in any way. They did not work together. The officer was passed over for a promotion and fired because of the relationship. A New York statute prohibits employees from being fired because of recreational activities outside of work such as sports, hobbies, games, etc. It did not specifically list dating. The court holds that romantic dating is not a "recreational" activity under the statute, so the firing was not a violation.

Monitoring and Data Analytics of Employee Work/Productivity

Technology can track everything down to how many keystrokes employees make. Employers have an interest in making sure their business is run properly. But this "people analytics" can be detrimental to employee morale, degrading, and dehumanizing.

Constitutional Protections for Public Employees Voice - Test

The First Amendment protects freedom of speech in the public sector. There are very strong protections for speech about politics or concerning the public. After the following three cases, the general test is: (1) the speech concerned a public issue (threshold), (2) the employee was not speaking as part of his official duties (threshold), and (3) the employee's interest outweighs the employer's (balancing test). Connick and Garcetti did not change Pickering as much as elaborate on it.

Common Interest Privilege

The common interest privilege is most often invoked in the employment context, where an employer has a conditional privilege to disclose potentially defamatory matter about an employee's job performance to those who share an interest in that performance, such as the employee's manager, sometimes customers or co-workers, and potential future employers.

Common Interest Privilege - Job Reference Immunity

The common interest privilege may apply to communications between employers regarding an employee's performance, such as a job reference. Many employers are now reluctant to provide job references for fear of defamation for a bad reference. They either give a good reference or nothing. Some states even have reference immunity statutes. The privilege encourages employers to give honest feedback.

Biometrics Information Privacy Act (BIPA)

The first statute, in Illinois, to regulate the collection of biometric information. It requires those who possess biometric information, such as fingerprints, facial recognition, etc. to have a written policy available to the public, guidelines for destroying the information when necessary. Entities must also have informed the subject its information is being collected, why, and for how long and receives a written release.

IIED - Causes Severe Emotional Distress

The outrageous conduct must actually cause severe emotional distress in the employee. It is not enough that it be merely outrageous if it does not affect the employee.

Privacy on Social Media

There is little law and regulation on this. Many employers conduct checks and make hiring decisions based on what they find. There is generally nothing preventing them from doing this. Some states prohibit employers from requiring access to people's social media sites, but they can generally search and find things on their own. Little to no privacy rights on employer communication systems. Employers may review public social media sites but not base decisions on something impermissible. Social media restrictions at the workplace are ok.

Employee Voice Statutory Protections

There are some statutory protections for employee speech in the private sector. California bars suppression of speech regarding political opinions for example. Other states have broader or narrower protections.

Drug Testing

There has been lots of litigation in the area of drug testing, starting in the 1980s and 1990s usually regarding autonomy concerns. Drug testing is generally okay because there are legitimate safety and workplace concerns of preventing employees from using ILLEGAL drugs. The employer and employee interest should be balanced to see if the testing is too intrusive. For public employees, drug testing is allowed. But SOME GOVERNMENT INTEREST must be shown. It cannot be a blanket requirement. Fourth Amendment applies. However, for private employees, the Fourth Amendment does not apply but the common law and statutes. Generally, drug testing is okay as long as there is no reasonable expectation of privacy that is violated by an intrusion that is highly offensive to a reasonable person. This is the same test as general privacy in the private sector.

Pickering v. Board of Education (U.S. 1968)

This was the first test courts used that was slightly modified in Connick and Garcetti. A teacher was fired for expressing certain political views about school bonds. This was protected speech because it concerned a public issue—the need for additional school funds. The court laid out the test that the interest of the government employer in suppressing the speech should be balanced against the employee's interest. The interests of the school administration suppressing speech was outweighed by the interest of the teacher speaking out on public concern. His speech did not impede at all on school functioning. His statements were not knowingly false or made with reckless disregard to the truth. His interest in speaking outweighs the Board's interest in suppressing the speech.

Misappropriation of Trade Secrets

To succeed on a claim, P must show that the trade secret was misappropriated, not merely that it exists. First, the trade secret has to be (1) taken. This is usually easy to establish. Second, it must be (2) acquired wrongfully by someone who knew it was acquired improperly. It does not even have to be used as long as it is acquired wrongfully.

Genetic Information Nondiscrimination Act (GINA)

U.S act that prohibits discrimination against individuals on the basis of their genetic information in both employment and health insurance. The act aims to eliminate the use of genetic information in making hiring decisions and limiting any opportunities. It protects the privacy of employees' genetic information with some exceptions such as of voluntary disclosures. However, it is often difficult to separate genetic from non-genetic information from general medical records. Little litigation has occurred regarding this statute.

Location Tracking

Tracking an employee without consent often violates Fourth Amendment. In Jones, a GPS on an employee vehicle was a Fourth Amendment violation.

Defamation - False and Defamatory

Truth is a defense to defamation. A statement may be defamatory if it "lowers the employee's reputation in the eyes of the community or discourage others from dealing with him." Defamatory statements can be true, but to succeed on a defamation action, it must also be FALSE. Understand the difference between a defamation action and a defamatory statement.

Employee Inventions

Unless there is a written agreement that says otherwise, an employer may claim the rights of an employee's invention if the invention was developed by the employee during the employer's time or with the assistance of the employer's property and/or labor.

Electronic Monitoring - Public Employees

Use Fourth Amendment Ortega test. (1) Was there a subjective and objective reasonable expectation of privacy? (2) Was it reasonable in inception and in scope?

Electronic Monitoring - Private Employees

Use whatever test from the four common law privacy torts. Usually, it will be intrusion on seclusion. Was there (1) a reasonable expectation of privacy through an intrusion that would (2) be highly offensive to a reasonable person? Generally, work email systems do not have a reasonable expectation of privacy while personal emails do, but this depends on whether the intrusion was highly offensive to a reasonable person. Also, consider the SCA/ECPA.

Covenants not to Compete Remedies

Usually employers want an injunction to prohibit the employee from working for the competitor for a certain amount of time. Damages may be sought too, but they are harder to calculate.