employment law

- Median tenure in jobs- BLS

o The median number of years that wage and salary workers had been with their current employer was 4.1 years in January 2020. It was 4.2 years in 2018 o Major occupations, workers in management, professional, and related occupations had the highest median tenure (4.9 years) o Workers in service occupations who are generally younger that persons employed in management, professional, and related occupations had the lowest median tenure (2.9 years). Among employees working in service occupations, food service workers and the lowest mediate tenure at 1.9 years

- 3 main acts covered for individual employment rights

o Title VII of the Civil Rights Act o Age Discrimination in Employment Act o Americans with Disabilities Act

- The International Labor Organization

o What is it? o What does it do? § Their legislation is conventions · They may ratify it or not o The US has ratified fewer of the conventions than most other countries o Relationship with the US

- What employment do we regulate by law?

o What kinds of employees? § Full-time vs. part-time § Hourly wage vs. salary § Baseball platers vs. CEOs vs. fast food workers o Are there employees who do not need much, if any legal protection?

- Why do we regulate employment by law?

o Libertarian approach- government should regulate as little as possible o Management perspective- employees do no own the capital and means of production o Why not just let employers regulate themselves? o Who do businesses serve? Who are their stakeholders? § Customers § Shareholders § Employees

- Employees and coverage

o Most statutes define employee for purpose of coverage o Among workers, there are employees, volunteers, independent contractors, and other classifications o The advent of the gig economy o Our laws are not written to deal with much of the contemporary workforce - contingent or atypical labor o What of telework? What issues does telework present?

- International perspective: The US is one of the most unregulated countries

o Payed leave under Federal Law is non existent o Employment at will is the most exceptional laws in the world § Specific only to the US o How important is employment in the US? § To finances? · Not just a paycheck, but also retirement and healthcare (benefits) § To psyche? · The US has become so work centered that individual worth and identify are inextricably bound in having a job · What is one of the first things you ask a person when you meet him or her? o What do you do? § To citizenship/participation in society? Employment is crucial to ensuring that one has the full rights, privileges, and responsibilities of economic citizenship · Social status, circles of friends, membership in community, professional and personal growth · Are you a worker or a shirker? § Very important

Assuming legal intervention, how are disputes resolved and in what forum?

o Public resolution § Agencies § General jurisdiction courts § Specialized tribunals or courts o Private resolution § Mediation § Arbitration

i. Advice routinely give after Quon case

1. Adopt clear policy—subject to monitoring and access by employer with or without notice 2. Consent 3. Enforce policy a. If have policy that do not enforce, you are creating problems. 4. Agreements with providers 5. Review subpoena and document response policies and protocols for compliance with SCA (and foreign law if relevant); consider privacy or cyber risk insurance.

- COVID-19

- o What will be the enduring changes in the world of work in the aftermath of the pandemic? § Employer authority- e.g. mandatory vaccinations, mandatory health screenings § In the US as a product of our state and federal government we have a big difference between public sector employees and private sector employees o Remote work § What changes if day-to-day social interaction of work is lost? · A lot of jobs would be lost o What types of jobs will be lost? § Businesses that depend on high levels of in-person traffic · Jobs with a concentration of people in a downtown area o Ex: coffee shops, restaurants downtown § A full one-in-four workers are in the transportation, food service, cleaning and maintenance, retail and personal care industries. These jobs, often concentrated in cities and lower paid are disappearing or are of risk of disappearing in the near term o More government intervention and regulation of employment unwillingness to leave it to the market § Government will become more engaged o In one always at work or on call now? § More availability of workers at all time § Concern with separation of work and nonwork § Harder to regulate the home when people are working from home if home is the workplace o The coming recession? o The end of business travel § There will no longer be a lot business travel o More data collection and electronic monitoring of employees by employees § Monitoring already exists, but more computer monitoring may come about § If working from home more, would have to engage in electronic monitoring more

i. § 292.1 Transportation and storage of firearms in privately owned motor vehicles

1. (B) "No property owner, tenant, public or private employer, or business entity or their agent or employee shall be liable in any civil action for damages resulting from or arising out of an occurrence involving a firearm transported or store pursuant to this Section, other than for a violation of Subsection C of this section."à provides an immunity for employers for liability since the statute won't let employers prohibit having guns in the parking lot. a. Here is my concern, what if they get it out of the car and bring it in and use it. . . does the immunity protect me? Reading (C) below literally it seems no. But, the gun is not likely to hurt anyone as long as it is stored in the car so we assume that the immunity is written to cover guns that are removed from storage and used. b. Fair interpretation SHOULD be that if it is taken out and used then immunity still applies. c. Does the last sentence create a right to sue under subsection C if the employer prohibits guns in vehicles. d. If we say "this doesn't create a private right of action" oh well 23:967 does and its state law. 2. (C) "No property owner, tenant, public or private employer, or business entity shall prohibit any person from transporting or storing a firearm pursuant to subsection a of this Section. However, nothing in this Section shall prohibit an employer or business entity from adopting policies specifying that firearms stored in locked, privately-owned motor vehicles on property controlled by an employer or business entity be hidden from plain view or within a locked case or container within the vehicle. 3. Would employers, by their own devices, prohibit firearms in their parking lot? They might, but they can't. Employers consider this a potential liability issue. 4. What can employers do if they don't want people with guns in their regular parking lot? Create a gun parking lot? 5. We have no cases on the gun law, Mississippi does. MS has WDVPP—an employee was fired because he brought his gun in his car. He sues for WDVPP—what is the public policy? Employee pointed to 2nd amendment (arms)—5th circuit said—upon advice from MS supreme court—"power to guns" you can sue for WDVPP for this. 6. Georgia also had a case—they have a statute like LA's—employee drove employer-owned vehicle to customer's business and parked in lot. Took shotgun into business (bc he knew of thefts from cars in that lot) and accidentally shot someone. Question is does this immunity cover this situation: Statute only immunizes employers from liability arising from compliance with statute. Not employee-owned vehicle, not in employer's parking lot, not a vehicle containing a firearm.

a. Gig Economy

1. A lot of these cases become independent contractor issues because these are not considered traditional workforce. This is more short-term jobs/non-permanent jobs. The number of people in these types of jobs is growing by leaps and bounds. 2. All of our laws are designed for regular full time employees, so the argument is that we need to get with the times (like European laws have done). 3. Uber and Lyft are getting sued constantly. Uber has celebrated and cried in recent times because made $100 million settlement in a case with the DOL, but also won an arbitration on whether the drivers are employees or independent contractors. Have a nationwide class action under FLSA for overtime and tips. Will keep seeing the non-traditional workforce issues. 4. In 2019, DOL issues opinion letter to virtual marketplace company applying the 6-factors economic dependence test to declare that the company's service providers are independent k'r and not employees i. 2019 - NLRB general counsel issued advice memo that Uber drivers are independent k'r, not employees. 5. We also need to think about what happens on the state level 6. The Pandemic's Influence i. DOL said under the Care's act, an individual who works as an independent k'r w/ reportable income may qualify for pandemic unemployment assistance benefits. ii. This showed that it was clear that these people need help too whereas in the past if they were classified as independent k'r they wouldn't be covered 7. Exotic Dancers: Employees or Independent K'r? i. Integral relation test applied - are exotic dancers integrally related to core purpose of the business? Court found that they were integrally related to the business because it's part of the definition of what the business does

i. Broussard v. Manuel Med. Ctr.

1. Allegation is that employer was writing controlled substances prescriptions for minors and employee said something. Said what did wasn't covered because the law is federal law.' a. If bring suit or complaint in bad faith or if was not in violation of law, may give employer reasonable attorney fees and costs to employer. Cold say that had reasonable belief/good faith, but were wrong. If go to paragraph (d), employer can get either if are in bad faith or were wrong and was not in violation of law. Courts have worked through this, saying that when read in conjunction that do not have good faith belief unless you are correct. Must be correct about violation of law. If are wrong, are not in good faith. That seems to be wrong reading. Not sufficient to have good faith belief if are wrong about the violation. b. Being used in a lot of termination cases (but doesn't have to be). Damages can be quite good: compensatory damages, benefits, back pay, reinstatement, and court costs. Loser pays provision in (d) though is a real damper to bringing claims under this provision. c. What if have covenant not to compete and say leaving and employee will sue to see if enforceable. What if reveal that it is overbroad? Would a claim fit under this for either whistleblowing or objecting? It is a violation of state law because non-competes have to fit certain requirements. Not considering intent here. As a matter of fact, it is violation of law because it was overly broad and they attempted to enforce it. Haven't seen a case like this come up. Might see something similar on exam. One reason do it is because never think that employees will challenge. Once get down to object or refuse to participate in, a lot of situations fit in.

i. Wyatt v. Avoyelles Parish School Board (La. 2002)

1. Board gave paid annual leave. You earn it in one year, can use it the following year. 2. Policy said if you don't use it in following year, you lose it. EE in this case left and then said the policy violates the act - "you can't forfeit my leave for me." 3. LASC said "no, the Act doesn't say that. ER can have whatever policy they want, but if EE's have accrued leave when they separate from emp, ER must pay them." 4. You carry the annual leave through the next year - if EE leaves during that year, they're entitled to their annual leave, b/c they already accrued it and still have it under the ER policy. 5. Question: have you earned it, and according to the policy, do you STILL have it? (if yes, you have to be paid)

i. Lie Detector

1. Broader than just polygraph, includes voice stress analyzer, psychological stress analyzer, etc. where results are used to render diagnostic opinion on honesty of individual. 2. Not many cases under here because any good attorney would be to tell no event o ask about it. Employer didn't really give what considered a lie detector test, but an employee accused co-employee of sexual harassment and played message left by co-employee. Called him in and had him read transcript and record and compared the two. Violated EPPA because using voices to compare two. Didn't know would come within this definition. Very open ended definition. ii. There is anti-retaliation provision. If look at enforcement provisions, the remedies are civil penalties for violations (not more than $10,000) and injunctive relief. There is also right for private civil actions, liability for legal or equitable relief as appropriate, including employment reinstatement, promotion, payment of lost wages, and benefits. Statute of limitation of not more than 3 years. That gets to attorneys fees being available to prevailing party. iii. Can't waive the rights provided, unless part of written settlement provided for between parties. Even if want to waive rights, can't unless there is settlement of claim. Can't waive rights in advance. iv. What if employer thinks stole and will fire because did and employee says will take polygraph. No waiver, cannot waive the rights under the Act. Essentially baiting employer into claim. Is this good for the employee? Although it may sound like good think is not necessarily to advantage of employee. If look at breadth of prohibitions, shouldn't mention word polygraph to employee because that may in and of itself be violation of the act. v. There is also ongoing investigation exemption. If doing investigation and have reasonable cause, then should be able to use lie detector test in course of investigation. Think it is broad exception, but it is not. Snot prohibited from requesting that employee submit to polygraph test if: (1) the test is administered in conjunction with ongoing investigation involving economic loss or injury to business, such as theft, embezzlement, or industrial espionage and (2) employee had access to property subject to investigation, and (3) reasonable suspicion that was involved in activity in investigation and (4) execute statement provided to examinee provided that it includes rights have before and during the examination. So even if satisfy everything for rights to examine. They are permitted to terminate at any time. The examinee can't be asked in manner to needlessly intrude, not asked question concerning religion beliefs, racial questions, political beliefs, sexual behavior, and unions/labor organizations. Have to ask some questions that make the person nervous, then when ask questions about matter being investigated, will not have comparison. Have ruled out entire set of questions that will provoke apprehension. Also have right to see all questions that will be asked in advance. So this exception is not as great as it seems to be. Really hard to meet all the requirements.

a. Restatement 3d of Employment Law - American Law Institute (see p. 27, N. 2)

1. Came up with these definitions of employee if (pulls in right of control, economic realities, and vicarious liability factors): i. Individual acts, at least in part, to serve the interests of the employer, ii. The employer consents to receive the individual's services, and iii. The employer controls the manner and means by which the individual renders his or her services or otherwise effectively prevents the individual from rendering the services as an independent businessperson. iv. Also defined independent contractor and volunteer. 2. The misclassification of employees as independent contractors i. There is MOU with IRS regarding independent contractors and employees and what the responsibilities of the two different agencies regarding this are. 3. Louisiana Test for Independent Contractor or Employee i. Right of control test ii. The law further recognizes that inquiry to determine whether a relationship is that of independent contractor or that of mere servant requires, among other factors, the application of the principal test: the control over the work reserved by the employer. In applying this test it is not the supervision . . .

a. IRS

1. Cares whether they are employee or independent contractor because it matters in payment, filing, withholding. Often if the IRS has come in first and said people were calling independent contractors are employees, the labor and employment issues are over with. The interaction between the tax code and employment law issues are bound together.

a. Partners—Employees or Employers

1. Clackamas v. Gastroenterology Assocs., P.C. involved a medical corporation in Oregon who got sued under the ADA for discrimination based on disability. The medical corporation responded saying that were not covered under the ADA because you must have 15 or more employees to be covered. Here they claimed they only had 13 employees. i. The EEOC and plaintiffs took the position that the 3 doctors were employees. If they were to be considered employees, then they'd be covered under ADA. ii. Why would they be employees? a. Formed corporation to limit liability. iii. SCOTUS took 6-factor test and remanded for it to be applied. Because they had entered into new entity and formed contracts with it did not know if they were employers or employees. 2. EEOC v. Sidley Austin involved the EEOC suing Sidley although no individual filed a charge. Sidley had a mandatory retirement plan where they de-equitized partners at certain stages in their careers. i. The commissioner claimed it was age discrimination. The charges were filed by the EEOC because no partners thought they were employees. Made argument that were employees of the law firm. ii. Could partners be employees? Would generally think associates are employees but looking at firm structure said that there was management committee that was essentially the employer and everyone else worked for them. iii. Tried to get to SCOTUS but settled for a ton of money when they couldn't. Disclaimed liability but paid out huge sum to de-equitized partners. Above show that even people labeled as partners can be employees. Labeling someone or giving them a certain title does not automatically render the status.

i. Four Elements (only two states adopted, but most courts go through this type of analysis)

1. Clear public policy a. Court here found in saving public lives 2. Discouraging type of conduct in which plaintiff engaged in would jeopardize the public policy a. Will jeopardize public policy if can't get out of truck (saving people) 3. Causation—public policy-linked conduct caused termination a. Not hard—no one agreed on why fired (got out of truck). Sometimes do disagree. 4. Defendant can offer no overriding justification for termination. a. Argued that best effort to protect people is if stayed in truck. But court disagreed because got out of truck to try and help people. Also argued that will robbers will use this as strategy. Another is insurance may required it (but here didn't say it).

a. O'Connor v. Uber Technologies

1. Putative class action under CA state law; issue is employee or independent k'r; 2. What does the K signed by drivers say they are? 3. Uber argues that it is not a transportation company, but a tech company. i. Uber argues that drivers are independent K'r and not employees; this has a big effect on whether it has to offer benefits and other employee protections to its drivers; this would be a big financial effect if Uber had to provide complete coverage all employees. ii. Uber argued that the drivers' work was not integral to Uber's business iii. 4. Federal district court applying & interpreting Cali state law for independent k'r v. employer being applied - Borello Test i. Has essentially 13 factors to consider; no longer applied in California

i. Timekeeping Systems, Inc.

1. Company COO sent out email concerning new proposed vacation policy. Plaintiff (Larry) sent out response claiming that calculations were incorrect and it would make vacation days more difficult to take. Gave him every chance to grovel and he wouldn't so he was fired. 2. COO claimed vacation policy would be good for everyone. Larry responded saying that were wrong per his calculations. Didn't get any response and someone else higher up says this is great and that is when Larry sends his calculations to all employees and says will demonstrate what COO was false and says he proved what COO said was false. What would he have preferred that he do? Walk to his office and tell what didn't like. Didn't like sending to all employees and the tenor of the email. Guy who said was great policy says no so great. COO gives option to apologize (why the email to everyone was inappropriate) and if satisfied would send to everyone and if not would be fired anyway. 3. Did he engage in concerted activity? He was trying to instigate group activity. Employer can't argue didn't know because knew the appeal was to other workers (that is why were mad). 4. It has to do with terms and conditions of employment so it was for mutual aid or protection. 5. Not so bad as to lose protection. Not violent, no cursing (even allowed some of those through), and at most it was rude. So doesn't lose protection and has claims. 6. He will get back pay and order reinstatement. He couldn't go back to work. ii. NLRA is from 1935, but has become the protection for private sector employees today regarding speech and action. Employees who bring ULPs have been very successful in these cases.

i. Fourth Amendment Analysis from O'Connor v. Ortega (plurality)

1. Does public employee have a reasonable expectation of privacy? a. "operational realities of the workplace" b. actual office practices c. regulations and policies 2. If so, a. Balancing test i. Privacy interest of employee balanced against ii. Public employer's interest in "efficient and proper operation of the workplace" iii. Both inception and scope must be reasonable

a. Application of Some Laws to Public or Private Employers

1. Employee Polygraph Protection Act does not apply to public employers 2. NLRA does not apply to public employers (consider Northwestern football case). 3. First Amendment free speech claims can be made by only public employees (some exceptions). 4. FLSA applies to both public and private, but it has special provisions for only public employers. 5. NOTE: you must make the distinction b/w public & private!!! i. Distinction is often made in the statutes and who it applies to ii. There are also differing constitutional protections based on private v. public employees iii. Might also ask if that's the way it should be; do the issues need to be resolved in that way? What if states wanted to afford private the same protections as public under the constitution? The state could pass a state regulation to do so.

2003 Amendment - current paragraph D. [overturned SWAT 24]

1. For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing." a. Said no, you can just work for competing business and that's "carrying on or engaging in similar business." 2. This has been a struggle - cts don't like NC's and have tried to restrict them by giving narrow interpretation to statute. Legislature then comes back and undoes those interpretations. (trying to protect business interests)

i. 23:962

1. Goes back to 1870s. This is broader than 23:961. Doesn't seem to create a private right of action. No lawsuits under this and no one has ever been clear that creates private right of action. Can use this in conjunction with 961 to say that cover a lot of political expression.

104(c) - have to maintain HC coverage as it would be maintained if EE was working.

1. HC coverage continues as though EE was working. 2. Some ER's say "we normally withhold some portion of the premium from their pay. When they're on leave, they don't get a paycheck, so they have to pay their own premium." a. ER should pay the whole premium, then get it back from EE later. b. Worst case scenario - they don't come back. Send them a bill. 3. If FMLA leave ends and EE can't come back - too bad, no more health insurance.

i. Claims of Applicants and Former Employees

1. If are objecting to types of searches that employer or potential employer is doing, what will you sue about? The big one these days is the Fair Credit Reporting Act. This is a plaintiffs' attorney's dream these days. 2. Fair Credit Reporting Act 1. Defamation 2. Invasion of Privacy 3. Intentional Interference with Business or Contractual Relations

a. Exclusions of "Small" Employers

1. In some cases, when you get into accounting cases, most statutes will have a minimum number of employees for a specified period of time to be covered by the statute (true under every statute for employment discrimination and many statutes that we will cover). So get into accounting exercises. 2. Why are we doing that? It is essentially a smaller employer exclusion. Why the number? Don't want to impose administrative burdens on small business owners (reporting requirements), legal fees, etc. Just because doesn't fire federal account doesn't mean it might not be under state law. 3. Must look at definition of employer, joint employer issue, and now accounting. 4. If not satisfied with accounting in core employees, will look to subsidiary and collapse into one entity making them covered under the Acts. 5. The FLSA has a minimum volume of business, but the businesses must do certain level of business per year to be covered. So, recognize there are different ways of accounting. 6. Another question is how to count employees. One court must go day by day and count the number of employees who showed up to work. SCOTUS said that was ridiculous. Would look at payroll instead because that is a whole lot easier in terms of determining the accounts.

i. City of Ontario v. Quon

1. Quon was member of city SWAT team who were given beepers that could text. Told was for work purposes and City could go into pagers and see what were texting. Quon was told by supervisor that didn't want to check messages and Quon texted a lot and went over amount allotted. He was paying overage, but eventually City realized that were going over consistently and went over text to see what was work related and what wasn't. 2. Was sending text messages to his wife and girlfriend using the pager. 3. He will claim this is violation of search and seizure in violation of the Fourth Amendment. Employer had policy on computer use and email. Claimed that text message was like email. So policy by terms does not cover the pager, but argued that it is like an email so consider it as applying. So what does the policy regulate/say? Says that for work related purposes and shouldn't have expectation of privacy or confidentiality when using the resources. Relevant because many states have public records laws (or FOIA requests too). However, Lieutenant said wouldn't look at messages as long as paid for overage. What changed? Wanted to see if current data plan was sufficient for the City. Lieutenant also got tired of being bill collector. 4. Go through and black out a lot of language and send to internal affairs. He is disciplined as a result. 5. Court went back to O'Connor v. Ortega, where doctor at hospital had his office searched. Analysis looked like below. However, no clear test because it was plurality. 6. Justice Scalia concurred in the opinion and said did like two-part test. He would agree that don't check privacy rights when walk into work. However, said would ask if it would be reasonable and normal in private employment context and if reasonable there would be reasonable in public sector context. Essentially that is saying what? Get same level of protection. 7. In this case use plurality test and Scalia's concurrence and will see how it comes out. Concentrate really on plurality opinion because say that get same result either way. 8. Did court conclude that had reasonable expectation of privacy? Assume that even if did, will lose on part 2. Went to balancing test. Lost because search was reasonable at inception. Why? Reason to look into text messages was to better the system. If investigating misconduct can have reasonable search. Say this is non-investigatory because were looking for business purpose to see if needed higher character limit. That is valid reason. Reasonable in scope also because redacted portions, had to look at text to see if business or personal, etc. Say that audit of messages was not nearly as intrusive as search of personal email account/page, wiretap, etc. Also say that doesn't have to be narrowest possible search to be reasonable in its scope. 9. Whatever court said about privacy here would probably expand to other decisions in the private sector. Most thought that court would say didn't have expectation of privacy. Why? It is emerging technology and need to let this sit a while and see what society and lower courts think because not sure what society thinks proper behavior is. So will not tell if have reasonable expectation of privacy. 10. Ninth Circuit found employer liable under Fourth Amendment and provider was found liable under Stored Communications Act. So after case, lawyers asked what should tell businesses regarding computer use policies and social media policies. Court gave us some things, but didn't give us others.

i. 23:965

1. Jury duty; can't take adverse action against employee who serves on a jury. This should remind of Hocks case. Don't recognize wrongful termination in violation of public policy but have this statute that says can't terminate for employee performing jury duty. Requires that be reinstated with same salary, benefits, etc. before fired. However, this doesn't create private right of action. Seems strange because says have right to be reinstated, but can't sue under statute, so how to obtain that. Statute doesn't tell us that. Mechanism would be for any that doesn't create any right of action, to empty into 967 (creates private right of action).

i. Computer Fraud and Abuse Act of 1986

1. Like SCA, it is fairly big deal. It is both civil and criminal statute. Violation of this when whoever (any person) intentionally access computer without authorization (hacking). If the computer has connectivity to the internet will satisfy the definition of interstate or foreign commerce or communication. If never actually used for internet (but it capable), might have argument that not used in interstate commerce or communication. 2. Civil remedies provide for compensatory damages and injunctive relief or other equitable relief. One section limits to economic damages only. Must bring the action within two years. 3. The criminal penalties provide for possible imprisonment and fines. 4. One of the issues that come up here is that given that we are dealing with criminal and civil statute, what if had employee who exceed authorized use on employer's computer? For many employers, that is most dangerous time...separate from employment (fired or resigned) and want to get a bunch of things that are stored. That is what Pure Power is all about. Not covered though because the act is an anti-hacking statue, not a misappropriation statute.

i. Bring Your Own Device

1. Many employers are now allowing employees to bring their own devices to work and use them at work. Might want to be concerned with potential loss of control over devices. These policies are written very broadly and reserve a lot of rights (lots of consent given).

covered employees a. Microsoft v. Vizcaino

1. Microsoft brought in a lot of employees and then needed more, but said they were not employees but freelancers. Did the same work alongside normal workers. One of the benefits they gave was stock options. The freelancers did not get the options. However, the court said that the plan did not specifically exclude them. So employers must think about classifications in all the plans that have because they can have serious ramifications. b. Notes 1. Must consider under what standard as we asking the question (common law test, statutory definition, etc.). Many of the employment statutes say that may be employee, but will exclude them if. One example in FLSA is that exempt white-collar exempt employees. That is a very controversial classification, particularly for overtime. Another example is that under FMLA the definition of employer and employee interacts with being within 75 miles of concentration of employees. Car salesmen are excluded from overtime provisions in FLSA.

i. Relationships

1. New York's statute is legal recreational activities. In their cases is that got into dating cases. Walmart was firing people because had policy that said if are Wal-Mart employee and are married, shall not date other employees. People sued saying that it was legal recreational activity. New York courts got into battle over whether dating is recreational. Walmart might have ultimately withdrawn the policy. 2. Employers get worried about relationships. What is the number of sexual/romantic relationships that occur in the workplace? No reliable data on this. Some studies say the number is staggering. Possible that something may happen. Employers get worried. 3. Questions a. Where? i. On duty ii. Off duty 1. If comes to workplace with you, question is really whether it is really off duty. b. Who with whom? i. 2 employees 1. Supervisor and subordinate (very troublesome because can get sued for harassment) 2. Co-employees a. What if are involved with competitor? ii. Employee and nonemployee iii. Marital status c. Employer's concerns i. Legal liability—mainly sexual harassment ii. Workplace 1. Productivity 2. Environment, such as favoritism 3. Workplace violate iii. Public image 1. Boeing had policy that said will not do anything that will cause embarrassment to company. CEO was in relationship with significantly younger VP and was fired as a result. iv. Moral values

i. Life Cycle Contracts

1. Not one have to worry about much in practice. To get benefit, need to stay together for a long time. However, there will be temptation for each party to rob the other one to get the benefit. Average employment tenure is around 4.2 years. Doesn't mean that there are not people who stay in jobs for a very long time. 2. Initially employer is making overinvestments, where paying more than worth. Certain level where employee is more productive than paid for. Will then be dip where slow down and less productive and still getting paid more. If fire when productivity is starting to dip, then employer is cheating.

a. Eleventh Amendment Immunity Issues

1. On exam if gives public employee who goes in and sues his/her public employer under a federal statute, must stop dead in tracks and say wait a minute, I'm not sure this person can do that. This is 11th Amendment immunity issue. Then ask those 2 questions: (1) did state waive immunity? And if not, (2) can Congress override the immunity in the legislation at issue/was Congress acting under the EP clause? 2. EX: Corbett wants to sue employer (LSU) which is a subdivision of the state under federal law. LSU will say, we're the state and we're your employer, so you can't sue us under federal law because of the 11A. i. "Judicial power of US shall not be construed to extend to any suit in law or in equity commenced or prosecuted against one of the states by citizens of another states or by citizens or subjects of a foreign state." 3. The Supreme Court has held that state immunity under the Eleventh Amendment is not abrogated, and thus state employees cannot sue their employer, the state, in federal or state court unless the state has waived the immunity. i. 11A gives states as a sovereign immunity from being sued by its citizens in state or fed gov't unless: (1) state waives immunity to be sued under fed law and (2) if no, does Congress have power to overcome that immunity? a. City of Boerne v. Flores: if Congress is acting under EP clause, then it has power to overcome immunity; if not then it doesn't. 4. NOTE: this immunity doesn't apply to local gov't (cities, counties, parishes); so you can sue the local school board under federal law because it isn't considered the state or political subdivision of the state 5. If look under statute will find that state is immune (can't sue in state or federal court) because have not waived immunity. 6. Depends on the statute. AS state employee can't use state under FLSA (as public employee). Should ask that question under every statute. The state's immunity may stand. 7. FMLA: Said depends on what type of leave are talking about. If pregnancy, Congress had power based on history of discrimination based on sex to overcome state's authority. If it is other provisions of the act, (self care for example, see Coleman) said there is no history of states discriminating based on those issues and so Congress didn't have the authority to address a historical problem and overcome the state's immunity based on that problem. 8. Do not need to know the answer for every federal statute. 9. Garrett case where it was ADA and whether state employees could sue. SCOTUS said no record or history of pervasive problem of state's discriminating because of that. This meant could no sue. What will happen if do not allow to sue, could allow rampant discrimination based on disability. Could sue under state law? If told EEOC that couldn't sue the state then they would probably sue on your behalf because they are not citizens of the state and are not barred from suing them. 10. Holliday v. Board of Supervisors of LSU i. Employee sued LSU under FMLA under the self-care provisions. That was what the Supreme Court decided in Coleman (above that could abrogate immunity). a. Employee of LA is suing his employer who is also his sovereign under federal law. First thought is he can't do this under 11A. BUT, did the state waive its immunity? Π claims they waived in tort/K law and that bleeds over into FMLA. Court doesn't buy it. Now, can Congress overcome the 11A immunity when it passed the FMLA? We have to ask what power Congress was using - can only do it if using the EP clause. Must look at all statutes to answer that question. ii. The employee claimed that state has waived immunity in constitution. Has waived in certain cases, but not under FMLA (more tort type cases where waived). iii. No state law that would be particularly helpful. Would go to DOL Wage and Hour division. See also, Nevada Dept. of Human Resources v. Hibbs on SW outline and Coleman v. Court of Appeals of Maryland

a. Workers' Compensation i. 23:961

1. Only applies to private employers. 2. Statute enacted in 1938. Has size limitation in that must have 20 or more employees or are not covered. What does it really prohibit? Generally speaking, prohibits employers from doing anything to interfere with employees engaging in political activities or becoming candidates for public office. 3. WATCH FOR SOCIAL MEDIA IMPLICATIONS ON FINAL. Also watch if it is public or private employer. Will probably have something under this on final. 4. Only case that has resulted in damages here is where employee in business decided he would run for city council. City was biggest client of employer and was told to withdraw from the race. Employer fired because said couldn't stand to lose biggest client. Employee sued and won. Problem is what constitutes what is rule, regulation, or policy. 5. Creates private cause of action because says that nothing there would prevent injured employee from recovering damages from employer as result of suffering caused. Doesn't explicitly say there is right of action, but has been interpreted that way by case law (only about 5 cited cases).

covered employees a. Browning-Ferris

1. Overtime had been adding determination factors to their criteria for joint employers. 2. Made a two-step inquiry: i. Common law test of employment relationship—right of control ii. If so, does the putative joint employer have sufficient control over the terms and conditions of employment to engage in meaningful collective bargaining? a. Look at things like discipline, pay, hours, work assignments, etc. 3. Kick out certain factors: i. Had require not just possession of authority but exercise of it. No reason to require exercise because if have authority then that is enough. ii. No requirement to make the exercise of control direct and immediate. 4. Trying to say that if have control can bargain about it. Browning-Ferris was not happy with the decision and neither was the Chamber of Commerce. Probably no employer was happy with this. Most probably a targeted decision. 5. Board is saying how can that hurt them they were already coming to the table and doing that. 6. Could also file ULPs for both employers. 7. Said that in 2005 contingent workers accounted for as much as 4.1% of all employment. That has probably increased exponentially to now. b. When the Board revisits Browning-Ferris within the next few years, this is number 1 on the list. This is one of the most likely to be overturned. Will probably narrow the definition of joint employers (because that is favorable to employers). Would most probably say what they determined in the case is wrong, in light of realities should narrow the definition of joint employer or go back to old standard (will graft on both requirements). Will say that Browning-Ferris was wrong and would stifle Gig Economy when they should be growing it so not penalize employers to do this, but give them the incentives to do so. The broader definition means will have collective bargaining and Browning-Ferris will be responsible for bargaining and will be responsible as employer for ULPs. Don't go this far, but in franchisor/franchisee standards, do we want NLRB to do after franchisor? No, not if are Republic nominee to Board. Franchisor always exercises some control. All will be somewhat cookie cutter, but what additional control are they exercising. In recent years this is in technology. So are if looking for control will find control. c. Why do they think it would be incumbent on them to get better standard? Could say must give broader standard, but why? To protect the workers/coverage. Will have two employers instead of one. So if don't want coverage, then make narrower definition. If don't adopt broader standard under different laws, then there will be no coverage. What to do in this situation depends on what you think about the regulation. 1. McDonald's was under a lot of fire for its franchisees and ended up going against McDonald's USA. Awaiting hearing to see if they are joint employers. d. Note 3 page 35 1. Employers are scared will get sued for wrongful termination so use temporary labor for screening advice and might hire permanently and others not. Is this believable? IF talking about benefits, this is more believable because with temporary do not have to do that. 2. Are there employers that determine what size they are willing to come because they know that the next X number of employees will bring them under the coverage of the ADA or ADEA, etc. Are there employers that structure their business as such? Probably so. Usually will apply to smaller numbers. 3. Probably a lot of cost issues and liability under the law. Joint employer will minimize effectiveness of second because will be liable anyway. 4. There are specific cases where will say are probationary employee for a certain number of days and then will make decision to convert them to a "permanent" employee. That is screening device. In an employment at will world, courts will sometimes say what are you converting them to? Are they something other than an employ at will (probation is employment at will). Are risking something here because it suggests a change in status. Courts will often let off with this but it is still risky.

I. Covered Employees a. Wolf v. Coca-Cola

1. Plaintiff was computer programmer and analyst at Coca-Cola. Access was supplier and Coca-Cola was user. The contract was between the two companies and listed plaintiff as employee of Access and the contract was for one year durations with extensions available. 2. If will find that both supplier and user (joint employers) are employers, then might find the relationship is not as favorable. 3. Her contract was not renewed and she sued Coca-Cola for the benefits under the company's ERISA plan. Coca-Cola had a book called "Your World of Benefits Handbook." This covered benefits under ERISA and those not under ERISA. She was suing for health dental, dependent life, life insurance, travel, long term disability, retirement, severance pay, survivor's benefit, etc. This is found amount of money and she claimed she was never offered any of those benefits and she was employ. 4. First question will be whether she is employee or not. Court says cannot decide whether employee or not on summary judgment because there is genuine issue of material fact. i. Said Supreme Court said in Darden that look at employee under ERISA via the common law analysis so will look at restatement of agency and right of control test. Given interactions that she had with Coke and level of control exercised, cannot exercise summary judgment (which is what lower court did). Coke will win on second issue. 5. Must look at ERISA for second question. She is a former employee, but this is where get to next question. If covered under statute, how do we know what she gets? They look at Coke's specific ERISA plan. ERISA tells them to look at the particular plan. The plan says that she is not covered. The plan specifically excluded temporary and leased employees. Loses not because she is not an employee, but because she is not the type of employee that Coke confers those benefits on under their plan. 6. ERISA doesn't require to give certain things, but once they do they are bound by statute.

i. Major Events in Life of 23:921

1. Pre-1962, non-competes were considered unenforceable. 2. 1962 Amendment to permit non-competes if have invested in training expenses or advertisers. a. Every employer would claim training, but courts would say it was specialized training. Finally, legislature said this was litigated in case after case and there is no real guidance on what meant so got rid of it. 3. 1989 Amendment a. Put in activity, geographic limit, and time limit. Got frustrated with uncertainty and went to certainty.

i. Off Duty Activity

1. Presumes place or time, but will be problematic because many employees today don't have to go to particular place at time to work. A little deceptive because the world has changed. Might also be talking about non-work related activities. So must think about time and place of activity, what is the activity, and does it relate to the work. 2. Prohibiting Activities a. Brunner v. Al Attar i. Employer here fired employee according to complaint because the employee worked at volunteer organization regarding AIDS/HIV. Employee claimed wrongful discharge in violation of public policy. Most states have very limited version of the tort and Texas had a very limited one (refusing to participate in illegal activity). Loses case, but use to introduce question of when employers can regulate off duty activity. What can you sue for? Wrongful discharge in violation of public policy might not work nor will invasion of privacy. About five states do have lawful off-duty activity statutes. ii. Arguing that whether like it or not should not be a reason that can fire him. What do we know about Texas and 49 other states? Employment at will and Texas is strongly employment at will. Texas recognizes the refusal to participate in illegal activity leading to firing as being a wrongful discharge in violation of public policy. This doesn't fit the situation at hand. iii. Could this fit into any of the four branches of wrongful discharge, if the jurisdiction recognized all four? These categories were refusing to commit unlawful act, fulfilling public obligation, exercising a statutory right, and whistleblowing. If doesn't fit here can move onto the elements based approach. If there might have something and don't have to identify one of the four categories of public policy (identify clear public policy, does this firing jeopardize it, was it what caused the termination, and can the employer offer some overriding justification for it). Would this be better as invasion of privacy claim? Could this be intrusion on seclusion claim? Argument would be that he doesn't have an expectation of privacy. Would have to characterize it as the right to be left alone and make autonomous decision. Could sue for this today and probably win because ADA addresses this issue (not law at the time). Covers discrimination based on disability if fire/demote/deny promotion because of relationship or association with someone who has a disability. That might apply here (association with people with AIDS). The reason Congress put that in the act was were sure that many employers would be concerned with premiums and ratings if had employees who had dependents that had disabilities covered under healthcare and thought that employers may not hire those people. b. What if fire someone because they are preparing for another job (going to night school for example). Will say it is wrongful discharge in violation of public policy. Court said though it was private decision, not public. Trying to argue that education is public good. c. Must convince courts that privacy doesn't mean secrecy, but being left alone to do your own business OR secrecy, but it is not something that choose to share with employer. Courts don't bite on that very often. Will be hard to sell either of the notions. d. Arbitrators are deciding good cause because that is where will find it. They have said what do in own time not proper basis for disciplinary action unless can show that conduct has adverse effect on business or reputation. So can't fire for good cause unless can draw some relationship between the off-duty activity and employment. Have deviated from this principle when worker is fired for being visible member of repugnant group (like KKK). If can harm the employer, might have a good cause for firing. However, most employees will not have good cause protection anyway. e. About half the states have statutes that prevent employer's from interfering with employees' voting, but few have political activity statutes. f. About 15 states have statutes that protection the right to consume tobacco or alcohol and about 7 have statutes that protection the right to use any legal product. g. A few states have company store provisions and protect commercial freedom. h. About three states have lawful activity statutes, and New York and Colorado has a lawful recreational activity statute. Colorado's statute says that it is discriminatory or unfair employment practice to terminate due to engaging in lawful activity off premises during non-working hours. Colorado Supreme Court had case last year about medicinal marijuana use. Said can't fire because of it because under state law it is lawful. Employer argued federal law. The state supreme court said that federal law applies and so the federal law making illegal means not covered by the statute. i. Some states have statutes that protect smoking, but ours does not give clear avenue to sue. Requiring Activities

i. Reference Checks

1. Prospective employer concerns: reasons to check reference a. Vicarious liability b. Negligent hiring c. Sexual harassment or other discrimination claims 2. Former employer concerns: reasons not to give references a. Defamation b. Invasion of privacy c. Retaliation under discrimination statutes

Drug Testing

1. Public employees a. Fourth amendment or state constitution. A lot of cases under this on employee drug testing. 2. Private employees a. State statutes on drug testing i. May give right to sue depending on how the testing is done. ii. Louisiana does have drug testing statute. No big deal because legislature repealed several provisions and Louisiana First Circuit (Supreme Court denied writ) said that there is no right to sue under it. It is more like a how-to if employer wants to perform drug testing. The most interesting section is for testing public employees (49:1015). Public employers when they have reason to suspect drug use may do drug testing. Question that becomes big issue is whether can do random drug testing? Can do so, but must be in safety or security sensitive jobs. When this was passed, public employers wanted to do random drug testing so classified all the jobs they had as safety or security sensitive. Courts said couldn't do this. Important because public employees will sue under state and federal constitution attempting to show that it is not a reasonable search, particularly because the statute tells what a reasonable search is. b. Invasion of privacy tort i. There is problem here and that is consent. Give Alaska case where said no to drug test and was fired. Sued for invasion of privacy and court said no invasion because told them no. If had said yes, court would have said consent. Best shot would to say that consent was under duress. c. Wrongful discharge in violation of public policy Kind of hard to make this claim.

a. Tort of Invasion of Privacy

1. Publicity given to private facts a. Big in employment law 2. Intrusion on seclusion a. This is the big one in employment law. b. K-Mart Corp. Store No. 7441 v. Trotti i. Store manager is cutting locks off of employee lockers and searching stuff. Looking for stolen merchandise. Do employees have expectation of privacy in lockers. Employee at issue had her own lock versus employer provided lock (where employer had duplicate key or combination). Say that because it is her lock has expectation to privacy. ii. Factors: 1. Privacy interest-expectation of privacy 2. Physical intrusion or invasion that is intentional 3. Highly offensive to reasonable person. iii. Have to remand because didn't give the last element. This is physical intrusion case that expect to see. c. What would be the win rate on these types of cases? d. Consent becomes a big issue in this tort. Consent can either negate the element required for the tort or can be an affirmative defense. This is intentional tort so quite often employers will argue consent. How often are they likely to win the argument? Very fact-intensive scenario. Have to be careful with consent that is not freely given, such as if under duress (maybe in thought would be fired if didn't consent). No issues of consent in Trotti because didn't ask her, just searched. 3. False light a. Do see this, but not often b. Give publicity to private facts. Has element of fiction about it and it is highly offensive. c. Will almost never see this claim in isolation. Will usually sue for defamation and add this claim in. Don't have to prove that it is factually false, but show there is element of misrepresentation/misleading. 4. Misappropriation of name or likeness a. Can write this one off. More in IP (right of publicity). i. Louisiana recognizes all four branches (Jaubert v. Crowley Post Signal, Inc.; Parish Nat'l Bank v. Lane; Alessi v. Loehn).

i. 1996 - Amcom v. Battson (2nd Circuit)

1. Radio station in north LA had a non-compete signed by DJ's. Said DJ's couldn't compete in Bossier City, Shreveport, and a 75 mile radius (after employment ended). He took a job in Shreveport. 2. Dist Ct said "ok, we're going to fix this. It's enforceable minus the radius part. So we're going to hack that part off, and he violated the enforceable part." 3. 2nd Circuit said no, we don't do that - if it's unenforceable as written, throw it out. 4. LASC then said "we reverse 2nd circuit and reinstate dist ct opinion." Didn't discuss anything at all, but basically just said we now reform non-competes. 5. NOTE: station picked 75 miles b/c that's their broadcast range. Seems reasonable, but not what statute allows. Geography requirement might be outdated. a. "Carrying on or engaging in business" in that city or parish - what if you sell stuff on the internet? You could serve an area w/o a physical presence there. We DK what would happen.

i. 23:966

1. Several states have same. This covers smoking and some others cover engaging in lawful activities. Can't take adverse employment action because are smoker or non-smoker. Has nothing to do with regulating smoking in the workplace. Can develop whatever policies about smoking in workplace that want. Why do employers care about that? Healthcare costs. One of surest ways to raise premiums is to have smokers. Doesn't tell whether the employee can sue. Creates fine and or imprisonment, but nothing about right to sue. In Louisiana, if interviewed and asked if smoked and told would not hire violate statute, but not clear that have right to sue. Possible to bring claim under 967. Made clear that smoker is person who smokes tobacco. That is all the statute refers to.

1. Consider: do employers ever recover when employee breaches definite term agreement?

1. Should we really worry about termination because the current tenure in jobs is 4.2 years down from 4.6 in 2014. Generally, it has been going down a lot. If that is job tenure, are we really worried about termination because people don't stay in their jobs for that long anyway. EU isn't as worried about it anymore, so put in systems helping them to go from one job to another.

FMLA i. Eligible employee

1. Term - employed for at least 12 months 2. Hours - 1250 hours worked in prior year a. Looking for full time workers - screening out part time. b. What if EE doesn't have number of hours/months, but will be by the time leave comes up? (requested leave at 11 months) i. Courts divided on this issue - majority position: if you have the 12 months by the time leave begins, it's OK. 3. Work at worksite w/50 or more EE's w/in 75 mile radius a. PURPOSE: replacement issue. ER's bring someone from another location when someone is on leave. Congress said "what's a commuting distance?" and came up with 75. i. On exam: multiple locations, way more than 50 EE's, but EE works at worksite with 30 or 20. Is this EE covered? MAYBE.

a. The Dunlop Commission

1. The commission on the Future of Worker-Management Relations was announced by Secretary of Labor Robert B. Reich and Secretary of Commerce Ronald H Brown on March 24, 1993. i. They wanted to use one set definition across all federal laws/statutes. ii. Were appointed broadly to look at labor and employment relationships and report back. Came back with far reaching recommendations. Rarely have a President or Congress that says to think broadly about labor and employment law. Came in with set of recommendations that had nothing done with them. By the time the report came in, Republicans had control of Congress and nothing came of it. This is where the below recommendation was made. iii. Too many definitions of employees and so what if could come up with definition that would apply across the board. The commission recommended a single test for the definition of employee that would apply to every federal employment law we have. Advocated for the economic realities test. Is this right? Could argue that some statutes require a narrower definition and the FLSA has the broadest imaginable. a. One definition for all laws might not be efficient. Also, how would only applying a single definition at the federal level affect the states?

i. State Laws on Privacy

1. There are about 18 states that have laws on personal online accounts. 2. Louisiana's law says that employers (and educational institutions) cannot require an applicant or employee to give them access to their online accounts. There are some exceptions, but unless there are reasonable grounds can't require to give that information. If take action against because of this are violating the act. 3. Two states have statutes on employer electronic monitoring. These laws generally require notice before monitoring under certain circumstances.

i. Testing

1. There are range of tests that might be given. One test is multiphasic personality test used for diagnosing psychological disorders. Asks all kinds of questions.

i. Why is it that employers are doing so much checking?

1. There are so many theories of liability and so are worried about that. 2. Another is resume fraud (don't trust CV). Can be misleading because it might be mistake. a. An example is George O'Leary who was fired from head coach job at Notre Dame because claimed master's degree didn't have and some college football experience didn't have.

i. Thebner v. Xerox Corporation

1. This is court of appeals decision and it cites 2747, but was decided before Brannan. Talk about equitable estoppel. His second argument is equitable estoppel. This is same as promissory estoppel here. Looking at the factors: representation by action or word, justifiable reliance on representation, and detrimental change in position because of reliance. These are same elements as promissory estoppel. Found that this is disfavored theory and if will rely on it must specifically plead it. If don't plead, can't later assert it. Even when asserted, courts don't like because stopping a party from asserting what normally have the right to do. 2. Will see that plaintiff employee has never won on equitable estoppel in any reported decision. One of things courts will say is how could reasonably rely on representation that had job security in employment at will state. Circular argument, but this is what courts often say. ii. What type of notes? Can use documents and statements, but unless have definite term in it, it will not be sufficient. iii. Courts do refer to employment at will as a type of employment contract. This is good because it is mistake to say there is no employment contract and so are employee at will. Employee at will describes some terms of a contract/agreement that reach in employment. Louisiana supreme Court has recognized that employment at will is type of contractual relationship.

i. Two cases under section 7:

1. Use of to intercept and punish communications or threaten may be violation of 8(a)(1) and 8(a)(3). 2. Unilateral implementation without bargaining may be violation of 8(a)(5). 3. Maintenance of rules prohibiting or restricting communications may be violation of 8(a)(1).

i. 23:964

1. Useful because prohibits from taking any other adverse employment action or firing because testify or provide information for investigation on violation of state labor laws. Problem is that provides for adjudicatory hearing, but not private right of action. Says that statute is to be enforced by assistant secretary of office of regulatory services. Amendment in 2007 to change that the person is now director of office of workforce development. That department as changed to Louisiana Workforce Commission. Provides for criminal and civil penalties. Doesn't tell what adjudicatory hearing would look like. Good amendment would allow private right of action. 2. No citations under the statute.

a. Other Groups

1. Volunteers i. Tend not to be employees. ii. See Acosta v. Cathedral Buffet - church pastor would ask for church members to work the buffet; if there weren't enough volunteers, the pastor would basically say they're like sinning or something then people would volunteer; DOL said they were employees because the pastor had essentially coerced them into volunteering so the volunteers should maybe have expectations of compensation a. 6th Cir. said that type of coercion was insufficient; there were also 1A concerns (Free Exercise & Establishment) 2. Interns: i. See Glatt v. Fox Searchlight Pictures, Inc ii. DOL has fact sheet on interns under the FLSA 3. Prisoners: i. Not considered to be employees (would have to pay minimum wage if do). 4. Students: i. Research and teaching assistants plus student-athletes are big issues. ii. Would they be student or employee under the NLRA. iii. The Board's position until last year was that TA and RA were students and not employees because of role that their position played into their education. iv. Came back in Trustees of Columbia Univ. saying that were holding that the RA and TAs were employees. Started out looking at how the statute defined. It is broad definition of employee and if statutory definition is broad so should go to common law test and see if they would be considered employees. Doing so and given control that faculty exercised over TA and RAs were under common law definition were employees. The Board has went back and forth on this issue a lot in recent years and you can tell which way the Board will lead by looking at which political party has the majority (whoever is President). v. Think that Browning Ferris is leading candidate for reversal by the Board. vi. Northwestern University a. Looked back in this case for the cases on TA and RAs. b. Looking at whether grant-in-aid college football players are employees for purposes of NLRA under section 2(3). Question is whether under the NLRA the scholarship receiving football players were employers. NLRA definition of employee (and employer) is about as broad as it is going to get. 1. The NLRA only applies to private sector employees; state school athletes wouldn't be covered 2. There was also only an issue that it applied to scholarship players because those are the only ones you can argue are being compensated c. The regional director in Chicago got the case. There was a union that wanted to represent the football players and a quarterback on the team said he wanted a union. The regional director took the case and in a 25-page opinion discussed the law and the facts. They had a very grueling schedule. When compared to other cases involving students, it is a pretty compelling case. The regional director found the students were employees. Board held the case for over a year. d. The court punted hahah. Ultimately did not exercise jdx in the case for several reasons, including that it was only one private institution involved (left open that all colleges could be enough), would not effectuate the policies of the Act to assert jurisdiction, and analogies to other cases not apt. e. If had held them to be employees, it could have dominoed into other acts such as the FLSA, etc. Think about the cross-over effect here.

i. 23:963

1. What is this statute about? Consider clothing store where there is policy that are model, meaning must wear clothing that looks like the store's clothing. Give discount and tell to buy clothing there. Generally speaking, 963-966, doesn't appear that they create a private right of action. Says illegal to take any adverse action for employees failure to purchase clothing from employer. Doesn't apply to uniforms and requiring the uniforms to be purchased from particular retailers. There are only a few states that have laws like these. Enacted in 1916 and it is essentially anti-company store provision. Where enacted, not uncommon for people to work at business, work on business property, and shop at company stores. Company stores would usually write off the wages for purchases that made. Didn't really have any choice and were free to mark up as much as wanted to. Enacted to give some freedom from company store. 2. Does this have any modern applicability? In West Virginia, employee worked for oil company and was told by employer when needed car that had car dealership and should go to certain car dealership, but price wasn't good. He was fired and it was found to be violation of statute. 3. There are few citations to the statute. A 1927 case said that this doesn't create a right of private action. Provides for fines, penalties, and/or imprisonment. Would there be a contemporary situation where this would apply? Probably require them to wear clothes that look like theirs and give discount to encourage to buy. 4. Could employer take position that it was uniform? Question is whether it is uniform if not standardized, but just that should fit particular look. If requiring to purchase their products, then might violate. Some of the historical reason for the statute is gone. Arguably this is one that should be repealed.

i. 23:967

1. Whistleblower Statute (Corbett doesn't like the name because protects more than just that). Now generating a fair number of cases each year. Something of a misnomer because not limited to just whistleblowing. Really picks up a couple braches of wrongful discharge in violation of public policy (whistleblowing and refusal to participate in illegal activity). Statute is narrower than tort and limited to the language. 2. There are three Louisiana whistleblower statute (967, 30:2027 (environmental), and governmental ethics (42:1169)). 3. Passed in 1997. It did not seem to be a big deal. When read, wonder why business community wasn't against it because will generate a fair amount of litigation. This one has about 99 citations so far. This didn't happen until the last 203 yeas, where there has been a lot of litigation under the statute. 4. There will be many cases where employee will be able to state a claim under the statute. 5. No reprisal where employee in good faith reports violation of law to employer. Good faith probably means good faith for what are saying. One issue under whistleblower is does it require internal reporting first or only cover external reporting. Cannot state claim until first have told employer that what are doing is violation of law. Must tell employer first and give opportunity to correct alleged misdeeds. Reprisal covers firing, loss of benefits, and any other adverse employment action. Most of cases have been termination cases. 6. What are three things that employee can do and be protected? a. Discloses to threatens to disclose a workplace practice that is violation of law. i. This could be to any third party. b. Provides information to or testifies before a public body conducting a public investigation or hearing into any violation of law. i. This is the more formal version. c. Objects to or refuses to participate in employment act or practice that is in violation of law. i. This looks like tort. ii. How much can fit into this? What if employer says you are a smoker and fires because of that, will that fit under here? Question is whether this is refusal to participate in an illegal activity? Could say that the policy is illegal and so refusing to participate in the policy. The objects to is extremely broad. iii. Might be able to take any of the statutes and put into this to bring the civil action. iv. This could be any violation of law (not just above statutes). v. Notice that says state law under (a)(1), law under (a)(2), and law under (a)(3). Is state law applicable to all three? State appellate courts and federal district courts have uniformly said must be violation of state law under all three. Seems like sense said state law under only one, any other law would apply to next two. However, most federal laws have anti-retaliation, so state law reading not harmful.

i. Hypos:

1. Worker accuses supervisors of sexual harassment when alone on shift. Asked to do polygraph and would fire if didn't. would this fit under ongoing investigation? Doesn't meet the economic loss to business (not yet). She may sue for sexual harassment, but no current economic loss or injury. So arguably doesn't fit definition yet. 2. What if forego the exam and simply fire? Could they ask to take so that can keep job? Can't waive rights under the Act. Would be bad decision to take bait. 3. What if suspected of taking other employees purses. Not necessarily economic loss to employer. If ends up paying back what was stolen, maybe. 4. What if suspected that was drunk when had accident in company truck when was going to deposit. Can employee give test to determine if were drunk? This is current economic loss. This might help in ongoing investigation exemption. Problem is that have to do so many things to satisfy the prerequisites. Would employee have had access to property? He was driving car to deposit and so had access and had reasonable cause to believe had something to do with it. Still have to execute the detailed statement and honoring rights of employee. ii. Can't be fired for refusing to take unless there is additional supporting evidence to take adverse employment action. This reduces the value of the polygraph substantially. iii. There are only about three citations to this law in the past few years. iv. Pencil and paper tests do not fit under this. Employers have found can give tests, but just can't hook up to machinery and monitor your responses while taking test. Employers do a lot of testing. Problem with using medical test or disability test. ADA says that cannot give medical examinations and cannot ask for medical history of applicant until have made them a conditional offer of employment. A lot of businesses and state bar associations have been sued about this. Can't ask about medical history until decide are willing to offer the job. Can do so and may find out something that rules out of the job, such as in manual labor jobs. Will then have very focused claim when withdraw the offer. Will then be whether discriminated based on disability and whether it is true that really cannot do the job with disability found. Rent-A-Center was giving the MMPI test to applicants and employees. Got sued by class that said it was medical examination under ADA. Seventh Circuit said that it was a medical examination because that was what it was designed to do. So violation to give the test in advance.

Louisiana Wage Payment Statutes

A. Purpose - get EE her last paycheck from ER B. §631 - when an EE separates [resigned or fired; statute makes a distinction, but not important] from employment, must pay EE "the amount then due" at the next regular pay day OR no later than 15 days [whichever occurs first]. a. Private right of action - can only sue when you separate from employment. i. Current EE's can't sue under this statute. ii. We wanted to protect those who separate, b/c ER no longer has an incentive to make those final payments. Law creates the incentive. b. IC's not covered - ER's only. c. "Amount then due" is broader than just wages. d. §631(A) ¶2 - Where you have to pay them - "shall be made at the place and in the manner which has been customary during the employment..." OR can mail it to them via U.S. mail [follow mailbox rule, when sent it's paid]. i. What if you send by FedEx? Statute doesn't say that's OK, so technically a violation. e. §631(B) - in the event of a dispute about amount of money due, pay the undisputed portion of the money and then litigate about the remainder. f. §631(D)(1) - Vacation Wages i. ER does not have to provide paid vacation - this provision applies if ER has chosen to do so. ii. Vacation pay is considered an "amount then due" ONLY if in accordance w/ER's vacation policy: 1. The EE has earned paid leave 2. The EE has not taken the leave yet at the date of discharge/resignation. A. §632 - liability for ER for failure to pay; atty fees; good faith exception a. 632 is a tack on - need a violation under 631, then 632 provides penalties. b. Except as provided for in Subsection B...any ER who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee's daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. i. Must make a demand to get penalty wages. ii. Can cut off the 90 day penalty by tendering the amount earlier than 90 days iii. 90 day ceiling - for violation of 631, the most EE gets is 90 days. iv. Penalty wages start accumulating as soon as ER is in violation (15 days/next pay day, whichever is sooner) c. (B): Good faith defense to penalty wages: if CT finds ER's dispute over amt due was in GF, ER is liable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed. i. EE also gets atty fees - atty fees are mandatory, penalty wages subject to ER's GF defense. ii. Jacobs case: PA leaves ER and goes to work with competitor. ER won't make a payment of all $$, arguing EE violated NC, and we're going to sue. 1. Ct said that's a GF dispute - they withheld $$ b/c they don't know how much damages will be for violating NC. 2. BC doesn't like this. LA cts have been very receptive to GF defense - listened to a lot of shitty arguments to avoid awarding 90 days penalty wages. i. "Penalty provision" so must be strictly construed. iii. NOT a GF defense to say "we agreed I owed EE $, but disagreed on amt." See 631 - must pay undisputed amt. No GF defense for undisputed amt.

§633 - Informing and posting - how much, how, and when

A. §634 - wage forfeiture provisions in K's are unenforceable a. Can't require EE to give up portions of their wages. i. K can't say "if you leave me, you forfeit $$ you're owed." 1. Would be contrary to 631 - EE's get the amts then due.

EEOC and FTC are agencies here

EEOC is concerned here because worried about it being discriminatory. The agencies released a joint guidance document for employers.

a. How to Interpret the FLSA:

FLSA is broadest coverage of any federal employment legislation that we have. Congress thought that the things covered in FLSA were good things for majority of workers, but there are exemptions.

Louisiana Employment at Will

I. Is Louisiana Employment at Will Different? a. It is statutory (civil code actually), but that is not really all that different from other states, although some use case law.

Before getting consumer report prepared, must give them standalone document that gives them notice required by act (604(b)(2)) and get written authorization.

If getting investigative report (a report based on personal interviews concerning a person's character, general reputation, personal characteristics, and lifestyle), must tell applicant/employee of right o description of nature and scope of investigation.

I. Erosions of Employment at Will

Tort law will say may not have varied employment at will, but will recognize a tort.

1. When do applicants or employees sue for defamation?

a. Based on employment references (sue former employers) b. Based on termination (reason given and public or how termination was carried out).

a. Secretary of Labor v. Lauritzen

`1. Three issues here: minimum wages, child labor, and record keeping. Are the pickle pickers employees covered by the FLSA? i. The FLSA requires minimum wage, and staggered labor allowed at different ages for children, and must have records so that can compute minimum wage and overtime. These rules are immutable and cannot be contracted around. ii. If violate recording keeping requirements will probably lose the case. a. The employer wasn't keeping these records because they didn't think they were covered, so they didn't have to. However, if the DOL comes after you, you're almost certain to lose. iii. Secretary of Labor is suing here. Wage and hour division were advised to revise the white-collar overtime provisions. They did so and were supposed to take effect 12/1/16, but federal judge in Texas enjoined the effect. The workers do not file the lawsuit. Do not have to file lawsuit under FLSA, can just go to DOL. a. The migrant workers could have sued, but they chose not to. They actually were happy with arrangement because their compensation as based on volume picked and if the workers had a bunch of children (though underage) could pick more. b. Some of the workers even tried to intervene and say that they were independent k'r iv. District Court granted MSJ in favor of Dept. of Labor. This was rare because the MSJ was granted on a fact-specific issue - the 7 factor test. 7th Cir. affirmed. 2. FLSA (under jdx of Dept. of Labor) i. Court describes it as social welfare legislation. The breadth of coverage is greater than that of any other federal employment law. ii. Courts tend to interpret terms liberally to find coverage. iii. Covers minimum wage, overtime, child labor hours, and record keeping. iv. The DOL can conduct investigations and bring suit on behalf of workers if the act is being violated. Sometimes the workers might not want to change their current arrangement, but because the FLSA is immutable, it cannot be waived/k'r around even if the workers want to. 3. Employer's prediction of dire consequences for the pickle industry i. The employer said that finding in favor of an employee definition would be the end of pickles forever. Finding that workers are employees covered under the act would essentially destroy the pickle industry. 4. FLSA is Immutable: i. Cannot waive the provisions of the law. Migrants try to intervene and say that do not want to be considered independent contractors. Court decides on MSJ or judgment as a matter of law deciding they are employees under the FLSA. There is no debate whether there is violation of child labor provision, record keeping, or minimum wage. The only issue is the coverage issue (independent contractor versus employees). 5. Definition of employee is very broad but doesn't really go about telling how to determine what it is. 6. The Seventh circuit uses the economic realities test to determine whether employee or independent contractor. Six factors, but tack on the dependence of the migrant workers as a seventh factor. Say in end favors concluding that are employees, not independent contractors. 7. The big debate among the circuits is whether want to use economic realities test or the common law right of control test (which is really only one factor in former test). 8. Economic Realities Test 7 Factors: these are balanced; one is not dispositive i. Control a. Greater control gravitates towards employee. Less control is to independent contractor. Who controls manner of performance of the work? 1. Court found defendants had pervasive control because it was more than just picking (irrigation, fertilization, some supervision, etc.). ii. Profit and loss a. Found no investment except cost of work gloves. Can increase profitability and can make more, but have no stake in it and so possibility in loss going the other way. Independent contractors tend to have a stake, which didn't have here. Depends a lot on management skill as to whether will have profit or loss. For migrant workers, it is just can make more or less iii. Capital investment a. Most independent k'r come with their own equipment and tools needed to do the job, while employees must be furnished the needed equipment. 1. Here had gloves and nothing else, but for independent contractors have more at stake and more capital iv. Degree of Skill Required a. Independent contractors would probably have more skill because they are doing a continual business. 1. Here, have less skill because not really specialized, so gravitates in favor of being employees. v. Permanency a. Independent k'r are not on a job indefinitely; they do the work then it's over 1. Seasonal so favors independent contractor vi. Integral to Business a. If the thing the worker is doing is integral to the business, then is that likely to be employee. Must be significant to the business, not something accessory. 1. Integral because pickles must be picked so favors employee. vii. Dependence a. Employees are generally economically dependent on the employer; independent k'r can go to another job - they don't depend upon one particular business to make an income 1. Wholly dependent on them for land, allocation, and wages. 9. Holding: i. After applying factors found they are employees and so do not need trial. This is something would normally leave to the jury/factfinder. That is not normally the job of the appellate court or even the district court (when there is jury). 10. Easterbrook's Concurrence: i. Said if we apply the factored test, can't decide MSJ as matter of law. There has to be genuine issues of material fact under 7 factor test. Law should be clear on some things and it should be clearer here. Factors will not really help someone who is going to work (not clear enough). Wants to back it up. Can't really use seven factor test and have ruling as matter of law when it is fact intensive. Wants to throw out the test ii. Why doesn't he like economic realities test? a. He thinks there needs to be something more clear that is easy to follow. iii. What is his proposed analysis? a. Statute 1. Statutory Language i. 203(e)(1). He says that is broadest definition ever included in any act for the definition of employee. FLSA was intended to have very broad coverage. ii. What does that tell us? Would tell us that want to include as many as possible workers. The definition does not include independent contractors. a. He thinks when he looks at it, migrant workers were probably meant to be covered. 2. Statutory Purposes (2) i. Ensure a decent working wage, but probably the most important was to spread jobs. Must remember that this came after the Great Depression. If put in provision that must pay time and a half for overtime would encourage the employer to hire more people. France did something similar a few years ago by enacting a 36-hour work week and then overtime. This was trying to encourage more jobs/spread of jobs. 3. Employees didn't want to be covered and so employer wanted to know why making them subject to FLSA? i. It is immutable rule. Although it might be better for everyone to do it their own way, but Congress did not make it that way. iv. Functions of independent contractor doctrine—tort doctrine of vicarious liability has nothing to do with FLSA. v. Says a rule should be formulated when possible. What is his rule? a. Said when have migrant workers on a farm, should just come up with rule. Migrant farm workers are employees. b. This would allow migrant workers to know what they are and then would allow those types of cases on motions for summary judgment. vi. It is almost always the case that when an employer gets sued under the FLSA will claim that will ruin the industry if impose the restrictions on the employer. However, the response is always that the employer will adjust.

A. §216(b) Collective Actions

a. $$$ b. Must show: i. People are similarly situated 1. Same job classification ii. Each person must opt in (file written consent) 1. Different than CA under Rule 23 2. People generally willing to consent? a. Usually. iii. No issue or claim preclusion on absent persons 1. If you don't join collective action, can bring your own claim.

A. To determine whether there's a violation of MW/OT requirements, need to know 2 things:

a. (1) How many hours EE worked i. Compensable time issues ii. Waiting time/on call time/etc. b. (2) EE's regular rate of pay i. Board/lodging/other facilities ii. Bonuses

A. §635 - No assessment of fines or deductions from wages unless:

a. (1) Willful or negligent damage of goods/works b. (2) Willful or negligent damage of property c. (3) Convicted or pled guilty to theft of ER funds d. Even then, limited to ACTUAL damages. e. What should ER's do? i. If ER shows up and says "my EE quit and they want their $$, we're arguing about commissions and bonuses." ii. Tell them to pay undisputed portion, then litigate commissions and bonuses. iii. If commission/bonuses only a small amt, like $200, just pay them - not worth litigating issue. iv. If they say "it's been 30 days since they separated" 1. We know it's penalty wages. 2. Pay undisputed portion + 15 days pay? (penalty wages start accumulating once you're in violation, so after 15 days or the next pay day, whichever is sooner).

A. Elements for a 631/632 claim

a. 1) Amounts were due and owed b. (2) Demand for payment was made i. Not quite right - 631 doesn't require demand, says money should be paid EITHER on next payday or 15 days after resignation. ii. Ct's say this b/c 631(A) used to require a demand, but that was deleted. iii. When you sue under 631, you usually also sue under 632 for penalties. 1. You do need demand for 632. So no harm, b/c ppl sue under both, so demand is necessary. iv. No formal requirements for demand - oral, written, electronic, etc. 1. Must be fairly precise and certain (but don't have to cite law, etc.) 2. Need only be made once c. (3) ER did not pay within time frame and as required by statute

FMLA issues

a. 102(d)(2)(a): integration provision/relationship to paid leave: i. many ER's give paid vacation (annual leave); paid sick leave. Some have paternity/maternity. Many ER's not required to provide paid leave still do. This section deals w/interaction b/w those. ii. Either party can choose to run those concurrently. iii. ER gives 2 paid weeks each year. EE has to leave for FMLA leave for 6 weeks. Either one can say "first 2 of those weeks are paid, the other 4 are unpaid FMLA leave." 1. ER wants 1st 2 weeks to be paid, then the rest. They don't want EE to get 2 + 12. 2. Most ER's will choose this - if not, EE gets 14 weeks of leave: 2 paid + 12 FMLA weeks. 3. Usually EE's want it to happen too - only time they don't is when they know they'll need lots of leave. iv. If neither says anything à not integrated. b. 102(b)(1) - intermittent leave (taking leave in segments) i. EE can take intermittent leave for purposes of paragraphs C and D (serious health conditions of EE themselves or related person) ii. Under birth/placement/adoption à no intermittent or reduced leave (have to take it in one block) iii. Serious health condition - as is medically necessary, can break it up. c. 103 - Certification i. If leave is for SHC - ER may require certification from a HC provider. ER doesn't have to do this, but they may and usually do. ii. What if ER gets cert back and says "no that doctor is full of shit," what can they do? iii. (C)(1): if ER has reason to doubt validity of cert, ER can say "no go to my HC provider and get a second opinion, then bring me another certification." ER has to pay for this. 1. If docs end up with 1-1 split, we go to a tiebreaker: 3rd agreed upon HC provider who renders tiebreaking decision. This hardly ever happens. ER's don't want to go through 3 stages of cert and don't have reason to doubt first cert

A. FMLA remedies

a. 107 Civil actions and remedies b. (a)(2) right of action in federal or state court i. Can also call WHD and report, get them to do the work c. (a)(1) remedies i. Damages equal to salary, wages, benefits, compensation denied or lost AND ii. Interest AND iii. Additional amt in liquidated damages 1. Money you lost x2 + interest (looks like FLSA) iv. (a)(1)(II): if there are no benefits or salary lost, then any actual monetary losses up to 12 weeks of pay (cap) 1. Common violation of act = ER says no, you can't have your leave. 2. EE doesn't lose any salary there - what they lose is care costs. "I was going to provide care, but ER won't let me leave, so any $$ loss I suffer as a result of the denial, I can recover that up to 12 weeks pay/benefits." 3. Denial doesn't result in loss of salary - but results in other losses (having to hire care, etc.)

A. Board/lodging/other facilities

a. 29 CFR 531.27(b): in determining whether he has met the MW/OT requirements, ER can credit himself with the reasonable cost to himself of board, lodging, or other facilities customarily furnished by him to his EE when the cost of such board/lodging/other facilities is not excluded from wages paid to such EE's under the terms of a CBA. i. E.g. ER gives a place to live or meals (something EE would normally pay for) b. Marshall v. Sam Dell's Dodge, pg. 589: i. ER gives car salesmen a demo car to drive. (advertising product) ii. Does NOT count as compensation - the cost of furnishing facilities which are primarily for the benefit or convenience of the ER are not compensation.

Purposes for which leave can be taken: 102(a)(1)

a. A) birth; (B) placement; i. FMLA gives H right to take the leave for birth of W's child - doesn't say you have to be the one birthing the child to take leave. Not acceptable for ER to say no here. b. (C) care for specified relatives with SHC; (D) EE's own SHC i. Specified relatives = care for spouse, son, daughter, parent with SHC 1. Spouse under state law counts. a. After Obergefell - DOL put out regulations saying same sex marriages are marriages, doesn't matter what state says. 2. Stepchild/foster child counts - see definition section. (12) a. Son or daughter over 18 - cannot take leave to care for them unless they're incapable of self care b/c of mental/physical disability. 3. In-laws not covered. 4. Need to ask (1) proper relationship? Then (2) SHC? ii. Your own SHC c. What is a serious health condition? d. What does "to care for" mean? i. Case: woman's mom was dying of cancer, wanted to go to Vegas. W tried to take leave to bring her to Vegas. Court said under the regulations, providing psych support is caring for. 1. Care for = broad term. Physical care or providing support. 2. ER can't say "can't someone else do this?" If you satisfy the requirements, you get to take the leave. ii. An EE may be needed to provide care to the family member, for example: 1. When fam member is unable to care for his or her own medical, safety, or other needs, b/c of the SHC or needs help being transported to the doctor; 2. To provide psychological comfort and reassurance to the family member with a SHC;

A. Compensable time:

a. Allen v. City of Chicago (2015), pg. 577: [monitoring time] i. Police officers in Chicago, dispute about hours worked. They claim they were working off duty on their BlackBerry: have to carry it around after work to receive texts/e-mails and sometimes have to respond. ii. 203(g) defines to "employ" - "to suffer or permit to work." 1. If ER expected ppl to work off the clock, or knowingly permits you to work off the clock, they violated FLSA. 2. 29 CFR 785.11: work not requested but suffered or permitted is work time. For example, an EE may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task, or he may wish to correct errors, paste work tickets, prepare time reports, or other records. The reason is immaterial. The ER knows or has reason to believe that he is continuing to work and the time is working time. iii. P's saying we were expected to work on our BB's when we were off duty, and police dept knew it and they're not paying us for it. 1. Just "monitoring" your phone is not work, "so long as the P's could still spend their off-duty time primarily for their own benefit without persistent interruptions." a. When they're just carrying phone around, not working, b/c doesn't interfere w/them using time for their own purposes. iv. Officers claim they didn't turn in time slips for time they were working on their phones b/c there was an unwritten rule against it. 1. Ct said no, plenty of EE's have been turning in the slips and weren't punished, got paid, etc. This was working time, but nothing prohibited them from being compensated. 2. Ct says police dept can come up w a rule (could be "no work calls off duty," or could be the reverse). v. P's lose - didn't show they weren't compensated under any unlawful policy by the City, or that City suffered/permitted work to be done and didn't pay them. 1. NOTE: Ppl often sue under FLSA alleging they weren't paid when they should've been, and they knew they weren't being paid. FLSA says you can know there's a violation and can still sue for it later. You cannot waive these rights. Some ER's have tried this: "I don't want to pay you OT, so if you work OT for your regular pay, I'll give you some other things." NOT ALLOWED

I. Organizing Themes of the Book

a. Appropriate blend of economic incentives and legal regulation i. How would raising minimum wage effect the entire economy? We would probably lose some of those minimum wage jobs. b. Authority in workplace—in US, overwhelmingly employer c. Simple and effective rules—tension i. Most employees know very little of employment regulation because some laws are overcomplicated for lay people to understand. d. Structures of legal responses to problems i. Employment at will? Why do we have it in the US when the rest of the world doesn't? 1. We have federal and state structures to consider. Employment law is generally left to the states. Congress could change this and make employment at will illegal, but they probably won't. 2. Another issue is enforcement. There would be an overflow of lawsuits for being claiming to be wrongfully terminated. There's also no precedent in the US for this. ii. Level of government iii. Adjudicatory and enforcement mechanisms 1. One of the issues with enacting new legislation will be where those claims are adjudicated. A problem is that the courts are already overburdened and the ability of plaintiffs to find attorneys and file suit is already difficult in employment claims. 2. Could suggest something like do in EU where there are specialized tribunals. iv. Type of regulation—positive law v. case law e. Best enforcement mechanism i. Herein of substance and procedure

i. II. How Does One Explain U.S. Labor and Employment Law?

a. At the end of the twentieth century, the body of the law of employment in the United States has evolved to a scarcely rational patchwork. It is comprehensible as a whole, if at all, only when viewed through the lens of its history."

Predictions Regarding Employment at Will at the Close of the 20th Century

a. Blackstone's Commentary said that employment at will was basically what it was in statute of artificers—a year. Had evolved somewhat from being hired for a year to if are going to be terminated must be given reasonable notice for the termination. b. Wood has been slandered and libeled for being the father of employment at will. He wrote one on master and servant telling what law in US is. This is statement that is credited with the birth of employment at will, though probably is not. He is surveying the law. Later say that he was not father of employment at will but simply restating what law was (what court did and what some legislatures had done). c. Feinman is essentially a socialist critique of employment at will. He called it the ultimate guarantor of the capitalist's authority over the worker. d. Morriss's article is probably the best. He can trace the background of employment at will back. Not New England states that would have started this. He debunks a bunch of myths. He says that judges are creating employment at will. It is popularly elected judges. Would think that are concerned with middle class and would not enact something harmful to them. What he concludes that courts latched onto the idea because it enabled them to dispose of cases. e. 2000 was a bit late to be saying this but argued that employment at will was on the way out. By then it is beginning to go forward (with future). From 1970s to 1990s, courts were coming up with all sorts of doctrines to allow to sue notwithstanding employment at will.

i. Negligent Hiring 1. Thatcher v. Brennan

a. Brennan worked for Mead Johnson and was involved in fight with plaintiff after turning car in front of him. Sued for vicarious liability and negligent hiring. Vicarious liability is better because responsible for 100% of employee's actions. b. Said was employed for two years and no evidence of violent behavior.

I. Politics and Employment Law

a. Can sometimes make predictions on what law will look like based on political affiliation. If want to make predictions on who will support it will be generally Democrats and Republicans will tend to oppose.

I. Employment at Will and No Recovery for Termination Unless...

a. Common law i. Contract variations ii. Torts b. Statutes: Federal and state i. EX: employment discrimination statutes, various anti-retaliation statutes; whistleblower statutes.

A. Bonuses

a. Controversial/political: Republicans think they incentivize harder work; Democrats think they are a way to cheat people out of living wages. b. ER's do NOT want bonuses going into the regular rate of pay if they're accused of OT violation: higher rate of pay means owe more in OT. c. 7(e): for purposes of calculating overtime pay, non-discretionary bonuses MUST BE INCLUDED in regular rate of pay. i. Non-discretionary bonuses: those announced to EE's to get them to work more steadily/efficiently, etc. "If you ____, you get _____." ii. Few bonuses are discretionary.

I. Employee v. Independent Contractor

a. Coverage Issues: 1. What is the worker? i. Employee, independent contractor, volunteer, employer, or something else? 2. If worker is an employee, is worker and "employee" as defined by the statute or K? 3. If so, to what is employee entitled under terms of statute of K? i. There are different protections for different kinds of employees 4. Employer must be covered (will get into issue of leased labor, joint employers, etc.) i. Definition of employer under statute ii. Employer of which employees? a. Issues of joint employer 1. EX: McDonald's employees suing under multiple acts; suing local franchisee and the corporation

A. FMLA issues

a. Coverage issues: §101(2)-(3) (pg. 264) i. Employer 1. 50 or more EE's for each working day during each of 20 or more calendar workweeks during the current/preceding calendar yet. a. Pretty big - only WARN is larger. 2. Includes public AND private ER's a. Holliday v. LSU: EE sued LSU in LA state court alleging violation of FMLA. LSU is public ER - 11A immunity. LASC said nope, public EE suing public ER, state has 11A immunity. COMPLICATION: not every federal act preserves 11A. Congress can abrogate 11A immunity in some statutes. i. LA also did not waive immunity for fed statutes (they did for tort/K) ii. SCOTUS: depends on history of statute and problem being addressed by Congress. iii. FMLA: depends on kind of leave being taken. 1. If for pregnancy, placement of child, adoption à Congress can overcome 11A immunity b/c of history of sex discrimination. 2. If for self-care à Congress does not have power. Depends on purpose of leave. FMLA split on the issue

I. JustMed Inc. v. Byce:

a. Does the employer or employee control the copyright? There's an issue on whether coder is an employee or an independent k'r? 1. Byce argues he's an independent k'r so he owns the copyright.

I. Coverage:

a. Coverage under many of our employment laws may be outdated or archaic. Consider the "gig economy." 1. One solution is to modify the test that distinguished between independent k'r and employee. However, maybe two categories isn't enough. But if you add another category, there's issues with the language of the different acts that reference employee - these would need to be modify as well. 2. What about Congress's intent? Do we think Congress didn't intend for worker's under the gig economy to be excluded from coverage of different statutes? We need to figure something out. i. One thing to do is to leave it to Congress and make them decide how to fix it. ii. Another is to introduce state legislation, but this raises issues on what test to apply when dealing with federal law. iii. Another solution, agencies make changes through regulations. Almost every fed statute covered in the course comes under jdx of Dept. of Labor. b. Are there employees who need few or no legal regulations to protect them? If so, why don't we exclude them? 1. Laws are often written to say employees are covered, then we say except. There are express exemptions. We clearly know the exemptions, but who is covered under the act? i. You can be an employee but still not get coverage because your employer is not covered. c. Are the coverage provisions too complex? 1. There's a lot to consider on coverage issues. 2. Exam: first step is to determine if there's coverage. 3. Maybe Dept. of Labor and employers need to do a better job of explaining coverages. d. As a practical matter, the best defense to an employment claim or lawsuit is that there is no coverage. Exam: Do not skip over the question of coverage! Don't assume coverage unless told to! 1. On exam, if there's no coverage, then there's no coverage.

I. WARN Act

a. DOL Fact Sheet on the Act is very helpful. b. Act is saying 60 days' notice before a plant closure or mass layoff. Getting the notice to make adjustments and get other training if needed because will be out of work soon. One of the criticisms of the Act is that 60 days is not enough. c. Sale of a business can be complicated because if are going to sell the business and it is going to close, the question becomes when will it close? Up to time of sale, seller has to give notice. After that, it will be the buyer who has to give the notice. d. States can come in and have longer notice periods. Not many states do this, but can do so. Louisiana does not have a state version of the WARN Act. e. If were business owner would you be worried more about individual termination or collective termination? Collective termination has a lot of impact and if there will be obstacles to having mass layoff or plant closings, will want to know about it. Internationally, there are a lot of countries that put many obstacles in the way of mass layoffs and plant closings. US is very lenient in comparison. f. Book talks about effects of mass layoffs and plant closures. These things can change the city and the region. Drastically reduced spending and don't know how long it will remain. See lots of ripple effects. g. There are countries that believe that the employees or representatives should have some voice in the decisions. Doesn't happen very often in the US. Employees in other countries do not get to stop the business, but get to confer, which can alter the decision made. This is not what see on individual or small group termination. h. If will have mass layoff or plant closure, concerned with a number of stakeholders, including capital investors, creditors, employees, unions, etc. i. When do we care about the terminations? i. Plant closure, discontinuation of business, etc. because of economic difficulties or criminal conduct. ii. Moving the business, plant, etc. iii. Mergers & Acquisitions j. EU Directives (3) i. Collective Redundancies 1. Obligation to notify workers' representatives (WARN does), provide information and consult with them (WARN does not) 2. Obligation to notify public authority (WARN does) ii. Transfer of undertakings 1. Obligations of seller and buyer to employees iii. Insolvency of employer k. Covered employer (2101(a)(1)) i. Aggregation to reach 100 (either excluding part-time or include part-time with specific requirements) l. Covered Events i. Plant closing (2101(a)(2)) ii. Mass layoff (2101(a)(3)) 1. If 500 or more employees or if less have to play numbers game (at least 33% of employees and at least 50 or more employees excluding part-time). iii. Employment loss (2101(a)(6) from one of above means termination other than for cause, voluntary departure, or retirement, or lay off exceeding 6 months or reduction in hours of more than 50% during 6-month period. m. Notice to Who? i. Employees or representative of employees ii. State or entity and unit of local government n. Exceptions i. Reduction in time to give notice. ii. Faltering Company (2102(b)(1)) 1. Idea is that are seeking funding given extension because trying to save the company and notice could jeopardize that. Doesn't do away with notice completely though. iii. Unforeseen business circumstances (2102(b)(2)(A) 1. Things like cancellation of business of major client (taking away most of business). Effect is in 2102(b)(3) to reduce notice to as much as is practicable. iv. Natural Disaster (2102(b)(2)(B)) 1. Says there is no notice necessary, but regulations say that must give as much notice as you can. Could argue that statute is correct and no notice is required. v. Reduction in penalties (2101(a)(4)) 1. Will reduce amount of liability.

I. 2020-2021 Issue: coverage

a. DOL issued regulation on Jan. 6, 2021 that was proposed around end of Sept. 2020. It is a test to replace the Economic Realities Test for FLSA. Trump admin rushed to push it out. It'll probably get frozen by Biden and not go into effect. The new test favored a finding of independent contractor, which big businesses wanted especially Uber/Lyft etc.

FMLA (1993) A. Introduction

a. DOL website à WHD à FMLA b. US is behind rest of the world on leave issues - most other places have paid leave. c. Many SA countries have paid leave - care more about family obligations. d. 12 weeks of leave per year

B. Politics

a. Debate over raising minimum wage (how many jobs will be lost if we do?) b. Overtime law reaction to Depression - wanted ER's to hire more people, not just work EE's more (spread jobs among unemployed) i. Today: ER has 40 EE's: he could work them overtime, or hire new EE. He will probably choose to work them overtime - probably more expensive to bring in new EE's with benefits. 1. Benefit package makes this not a good spreading device.

i. Defamation 1. Elements

a. Defamatory statement (derogatory statement/harmful statement) b. Falsity i. If truthful, cannot sue c. Publication to a third party i. Will not usually be a problem, certainly in reference cases. d. Fault: actual or implied malice (defined as lack of reasonable belief in the truth of the statement) i. This usually will be issue. If not talking about First Amendment issues, require actual or implied malice. ii. Doesn't sound like malice, but more like negligence. e. Resulting injury 2. Can be hard to prove this. If bring this would want to bring invasion of privacy because don't have to prove fault there. 3. Line of cases where defamatory per se if in business reputation, crime, (old cases) said something about woman that suggest lack of chastity.

A. Open issues under 23:921

a. Defining nature of business - what are you prohibiting the EE from doing? Does business have to be defined? i. Statute doesn't say anything about this - "carrying on or engaging in similar business." ii. What if business does 20 things but employs EE to do 1 of those things, but non-compete says "you can't engage in biz similar to ours." Can EE be prohibited from engaging in any of the 20 things, even though he only did 1? Haven't resolved this. 1. If you do put a definition to describe what person is prohibited from doing - needs to be correct and not overly broad. Be precise and accurate about what they did and what you're prohibiting them from doing. 2. Smart to define business and restrict them? a. NO: statute doesn't say I have to, so why do it? I'll just use "carrying on or engaging" language. Sound advice, but courts worry about this. iii. The court looked at the type of business and concluded that the new business was not similar to, like, or competing with the former business in Chem Spray South, Inc. v. Bazile, 2013 WL 4039974 (La. App. 1st Cir. 2013). "Chem Spray is a vegetation management business, providing herbicide application, grass mowing, landscape services, arborist services, utility right-of-way management, related consulting services, air boat and marsh buggy rentals, and retail sales of herbicides." iv. "American Industrial Plant Services, Inc. (American), a plant servicing company that provides contract maintenance services, structural fabrication, vessel fabrication and repairs, pipe fabrication, exotic alloy welding, handling of industrial equipment, sandblasting, painting, concrete sandblasting, and similar services. Bazile's first assignment in his new job was to work as a general maintenance laborer at LBC. One of the tasks LBC assigned to him was cutting grass at the LBC plant—the same grass he had cut one time during his employment with Chem Spray." v. Where "business similar" was defined in the noncompete, court found it overly broad, and so noncompete was unenforceable. Brand Energy Solutions, LLC v. Gilley, 2017 WL 238917 (W.D. La. 1/18/17).

I. Intentional Infliction of Emotional Distress

a. Doesn't come up as much. Most of these claims will be losers. If that is true generally in tort law, think about how it will be in employment law. Very rare that will find outrageous to fire someone. If are saying that it is societal standard, why are courts granting summary judgment on outrageous all the time? If let them go to jury, never know what jury will do with outrageous. That is why have jnov though. However, not even letting them go that far. Intent can also be an issue that is difficult to satisfy, particularly because it is intent to cause severe emotional distress. Will also have issue of what happens to employment at will. b. Is the person in position of power abusing the person that does not have the power (imbalance of power). c. Suggestion that it is something about manner of termination that causes claim to be made. That is often what brings to level of outrageous. It would be one thing to fire by themselves, but another to bring in front of everyone and fire. d. Most successful claims in context of employment are also harassment claims (whether race, sex, etc.). e. Elements: i. Voluntary act ii. Intent to cause severe emotional distress or recklessness iii. Outrageous conduct iv. Causation v. Severe emotional distress

I. Contract Theories

a. EAW is description of employment K; employment is a K relationship; there's an agreement b/w employer and employee regarding work; there are things you've agreed to about employment relationship; b. Never in EAW i. There's no definite term in EAW; there's no restriction on discharge only for just cause of good cause; you can be fired for anything not prohibited by statute at any time; c. Usually not in EAW: i. EAW usually don't have a right to a notice period; you can be fired on the spot; there's usually no procedures either; there's no due process or like opportunity to defend yourself against being fired because you can be fired for any reason d. Policy Statements may make the employer bound to those statements; statements found in handbooks or employee manuals, etc. e. Contract Terms Modifying EAW can be express (oral or written) i. Looking at things like writings, oral statements, other facts, and who said it (when, what, type of job/custom practice). f. Contract Terms Modifying Employment at Will i. Manuals, handbooks, circumstances are implied K ii. Make this distinction, but probably shouldn't. As a matter of theory it is really not separate g. Promissory Estoppel h. Analysis of Good/Just Cause i. Does employment contract vary employment at will? 1. Evidence of K term a. Writings b. Oral statements c. Other facts d. Evaluate who (said/wrote it), what (was said/written), when (it was said/written), type of job and custom or practice for such jobs 2. If so, how (very hard to get to here)? a. Definite duration (many courts will not find a variation in EAW unless there is a definite term) b. Good cause c. Procedures d. Notice 3. If good cause is required, did the employer have it? ii. Many states strictly adhere to employment at will, making it hard to get to varying it. This is why will be hard to get to question two (above)

A. The White Collar Exemption

a. EE's classified as administrative, executives, or professionals (make a certain salary and have certain job duties) do not have to get overtime pay. b. Salary level was $455/week ($23,660/year) - Obama thought this was too low. DOL studied it, proposed rule, got comments, and came up with new rule of $913/week ($47,476/year). It was supposed to go into effect in December 2016, but it was enjoined by a federal district court, then on appeal at 5th Circuit when we got a new president. i. New admin told 5th Circuit to stay the appeal - so we have the old regulations in place, but on hold for now. ii. Changes would: 1. Raise salary threshold from $455/week ($23,660 a year) to $970/week ($50,440 a year) in 2016. 2. Increase total annual compensation requirement needed to exempt highly compensated EE's (HCE's) to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers ($122,148 annually); and 3. Establish a mechanism for automatically updating the salary and compensation levels going forward to ensure that they will continue to provide a useful and effective test for exemption.

A. The White Collar Exemption - §213(A)(1)

a. EEs engaged in a bona fide executive, administrative, or professional capacity are exempt from FLSA minimum wage and overtime requirements. b. Salary basis test (2 things) i. (1) Salary = same amount, doesn't vary ii. (2) Must be a certain level 1. 3 levels 2. $455/week = $23,000/yr. (Obama tried to change) iii. No unauthorized deductions: 1. Docking pay - must ask if deduction is authorized or not. 2. If ER poses a disciplinary sanction of suspension w/o pay, salary test is met if sanction is imposed in GF for serious misconduct. 3. If ER docks salary for FMLA absences, salary test still met. c. EE must also perform certain duties i. Special rule for highly compensated EE's - $100k/year or more.

I. Employee Speech/Expression Cases (Chapter 8)

a. Employee interest in free speech/expression v. employee's duty of loyalty to employer/employer expectation of loyalty. b. Must look to where employee is getting right that are asserting have right to free speech. When employee expresses themselves in some way or refuses to in some way, will sue so it will be what protections have. May be some statutory protections in some cases. Might also look to the common law.

I. What Employment do we Regulate by Law?

a. Employees? i. Full time vs. part time ii. Hourly wage vs. salary iii. Baseball players vs. CEOs vs. fast food workers b. Are there employees who do not need much, if any, legal protection? c. Are there types of protection that we do not need to be giving?

I. Employment Manuals/Handbooks

a. Employers should be careful about doing too many writings, because for every one you do the more risk changing what the law has given. Taking more chances on variation of employment at will. Employers are still producing more handbooks and manuals. Multi-national employers are doing that, meaning must be familiar with laws of different countries when you produce these standardized books.

I. Stakeholders

a. Employers/owners b. Employees/labor c. Government d. Society i. Consumers

I. How Important/Effective is Employment Law?

a. Employment Laws v. The Labor Market i. This is an important theme for the course and labor and employment law in the U.S. How much and how long can law regulate the employment market? Some say that labor force will overtake the laws. ii. Does raise the issue on what is your position on labor laws. iii. Many libertarians think that have freedom of choice and little to no regulation. Think that will be efficient actors and do not need to interfere with what are doing with the laws. Many would say that Epstein is ultimate libertarian and he says that keep laws out (don't need to regulate workplace) except for fraud and coercion. Do not need to regulation and if try work forces will overrule the regulations. Want to minimize regulation. Guess that Trump will not be interested in a lot of regulation in the workplace.

A. FLSA + state laws

a. FLSA does not preempt state and local laws that give EE's greater rights. b. Some states raise minimum wage, some offer equal/lower to federal MW but with broader coverage. c. Some states have NO minimum wage law at all (SEC states)

I. The NLRB & Joint Employers:

a. Faush v. Tuesday Morning Inc. 1. Essentially a temp worker that was supplied to TM from a temp agency said that he was racially discriminated against under title 7 of civil rights act. Sues TM. TM says he isn't one of their employees because he is furnished to them by a temp agency. Court must distinguish b/w Darden test and Enterprise test i. Darden is essentially the right to control test ii. Enterprise applies under the FLSA b. Fate of the DOL joint employer rule is uncertain 1. Fed district court in NY vacated most of the rule on Sept. 8, 2020. 2. DOJ filed notice of appeal w/ 2d cir. on Nov. 6, 2020 to try to overturn DC opinion

I. When we Enact Employment Laws in the U.S.

a. Federal b. State c. Local

I. Public Employees

a. First amendment and state i. Free speech ii. Freedom of association iii. Petition b. Fourth Amendment and state privacy rights c. Statutory protections—civil service

themes of employment law cradle to grave

a. Have child labor laws and regulate what can do at various ages, prohibit age discrimination, etc. There are a lot of employment laws. The rest of the world would say that do not protect employees very much. On ranking of job protection around the world, we are way down the list. So don't protect workers even though have a lot of laws.

I. Skagerberg v. Blandin Paper Co. (1936)

a. He was skilled engineer and was offered teaching position with Purdue (and options for outside work). He turned that down to work for defendant and they fired him (after a few years). What was his job termed as? Termed it as permanent job. b. Case gets dismissed on demurrer (motion to dismiss/exception of no cause of action). c. What is court's analysis? Will start with presumption of employment at will and then look to see if you can prove your way out of it. Looking for what evidence plaintiff has for variation of employment at will. d. Court looked to what permanent employment means? You are employee at will (as long as employer wants you). e. Luckily Minnesota recognizes an exception to employment at will. What is that? i. Consideration. There is doctrine that says can buy employment terms. Can give something for the additional term that claim to have. ii. Claimed not to be employee at will and have some protection from termination, what did you give to get that? Having to buy the person's house, giving up Purdue job, moving, and saving commission would otherwise have to pay, etc. iii. Court really rejects most of these saying didn't really give anything up (gained some stuff actually). You didn't buy the house for the ∆ benefit but for your own. You needed somewhere to live, so it really only benefits you. You also didn't give up anything by giving up the Purdue offer because you had to pick anyway. f. If will say that are terminated for bad reason, how much will we give them? Seeking 3.5 years. g. If can get to a jury, then jury can unload on business because don't like to see people fired. So what about sympathy factor? h. Notes after case i. Used to get us into employment at will interpretation, but it is really a contract case. Courts often say that have no contract so are employee at will. Employee at will is about terms of contract, what has been agreed to and not agreed to. ii. Notes begin going into contract doctrine. Could have put case into chapter 4, but put in 3 to give introduction. iii. Consideration. One thing will see often in employment cases is plaintiff will say not employee at will (got definite term, would not be fired except for good cause, etc.). The question often arises as a matter of contract doctrine, if you were give that, what did you give for it? What consideration matches up with additional benefit you are claiming? It is the matching of consideration. The fallacy is that one consideration must match up with one consideration. Idea that have to have consideration going both ways, and that is not what traditional contract doctrine sys. Can promise something and give something, but in exchange could give ten things. Do not need match up on each thing given. When court says that took job and are being paid and now want to say are permanent employee, it is not sound contract doctrine to ask what you gave employer in return. iv. Another issue mutuality of obligations. Courts will often say cannot have contract that is other than employee at will. Trying to bind employer to permanent employment, but employee is not bound to permanent employment. Why are employees not equally bound? Courts will often say can't bind them because you are not bound. Why is party claiming it not equally bound by it? v. State employment at will mutually because either party can terminate, but usually we are thinking of the employer. What are some bad faith terminations? The Florida/Arkansas case is one (wearing different team hat to press conference), what about going to work wearing different team jersey when live in city of different team, etc. Gets into defining good cause if change employment at will.

I. History of Employment at Will in the US

a. Horace Gay Wood pg. 71 (1877) b. Maine and Mississippi were the first states to adopt employment at will c. In the 1970s and 1980s were a time when EAW appeared to be under assault i. State courts got very active at making exceptions to EAW ii. Montana Act of 1987 passed and Model Employment Termination Act of 1991 d. A lot of people believed that EAW would die out because there were so many exceptions; this clearly wasn't correct e. A lot of the cases we read in ch. 4-5 would be decided differently today

I. International and Other Nations

a. ILO website has Convention 158, which is what the ILO says must do to fire. This is essentially good cause and certain prerequisite procedures. What would good cause mean? Job performance or conduct and procedures/rules. Must be job related. Can't be impossible to do if everyone else in the world does it. b. France and UK require good cause and prerequisite procedures also. c. Employment at will be the antithesis of this.

I. Reliance and Implied-in-Fact Contracts

a. Promissory Estoppel i. Elements: 1. Promise which promisor should reasonable expect to induce action or forbearance of definite character on part of proimsee, 2. Promise induced action or such forbearance, 3. Injustice can be avoided only by enforcing promise, 4. Detriment to promisee.

1. LA Law on Stipulated Damages in K

a. If both parties agree to employment contract for definite term and either party acts (fired or leaves), it should be a breach. So what happens if employee breaches? Will employer sue for breach of employment contract if employee leaves? No. Problem could be that do not know the extent of damages. Could be search and replacement costs, but that goes to issue of whether this is worth enough money to sue. b. So what type of remedy could an employer anticipate getting? Will have to prove costs (may be significant or less), which could be a problem. c. What about putting in liquidated or stipulated damages provision in the contract? Court will consider these clauses, but the question is the enforceability of it. Some employers get at issue another way. This is by putting in non-compete clauses. Trying to disable the employee from going to another job in advance. It can disable the employee because employer might not sue under simple breach of contract, but agreement not to compete, which the employee violated. d. One scholar argued that must beef up remedies and think about legal damages in more creative way and be more lenient in enforcing stipulated damages in contracts. Courts won't do this but would be doing employees favors if they did it. i. Louisiana covers this under CC 2007 where oblige can demand stipulated damages or specific performance (but can't demand both unless for mere delay). ii. Courts in Louisiana will enforce stipulated damages if are considered a reasonable estimation of the damages incurred. If find too excessive or punitive, will not enforce them.

1. Intentional Interference with Business or Contractual Relations

a. If deprived of job opportunity that would otherwise would have had, might can sue under this. Not really as prevalent in Louisiana b. Violation of state law regarding credit histories and checks.

I. Express Modification of Employment at Will, Oral and Written

a. If good/just cause is required, who bears burden to establish? b. Define i. Can be defined in K ii. If not, court must define iii. Consider examples: 1. Decisions of ADR 2. META 3. Montana Wrongful Discharge Act iv. Usually includes: personal reasons (work performance/conduct); economic reasons (meaning employer's financial and business situation and decisions) c. Apply to facts i. Consider Conway v. Cleopatra Ross and Cole v. Valley Ice Garden (see SW outline)

I. Immutable Rules v. Default Rules

a. Immutable rules - those that cannot be changed. Get what the statute/federal government/state government tells you. This is what most federal and state minimum rights employment laws are. i. How good is it to have this type of law, that you cannot waive the right? There are arguments that these rules are presumptively wrong because what if want to waive it/want to trade it for something the worker needs more. Probably a good reason why make them all immutable. What would employer do if all rights are waivable under federal law? The employer would give employees a sheet listing all rights and asking them to waive all of them. If employee wanted some rights in return for waiver, employer would probably tell them to go down the road and see if they can find someone willing to negotiate with them. b. Default rules - those that can provide bargaining leverage. i. Employment at will, but . . .can be bargained around to have a termed contract but they aren't really used in the US ii. Non-competes are very common 1. There is a presumption against non-competes, that restraints on labor are presumed to be against public policy. Then list exceptions. iii. Mandatory arbitration agreements usually included in terms and conditions type things

Employee Privacy (Independence) I. Introduction

a. In no situation are employee rights more separated between public and private employees than privacy. b. Our concept of privacy is a lot different than ours, particularly what the basis of privacy is. In France and rest of Europe, think of it more as dignity based. In US, find it more based in liberty. In France, there is concept of secrecy and privacy in correspondence. Labor court will cringe at employers getting into their texts and emails. Find there is personal dignity in your personal correspondence.

a. What if someone required you to sign an overly broad non-compete and you wouldn't sign it—so they fired you. . . could you fit this under 23:967 as "objecting to"

a. In some ways they have created a very broad statute by creating 23:967

A. Establishing coverage under the FLSA [2 ways]

a. Individual coverage i. §206(a) and §207(a) - establish that individual EE is engaged in commerce OR the production of goods for interstate commerce b. Enterprise coverage i. §206(a), §207(a), and §203(s)(1) - if enterprise is covered, all EE's who aren't exempted are covered. Enterprise covered when: 1. Engaged in goods or production of goods for IS commerce 2. Annual gross volume of business done or sales at least $500k/year

I. Predominant Approach in U.S.

a. Individual minimum rights laws b. Non-waivable/inalienable/immutable i. Limitations of this approach? 1. Legislators' willingness to enact them 2. Inflexibility—helpfulness to how many employees c. Collective bargaining/NLRA/RLA is different approach d. What about waivable rights/ i. Non-competes (state law) ii. Age discrimination (ADEA) Older workers Benefit Protection Act of 1990 (post-dispute)

covers questions to ask

a. Is somebody an employee? Is somebody an employer?

I. Remember Prof. Finkin's Employment Issues for End of Century

a. Labor segmentation & Polarization b. Business Fissurization - employment has been pressed down the chain to smaller business units c. Demise of unions - unions engage in collective bargaining and represent the employees; if there's no union, then no one is representing the employees and the only protections they have are what is given by the state and fed gov't. In the absence of significant union representation it comes down to individual employment rights laws. In countries with unions, the gov't doesn't step in as much because it's being held and regulated individually which is more specifically tailored to the employee. 1. 1950 = 35% 2. 1985 = 20% 3. 2019 = 10.3% public & 6.2% private

I. Issues in 2020:

a. Labor segmentation and polarization b. Business fissurization - big employers are pushing employment down to lower levels and don't want big, long term payroll employees c. Demise of unions - if unions aren't negotiating employee protection then the govt has to provide what employees need or what they're willing to give. Unions are gap fillers. d. Privatization of labor law - arbitration agreements making the body of law more privatized.

A. Compensatory time for Public ER's - §207(o)

a. Pub ER's can grant their EE's compensatory time off in lieu of overtime b/c public ER's provide necessary services but are broke. b. EEs and ERs enter agrmt - for every hour over 40 worked, EE must be given 1.5 hours off in the same pay period. i. EE who gets paid every 2 weeks works 50 hours in Week 1. In Week 2, he can take 15 hours off instead of being paid overtime.

I. Statutes

a. Louisiana Employment Discrimination Law i. Covers everything federal law has including race, color, sex, national origin, age, disability, and pregnancy (plus differently sickle cell trait) b. Louisiana Wage Payment Act c. Workers' Compensation Anti-Retaliation i. Can sue in state district court under this law, which is different because all other types of workers' compensation go through agency procedure. d. Unemployment Compensation Anti-Retaliation i. Does not create a private right of action. Provides for criminal penalties, but no right to sue. e. Right to Work Statute i. Will see some stories about a federal right to work law. Currently, this is matter of state law. Louisiana is a right to work state. Roughly half the nation's states are right to work states. ii. This is all about unions. The NLRA says in 8(a)(3) that employer and union can enter into CBA that requires the employees to become members of union within 30 days of beginning employment. Really this is interpreted that do not care if become member of union or not, just that pay union dues (fair share). Logic is that union represents the bargaining unit whether they are members or not because get whatever the bargaining unit gets. Can require the person who is benefitting from CBA to pay a share that goes to CBA. Can opt out of any fees that do not go to CBA. Section 14(b) of NLRA says that states can enact laws that prohibit those types of provisions. iii. States that have right to work laws say that union has to represent all members of bargaining unit and cannot charge non-union members for representation services. f. Workers' Compensation

I. Employees and Coverage

a. Many statutes define "employee" for purposes of coverage. Many also define "employer." b. Among workers, there are employees, volunteers, independent contractors, and other classifications. i. If independent contractor not covered for much of anything in terms of employment laws. c. Our laws are not written to deal with much of the contemporary workforce—i.e. contingent or atypical labor. i. Many employers are trying to shed permanent full-time workforce. Trying to get a core of employees who are full time that is very small and then bring in temporary arrangements on the perimeter. Sometimes called the "gig economy." Laws are not written for that workforce. Written for regular, full-time employees as it was 20-25 years ago. Not everyone is like this, EU has done a lot to recognize this. d. What about telework? This is a big issue in employment law. i. Yahoo CEO made decision that will eliminate telework for Yahoo. She was criticized heavily for a lot of that. What are implications of telework for employment law. How do you regulate safety issues? OSHA took position in letter opinion that could regulate the home when it was the workplace for safety violations. Congress blew a gasket at OSHA saying would regulate the home.

XXV. Historical Perspective

a. Master-servant? i. Seems outdated, but this is because employment law is not that old. b. "It is only in recent times, following profound changes in society and widespread industrialization, that the status of employee has become an enviable one." c. Historically speaking this is not that old of a body of law.

Ch. 14 - FLSA A. NLRA 3 basic rights:

a. Minimum wage (7.25/hr) b. Overtime (1.5x the regular rate of pay for hours worked over 40) c. Prohibition on child labor

I. Consider the Following and Their Relationship w/ EAW

a. Montana Wrongful Discharge from Employment Act i. Only state to have passed this type of statute ii. History: employers were losing all the cases where they fired ppl; π were usually winning; especially w/ K theories + tort theories; businesses then went to legislature and asked to pass wrongful discharge statute 1. NOTE: it takes certain conditions and circumstances for this type of thing to happen iii. Substantive Provisions: 1. What did employers get and give up? Employees? a. Agreed to only fire for good and just cause; exclusive so you can't sue in tort or K if you sue under the statute; remedies are limited; encourages to resolve cases in ADR rather than litigation iv. What has been the effect in Montana? 1. Businesses haven't been run off since this statute's enactment 2. Individual termination laws aren't that big of a deal; mass termination on the other hand could make or break businesses b. Model Employment Termination Act i. Not a law; Uniform Law Commission puts out the UCC and develop proposed state laws; model and uniform laws ii. Completed in 1991; developed after Montana regulation and used it as a model to figure out how to structure the META iii. Develop laws that say to the states this is an important area of law; here's a law you could adopt, and you can modify if needed, but this is what we recommend; they are nonpartisan iv. Uniform Acts: Uniformity throughout the nation is important in this area of law that's why they put this forward v. Model Acts: act as a model but it can be varied significantly if needed by the states c. Restatement 3d of Employment Law i. Overview of all employment law throughout the nation ii. Not very influential because it's new iii. See pg. 80, note 5 for blurb from § 2.01 of the restatement 1. Employment at will bars fired employee from recovery unless there's a statute that prohibits that (anti-discrimination act)

A. FLSA v. NLRA [close in time]

a. NLRA (often referred to as the Wagner Act, after drafter, NY senator) enacted in 1935 i. Protects right to engage in collective bargaining + union representation b. FLSA enacted in 1938 i. Individual minimum rights law, different type than NLRA: 1. NLRA protected right of EE's to unionize, but didn't provide any affirmative rights: a. WE DK what you'll be paid, if you'll be EAW, etc. DK anything until EE chooses a union and they get a CBA. What EE gets depends on the Union and the CBA. (power game b/w ER and Union) 2. FLSA is individual min rights law, it TELLS you exactly what you get. a. Since 1938, all we do is pass IMR laws. 3. FLSA harder type of law to pass: it restricts ER's in a particular way, broad based. a. NLRA has flexibility built in to it for ER's. ii. FLSA makes unions less necessary but they still support it and try to bargain up for their EE's

dual roles of government

a. Public employer and employee have two relationships: i. Employer and employee ii. Government and citizen

I. How are disputes resolved and in what forum?

a. Public resolution i. Agencies 1. EEOC has exclusive for federal employment discrimination 2. Labor Department has some jurisdiction ii. General jurisdiction courts iii. Specialized tribunals or courts 1. Don't really do this for labor and employment law. b. Private Resolution i. Mediation ii. Arbitration

1. Courts do not distinguish among theories of recovery, but important to do so. What is breach in each claim?

a. Negligent hiring? i. Hiring when know something bad. ii. This is biggest one. Asking whether employer did enough checking (did they hire violent employee). Employers are thinking don't want to be liable for hiring dangerous (defined however want) person because could injure customers, employees, etc. so better do due diligence. How much checking will you do and information will you get. If get some information, but not of it, how much trouble will that cause? Could be that undertaken duty but underperformed it. How often will employers be found vicariously liable and negligent hiring for employees harming third parties. What would it look like? Cause in fact, duty, breach, scope, and damages (negligent hiring). Alleged breach would be not doing enough checking and find out things should have. b. Negligent retention? i. Keeping after know something after already employed. c. Negligent training? d. Negligent supervising? i. Would be vastly different in terms of breach than negligent hiring claim. So what we are really worried about is negligent hiring. Louisiana tends to run all these together. e. Negligent entrustment?

I. Torts in Louisiana

a. No wrongful discharge in violation of public policy, so only left with IIED. There have been no plaintiffs to win this based on termination in the state.

1. United States v. Nosal

a. Nosal asked people who worked for headhunter to get stuff for him. They were authorized to access database, but were disclosing to someone who was not authorized. This is violation of act. US government charged him with 20 criminal counts, including violations of Computer Fraud and Abuse Act. This was considered a very big case because the core issue is that if find violation here, any employee who exceed authorized use could be criminally charged. So said not violation, it is inappropriate interpretation of the act. It is about anti-hacking and not about generic unauthorized use. 2. United States v. John a. Employee was committing fraud by accessing client information at bank. Fifth Circuit heard argument that 9th circuit did (above) and said it was violation. 3. Rajaee v. Design Tech Homes a. Employee had own iPhone that used for work. When he quit (or was fired) his employer remotely wiped his phone. He sued under this act and it fit under the statute, but he lost only because he couldn't prove at least $5,000 in damages (from costs to investigate and respond to damage or loss of service (can use both)).

I. How Common is Big Labor and Employment Reform in the US?

a. Not very b. Unlike some other nations, the changes in the political party in power generally does not result in radical changes in labor and employment law. c. The last "major" employment law we passed (not really employment discrimination) was the FMLA in 1993. What would it take for drastic reform to take place in employment law? d. This is different from other places. Every time there is political changes in other places, there is employment law reform (such as UK and France).

1. Griffin v. K-Mart

a. Plaintiff sues for negligent hiring and vicarious liability because employee shot woman in chest with pellet gun because he didn't want to do price check. Employer didn't win on any theory. b. If plaintiff attorney and don't include both negligent _____ (hiring or whatever else) and vicarious liability then probably committing malpractice. Would like to win on vicarious liability because employer then responsible, but good to have back up theory. c. Mother and daughter were shopping on K-Mart and went up to employee who was assistant manager of sporting goods and asked for price check. Got pellet gun and pumped it up and put it against chest of daughter and then mother (no pellets but pumped up CO2). Not sure why did it. This would be negligent hiring claim and negligent training claim (if have access to guns should train in use before turn them loose). Did this and vicarious liability. d. For vicarious liability have course (time and place) and scope (primarily employment rooted (purpose of serving business actuated to an appreciable extent), reasonably incidental to employment duties (risk is foreseeable and attributable to business of employer)). So asking if told about job and then what happened would you say that reasonably goes along with job. Quite often employer will be saying that do not authorize them to do that. Most cases will not but will it go along with it. Lebrane v. Lewis is case that went to La. Supreme Court where supervisor of restaurant in New Orleans fired man and then tried to walk him out. Get on elevator and supervisor stabs him with knife. Employer will argue that do not pay supervisor to stab people. What will make them vicariously liable? He is supervisor and is exercising discipline (obviously not stabbing). e. So will employer be vicariously liable? He is assistant manager for sporting goods and had keys to cabinet so went along with job (even though not supposed to shoot people). So course is satisfied and scope slightly satisfied so vicariously liable. f. K-Mart said that before hire them always call previous employers to get previous experience and put in file that called, but not in his file. Worked for Wal-Mart before and was fired in December (would have had to basically kill someone to get fired in December). Said would get them on training anyway.

1. Melzer v. Board of Educ. of City of New York

a. Plaintiff was teacher at school of science and was self-described as pedophile. He became a member of NAMBLA (North American Man Boy Love Association). Avowed purpose is to change society's view on pedophilia. He became very active in the organization and became editor of their newsletter. He told superintendent that he would neither admit nor deny to allegations. Doesn't cause any problems and then local television station did expose on teachers in school system who were members of NAMBLA. Essentially captured him saying don't let anyone know that he was member until got tenure. School officials asked them not to air the story, but station refused. Can guess what happens after story aired. The end result is that he is suspended and eventually fired. b. He sues under section 1983 and invokes his First Amendment right. Court said it is hybrid of speech and speech oppression. Second Circuit held that test should apply. Thought that was what Court meant in test. c. Is this matter of public concern? Seems like the organization sees it as matter of public concern. Court said it was hard question and didn't have to decide it. Going to balancing test (assuming that it is public concern). Court wins at balancing test. Have actual and probable future of disruption, threats to boycott, etc. Court says that does cause an issue. Content of speech did cause a disruption. Why would teacher in classroom gravitate in favor of school? It is the contact with the students that pushes in favor of the school in the balancing test. b. 1983 i. If you are claiming deprivation of any rights, securities, or privileges/immunities granted under constitution have right to private action here. Will use this as the vehicle to sue. Doesn't create rights, just says if have rights and are violated by state action.

I. Periods of Enactment of Federal Statutes

a. Pre-1960 i. NLRA (1935) ii. FLSA (1938) b. 1960s-1993 i. EPA of 1963 ii. Title VII (1964) c. 1993 i. FMLA d. These are very different periods in which we regulate. NLRA doesn't tell what you get as employee. It tells what rights are and then get whatever you and your representative negotiate for. e. Others are minimum rights laws telling what employees get.

I. Approaches to the Workplace

a. Private ordering—leave it to the parties—freedom of contract b. Legal intervention i. Government gives power to organized labor, unions, and collective bargaining ii. Government establishes individual minimum rights

Contract Erosions of Employment at Will Beginning of the Employment Relationship

a. Says that are very informal. Don't really figure out a lot. We would usually ask for compensation and billable hours. There are other things that may be important to job, such as type of work performing, who working for, how work assigned, etc. Generally, we do not ask a lot of questions. There are not a lot of laws that require you to agree on certain things. Do not have laws that require a specified agreement on certain terms. Probably know something about compensation, benefits, place of work, hours, etc. Very little of the information is reduced to writing. Not reducing much to writing and not having discussions about a lot of important terms. Trying to understand some of the unique problems that arise in employment contracts. Seems strange given how important the relationship is. b. Employment contracts do not stay the same. Terms and conditions of employment change over time. This is where idea of relationship contract doctrine comes into play. II. Consider the Following and Their Relationship w/ EAW

1. Roberts v. Benoit

a. Sheriff's department had cook that really liked and wanted to keep him so came up with idea to deputize him and could pay him a supplement. Man decided he was a real deputy and so gets guns and goes to friends house who is working on his car and starts showing off guns and accidentally shoots the guy. Court really hangs up on causation. Said never should have hired as deputy. Said recognize negligent hiring, supervising, retaining, and training (running altogether). Good causation case because found that deputizing him did cause harm.

The act doesn't apply if employer or prospective employer does its own background check.

a. So only implicated if employer gets third party agency to produce a consumer report. What percentage of employers do you think do own background check? Very small percent (most likely less than 10%). Might not have personnel to do it and might not be well-trained enough to do it. Might avoid liability by using third party agency that is specialist at it.

I. Historical Statutes

a. Statute of Labourers i. Tells anyone not working who is offered a job must accept it (Lord gets first draw at worker). If do not want to go to work will go to jail. This is significant incursion on the labor market. Black Death wiped out about 1/3 of population. Those who lived started telling employers who needed laborers that they wanted higher wages (wage gauging). The government came in and said people will work for going rate and if don't want to work for the reasonable wages offered, will be jailed. Whether government should intervene is a very interesting issue. ii. What if flipped situation and there was one in which there was a surplus of labor? That might be like 2007 forward in the US. The recession was fairly significant. Employers were not hiring people and were actually laying people off. The advantage was to employers. Did the government step in during that time period? Some states tried to come up with job sharing programs trying to get people in jobs. Have flipped from 2007 to 2014 from where employers held advantage to now where employers are worried about retaining their best employees and thinking about best way to do it. b. Statute of Artificers (more symmetrical) i. This has more to say that go to work for what wages are offered or you will go to jail. It has more symmetry. When look at sections 3 and 5, it basically says those that employ people must keep them for a year unless... 1. Why a year? Worried about seasonal issues (agricultural). Concerned that employer would hire for only when he needed them (harvesting/planting) and let them go when there is no work to do. See that employers would probably engage in opportunism. 2. The other side is that the employee must stay with employer for a year. Either side could have good cause to terminate the arrangement though. The notes tell us that the statue had the same impetus as the Statute of Labourers. This epidemic was not as bad as Black Death (only about 5% of population). 3. More symmetrical here because impetus was far less dramatic. If get to penalties section, the penalty on employer is fairly modest (40 shillings), but on employee fairly harsh (jail and possibly forfeiting all wages that had earned up to that point). c. Have a lot of employment laws. Parliament saw this issue as being in diverse places, different rights/remedies, etc. and though it would be good to simplify it so that people could understand it. d. Most people do not know that are employees at will. Gets into the issue of complexity of the law. e. Issue of proliferation of law (sprawl) is fairly recent issue in US. In 1960, US had only two federal laws generally applicable to employees. We have a lot of laws now and that is all since 1960.

I. How big is employment law?

a. Termination b. Workplace privacy c. Health care d. Pensions and retirement e. Wages f. Leave g. Noncompetition/employer protection

employment law themes I. History of Unemployment

a. The United States has experienced 11 recessions since the end of the postwar period in 1948. The federal government has tried various methods over the years to turn around recessions and push back unemployment, including stimulus spending and tax cuts. b. Predicted in 2001 that would have hard time getting through recession with labor laws and we did. c. Consider Work Sharing i. Many places in world use work sharing. This would be spreading out jobs so that everyone still has a job, but it working less. This is hard to implement if there are no unions. d. Median Tenure in Jobs (BLS) i. It is not that long how long people stay in jobs. Job tenure is a lot shorter than it used to be.

I. Montana Wrongful Discharge from Employment Act

a. The law provides the exclusive remedy for suing for a wrongful discharge. b. If look at definition of good cause (reasonable job related grounds for dismissal due to failure to satisfactorily perform job duties, disruption of employer's operation, or other legitimate business reason. Thing to notice about good cause is that it wasn't that hard. c. This is exclusive of other avenues of recovery. It is also capped. The most able to get is four years. d. It also strongly encourages arbitration, creating incentives to use arbitration to resolve the claims. e. Do employers get anything out of this act? Limiting remedies to act, capped damages, and encouraging arbitration. People often wonder how this got done in Montana? Have to believe that plaintiffs' attorneys had a lot of power. That's pretty unbelievable. Business and their insurers went to legislature and asked for law to be passed. Why? This was during that period of time where courts were being very creative in getting around employment at will. Courts had come up with breach of covenant of good faith and fair dealing, so businesses were losing case after case with big damages. Said would be better off if could come up with legislation that would encourage arbitration, cap damages, and would be exclusive remedy. f. What is effect in Montana? Not many plaintiffs cleaning up on these types of claims. Do not recover that much money. A lot are decided in arbitration because the law creates that incentive. You don't see business packing up and moving out of Montana because of the law. If tried to get is passed here would get argument that all the businesses are going to pack up and leave because will not tolerate the changing of employment at will.

Employment at Will I. Employment at will is state law. There is not federal law regulating employment at will. II. US Different

a. The only two countries that can make an argument that are close to employment at will are Israel and Canada. In both of them it is not exactly fair to call employment at will, because can fire someone with notice. There is no precise number because it depends on how long they worked there. Essentially it a severance pay system, which is not what US does. Can fire someone for any reason and not required to explain that reason. So really no one in world like us. b. In the US, 49 out of 50 states have this as the default rule. Montana is the exception. c. In most states, don't bother to pass a statute, it will be in the case law. What about Louisiana? The Louisiana Supreme Court found it in the Civil Code (somehow) so it is code based. d. Who is not an employee at will? Most people in nation are employee at will. People who have contracts—either individually or collectively—are not employees at will. Certain public employees will not be employees at will, such as teachers. Most public and many private school teachers have academic year contracts (9-12 months). It is more that they want to prevent the teachers from leaving in the middle of the year (advantage of employer). Federal and state civil service employees (civil service provisions), tenured professors, sports coaches, etc.

I. Wrongful Discharge in Violation of Public Policy

a. This is tort made up for employment law. When look at this, it is something that would not cover in torts class. This is absolute mess. b. Meaning i. In layman's sense probably mean that were fired and wasn't fair. In legal sense, can have two meanings. Can mean were fired and violates the law in some way (like employment discrimination or whistleblower) or that were fired and it violates a public policy. c. History i. It is really a very recent tort and is not one that brought over from English common law. It is all American made law. England was not employment at will anyway so don't need the tort. How did this come about? Petermann v. Int'l Bhd of Teamsters. Plaintiff was employed by union and agent and he was subpoenaed and an officer where he worked told him to perjurer himself. He was fired because failed to perjurer himself. Court said are of opinion that showed sufficient facts that discharge was improper and was entitled to civil relief as consequence. Court didn't think they were creating new tort, just that it was bad termination and should get some damages for it. Probably the genesis of the tort. ii. Professor Blades wrote article on this tort also and a lot of people trace tort back to this too. What he was proposing as actually very different from wrongful discharge in violation of public policy. He is essentially saying that for government imposed constitutional restrictions on what government can do because concerned with vast power of government so protect individuals by imposing constitutional protections. Said that corporations have as much power as government and yet are not checking their power. Because can't do with constitution, should do with tort law. Called it abusive discharge. Said to compare abusive discharges to tort (abuse of legal process) and do recognize that tort when there is bad motive so why not do the same thing for employment/termination. Tort we have today was not at all what he was proposing. His would have been generally abusive discharge any time there is bad motive. Courts started recognizing. How many states recognize.Probably just four don't. Montana is one, but have statute on that. Louisiana, New York (their court of appeals says it is for legislature), and Georgia are the other three. The question is what version do the ones that recognize it actually recognize.

I. Invasion Cases (Chapter 9)

a. Types of invasions in employment i. Intrusions, searches, etc. into physical spaces ii. Surveillance iii. Electronic monitoring iv. Obtaining information and questioning v. Background checks vi. Dissemination of personal, confidential information b. Public Sector i. Constitutional Restrictions 1. Fourth Amendment (Search and Seizure) 2. Louisiana Constitution (Right of Privacy/Search and Seizure)

I. Model Employment Termination Act

a. ULC promulgates model laws for states to enact. The most well-known are the UCC articles. The Model Employment Termination Act was not their most successful, however. Requires that dismissals be made for good cause. No state has enacted this nor introduced in any state. It has been around since 1991. Took 1987 Montana act and looked how they could improve upon it and put it out there for all states to enact. Would think that having Montana act as guide they might could be better than that. Just goes to show the strength of employment at will. b. Good cause here means a reasonable basis related to an individual employee for termination of the employee's employment in view of relevant factors and circumstances, which may include the employee's duties, responsibilities, conduct on the job or otherwise, job performance, and employment record, or the exercise of business judgment in good faith by the employer, including setting its economic or institutional goals and determining methods to achieve those goals, organizing or reorganizing operations, discontinuing, consolidating, or divesting operations or positions or parts of operations or positions, determining the size of its work force and the nature of the positions filled by its work force, and determining and changing standards of performance for positions. i. This is common among most employment laws for what good cause mean (see ILO for example). c. Why has no state in the nation enacted this? No perfect storm where business says we need this law and Corbett doesn't think we will see it again. d. Employment at will is not stated as federal law. It is often stated in state court decisions or enacted into state law. For example, Louisiana Supreme Court found civil code articles (skeptical about this). The model act is a proposal to change it state by state. That is what was done with the UCC.

I. What is Good Cause?

a. US doesn't have a set definition. In other countries, good cause is either job performance or needs of the business like if there's no need for you in the business. b. See Renee Gork case about the reporter who was fired for wearing a Florida hat to an Arkansas press conference and was fired bc Arkansas head coach refused to answer the question because she was wearing the Florida hat. This is probably significantly related to the job. Maybe the coach shouldn't have been a dick, but if she can't get the necessary questions answered, she can't adequately perform her job.

1. Conditional or Qualified Privilege

a. Want to encourage giving of references and free flow of information. Employers are simply not answering a question for reference requests. Might have policy that don't provide any information. Alternatives is that will confirm dates of work and position held (some might give whether are eligible for rehire or not). b. Louisiana Law (created by Hines v. ARKLA and Watson v. Willis-Knighton Med. Ctr.) i. Communicated by one with an interest or duty to a recipient with a corresponding interest or duty 1. Will often say that have interest in communicating with one another, then move to second question ii. Statement made in good faith 1. Meaning have reasonable grounds for believing that statement is correct c. Fairly easy test to meet and then do not even get to defamation factors. So why did legislature pass 23:291? i. If were defending sued on defamation use case law and statute (use both in alternative). Will see no need for statute based on qualification or conditional privilege based on all case law supporting it. It is not only one out their either (about 20 states) and may not even be the worst (but it is bad). Will create immunity for past employer and prospective employer. So to get information flowing must immunize both of them. (Immunity for past employer) Any employer that provides (must be on request) accurate information will not be liable (provided not acting in bad faith). Didn't need to know that because one element of defamation is that it be false. No bad faith requirement really replicates the malice element of defamation. So really just saying that if don't meet elements of defamation will not be liable for defamation (seems pretty obvious). (Immunity for prospective employer) If reasonably rely on information to employee's job performance (or for separation) will be immune from liability. Helps with negligent hiring if rely on information got and other cause of action related to hiring (doesn't help with vicarious liability though). Liable if further investigation is required (like criminal background check). Might help with negligent hiring, but doesn't really do anything about vicarious liability. ii. (Paragraph D of statute) If do a background check on prospective employee will be immune from civil liability for disclosure of information including failure to hire, wrongful termination (we don't' really have), and invasion of privacy, and third party claims (like negligent hiring or negligent retention). If will do background check must get written consent and will get some immunity for that. How does this relate to FCRA? Can't really on state statute because didn't do what required by federal provision and what received was covered by the FCRA. If using third party agency would follow FCRA and would do the written consent to do backgrounds if the employer will do it. Remember for FCRA are always using third party agency. In La., looks like employer is doing own research, so would want to get consent via statute requirements. iii. Employer not subject to cause of action for negligent hiring or failure to supervise due to damages/injury caused by employee solely because employee has been previously convicted of criminal offense. However, later go to gut immunity because doesn't mean not liable for vicarious liability if act committed in scope of employment relates to prior crime. iv. Bottom line in law is that immunities do not seem to help that much. Only one that seems to do something new and useful is one about consent to background search. ii. Can giving a reference be a breach of contract. Would agreeing to give a background reference or not to say anything bad, can that be a contract. Could you argue that this is against public policy? Statute seems to say want flow of relevant and honest information. Therefore, seems to be against public policy. Even so, some parties agree to things like this.

Employment Law in the News themes of employment law

a. We have an obsession with unemployment. As you lead up to every presidential election, if unemployment is rising, incumbent is likely to lose (if all else is equal). If unemployment is falling, then likely to win. There will not be a point where everyone of age is working. Call full employment somewhere around 4-5%. Underemployment means that have jobs, but are not working enough hours to make ends meet, so not finding enough time and money to make ends meet. Got out of Great Recession with unemployment rising at alarming rates. Cannot stand for unemployment to hover around 10%. This happened during the Great Recession. Anytime think about passing a law that . . . does x, will say that it will cost jobs. Happens every time that discuss raising the minimum wage. Obsession with unemployment is always there. During this period, were frantic about unemployment. For many countries in Europe can live with this any day of the week. Now down to 4.7% unemployment.

COVID-19

a. What changes will be made in practice and law? b. EXAM: Are mandatory vaccines and health screenings legal? In the US, as a product of fed/state constitution, in the way they apply and restrict govt, there's a divide between protecting public and private sector employees. Whether the employee is in the private or public sector makes a difference. c. Remote Work? It'll seemingly become a lot more popular in the years following COVID. Most business leaders are in favor of remote work for various reasons. d. Loss of jobs? Some jobs probably won't come back once things are back to normal. Especially places that depend on foot traffic in certain areas - coffee shops, restaurants, etc. in downtown might suffer because there's less people going downtown. i. Unemployment? Should the gov't get more involved in regulations instead of leaving it to the market? ii. Will you always be at work or on call now? We see now that with technology and working from home, it's a lot easier to always be available for work - email on your phone, working while on vacay, etc. What happens with safety regulations? Is the home now considered the workplace? What about vicarious liability w/ course and scope of employment? iii. Post-pandemic recession? iv. Business travel industry is suffering too because of Zoom there's no need to travel. v. Monitoring of technology? Working from home means people will be going on different sites a lot more than they would at work because there's no threat of the boss seeing. vi. Pros & Cons of Remote Work: 1. Psychological effects? Social effects?

1. Coaches & Contracts:

a. What is good cause for firing a coach? b. Mike Leach & Texas Tech. c. Mike Price & Bama d. When head coaches are terminated, why are they paid huge sums? Are they not fired for cause? What do their K say?

I. EAW: What is it?

a. What is it? i. Call it doctrine, rule, etc. Often called a default rules (applies unless parties K otherwise). But it really functions like rebuttable presumption because EAW is presumed unless it can be established otherwise. Essentially, courts will say that if come in and sue for termination presume you are employee at will, but can you prove otherwise? b. History: c. Who is it good for? i. Courts say beneficial for both, but employees don't find the benefits of it. d. As a default rule applies if parties do not contract for a different term. i. Not much risk because parties are free to contract otherwise, but in reality 1. Applicant has inadequate knowledge 2. Applicant does not have sufficient bargaining power to negotiate variance a. Not the normal people negotiating for employment, very few people will have that type of power. 3. Strength of the presumption of employment at will, in many states approaching a substantive rule of law. a. Strongest employment at will states: Texas, Louisiana, and Alabama. By this mean will not overcome employment at will, it is too difficult. Louisiana is probably the strongest in the nation. ii. What does it mean? 1. Will have employment contract, but employment at will tells something about terms. Do not have definite duration to employment contract. Do not have good cause protection. Usually do not get any procedures and do not get notice. The first two are the most important. iii. Defenses: 1. Freedom of K 2. Risk diversification 3. Cheap to administer 4. Gatekeeper rule - gauged to level of judicial competence 5. Flexibility and adaptability for businesses

I. International Labor Organization/Comparative View

a. What is it? i. Organization of about 192 countries. Dates back to 1919 (only remnant of League of Nations). Formed to govern international labour standards. The US is a member and does contribute a fair amount of money. We are not the poster child for labour standards (ratified fewer of conventions than third world countries). Meet in Vienna. Can ratify conventions and if do must match law to convention (either does or must change match). b. What does it do? c. Relationship with the US? i. US is considered a high compliance country. When ratify something, we enforce it. That is distinction that we hold in international labour organization. This is something that not a lot of countries do. So low compliance countries are those that ratify a lot of conventions, but do not enforce them very well (not bringing law into alliance with what the convention requires). d. US are the only ones in the world who have employment at will (Canada kind of does, but not really). i. Also in division on labor law and employment law ii. Different protections/rights for public and private employees e. Convergence and divergence f. Parochialism g. Problems of transplantability i. Just because something works in one country does not mean it will work in other countries. Must think about historical, cultural, etc. differences in the country and factors to why it may work for one country and not so much for others.

If plan to rely on consumer report and take adverse action, must give pre-adverse action disclosure (oral, written, or electronic) and must include copy of report and summary of rights under FCRA

a. What is the act trying to do? Trying to cover the employer in case the report is wrong. So before take adverse action, want to be able to correct and explain it. After adverse action is done, must give adverse action notice (orally, in writing, or electronically). So three types of notice, that are going to have report done, pre-adverse action notice, and adverse action notice. This focuses what is going on. Telling applicant why are not getting hired. Could be suing the company that is doing the report and not the employer who had the report run. So it is that the notices are given that can prevent the employer from being sued.

I. Employment Law Issues:

a. Who is an employer and who is an employee? b. Increasing the minimum wage i. Minimum wage is about $7.25 right now. Working full time making minimum wage would still be way below the poverty level. c. Electronic Monitoring/Internet Use/Social Media d. Restrictions on Employers' Use of Credit Information e. FLSA Collective Actions and Class Actions Under State Laws f. Increased Legal Expenses Related to Employment/Increases in Litigation g. Workplace Violence h. Immigration and Labor Law i. New Pleading Standards j. Free Trade Agreements k. Working time i. Family Friendly Workplace l. Atypical Workers m. Changing Workplace-Workplace without Borders n. Employee Loyalty/Noncompetition o. Workplace harassment p. NLRA

I. People (Women) Being Fired for Questionable Reasons

a. Women went to press conference for Arkansas wearing Florida Gators hat. She raised her hand to ask a question and he said wouldn't answer question. By the time she got back to radio station she was fired. b. Woman sued Citibank claiming she was fired because she was too hot. c. Houston Chronicle was fired after it published a story that she was society reporter by day and exotic dancer at night. d. Charlie Sheen sued for his termination from Two and a Half Men.

stages of the employment relationship

a. the search process b. formation of the employment relationship c. during the employment relationship separation of the employment relationship

A. Outline of FLSA (pg. 167 in statutory supplement)

a. §203 - definitions b. §206 - minimum wage i. $7.25/hr c. §207 - overtime i. 1.5x regular rate of pay for every hour worked per week over 40 d. §212 - child labor restrictions e. §213(a) - WCE f. §216 - remedies i. Victims of FLSA violations can either: 1. Sue in state/fed ct 2. Contact wage/hour division of DOL ii. Basic remedy = what EE should've been paid plus an equal amount in liquidated damages 1. Basically double what EE should've been paid. Double à deterrence. iii. Defense to liquidated damages: §260 1. If D establishes GF and reasonable grounds for believing omission did not violate FLSA, court MAY reduce/eliminate liquidated damages. Burden is on the defendant. g. §218 - interaction w/state and local laws h. §255 - statute of limitations i. 2 years for regular violations; 3 years for willful violations. ii. Usually, violations are ongoing, so the way the 2/3 years works: it doesn't bar actions, it tells you how far you can reach back to recover. It's a matter of whether you can recover 2 or 3 years of liquidated damages. i. WILLFUL VIOLATIONS: i. ER either knew the conduct violated FLSA or showed reckless disregard for whether conduct violated FLSA. ii. 3 year SOL (rather than 2) iii. GF/reasonable grounds defense won't apply

A. The Tip Credit

a. §203(m) and 29 CFR 531.59 b. EE who customarily works for tips à ER can pay MW of $2.13/hr, rest made up by tips. i. Still have to get to $7.25/hr - but ER can pay you 2.13 as long as you end up w/7.25. 1. If it doesn't reach 7.25, ER owes some $$ ii. ER's can deduct out of tips for credit card tips what the card company charges them. c. Controversy today - pooling arrangements [going to change soon]

a. What sources of law will this cover?

i. Federal and state constitutions ii. Federal statutes, such as EPPA, Electronic Communications Privacy Act, Fair Credit Reporting Act, GINA, NLRA iii. State statutes—electronic monitoring, data protection, employment reference and background check statutes iv. State common law—invasion of privacy tort

a. DOL Fact Sheet 22

i. "Waiting time" - EE gets to work and ER says "you can't clock in yet, but I need you here to put on your gear." 1. That's work time. ER is requiring you to do something. 2. Example - Amazon warehouses: when workers were leaving, they had to be searched. They would get in line, sometimes wait 20 minutes after clock-out to be searched so they could leave. Case went up to SCOTUS and in terrible decision, ct said this wasn't working time, even though Amazon was requiring these ppl to wait and could just add screeners to make it go quicker. ii. Rest and meal periods 1. If you're eating, you're not working - but at some jobs, you eat in break room b/c "we may need you." [working time - you're not free, must respond if called] 2. Ditto w/sleeping time. iii. Usually standard - "are you able to use time for your own benefit?"

Vartech Systems Inc. v. Hayden (1st. Cir. 2006)

i. 2 EE's sign NC that includes 5 provisions, including: 1. Agreement not to compete a. Listed all 64 parishes in LA 2. Agreement not to solicit customers a. Did NOT list parishes/cities 3. Savings clause ii. Court resolution: 1. For the non-compete, Ct. said naming all 64 parishes did not automatically make it overbroad. Required the P to show that the ER did NOT do business in the parish P was concerned with. [party attacking must show no business there] 2. For the non-solicitation, Ct. said no - ER needed to LIST the parishes again for this provision. Since they didn't, it's unenforceable, so cut it out. 3. 921 does not require a definition of the business, but if one is included, it can't be overly broad. a. How smart is strategy of listing all 64 parishes? b. Seems abusive - requires P to come in and prove you DON'T do business there. 1st Circuit said it's OK.

2001 - Swat 24 v. Bond -

i. 2nd Circuit said "we read the statute, here's our understanding:" 1. What it means by "carrying on or engaging in business similar to ER" = you start or own your own business that's a direct competitor. a. Basically saying under the statute, ER can only prohibit EE's from starting or owning a business in direct competition. 2. LASC said OK, cool, we'll go with that. (changed in 2003 w/amendment)

a. Lawyers and non-competes

i. 4th Circuit said unenforceable based on Rule 5.6 of RPC: "A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or (b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy." ii. Can't restrict lawyer in this way

a. Waggenseller v. Scottsdale Memorial Hosp.

i. A bunch of nurses, assistants, and hospital employees go on rafting trip (8 days). One night decide to do performances and do one with song Moon River and moon audience at end. Plaintiff does not like that and when get back to hospital like to do it over again. Plaintiff refuses to participate and gets fired because not getting along with work mates. Stupid firings are not what the tort is about, it is about jeopardizing public policy. Supreme Court of Arizona said indecent exposure was her public policy. State statute criminalized this. Court said didn't know if would violate statute exactly, but though would conform enough and so there was public policy and she had claim for her firing. ii. Hard to believe that public policy is being jeopardized. Court worked hard to say get to recover. Once find public policy will be well on way to success in the case. iii. Arizona Legislature responded passing the Arizona Employment Protection Act. This did not protect employment, however. Legislature didn't like this case very much. Said that court got it right, but had some concerns. If say that public policy is in statute, only get remedy that statute provides. If doesn't provide remedy, then can borrow public policy and sue for the tort. Don't want to add onto statutory remedies. When court is considering wrongful discharge in violation of public policy, may look to statute and constitution to find public policy (don't make it up).

a. State Laws on Credit Checks

i. About six states that prohibit employers from using credit histories in making employment decisions. Didn't progress much further. It was one of those waves that started and then disappeared. There was a proposal in Congress (Elizabeth Warren and Equal Employment for All Act). It would prohibit employees from using consumer credit reports "for employment purposes' or for making adverse employment decisions. So what are employers trying to figure out? Must establish relevance of information. Why prohibit it? Anytime create unemployable class of people you have a problem. A lot of people ended up with bad credit because of great recession starting in 2007.

a. Severability clauses required?

i. After Amcom, courts will reform and enforce non-competes, but they have discretion and don't have to reform. We DK if a severability clause is required. 1. CBD Docusource, 5th Cir. 2006 à yes. 2. J&S Resources, 3rd Cir. 2011 à yes. ii. COA's seem to believe the severability clause is required to reform, but there's an argument that it's not actually required, because reformation is part of the law after Amcom. To be safe, include language that unenforceable clauses should be severed and the rest enforced.

Bodewig v. K-Mart, Inc

i. Almost like a sexual harassment case. Do a strip search of cashier to see if kept customer's money. Customer got to watch also. She insists that money was stolen. In the end tries to help her not get fired, but was really odd customer. In the end, it is not customer, but manager letting this happen. Called this outrageous. b. Often not the fact of the termination, but the manner in which it was done. Often called discharge with dignity. c. Workplace Bullying Institute has proposed a bill that would make status neutral workplace bullying a cause of action. However, it has not been enacted in any state. d. Professor Regina Austin said that there is a lot of abuse and tends to come from supervisors. e. Cause of action called, intentional interference with business or contractual relations (or economic advantage). What if have overly broad non-compete and previous employer calls prospective employer and threatens to sue then could be intentional interference with business/contractual relation. Louisiana didn't adopt it because there are a lot of problems with it, but recognize that there are some jurisdictions that recognize it.

a. Act provides for civil liability for willful noncompliance (616).

i. Always sue for this because damages are better, but should make negligent claim in alternative. ii. Get damages as result of failure to comply or damages of not less than $100 and not more than $1,000. Punitive damages can be awarded at court's discretion. Costs and attorney's fees are also available. The attorney's fees can be given to defendant, but depends on whether court determines filed in bad faith or for purposes of harassment.

a. SOX

i. Amended by Dodd Frank Act. ii. Covers conduct of: mail fraud, wire fraud, bank fraud, securities fraud, etc. under the six laws listed. iii. Only covers employees of publicly traded companies. iv. Person who reports the conduct is a whistleblower. v. Has certain enforcement procedures. File complaint with OSHA (180 days of alleged violation), investigation/determination by OSHA. Can appeal to DOL ALJ and can appeal that to DOL Administrative Review Board. If no final order within 180 days of filing complaint, can sue within federal courts. Can then go to federal appellate courts. For many of the companies, if couldn't reach contractors and sub-contractors wouldn't be able to reach the companies, so allowed them to reach those types of workers. vi. Day v. Staples tells what the elements of prima facie case under SOX are.

a. Statutory Claims for Termination

i. Anti-retaliation 1. Not necessarily the same thing as whistleblower. ii. Whistleblower 1. If no whistleblower statute, may be able to recover under wrongful discharge in violation of public policy (depends on state). 2. This is area where state and federal legislature have gone crazy. Some apply to public employees and private employees. Louisiana has one for public employees only for failure to comply with ethical obligations of public employees. Have two more: one for environmental violations and another more general one. 3. What about if make mistake about illegality (like Johnston case)? In Louisiana, courts have said that must be right to get whistleblower protection. Difficult situation. 4. Some states and some statutes require internal disclosure first while some protect only external disclosures. 5. Whistleblower is someone providing information about conduct or specified-type of conduct.

a. Roquet v. Arthur Andersen LLP

i. Arthur Andersen did work for Enron. They were shredding documents in Enron investigation. ii. DOJ indicted the corporation for obstruction of justice. Went to Supreme Court and said that can't convict the corporation of obstruction of justice. Can indict the individuals, but not corporation. All the clients left when indictment was unsealed. So have a ton of layoffs following. Didn't give notice. Argued that no notice was ok. iii. Argued that it was unforeseen business circumstances. Were negotiating with DOJ trying to avoid indictment of corporation. Arthur Andersen is telling employees everything is in negotiations. Why didn't they give the notice? Didn't want to lose more business because didn't lose the majority of business here until indictment unsealed. Didn't want to lose workforce because will likely result in mass exit of workers. iv. Court said it was unforeseen business circumstances. Regulations say it must be sudden, dramatic, and unexpected. v. District court granted summary judgment saying didn't have to give any notice. Dissent said this was fundamental error, the Act just says reduces notice to as much as is practical under the circumstances and must give reason why are reducing notice period, which did not do.

a. Two Spheres

i. At work ii. Away from work

a. Bright v. Houston, pg. 587 (on call time)

i. Biomedical equipment repair tech for hospital. He was the only 1, so he was on call at all times he was not at work. When he was on call, he had to wear a pager and be available. If they called him, he had to show up unimpaired, and had to be within 20 minutes of the hospital. ii. 5th Circuit ended up saying he was not working when he was on call - terrible decision, they were obviously trying to avoid bankrupting this hospital. Result driven. iii. He obviously couldn't use his on-call time primarily for his own purposes. iv. 29 CFR 785.17: an EE who is required to remain on call on the ER's premises or so close thereto that he cannot use the time effectively for his own purposes is working while on call. An EE who is not required to remain on the premises but is merely required to leave word at his home or with company officials where he can be reached is NOT working while on call.

a. Expectations of Privacy—Noninterference

i. Body and health ii. Communications, information 1. Employers get into communication by employees all the time. iii. Use of time 1. Employers are really concerned with this. Would say that when you are at work they have interest or are working they do. How can an employer monitor? Track where you are through GPS systems, check computers via software, have report time, etc. Issues arises that in some fields can do work pretty much everywhere and at any time. Does this mean that employer can monitor all of your time? iv. Relationships 1. One obvious one is that are concerned with sexual harassment claims. Will often have rules that concern what are appropriate and inappropriate relationships. v. Other Concerns 1. Illegal acts (off duty) a. Such as getting DWI 2. Leisure activities a. Might see some times when there are professional athletes where the employer doesn't want to risk injury and losing the player. 3. Civic/political activities 4. Moonlighting 5. Daily living 6. Personal (social/sexual) relationships

Whether cities or parishes must be named or just identifiable: [circuit split on this]

i. Can you just say "where we do business when you stop working" or must you name parishes? 1. E.g. Raising Canes. Started in just BR, but now everywhere. What if non-compete said "you can't compete w/me where I do business." At time signed, this will have a dif meaning than it does way later. W/expanding businesses: makes sense to say "I'm not going to list them, I'm just going to say where I do business." ii. Petroleum Helicopters, 3rd Circuit (1999) 1. If parishes are identifiable, that's good enough. Can leave ambiguous since it will change over time. a. Note - compelling case, EE at issue was an executive. iii. 1st and 4th Circuit rejected 3rd Circuit approach. 1. Vartech (1st Cir. 2006); Aon (4th Cir. 2002) 2. Must list parishes and cities where you do business. a. Reasonable reading of statute. BUT, ER is then going to have to make EE's sign new non-competes every year as they expand. Not efficient 3. Fairness v. certainty: a. "Restricted from going to work in business that does what we do for a period of 2 years wherever we do business when you separate." i. EE has no idea what he's signing at time he signs.

a. Garcetti v. Ceballos

i. Ceballos was deputy DA and found some inconsistencies in affidavit for warrant, but DA went forward with prosecution. He was called by defense and as a result was basically demoted and experienced retaliation. ii. If start out with Pickering analysis would say that prosecution would be matter of public concern. Balancing test might be close call, but could see scenario where employer would not win the balancing test. iii. Supreme Court does not get to Pickering test, what do they do? Focus on the speech being pursuant to official duties and was not speaking as citizen for First Amendment purposes. Supreme Court reforms the test. iv. New Test 1. Question One: Was speech job related? It is speech as citizen or employee? a. Why does the court do that? More concerned with speech as employee or citizen. Problem is that get to this when get down to balancing test. But essentially are screening it out earlier. Could say that are employee and that is reason why knew a lot of the information behind the speech. So what will do in analysis is that will take away protection if are expressing yourself as employee and only came to knowledge because are employee. Court is on firm ground saying must think about government and employee in two ways (citizen/employee and employer/sovereign). b. Notes i. Argument that after this will carefully draft job descriptions. Court said that these will not give dispositive weight. That doesn't mean the courts won't look at them, but they are not necessarily determinative. ii. Court was not sure the test applied to academia. The rationale for that is that teaching and scholarship are part of academia and so express and speech will be part of job and if rule out anything part of job will have gutted First Amendment protection. Court doesn't tell us though whether it applies or not. Remains an open issue as to what level of education the new test will not apply. It really depends on the court to determine if new test or Pickering test applies.

1. Misclassification of Employees as Independent K'r

i. Classification is important especially for tax purposes. Employers must do federal withholding on employees while independent k'r are responsible for doing their own. ii. Under Obama, the DOL was targeting the misclassification issue heavily. Trump administration backed off. Biden will probably start again. Politically motivated issue. iii. Different statutes have different tests, so you have to know which test to use a. For example: economic realities test is for the FLSA, but nothing else b. You also need to know if we need to apply state or federal law

a. Other issues

i. Computer use and social media policies ii. Employers deciding whether to have employees use own mobile phones for work (BYOD) 1. Problems that flow from that are enormous, even though might be the right solution. iii. NLRA and NLRB 1. NLRB has jumped into this area in a huge way.

a. Quebedeaux v. Dow Chemical Co.

i. Court says that employer-employee relationship is contractual and employee may negotiate terms of employment contract and agree to any terms not prohibited by any law or public policy. So should be able to negotiate with employer for no employee at will. However, courts will not recognize variation of employee at will status without definite term. Court says for the first time that employment at will is in article 2747 and that when the parties are silent on terms of employment contract, default is employment at will. ii. What happened in this case? Two employees working at Dow's plastic plant get into an altercation and both are fired. Basically, like a zero tolerance policy. Bad policy for zero tolerance because get situation like this where it is fault of one employee and not the other. Need to have some discretion. iii. What would he sue for? Tries to come up with something. One thing to sue for would be wrongful discharge in violation of public policy. Argue that have right to self-defense, but he didn't even get to that here. Know that Louisiana doesn't recognize wrongful discharge in violation of public policy, so he could not argue this.

a. Notes after Case

i. Courts have desire to stay out of politicking internal office politics. Looking to see if there is major public policy problem or merely office squabble. ii. Some courts will say that must internally report first before externally report. These are essentially whistleblowers. Some say the opposite. Don't cover internal reporting, only cover external reporting. Louisiana has statute and it specifically says what you must do first (internal before external). Why care about these issues? Internal important because can get issue resolve more quickly than going through government or litigation. Concern with internal though because can be covered up even when report internally and the illegal actions may continue because may be too afraid to report externally.

a. State Laws on Criminal History Questions

i. Credit and criminal history will be big two that want in consumer reports. There is huge concern in nation with employers asking one question on application and that is if have ever been convicted of crime (sometimes asks if arrested). If check that box will not be getting the job (at least that is the perception). There is big national movement (ban the box movement). The laws ban the box and cannot put that question on initial application. That doesn't mean that can never ask the applicant about their criminal history. Just can't use as initial screen out question. Why ban these? Don't give a lot of context and worried about disparate enforcement (more negative disparate impact on minorities and men over women). There are about 100 combination state and local governments that have passed these laws. ii. Louisiana passed a ban the box law for public employers (42:1701) last regular session. This doesn't apply to private employers. If don't conduct interview, then can't ask about criminal background/history until make conditional offer of employment.

a. Act also provides for civil liability for negligent noncompliance (617)

i. Damages are actual damages as a result of failure to comply and costs/attorney's fees.

EPPA (Employee Polygraph Protection Act)

i. Dates back to 1988. Will see almost no litigation under the Act. Amazing that this was enacted because the bottom line would give employer advice that do not give employees a lie detector test (or applicants). Polygraph is just one type of lie detector test given. The act is under the jurisdiction of the Department of Labor. Secretary can bring enforcement action under the Act. Can sue under the act (private right of action). Fairly straightforward act. ii. Coverage issues 1. Definition of employer - any person acting directly or indirectly . . . . Where will find out a lot is in the exemptions. Who is not an employer? Governmental employers are not employers (all levels of government). If LSU wanted to give test, are governmental employer and LSU is arm of state so could give test and would be exempt. Also national defense contractors are allowed to do polygraph testing because are making explosives and selling them to government and may need to give them lie detector tests. Even though will be private, are exempted from act. FBI can give polygraph exams and private security companies. Very broad coverage in private sector. iii. Prohibition 1. Unlawful for employer to directly or indirectly require, direct, or cause any employee/prospective to take a lie detector test. Or to use the results for employee or prospective. Also can't ask for results of other test. Also can't take any adverse action because refuse to take the test or as basis of the results of the test (including denying job or adverse job practice).

a. Early Discussions of Privacy

i. Defined by Justices Warren and Brandeis in Harvard Law Review article as "right to be let alone." This is where get idea of being autonomous or independent. What provoked this definition of privacy? Cameras and the taking of pictures. It was a device that would capture private facts and method of dissemination that would get in hands of many people. Still seem same issue today—devices and dissemination (just on a larger scale today). ii. See advances of information science and technology as part of what brings this about because the law cannot catch up with the technology.

a. Day v. Celadon Trucking Servs.

i. Held that when business sells asset to another, seller retains obligation to give WARN Act notice. b. Public Employers i. Be aware of issue. For every statute cover, look to whether it applies to public employers, private employers, or both. ii. For WARN Act, applies clearly to private employers, but depends on whether public employer is acting as enterprise as to whether it is covered. Is it commercial or industrial enterprise, is it supplying a service or good on a mercantile basis? c. DOL at President's behest to think about sequestration and government contractors' obligations. Didn't give notice because didn't think would have government shutdown. Said it was public/political issue.

a. Dodd Frank compared to SOX

i. Dodd Frank amends SOX, but is also a free-standing act on its own. ii. If terminate employee because report fraud (whistleblower), the remedy will be back pay and any other fees can point to. Under Dodd-Frank, it is double back pay. Under SOX, must file first with OSHA, while under Dodd-Frank can file in district court. iii. Statute of limitations under SOX is 180 days. Under Dodd-Frank, ultimate cap is 10 years, but have 3 and 6 year periods. iv. If go to SEC website, have jurisdiction over Dodd-Frank Act. Have two things going on in Dodd-Frank. Have bounty program. If are the whistleblower under the Act, can get money. The informant cannot file a lawsuit under that, just giving information to SEC. Must protect the whistleblower though. So there is remedy provision in the Act allowing to file complaint in federal district court. v. There is circuit split on issues, but not a big deal now. vi. Where would this come up on the exam? If something looked like securities, mail, or wire fraud and someone giving information would think about SOX and Dodd-Frank if there was adverse action taken.

a. Analysis of the Claims

i. Does the state (won't be Louisiana because do not recognize it) recognize tort of wrongful discharge in violation of public policy? ii. If so, what braches? iii. Does the state enumerate elements of the tort (like Washington, Ohio, and West Virginia? iv. Is there a public policy being jeopardized?

a. 102(e) - Notice

i. EE's have to provide notice ii. What does notice sound like: could just say "I need FMLA leave." But usually they say "my child is sick and I need a week off" and HR knows this means FMLA leave. 1. Doesn't have to be a formal request iii. Just have to give notice of purpose of leave AND how much time they need iv. Have to give 30 days notice, BUT there's always "as much as notice as is practicable under circs." 1. If EE says "I have to take leave in a week, I need surgery." Probably not enough, b/c EE likely knew of this for awhile (but if it was an emergency situation, that would be OK) v. (e)(1) assumes that leave for child birth; adoption; placement à EE can give 30 days notice 1. BUT, if EE can't - as much notice as is practicable under circumstances. vi. For SHC leave - doesn't start with 30 days. 1. EE has to make reasonable effort to schedule treatment to not unduly disrupt operations of EE. a. E.g. Accountant goes in on March 1 and says "I'm going to take off in a week to get a hair implant surgery." 2. BUT, sometimes EE can't accommodate the ER - sometimes it's medically necessary to take the leave then. 3. SO - 30 days is what you should give under the Act, but "as much as is practicable" is what we default to if you can't give 30 days notice. vii. If EE fails to give required notice à ER can make EE put it off.

a. Separation from Employment

i. Employee chooses to terminate relationship 1. Employer response a. Could choose to sue (if have non-compete almost certainly would sue). 2. Possible litigation ii. Employer chooses to terminate the relationship 1. Employee response a. Will probably try to sue (try to make it a "wrongful termination") 2. Possible litigation iii. Does Employer Offer Anything at Termination? 1. Anything required by law? a. Not severance here (but some other countries require). Can agree to have severance pay. 2. Choose to offer anything to avoid litigation? 3. What agreements may be relevant at termination? a. Non-compete, non-solicitation, mandatory arbitration agreement, waiver of claims, non-disparagement. iv. How to Carry Out a Termination 1. No good way to do it. Some HR departments will carry out seminars in how to fire people. 2. Employers might get worried about being sued for defamation (the suits usually go nowhere though).

a. Newsom v. Global Data Sys., Inc.

i. Employees signed agreement that would reimburse company for expenses arising out of training for 12 months after separation. So employer would train and would cost some money and if resigned would pay back. Employees resigned and though that paycheck and bonus would be for a few thousand dollars. Employee paid them check for nothing and sent expense sheet for training given. ii. Employees sued under Louisiana Wage Payment Statutes. If separate from employment, employer must pay all money due within a certain period of time. Employer here argued that signed agreement and had provision in employee handbook for reimbursement of training expenses. iii. Should employer be able to enter into contract with employees that requires reimbursement of expenses for training? Should as long as it is not illegal or against public policy. Might be argument that not valid because of 23:634 and 23:635. If statues not implicated, should be able to make agreement. iv. Court said that employment manuals are unilateral statements by employers as to actions that are unacceptable and could lead to dismissal. Doesn't meet requirements of contract variation. v. They were employees at will and so were free to leave jobs at any time without incurring liability. Turn employment against employer some here. vi. Can fire under employment at will for any reason unless varied by contract. The employees can walk away and say don't want to reimburse employer. Why could they not agree to that? Two-edged sword of employment at will. Employer wouldn't owe anything for firing so employees don't owe anything for walking away.

a. Agis v. Howard Johnson Co.

i. Employer strongly suspects that someone is stealing and no one will admit to it. So decide that will fire waitresses until someone comes forward. Start with last name beginning in A, which was plaintiff. Would it have been worse to fire entire shift? Can do so under employment at will. Pretty embarrassing and undignified to do it that way.

a. Background and Reference Checks

i. Employers do a lot of different types of background checks. Most you would think would be at time of application (but some on promotion, etc.). ii. Employers are concerned that will get employees who cost them/cause them to be liable for something. What happens when create an unemployable class of people? Might commit more crime, have worse credit, have bad character, etc. iii. Types of Background Checks Employers Obtain regarding Applicants (because would like to find out before hire them) and Employees (some employers will do ongoing investigation regarding current employees) 1. Criminal 2. Credit 3. General—personal and character 4. Past employment 5. Social networking and internet sources a. HR departments are devoting a surprising amount of time and effort into this. Few states do have laws that prohibit employers from requiring you to give access to social media accounts. 6. Negligent hiring will feed into this because worried about being sued because didn't do what should have done. When do reference and background checks sometimes defamation and invasion of privacy cases come up. iv. Claims of Applicants and Former Employees 1. If are objecting to types of searches that employer or potential employer is doing, what will you sue about? The big one these days is the Fair Credit Reporting Act. This is a plaintiffs' attorney's dream these days. 2. Fair Credit Reporting Act a. Plaintiffs' attorneys are putting these class actions together and getting a lot of money. For example, a Virginia federal judge granted final approval for $5.053 million agreement to settle claims of approximately 181,000 truck drivers in claim for violation. Another is applicant claims against supermarket for $6.8 million settlement for violation of FCRA in conducting background checks. If get class certification really want to think about settlement. Another is settlement of $4 million against Dollar General. LexisNexis contracted with third party to do criminal history checks on potential employees and service reported incorrect fraud conviction resulting in six-week delay in hiring. Got $75,00 for lost wages, emotional distress, and harm to reputation.

a. Chauvin v. Tandy Corporation

i. Fifth Circuit case that really puts us in a jam. Lay out civil code articles here as relevant to the contract. He is claiming he has one-year extension contract. Court said if have argument regarding definite term contract, go to civil code to see what terms of agreement are. Using article 2024, says contract of unspecified duration requires notice. ii. Agreed that district court should not have granted summary judgment on one-year employment contract. Radio Shack had argument on good cause (not following policy on cash deposits). Court is looking at this and said can't grant summary judgment because made representations about what told about one-year extension and that is definite term. So there was issue of fact as to whether had one year contract. Court then pivots to assuming that the one-year contract. Still lose because governed by articles 2024 and 2749. Article 2749 tells us what happens if have definite duration contract and can't terminate unless have "serious ground of complaint" (language coming from French Civil Code), a/k/a good cause. Must also consider article 2024. This is general obligations article that provides for both sufficient notice in time and form. There is a lot of litigation over this. Court is saying that if there is variation on employment, then go to these articles (good cause and notice requirements). Assuming that have one year contract these two apply. This is wrong, why? Article 2024 says unspecified duration. What does that mean in employment? Employment at will. So would think that employment at will requires notice proper in time and form to terminate.

a. More Privacy Issues

i. For each area: 1. How is it invaded and why? 2. What potential claims by employees?

a. Discrimination Suits Based on criminal Record Policies

i. Have been a lot of cases under this.

a. WHAT DO ER'S HAVE TO DO UNDER THE ACT:

i. Have to let EE's take leave ii. Have to restore them to their job or a substantially equivalent job 1. ER's never win cases where they say "I put EE in subst equiv job." Has to be almost identical in pay, benefits, and conditions, and that's rarely the case. 2. Exception to job restoration (104)(b) a. Some positions are so important they can't be left open - but they can't be replaced on a temporary basis (b/c no one wants a job for 4 weeks) b. "Key employee exception" - if someone fits description of key EE, ER notifies the EE they're invoking the exception, and EE makes a choice: come back to work or lose their job. c. REQUIREMENTS: i. Must be salaried EE AND among the highest paid 10% of EE's in a 75 mile radius of where they work. ii. If ER determines business will suffer "substantial and grievous ec injury without them," notify them that you intend not to restore them to their job. iii. This can occur when EE requests leave: "you can leave, but it will cause grievous economic injury, so we won't restore you." iv. Can also occur during the leave. d. This doesn't get used much. i. Harsh ii. Rarely true - businesses won't often suffer substantial and grievous injury without 1 EE.

a. Veno v. Meredith

i. He had been at newspaper for 8 years. He had been told by owner that they were similar in age, would raise kids together, would retire together, and boss had co-signed on his house. Statements are aspirational and he didn't rely on anything to his detriment. Claimed had other offers, but so do other people. That was his decision. ii. If there has been solid promise made and he didn't take a job relying on that and boss made more lucrative offering knowing was going to fire him, that would be to detriment. iii. His damages aren't detrimental, but aspirational. iv. More solid the promise and more clearly rely on it, the more likely are to win on promissory estoppel. b. California made up promissory fraud to supplement promissory estoppel (during dot com boom and bust). People would take contractors away from current employers (get in on ground floor of something big) and when went bust fired them. Sued, but not use promissory estoppel because fraud was better to get punitive damages.

a. Read v. Willwoods Community

i. He is trying to prove a five-year term contract. Why does he lose his case? The only proof he has is one question asked during an interview. ii. He claims that it is five-year contract and damages at trial court level (over $510,000) are high. Under Article 1846, can start with plaintiff's testimony, but there must be other corroborating evidence that is not him because the contract is over $500. What other evidence did he have? What did the question come down to? In his first interview asked that given his age was he prepared to commit to a period of employment for 5-6 years (didn't want to do the search over and over again). He responded that he was prepared to do so. Side note: probably should have sued for age discrimination (though wouldn't have worked because he was hired; just note not to ask question). Why does this not work? Man that asked the question didn't deny it and explained that didn't want to have to do the search multiple times. Didn't talk about terms of employment at subsequent meetings after the offer was made. Talked about starting date, salary, fringe benefits, etc., but didn't discuss term at the time. So when took the job didn't discuss term of 5-6 years. No one from the company ever said it was five-year contract. If he had really wanted 5-6-year term he would have pressed for that or was specifically discussed and most probably would have gotten it in writing (he was a former attorney and worked for a bank). Conclude that there is no meeting of the minds.

a. Chiodo v. General Waterworks Corp.

i. He owned lucrative company and decides to sell it at some point. When sells, he got oral agreement to stay on as manager for 10 years. Just didn't want the other responsibilities. This will be variation of employment at will. The book is stretching to give definite termination agreement because this is part of sale of business. Court says that can only be fired for good cause because everyone agrees that they had 10-year employment agreement. ii. What evidence of variation? He has the letter from the employer saying it was for 10 years. He also had a recorded phone conversation with the Vice President of the defendant. He gets to continue managing business he started according to way he sees fit, gets paycheck, and gets for 10 years. However, he gets fired. There were a lot of charges of disloyalty and basically cheating the company. Chiodo did have explanations for this. Some charges of insubordination and keeping family on payroll. It was family business that he sold and so kept family on payroll because they would work cheaper than other people. iii. Fight is really about whether there is good cause. Not sure why we are fighting about good cause though. They did not say good cause in the contract. This is inferred term. Courts will infer a good cause provision in put definite term into contract. The assumption is that do not want someone hired for a term that says they will not work or will not do what do not want to do. Court is wrong in this case. Inferring good cause not have happened in this case. If will look at VP statements, should consider that VP said that could not fire him all in his favor. Would see this because it is probably that it is part of the business he sold to them (cost of business). Not typical employment contract. iv. Courts will almost uniformly say that burden is on employer to establish good cause. v. Notes after Case 1. See Note 5 p. 86-87 for proposed definition of good/just cause 2. Title of chapter suggests there is dichotomy between contract and employment at will. However, it is a contract (employment at will) and it is really just contract theory/interpretation, not necessarily contract erosions of employment at will. 3. Why do arbitrators routinely deal with good cause? Collective bargaining agreements. Union will not sign an agreement that leaves workers employees at will. So arbitrators will see these cases all the time. 4. Conway v. Cleopatra Ross (not in book) a. Alaska Supreme Court tasked with determining if discharge was appropriate. b. Cleopatra Ross signed a 9-week contract to be an exotic dancer in an Alaskan bar. Fired because DA said she engaged in prostitution and should fire her. This was after three weeks. c. Went to Alaska Supreme Court on issue of good cause. Courts will infer good cause if have definite duration. What about good cause? DA said wanted them to fire her. Is that good cause? In course of committing an illegal act, does that mean can be terminated? Depends on business you are working in. Had she engaged in prostitution with a customer would have made it a different matter altogether. d. Majority says not adequate to tell did something illegal, haven't tied in with business at all, and no showing having adverse fact on business. e. Employer claimed that city was in charge of licensing, etc. and so when DA said had to fire had to follow his directions. Majority was not sympathetic to this argument. 5. Cole v. Valley Ice Garden (not in book) a. Minor league hockey coach was fired. He had a definite term contract. He started off first season with 18 wins, 35 losses, and 7 ties. Start off next season with 1 win and 6 losses. Owner fires him for having a 2nd losing season. Employer said that contractor provided for severance pay if fired without cause. Was being fired for cause (employer claimed), but said was good person so will give $15,000 and a waiver not to sue. Coach takes $15,000 and doesn't sign the waiver. Employee sues. Not really stuck with breach and what would damages be because they put that in the contract. b. Montana SC says it would be good cause if team "isn't winning enough."

a. Grouse v. Group Health Plan, Inc.

i. He was pharmacist and applied with defendant. He got offered job and said needed to give notice, which he did. When he told defendant he was told offered it to someone else. Why didn't get job offered? Man too low on chain made offer and was told too quick. Needed reference and supervisor's consent. Couldn't get positive job reference. So person higher up said couldn't come to work and made offer to someone else. ii. Why can't he recover for breach of contract? What consideration fails here? Most employment contracts consider them to be unilateral contracts? You are offered a job and response with a performance (so promise to performance). So offer is made, but never gets to go to work. Don't consider bilateral contract, which would probably work here. iii. Knocks down to promissory estoppel? There was promise that he would rely on? Yes, they made offer and called to make sure he resigned, he did resign, and did suffer detriment (no job). iv. What if had fired him on his first day? Could do that, but must give him opportunity to perform duties. So he will recover on promissory estoppel.

a. Hetes v. Schefman & Miller Law Office

i. Hetes had oral employment contract and was told as long as did good work she would remain employed. She lost at trial level on MSJ and Michigan Supreme Court told them to retry it because it was not something that could be decided on MSJ. ii. She claimed breach of employment contract and gets summary judgment reversed. Know that what the court is saying is that there is enough evidence on variation of employment at will that must try the case. What is evidence of variation of employment at will. She claimed she had several conversations with representatives of the law firms saying she was guaranteed continued performance as long as she did good work. Should this have been more specific? Probably; would want someone with authority to bind them, want to know what was said, etc. Most states in nation, certainly Louisiana, will say what is term of employment (will look for definite term). The Michigan precedent was the Toussaint case, which said that a provision of an employment contract providing that would not be discharged except for good cause if there is no definite term is enforceable. Most courts will not find that, will be looking for definite term instead. When statement was made is important because if before hired, could have relied on that when taking job. Also looking at what type of job it is and whether it would be customary to make with someone who is taking that job? Not as likely as other places here. iii. What would employer do here if reversed and remanded (headed for trial and possibly consideration of good cause)? Settle. iv. Notes after case say that Toussaint got overturned. So now looking for definite term in contracts. v. Notes also indicate that should be careful of encouraging words to employees because that could be viewed as variation of employment at will. vi. Most dangerous line of business is that when business sold to new employers. vii. What if fire employee for a reason that is pretextual? Number of possibilities here: it is true, the employer is mistaken, or the employer made it up. Can the employee sue? Probably not, a lot of courts have said if can fire for good, bad, or no reason then even if reason is made up can fire. Would want to say that under employment at will do not give them a reason. viii. If put in probationary period, should be prepared to answer what that means. Some courts might view probationary periods as varying employment at will. Will want clear statement that remain employees at will (if want them to be such).

a. Employer Mistakes

i. If bury the notice that will get report, then violate the act. Must be standalone document. ii. Including liability releases and other extraneous information in disclosure forms (document must be solely disclosure). Ninth Circuit said that including liability waiver in disclosure form violates FCRA. iii. Making adverse decisions before providing the required notice (pre-adverse action notice and meaningful opportunity to respond).

a. Demasse v. ITT Corp.

i. Issue is what if produce one of these and want to change it, can the employer unilaterally change the personnel manual? Part of the question is whether it is a contract? If it is, under traditional contract doctrine, one party can't unilaterally change the contract (must give consideration). So normally must do something to change it, not just unilaterally change handbook. Say that must give something in exchange for changing. ii. Employers will argue that allowing to continue to work is the consideration.

a. Genetic Screening

i. Issue is whether it is privacy issue. Somewhat of a tangential issue. In 2008, congress passed genetic Information Non-discrimination Act. The law prohibits employers and insurers from discriminating on basis of protected genetic information. About 33 states had already passed state versions of the law. Louisiana was like the 5th one to do it. Called a discrimination law, but if read it, it looks and sound likes EPPA. Prohibits a lot of use of genetic information. Really more of a privacy statute, but under jurisdiction of EEOC. ii. What huge problem dealing with here (as there is usually one when pass acts like these)? None. There Not very many claims under the act.

1. DOL Final Rule on Classification under FLSA

i. Issued on Jan. 6, 2021 under Trump admin ii. Likely to be replaced under Biden - it won't go into effect. Biden has already announced he's freezing it. King. iii. Two core factors: the nature and degree of worker's control over the work (essentially right of control test); and the worker's opportunity for profit or loss based on initiative and/or investment. a. This was good for employers because they thought it would result in more findings of independent k'r b. How would applying this test change the result of Lauritzen? iv. Three more factors that may serve as add'l guideposts in the analysis including: amount of skill required, degree of permanence of working relationship b/w worker and potential employee, whether the work is part of an integrated unit of production. v. NOTE: this has not taken effect under Biden administration. However, it's unclear if Biden can stop independent agencies such as the NLRB or the EEOC.

a. Korb v. Raytheon Corp.

i. Korb worked for Raytheon and asked them before went on defense spending commission and they told him to go. The commission concluded that spend too much on defense and should come back. Raytheon said they make weapons and didn't want spending cut back and so fired Korb. He sued claiming wrongful discharge in violation of public policy. He claimed free speech. This is kind of like Novosel, but Raytheon is more close to government actor than Nationwide. Mass. court said he was out of luck and maybe should have dissented with commission report then. ii. No constitutional right balanced against your demands and loyalty. b. Major case under 23:961 is the Davis v. Louisiana Computing Corp. where man wants to run against incumbent who was big client for his employer. Told he couldn't run and did and was fired. He recovered under the statute so it does create private right of action.

1. Misclassification Lawsuits

i. Lawsuits centered on wage disputes are not always brought under the FLSA but can also be brought under state law. Might be useful to just bring both claims if applicable. ii. LA Test for Independent K'r or Employee a. Right of Control Test: who controls the manner/work of the worker? b. This test was taken from tort law.

a. Use of Employee Handbooks/Personnel Policies

i. Louisiana courts have very consistently held that policy manual had never been found to vary employment at will in Louisiana. Never definite enough, no definiti. Louisiana courts have very consistently held that policy manual had never been found to vary employment at will in Louisiana. Never definite enough, no definite term, etc. mi. Louisiana courts have very consistently held that policy manual had never been found to vary employment at will in Louisiana. Never definite enough, no defi. Louisiana courts have very consistently held that policy manual had never been found to vary employment at will in Louisiana. Never definite enough, no definite term, etc. meaning will not vary employment at will.inite term, etc. meaning will not vary employment at will.eaning will not vary employment at will.e term, etc. meaning will not vary employment at will.

the search process

i. Where do they post? Where do applicants look? ii. Pre-Employment Screening 1. Practices: Reference checks, background checks, social media. 2. Reasons: a. Quality of employee/productivity b. Potential liability c. Confidentiality/trustworthiness d. Workplace environment e. Reputation 3. Dangers/risks: a. Lewis v. Ohio Professional Electronic Network, LLC i. Plaintiff applied to a business for a job and was a great fit. They did a background check including criminal history. He called asking why they were not interested in him. They finally told him they would call the police if he called them again. In his criminal background check they had transposed social security numbers and thought he was a murderer. He sued the agency that did the background check claiming they cost him a job.

a. Novosel v. Nationwide Insurance Co.

i. Many courts will not do what this court did here. Employer wanted employees to legislative for reform (no fault law) that would aid the company. Takes stand that will not do that and it gets him fired. He wants to sue and does so for wrongful discharge in violation of public policy (saying first amendment). This is diversity case. Third Circuit is applying state tort law. Cited state court saying recognized wrongful discharge in violation of public policy. Then went to First Amendment. ii. Dissent finds this troubling saying are taking private sector employee and giving him the rights that public sector employee would have under federal constitution. iii. Probably wouldn't be troublesome if could find in state constitution, but would probably have the state action required. Many courts would not choose public policy under federal constitution. iv. Dissent on denial of rehearing thinks that should rehear en banc because have made troubling decision. Said normally would not argue with rehearing in this type of case because state could fix it, but thinks that really messed up and so should rehear it here. v. Really is a hard case in some ways, but a case in which majority says will use wrongful discharge in violation of public policy. It is tough tort and has problems. vi. Controversial case and not something that every state or federal court could do.

Post-Garcetti Cases

i. Nixon v. City of Houston 1. Police officer spoke a lot and like to write. He was writing a column/articles about insider's view of police department and said some fairly outrageous claims and was demeaning to certain groups and the police department. It resulted in complaint and investigation and he was suspended without pay for a short period of time. Police were engaged in high speed chase and because of danger to public called off the units. Fleeing felon still causes accident. He said he could speak on behalf of the department and does so. Said it was disgrace that called off pursuit and was embarrassed to be member of police department. He starts calling the next day into local talk shows. Internal affairs does another investigation and terminate him. He sues under section 1983 and sys was suspended and later terminated under First Amendment free speech. Get Garcetti question first because he is public employee. Is this employee speech or citizen speech? The hardest question is whether the articles were part of his job. Court said that might be part of citizen speech, but did acquire knowledge via his employment. What about public statement at scene of accident? Court said it looked like part of the job. What about statements the next day? Looks like citizen, but court went with it as continuation of what doing the date before because it was a continuation. Assumed and went further to matters of public concern, which was a yes. So get to balancing test. Department said can't have someone saying derogatory things about public based on race and national origin and about the department. Court said regardless of how stage one came out it is correct. So department will prevail on balancing test. What was interesting here was segmenting of the speech. ii. Davis v McKinney 1. University worker is instructed to do investigation about employee use of computers. She says that a lot of people were accessing porn. Tells supervisor and asks what to do. Supervisor told to confiscate computers and move toward termination. Tries to meet with supervisor and can't get meeting. She doesn't get promotion, feels that termination is imminent, and she says she has been tricked. She writes a letter to the University President and copies a lot of people in the system and tells them the story, all about the investigation, school has hired a lot of white men for upper level VP positions and not taking care of things. Also goes through more general concern with use of state funds on those VPs in the school system. She is claiming constructive discharged based on protected speech. 2. Is it employee speech or citizen speech? Fifth Circuit said there are a lot of statements in there. Part about investigation seems to be about part of her job. It would be employee speech and so wouldn't be protected. Also looked at language on use of state funds and said any citizen could express that concern. Remanded to district court and said divide letter on speech and decide whether it is citizen speech or employee speech. It is tough analysis. iii. Lane v. Franks 1. Came out of Alabama. A college President fired a director of programs at a local community college. He saw the salary for the person and didn't know who the person was. He asked who the person was. It was a state legislator who didn't really do much of anything at the college, but was drawing a nice salary. He said had to do something about it and couldn't let it stand. Eventually had grand jury and criminal charges against legislator for the payments. Subpoena testimony of director to testify. He gets fired after by college president. How does the Supreme Court have to resolve this? Have Garcetti problem. Is this employee speech or citizen speech? Court says that truthful testimony under oath by public employee outside of normal duties is speech for First Amendment purposes. How is this any different from Garcetti. Could say that job in Garcetti involved investigating criminal activity and this plaintiff's did not. iv. Heffernan v. City of Paterson, N.J. 1. Think that this will have a lot of application beyond the case. This is police officer (as a lot of them are) case. The police officer was a detective and there is campaign for mayor. He goes to headquarters of one candidate (probably not incumbent). Someone saw him and told his supervisor. He was demoted to patrolman. His only argument was that it was his political speech that was reason, but he said got for his mother. So department claimed not really his protected speech. However, court said if it was how the department perceived it, it would be protected speech. This is a question a lot of courts face. Court though it was motivation that is important. Will have an implication for discrimination and retaliation cases.

a. Various Roles of Statutes

i. Now getting real interaction between torts and statutes. Trying to find public policy and where most likely to find it is public policy. What if find in U.S. Code or federal Constitution? Some courts have said not to use that because doesn't reflect the state's public policies. ii. What if statute permits you to assert private right of action? Such as criminal penalties or civil recovery of some sort? What about preemption or the provision of exclusive remedy? That is what Arizona Legislature said.

a. Intrusions on Autonomy of Person

i. Obtaining access to information ii. Exercising control over speech/expression iii. Exercising control over the person's actions

a. Pugh v. See's Candies, Inc.

i. Often called the poster child case for the implied in fact contract. This could have come before the defense, because it is contract based on a bunch of facts. Pugh worked for the company for 32 years before he was fired. He started out as dishwashers and worked his way up to Vice President. Then he gets fired. ii. What was his evidence of variation of employment at will? President 32 years earlier said that if do good job, future is secure. That sounds as general as in Hetes case. Can come up with policies and broad statements that will stick with you. Look at duration of employment, commendations and promotions received, lack of any direct criticism of work, assurances given, and employer's acknowledged policies. So could be implied in fact promise based on these factors. Looking at totality of parties' relationship. Looking at all the things that went into the relationship. Not a traditional contract analysis. Does take into account in long term employment relationships things can change. So doesn't seem an unreasonable analysis. However, later California Supreme Court cut back saying that just because worked for someone for a long time doesn't mean get variation on employment at will. This analysis is not followed by many jurisdictions, but worth knowing that can look at more than just the statements and can look at all the factors and circumstances. iii. If going back and going to jury, what would be the best option? To settle. However, went back and he lost. Went back to decide if there is contract and good cause. Why good cause? He was disrespectful to superiors and subordinates, disloyal to company, and uncooperative with other administrative staff. iv. Case is here for us to realize that contracts are not based on simply written/spoken statements and that other factors may play into it and may find variation on employment at will. b. Notes After Case i. Go into issue that in implied in fact contracts good cause may be different than in other contracts. Notes do raise another issue via the Cotran case. What if employer has to show good cause and fact finder finds that is reason were fired, but were factually wrong (like firing for stealing, but person didn't actually steal). Is that good cause? Courts have split. Some say that it is for good cause, but there was just underlying mistake. What if, as in Cotran, it is sexual harassment? Why is this harder? Saying committed sexual harassment is a legal conclusion. May be that jury would come back and say doesn't rise to level of sexual harassment. That is something that court really had to struggle with—whether it is good cause that legal conclusion is wrong even though some underlying facts are correct.

a. Ohanian v. Avis Rent a Car System, Inc.

i. Ohanian is a pretty highly placed executive employee. Would you want to take this case? Yeah. How long is the term of his contract? Until he retires. He gets fired at age 42. This could mean some money (retirement age 65 at his yearly salary is a lot). Question is whether there is legal theory that will stick. ii. His contract is not in writing. There is a writing, but it was for moving expenses where there was a disclaimer saying nothing guaranteed future employment (employee at will). How to get around this writing? That he only intended to get his moving expenses back and he didn't intend to form a contract with that form. iii. How to prove the terms if there is no writing and only writing that exists says something to the contrary? He negotiated with Mahmarian who talked him into going to New York. Will he have the sympathy factor? He relocated clear across country, liked where he was and didn't want to take promotion and soon as he was brought in was fired, and he worked his way up from the bottom of the ladder to the top. Jury gave him over $300,000. Why in federal court? Defendant probably removed from state court. Have to think about strategy whether want in state or federal court. iv. What happened in case below? He won at trial court. Fairly sympathetic also because he got moving expenses not paid, salary, bonuses, vacation, etc. If jury reaches this result, found that there was contract that modified employment at will. Agreed to keep him employed unless he was terminated for just cause. Most courts will not be satisfied seeing just cause requirement. Gets remedy to compensation until retirement, but he did get another job so there will be some mitigation factored in there. v. Jury clearly found modification of employment at will, but based on what evidence? The testimony of the man who got him to come to NY (unless screwed up badly then had job). vi. What would he want? A writing that is drafted from Avis to him to give him good cause protection. vii. Dissent is worried about language and looseness of language—taking "screwed up badly" and translates that into good or just cause. viii. Merger integration clause was in relocation sheet. This is where Avis tried to sneak in employment at will. ix. Dissent said should think of two people testifying as to the contract (Ohanian and Mahmarian, who was fired a few days later). Jury believes the conversation took place and that is the basis for the contract. x. Defendant contends that statute of frauds controls the case. Court said it was so old that didn't like it and so wouldn't win on it. What does statute of frauds say on this? Say that if cannot be performed in a year, the contract must be in writing evidencing the terms of the agreement (at issue) signed by the parties charged with the performance. 1. Statute of frauds matters, so do not ignore it. xi. Is this an oral agreement that cannot be performed with in a year? On its face, yes, because it is 19 years so will not be completed in under a year. Court says it could be. How? Could fire for economic reasons within a year, then there would be no breach because can fire him for good cause (that is court's translation of "unless he screws up badly"). Dissent said fits directly within the statute of frauds. Must really struggle with statute of frauds if there is no writing. If more than a year, need writing because otherwise statute of frauds will throw out and need to figure out a way around statute of frauds. Solution is that if do not like statute of frauds, court should talk to legislature and tell them to repeal it. Argue that makes more fraud than prevents, which is not really the case. xii. Statute of frauds is far more serious than the court indicates. xiii. So Avis is stuck with a 19 year oral contract that they have to pay the damages on. xiv. Also contended that parol evidence rule will keep out the oral statements. However, jury found that there was no written contract so this theory did not help Avis. xv. In Louisiana, statute of frauds says that when writing not required and contract isn't in writing and less than $500 then can be proved by competent evidence. If over $500, must be proved by one witness and other corroborating circumstances. 1. Not the true Statute of Frauds like England had. xvi. Notes after case (pp.81-83) 1. Should the jury have been ordered to consider that he would be fired for good cause later? Hard to do that. That is something Avis should have done though after court announced economic downturn for good cause reason. What about mitigation? He got a job that was not quite as good as what had with Avis, but was pretty good so that would factor into mitigation. Courts will usually require mitigation to be reasonable efforts to obtain comparable employment.

a. Nees v. Hocks

i. Oregon's Supreme Court first recognition of wrongful discharge in violation of public policy. En banc decision. In every decision must look pretty closely at facts to see if will apply to situation. Employee is summoned for jury duty (and had been in past but was excused because going on honeymoon). Employer tells her that can't spare her for month and hand to clerk to ask that she be excused. She tells that employer asked to give it to clerk and would love to serve on jury. Clerk says will serve and so don't care what employer said. If you were supervisor, would you be angry about what she did and possibly considering firing her for what she did? Probably be pretty unhappy with it. Whether she should be terminated is another issue. Put her on jury and her jury duty started on February 26 and on March 1 received letter terminating her. Letter said asked her to seek excuse and brought to attention that requested to be placed on jury duty and haven't otherwise been satisfied with job performance (not really considered here). Was letter reviewed by attorney before sent it to her? Most states have statutes that said can't take adverse action against employee for jury service. Cautious lawyer would have said not to send it and terminating her because of jury service was probably really bad idea. ii. Next employer testified that one of defendants told him she was terminated because went on jury duty (that is reference previous employer did). One week after finishes jury duty gets other job making more money. How much will she recover in this law suit. She suffered some injury, but how much? About a week of pay lost. She also got punitive damages, which will get reversed. iii. Case has value. It is sympathetic case and not sure if there is legal theory because state at point hadn't recognized it. There were good facts for plaintiff, but will need expansion of tort theory. P iv. Plaintiff claimed she alleged and prove prima facie tort, which is pretty unique to New York. Saying if did something bad to someone it is prima facie tort. Oregon court didn't see reason to import this into state law; it is catch-all tort theory. v. Conclude that can be circumstances where employer discharges for such a socially undesirable motive that should be damages/cause of action. So question is if permit this type of termination does it jeopardize the public at large. So must identify what the public policy is. How do we know what public policy is? Where do we look? State constitution and state statutes. This is when courts are on their surest footing. When venture outside that less clear are finding public policy. Say that jury service is an important public policy. If she had just said need postponement could have worked out differently, but because she is fired for that deserve recovery. b. Notes i. Four (?) Types of Wrongful Discharge in Violation of Public Policy Claims 1. Refusal to Participate in Illegal Activity a. This is most recognized branch of the tort. Some courts will only recognize this one. 2. Exercising a Right a. Such as a statutory right 3. Fulfilling a Public Duty a. Like jury duty. 4. Whistleblowing a. Most of these cases are now statutory and don't come under the tort anymore. Still can come under the tort in some jurisdictions though. ii. Some states have said that there is right to self-defense, such as in West Virginia law and Louisiana (statutes). Must be in serious physical harm to engage in self-defense. Manager at Popeye's in Chicago was fired after he threw knife at customers. Doesn't seem to fit line of cases for self-defense and defense of others. Not sure how came out, but they probably settled the case. She was trying to fit in into this line of cases though. Walmart had policy that had stand down in situations with customers. Said there was right of self-defense and can't be required to stand down. iii. If you are the plaintiff, be prepared to show where the public policy is

a. Electronic Communications Privacy Act

i. Original version of it was aimed at gang wiretapping. ii. What is illegal (after this amendment) is intentionally intercepting or endeavoring to intercept any wire, oral, or electronic communication (electronic was added). 1. This captures almost nothing of what have today because it was not designed to. Looking at three pieces: original (wiretapping phones), 1986 amendment (adding electronic communications), and Stored Communications Act (actually has some teeth in modern context). iii. Why does it not do much (adding electronic)? There are a number of limitations. One is the consent of one party. If one party to communication says fine to intercept, the act doesn't apply. In phone context doesn't apply because would go to one and say need to hear what other person is saying (offering immunity) and so gave consent. Another is if it is in the ordinary course of business exemption. A third is a provider exemption (like where here the recorded for quality control). Employer might be able to argue this one if the communication is on their server. iv. Rarely gets used because interception has been interpreted to mean contemporaneous capture at time of transmission. That is why SCA has been more important.

a. Martin v. Iberia Bone, 1st Cir. 1995

i. PA ended his employment w/this clinic. Sued for vacation time + severance pay their agreement said they owed. 1st Cir said EE was right about his vacation time, remanded to see how much it was. But for sev pay: not wages, so not due to you under 631. 1. Severance pay is a separate matter - can't sue for that here. 2. BC: 1st Cir needs to read law: it doesn't say wages, it says "amount then due." If they agreed to pay severance, that's an amount then due under their own agrmt

Keiser v. Catholic Diocese, 2d Cir. 2004

i. Teacher at catholic school resigned after few months but she was under 1 year k. School said she breached K (true). 1. ER's normally wouldn't sue for this, though they could. a. Don't want jury case - jury will side with the EE's. b. Damages: replacement costs to put someone else in teacher's place, and maybe for substitute, but probably not b/c sub is cheaper than regular teacher. ii. School put in stipulated damage clause: if you breach before year is up, you owe us $2500. iii. Does this violate 634? Teacher argued that it did. 1. Stipulated damages in LA must reasonably approximate damages suffered. That article has to work w/634. Her monthly salary was less than $2,500. 2. It won't cost them $2500 to replace her - that's more than her whole monthly salary. a. This is a penalty provision - does not approximate damages. b. Does not violate 634, it violates code art on stip damages. (2005)

a. Finnkle v. Majjik Market a/k/a Toc Retail, Inc.

i. Plaintiff got fired before reached rank of assistant manager. He sues for breach of contract. What does he argue? That it was indefinite/unspecified duration. Claims that was put on assistant manager track and took some disadvantages to take it. Would be promoted in shorter time. He didn't take salary and worked for lower wage. Told in exchange for that would work way to assistant manager in three months rather than six months. Claims this is employment contract. Can employee agree to such terms with employer? Yes as long as not illegal or against public policy. Saying should get notice reasonable in time and form. Arguing can fire him, but must be reasonable notice. What would remedy be in such a situation? Back wages for time when notice should have been given. ii. Claimed that company policy required written notice and article only says reasonable and writing might be reasonable notice. So might be remedy here for him. How many employment contracts does this imagine exist? Definite duration, employment at will, and indefinite duration. Problem is that it duplicates because unspecified duration is exactly what employment at will is. iii. Later treat employment at will as not an employment contract, but it is one just one of unspecified duration. iv. Shows that article 2024 presents a complication for us. Can read the article as imposing a reasonable notice condition on employment at will. Do we want that type of employment at will? Can present issues with what is reasonable notice because could require longer periods for workers depending on tenure with company, written notice, oral notice, not really sure what the standard would be. v. Continue in world where have employment at will and definite duration.

a. Johnston v. Del Mar Distributing Co.

i. Plaintiff is employee and told to ship firearms but with label that says fishing equipment. Employee things could go to prison for doing so. Plaintiff calls the ATF and asks if that is illegal. This was allowed though. Employee gets fired for asking. Employer learns called ATF and fires. Employee sues for wrongful discharge in violation of public policy. Texas does recognize the tort, but doesn't want to be too broad. Only recognize refusal to participate in illegal activity (most popular branch of tort). ii. Problem here is that it is not illegal so didn't refuse to participate in illegal conduct, but inquired whether it was illegal conduct. Doesn't quite fit the branch that recognize. Court says must be able to ask if activity is illegal, particularly if recognize that wrongful discharge if fired for refusing to participate in illegal activity. Would put employees in predicament if don't allow them to determine if the action is illegal.

a. Stages

i. Pre-employment ii. During employment

a. Wright v. Shriners Hospital for Crippled Children

i. Prior supervisor had said something about patient care issues and triggered inspection. Plaintiff then made statements about relationships between patient care and communications. That caused them to be cited and under further review. Hospital administrator is very made about what she did. She gets fired as a result. She sued for wrongful discharge. ii. State recognizes the tort, but why did she lose? What branches do they recognize? No public policy implicated (it was her oath, but not a public policy to report that). Can't find public policy that are satisfied is actually public policy. iii. Board of Nursing Registration is what she tried to use (ethics code). Appellate court said the code never introduced into evidence and wouldn't consider it source of public policy of the state. Do say there are some statutes on patient abuse that require reporting, but that is not what is implicated here. She was concerned with staffing levels and communication among the staff. What she did cite is regulations regarding nursing profession. Won't find public policy in that. Saying that professional regulations do not rise to the level of public policy. iv. See that majority likes employment at will and so want a very narrow tort. If generalize public policy and say that sounds good and find something to attach it to can cause issues. Not even just agency regulations, but regulations in profession. Won't consider those to find public policy. They are worried about the tort growing. Would then be looking at every abusive discharge and creating public policies to fit within it. v. Court sees this not really as threatening patient care, but more an internal squabble about staffing and communication. vi. Dissent said it is Achilles heel of tort where to look to and identify public policy. Dissent says if can bring under general heading of patient care then why not?

a. Stored Communications Act (actually part of Electronic Communications Privacy Act)

i. Prohibits accessing or obtaining without authorization wire or electronic communications electronically stored in a system. ii. Courts are still working through this concept, specifically with the interception. iii. Exceptions: 1. Conduct authorized by a provider 2. Conduct authorized by a user 3. Consent of a user iv. What does it mean to be electronic storage? 1. Only the information that has been stored by an electronic communication service provider. That is information that internet provider stores to servers or information stored with telephone company, if information is stored temporarily pending delivery or backup. Information that individual stores on hard driver or cell phone is not electronic storage. Emails on computer are not electronic storage because not temporary intermediate storage by service provider. Interpret very differently such that opened or unopened emails may make a difference. v. Two laws on this a few years back that died in committee and would have required employer to give notice if would monitor. Not a horrible law because if employer gave notice that would monitor would cause employees not to do the activities any more. So why is Congress not acting? Really difficult to draft and employers don't really want to see updates to these types of laws. vi. Recent Cases under the Act 1. Maremont v. Susan Fredman Design Grp., Ltd. a. Court allowed employee to proceed with act when employer improperly accessed and posted to personal Facebook and Twitter accounts. Said these were stored communications. vii. Pure Power Boot Camp v. Warrior Fitness Boot Camp 1. Owner of Pure Power fired one and one quit who went on to start Warrior. Owner got access to two email accounts (Hotmail and Gmail) and guessed third account password. Odd case because can sue for damages under ECPA and SCA. Not what is happening here. Coming up defensively. Owner of Pure Power sues former employees for misappropriation of trade secrets, breach of duty of loyalty, violation of covenants not to compete, and trademark infringement. Suing former employees for things not part of SCA. It is defense because say violated in getting emails off private accounts and evidence must be excluded. Finds out shredded non-competes and wants to find out what are have done and sees emails. They did all accused of but will not get the evidence in because violated SCA. 2. Why it is violation of SCA? Where were the emails stored? The emails were stored on the individual servers of the providers (Hotmail, Yahoo, Gmail, etc.). Did access stored communications. What about authorization? Court spends some time on that (consent of user). Pure Power argues that consented via the policy in employee handbook. Court says that is not sufficient because it was not sent on employer's computers and certainly was not on their email system. Policy refers to employer system so doesn't clearly fall into that definition. What is second option? That consented because had login and password stored on computer had impliedly consented. Also claimed that co-worker had information because defendant wanted her to monitor Ebay auction. Court didn't like this option either. Compared to leaving key in door and that not being an invitation for everyone to enter and rummage through belongings. So violation of SCA. 3. Should have counterclaimed (reconventional demand) for violation of SCA and claimed damages under it. viii. ECPA (2515) says that if are in violation of act cannot use as evidence. The SCA doesn't have an analogous provision in it, so essentially made it up. ix. Under ECPA (2511) any person can violate the act and (2520) any person or entity whose wires were tapped (other than US government) can sue. What would be recovered for violation: preliminary or equitable relief, damages, punitive damages, attorney's fees, and court costs. There are two different ways to go about damages: can recover either sum of actual damages suffered and any profits made by violator or statutory damages (greater of $100 per day or $10,000). x. Under SCA (2707) can recover preliminary, declaratory or equitable relief, reasonable attorneys fee, damages, and litigation costs. Actual damages may be actual damages and profits, but can't receive less than $1,000. If willful or intentional violation can get punitive damages. xi. Very unlikely to recover under ECPA because of contemporaneous interception, but more likely (courts finding more) under SCA. xii. Notes 1. Must have reasonable expectation of privacy. Depends in part on what employer's policy is. Policy is one thing, the second thing is which account is being used. If had been employer's email system, would have said consented under policy, but it was actually private account. Also may matter whose equipment is being used (like if it is employer's computers). 2. Konop v. Hawaiian Airlines a. Employee maintained own website where said bad things about employer and gave access to co-employees. Employer told one employee would like to look at it and gave employer password. Court said under exceptions had consent of the user. This was authorized user (co-employee given the password) and said he consented by giving up password. Seems odd to say no violation. It is fairly coercive for employer to ask for information (not really like employee can say no). This is what the next case in book notes hints at. 3. It is interpretation consistently by court that ECPA that interception means contemporaneous capture (must be in transmission when catch it).

Engquist v. Oregon Dep't of Agriculture

i. Reiterates point that unless altered employment is at will. When employer is government will have two roles: it is sovereign and it is employer. Will complicate things because constitution says can't do certain things to citizens, but it is also employer over that person in additional to sovereign. ii. Filed suit claiming she was discriminated against, but didn't say it was she was member of certain class but it was particularly directed at her (class of one argument). Supervisors seemed to have hard time with her and don't know what do to exactly. She was eventually fired because of across the board budget cuts. She did sue under antidiscrimination statutes, but that didn't get her very far. She also sued under Equal Protection Clauses of Fourteenth Amendment. iii. Takes the class of one theory from constitutional law and says she was treated differently than other people like her and it is arbitrary and capricious. Said that anyone that was fired would come in and say they were class of one and court would become personnel board and it would basically destroy employment at will. Court said it is poor fit for public employment context and are right about that. iv. Court says that government as employer has broader power than government as sovereign. Will come down to balancing in some of these cases. v. Public employment will be employment at will unless it is modified (via statute). If had recognized this class of one theory every public employee would try to claim they were class of one and were arbitrarily fired and would lead to a ton of litigation. b. If are classified or unclassified can vary employment at will (see page 211). Classified civil servants are no employees at will. There are both federal and state civil service statutes. This is in state constitution and jurisprudence. Will have good cause protection against termination. c. U.S. Constitution, First Amendment i. Concerned mainly with free speech. Will have a governmental employee do something that is associated with speech and will be adversely affected because of it (that is what they are contending). ii. Will also probably extend to state constitutional rights. iii. First Amendment Test of Connick and Pickering 1. Question One: Was speech on a matter of public concern? a. Public concern—relates to an issue of political, social, or other concern to the community. This is pretty broad definition. 2. Question Two: Balancing test—burden on employer. a. Asking if can justify the burden that are placing on this speech. Can you show that in order to render the services you render, do you really need to regulate the speech in that way? Looking for any actual disruption of services provided or any possible future disruptions. Looking at what the speech is about and how does it relate to rendering services. Also looking at nature of employee's responsibilities.

a. Rutan v. Republican Party

i. Republican governor of Illinois went into office and had a lot of state jobs/agencies under him. He put a hiring freeze and would apply that to promotions and raises also. Cannot do any of it without coming to committee he appointed and asked for an exception. Being a republican and active one helped to get exception to hiring. So basically have patronage system set up and that is what the lawsuit was about. Supreme Court said can't set up hiring system that violates first amendment rights (political activity). Justice Scalia said that it how they were appointed, but generally cannot do that.

i. The test use for rules is that violate when maintain rule that reasonably tends to chill exercise of rights. If rule explicitly prohibits the exercise of section 7 rights (most employers will not do this) or if does not, the violation depends on showing that would (1) reasonably construe language to prohibit section 7 activity; (2) rule was promulgated in response to union activity; or (3) rule has been applied to restrict the exercise of section 7 activity. Lafayette Park Hotel.

i. Risks in confidentiality, employee conduct toward company/supervisors; conduct toward other employees; interaction with third parties; use of company logos, copyrights, and trademarks; photography and recording; restriction from leaving work; and conflict of interest rules have good likelihood of violating section 7 with these rules. These are from General Counsel Memo. ii. If have rule saying cannot discuss wages, then will violate section 7 (no defense to this). iii. If there is non-disparagement clause, will usually violate section 7. Quite often these are targeted at social media. Another is that cannot have be nice (courtesy) rules. Nondisclosure rules can be ULP. The rules will not necessarily be violation of section 7. There are ways to draft so that will allow section 7 activity, all comes down to how the company has drafted the "rule." No-gossip policy (Laurus Tech. Inst.) was held to be vague and over-broad and could reasonably chill section 7 activity. iv. A Connecticut sports bar fired two employees who criticized employer during Facebook discussion. One was fired for liking post and other referred to co-owner with expletive. Shows that must be careful in drafting their social media policies. This is hard area and employers are getting a lot of work because must keep up with what the Board is doing. Employers are very into policies these days and so must look at all the policies and consider whether might violate section 7. v. Must also consider the political bent of the Board because it will (by custom) be 3-2 in favor of the administration. For last 8 years, has been Democratic and opinions have shown this. Not sure how this will turn out under Trump.

a. 107 - SOL

i. Same as FLSA ii. 2 years or 3 years if willful iii. GF defense: can eliminate liquidated damages 1. Good faith and reasonable grounds for belief

a. NLRA

i. Section 7 1. Gives employees the right to form, join, or assist labor organizations, to bargain collectively, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection (basically the catch-all when there is no union). 2. So must be: a. Concerted Activity i. Knowledge of concerted nature of conduct ii. Usually engaged in by more than one person, but doesn't have to be more than one person. If appeal to co-workers trying to incite or start concerted activity, it is covered. If it weren't, employers would always nip it in the bud. Employer has to know of concerted nature of it. b. For mutual aid or protection i. Means deals with terms and conditions of employment. c. Does not lose protection/not too bad i. Even if concerted and for mutual aid or protection can lose protection if illegal, too disruptive, or too disloyal. 3. C Case Proceedings a. Making a claim i. File ULP charge with regional office of NLRB ii. Hearing before ALJ iii. Appeal to Board iv. Appeal to federal courts of appeals (even to SCOTUS) b. Remedies i. Back pay ii. Front pay iii. Reinstatement iv. Injunctive relief c. Benefits of this method? i. Board takes charge of the case and so no real risk for aggrieved employee. Good because one of hardest things for plaintiffs in employment cases is finding someone to represent them.

a. Cybersecurity

i. Seems to be a pretty prevalent issue (like all the hacks of credit cards that have been happening lately). If get hacking into employment records, can have serious issues. Hear issues like these pretty much every other day in the news' .a. Louisiana became the 10th or 11th state to enact the Personal Online Account Privacy Protection Act (about two years ago). The statute says that employers cannot force employees to give them passwords to get into online (social media) accounts. There are exceptions, but generally cannot require that information to get into personal accounts.

1. Encino Motorcars v. Navarro

i. Service advisors (employees at car dealerships who consult w/ customers about their servicing needs and sell them service) fall under FLSA overtime compensation exemption provision which exempts "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles." ii. An interesting position the court took is its rejection of the 9th Cir. reasoning that exemptions to the FLSA should be interpreted narrowly. Finding no such indication in the text of the statute, the Court explained that it would give a fair, rather than narrow, reading of the exemption. Instead the court said it should be reasonably interpreted. This ran contrary to Congress's intention of broad coverage. a. "We reject the principle as a useful guidepost for interpreting the FLSA."

m. Lawyers

i. Should lawyers in states that recognize the tort be able to sue for wrongful discharge? What would be the public policy? One could be that client wants you to cover up destruction of evidence. Might not work because have strong belief that clients have right to representation of their choosing. Also have issues of confidentiality. Don't really see cases involving lawyers like this often. ii. Come up more with in-house counsel that have only one client. That is more like traditional employment relationship. If get fired to exposing illegality, can they sue for wrongful discharge? Hard cases, because involve a number of issues, such as right to representation of choosing, fiduciary duty to client, use of confidential information, whether in-house counsel is different than traditional lawyer. iii. Some courts say just can't sue about it, while others say can sue but must be aware of duties to client and information used

a. Defenses in Breach of Contract Cases

i. Statute of Frauds ii. Lack of Mutuality of Obligation iii. Absence of additional or independent consideration 1. See Skagerberg. General contract rule is that one consideration can support several obligations, but that has not been imported into employment law. iv. Parol Evidence Rule 1. Provides that if parties to a written agreement assent to a writing as the final and complete expression of the terms of their agreement, evidence of prior or contemporaneous agreements may not be admitted to contradict, vary, or add to the terms of the writing. v. Convincing Specificity 1. Must be very specific promise and do not find that in employment very often.

a. Nicholas v. All-State Insurance Company

i. Supervisor targets the employee and knows that has emotional instability and is getting professional help. Changes evaluation criteria so can terminate plaintiff and does everything can to traumatize him and fire him. The court say this is not outrageous. If this isn't, what will be? Not much of anything. Louisiana is like pretty much any other state, but maybe with a vengeance. ii. Didn't know he was targeted like this completely and only found out when heard testimony. b. What if called employee in to terminate and invited all co-workers in and ridiculed them for being worst employee and said it was great pleasure to fire you? Would that be bad enough?

Formation of the Employment Relationship

i. The employment relationship is a contractual arrangement! 1. Must be a contractual relationship, there must be some sort of agreed upon terms. Must agree on job/duties and pay, so know something about the employment relationship. ii. What are the terms agreed upon (given that it is a contract)? iii. What is the evidence/documentation of the agreed upon terms? 1. Doesn't have to be in writing, but writing would be nice. If just talked to someone would want to at the very least remember who they are. Will also need to know if they had the power/authority to make those representations and warranties. iv. What are the default terms provided by law? v. Formation Like Marriage Proposal? 1. Little negotiation at outset. 2. Assume best outcome, proclaim everlasting love 3. Consider pre-nup? 4. What are terms in writing? vi. Employment Agreements in Writing? 1. Who gets written employment agreement? Most people do not have a written agreement of their employment. However, there are those who have written contracts. 2. Who would benefit? 3. Consider non-competes, mandatory arbitration, social media policies, etc. a. Employers are getting into certain habits of producing writings (some must have but some not necessarily). Love mandatory arbitration agreements, love non-competes, love social media policies today, etc. Advice would be not to produce more writings than have to because law already favors you to begin with and more writings can move that in the other direction. Starting to get bring your own device to work policies. Can see why employers would want to have one, but are combining work and private stuff and hard to write policies on these issues.

a. Hatch Act and Little Hatch Act

i. These are restrictions on political activity of federal and state civil-service workers. Need some restrictions on this because need neutral civil service. State one says can't be on committee for political party. Trying to take civil service employees and take them out of business of politics. Would end up in too much pressure otherwise.

a. Consumer report (603(d))

i. This is written, oral, or other communication of information on "consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living" or any report prepared by a Consumer Reporting Agency. 1. This is very broad definition.

a. Woolley v. Hoffmann-La Roche, Inc.

i. This was the company that put out a huge number of handbooks all over the nation. Got them in a lot of trouble with employment at will. ii. What did they do in the manual? Implied lots of promises based on terms and conditions of employment. Big argument was whether this was modification of at will or was life contract. 8 pages of the handbook were put in as evidence and 5 of them were on termination. If spend 5 pages discussing termination of employment, there is good chance that varied employment at will. Say that there are several types of termination (layoffs, discharge disciplinary, discharge due to performance, retirement, and resignation), but didn't cover termination without cause. Discharge due to performance and discharge due to discipline are two aspects of good cause. Also set up a lot of procedures before could be discharged. Said that it was policy of the company to retain services of all employees who perform duties efficiently and effectively. iii. This is global healthcare company. Based in Switzerland. The rest of world doesn't have employment at will (nowhere except here). So probably would not occur to the to try and preserve employment at will in US. If not using US lawyers, then might not have occurred to preserve. Will see lots of multinational employers who draft manuals and handbooks because fact that do not have employment at will, want procedures for good cause termination protection, and want to increase standardization across operations. Defendants argued that manuals were really intended for supervisor knowledge. However, if that was case don't give to all the workers and have them sign for it. What mistake are they making? If wanted to preserve employment at will in US, needed to talk to US lawyers. Many businesses are trying to get policies that can cross over from country to country. If trying to come up with overall manual that will cross over countries, will have a difficult enough time with just the different US states. May not be able to homogenize the law enough to do so. iv. Court acknowledges that will not apply traditional contract methodology to the facts at issue. Find that this could be an enforceable contract. v. Doesn't change analysis: is there employment at will, was there variation, and was there good cause. vi. Was there good cause in their employment manual. Appeared to restrict themselves to certain types of terminations. vii. Didn't want to discourage employers from drafting handbooks. However, if don't want to vary employment at will, put a very prominent statement that not varying employment at will. More flexible than Alabama Supreme Court, which told them the statement should include in the manual. viii. Notes after the case ask if would really put these disclaimers in? If were going to put in personnel manual or handbook, what would it look like? Make it clear and visible. Would be a good idea to have the employees sign for it also. Be sure can ask questions about it also. Some suggestion that doing this will demoralize the employees. What about danger of unionization? Taking a chance, but it may be a chance that must take. All these are considerations.

Why is Louisiana so Strongly Employment at Will?

i. Unless Supreme Courts wants to come back and say misread article 2747 will be pretty hard to get out of employment at will. ii. How many types of employment contracts are there in Louisiana? 1. Can vary employment at will orally. What must you have to vary employment at will (or courts will not even consider it)? Definite duration. Not really all that obvious because should be able to vary via good cause termination requirement, but Louisiana courts do not. Courts not very likely to find there is definite duration

a. Gardner v. Loomis Armored, Inc.

i. Washington accepted as public policy the protection and safety of human lives. One of the issues with this tort is getting the court to recognize the public policy and find it somewhere. ii. Have driver and passenger with armed guards. The driver will never leave the driver's seat. Why would that be the rule? Must be someone driving to get away with money. This was punishable by termination. Woman (bank manager) was being chased by man with knife. Guard thought what to do, he got out of truck and went to help. His partner was still in bank. He was fired for violating the rule. Washington Supreme Court became very creative. They looked at it and said doesn't fit one of the types of tort cases. Not really fulfilling a public duty (not to generally rescue people), not whistleblowing, not exercising right, etc. So did differently saying there are four elements and if can establish those will have tort of wrongful discharge. Where got this from was treatise on wrongful discharge law. Saving public lives was the policy went with for the state of Washington. Where do you find this policy? iii. Can either say satisfy the elements or can say must fit one of four fact patterns. Do both on exam!

a. 2nd Circuit Cases

i. West Carroll Health v. Tilmon (2012): 1. PA took job in parish listed in non-compete. Former ER's only business in that parish was providing home health services. PA's NEW ER did NOT perform home health services in that parish, and former ER did not have physician or PA performing services in that parish. Ct said ER, you do business there, but you don't do what the EE's new job does: so EE is not engaged in competing business. a. All involved in healthcare, but you render 1 particular service in that parish, and they don't do that service, so he's not competing. b. 2nd circuit is digging in to find out if real competition or not. ii. Elite Coil Tubing (2012) 1. Discusses West Carroll: they won't enforce unless you're really competing in same line of work your former ER did.

a. Employer electronic monitoring

i. What are the risks of monitoring employees? Could employer have unlimited liability because if GPS track/monitor car/phone aren't they doing it all the time. ii. New Jersey case on p.251 where said that because knew that employee was visiting child porn sites had duty to fire or report to law enforcement. Seems like another one of those extraordinary cases. How would firing avoid harm anyway? BNA article said what if going to OB/GYN and fire shortly after, then looking at pregnancy discrimination and can say that had knowledge because are tracking them. iii. A lot of employers use this just for positional things, just want to be able to know where the employee is.

a. During the Employment Relationship

i. What contractual duties does an employer have? What contractual duties do the employees have? ii. What extra-contractual duties does an employer have to employees regarding the environment of the workplace? 1. Physical safety 2. Facilitating job performance/success? 3. Privacy? 4. Harassment/bullying? By whom?

Is non-compete enforceable against an EAW?

i. What if at will EE is fired, then ER enforces non-compete? Seems harsh - ER doesn't want EE to work for him, but doesn't want him to work anywhere else either?? 1. According to case law (appellate cases), we will enforce non-competes against EAW. ER can fire someone then enforce their non-competes. 2. Statute says "any person," includes EAW's.

I. Pay Gap

income disparities

I. Contractual a. Brannan v. Wyeth Labs, Inc.

i. Where everyone starts when want to consider employment at will in Louisiana. Goes back to Pitcher v. United Oil & Gas Syndicate. ii. Plaintiff worked as pharmaceutical sales representative for 18 years and was fired for falsifying doctor call reports (said visited and called when he had not). He had been put on performance enhancement plan and didn't perform any better after undergoing it. iii. Why is this weird to be employment at will? If were appellate court could have just jumped down to second question without going through questions of whether he is employee at will or not. Could have just asked if not employee-at-will was he fired for just cause and he was because he had been lying on reports. iv. He contended his contract was until he reached the age of 65. v. Courts will not maintain any arguments on variation of employment at will unless can come up with a definite term. That helps on issue of damages and intent of parties. So Louisiana is not unique in this respect. vi. Give list of Civil Code articles without telling us a lot about them: 1. Article 167 (repealed in 1990) 2. Article 2747 a. This is the one Louisiana Supreme Court will eventually say is employment at will (though don't say so in this case). French articles this is based on said was limited to domestic servants that served in the house of the employer. 3. Article 2024 a. This is general obligations article. 4. Article 2746 5. Article 2749 vii. Go back to Pitcher saying that case law establishes a long line of employment at will. When articulate employment at will in Pitcher cite ALR and cite cases from most other states, except here, saying it is the law everywhere. Shows that court was not looking at code articles in 1932, but state of law in all the other states and find employment at will. viii. Brannan is first case where throw out the civil code articles and say they are relevant, but don't tell us quite how they are important. ix. What documents did he have? Employment agreement (non-compete, confidentiality agreement, and patent assignment), territory manager manual, retirement manual, etc. Would any of these vary employment at will with definite term? No, but he is throwing every document he can at it. x. Court will say that he didn't establish the contract to retirement. If had been successful would run into 10 year limitation that was law at time (NO LONGER LAW). Said even if did establish employment at will does not matter because he was fired for just cause anyway.

a. Employer Interests

i. Why do employers want to control these actions/interests? o Access to information- Why would they want to know about your health—insurance pool—what about an employee with a child with a very serious health condition? This factors in. These are some of the reasons why an employer may want this type of information. o Control over speech/ expression- Reputation/ liability purposes. Defamation if done during working hours. . . sexual harasser if it's one of their means of expression o Control over activities at work- kind of obvious, if you're at work and you're spending all of your time doing things that are harmful to the company or detract from productivity o Control over activities not at work- many employers do care about these sorts of things—neo-nazi example again

a. Non-competes

i. Will have to look up what each state does. Some do solely by case law, while others have statutes. Employers love to pass out non-compete clauses. Non-competes are generally disfavored. ii. La. R.S. 23:921 (non-compete statute) 1. (A)(1) Every contract or agreement, or provision thereof, by which anyone is restrained form exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void. However, every contract or agreement . . . a. General rule then is that are not enforceable, but there are exceptions. 2. (C) Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employer . . . a. This is the exception. 3. What can be prohibited? a. Carrying on or engaging in a business similar to that of the employer b. Soliciting customers of the employer i. Statute doesn't really say this for co-employees, but Corbett likes to put on exam. One court says that the statute did say that, but can arguing isn't that saying the same thing by taking co-employees. Better line of argument in the state is probably that not covered, but not a stretch to argue the other way. 4. Geographic limitation (cities, parishes, or parts thereof). Is this a bit outdated? because for many types of businesses today with nature of business and communications might not be accurate. Could depend on the business. 5. Time limitation (will always write them for two years). Why is that something that legislatures and courts have a sense that agreements are ok within a time limit? Can see some limit to just one year. Want to strike a balance between interests of employer and employee.

a. Credit History

i. Will look at Fair Credit Reporting Act that looks at consumer reports about credit and background checks and has resulted in huge class actions. Concerned here with when employer goes to third party and says wants background information on applicant for a job (credit history, criminal background, personal references check, and produce a report). This has implicated Fair Credit Reporting Act. Something that employers have to get used to because it is very easy to violate the act. ii. Two states passed laws banning the use of credit history in hiring. There are some exceptions built into laws, but basically say cannot use credit history in making the decision. Why would employers want credit history? Could be that find out person needs stream of income so can make them do what want and another may be that shows are irresponsible. iii. Louisiana passed a ban the box law on application materials where can't ask about criminal history and arrest on initial applications (but can do so later).

Gil v. Metal Service Corp.

i. is another case like this. It involved an employer who sold steel. The company told employees to rip off any identification of where it came from. One employee said couldn't do that (thought probably illegal). He was fired and argued that should recognize wrongful discharge in violation of public policy. Court said was familiar with concept, but could not recognize it because don't want to usurp the role of the legislature. ii. Argues that it was battery. If someone commits intentional tort, what damages can you get? All damages flowing from intentional tort (foreseeable and unforeseeable). Called extended damages from the tort. Agree that it was battery, but had to determine if it was in course and scope of employment. Dow conceded this also. Since concede would be liable for firing that followed. He recovered a good deal of money. First Circuit said it was good tort law. iii. Why did they have to reverse this decision? Said that couldn't leave the employers in this situation. Fired because engaged in battery/assault and made them liable for all damages. Essentially would create wrongful discharge. Nothing wrong with tort law analysis. However, court comes in and says it is battle between employment at will and tort law and tort law will lose. iv. Why all the concurrences? Want to go back to tort law and re-do it. Don't want to be the elected judge (10 year terms) who has to say that employment at will trumps tort law (that can be beat up at work and still be fired). v. This is fairly high profile case and doesn't play out well for taking care of the people if decide how the majority opinion decided it. Enforces everything said about employment at will though.

a. Finding Public Policy

i. must be convinced that what doing is great public concern. States do this very differently. ii. Narrow view is that public policy must be in state statute or constitution. In a broad sense, looking at case law or will know it when see it. Regulations might be another good place to look.

- Organizing themes of the book

o Appropriate blend of economic incentives and legal regulation § People say the market drives decisions, employers will do what they have to § Should Congress raise the minimum wage · Could destroy certain amount of jobs o Authority in workplace—in US, overwhelming employer § Vast amount of authority in the US by employers o Simple and effective rules—tension § Most employees know very little of employment regulation § Complex rules are likely more effective · but people need to know what those rules are o Structure of legal responses to problems § Level of government · Congress doesn't like to take certain rights away from states · Employment at will: Congress doesn't want to take that power away from state § Adjudicatory and enforcement mechanisms § Type of regulation—positive law v. case law o Best enforcement mechanism § Herein of substance and procedure o Boundaries of employment law—coverage issue

- Coverage

o Coverage under many of our employment laws may be outdated or archaic. Consider the gig economy § Gig economy- app based companies, the idea that they are all independent contractors o Could adjust the test to come up with a test that is likely to find the people as employees § Could also come up with a third category between employees and independent contractors § The matter is whether Congress intended to have people in gig economies covered by these laws § Almost every federal statute in employment law is under the jurisdiction of the department of labor o Are there employees who need few or no legal regulations to protect them? If so, why don't we exclude them? § If employees don't work for a covered employer there could be no protection o Are the coverage provisions too complex? § A lot to consider for coverage issue § EXAM: do not assume coverage unless the questions directs otherwise § Could be a problem if the law is too complex because it is unknown whether they are covered o As a practical matter, the best defense to an employment claim or lawsuit is that there is no coverage. Do not skip the question of coverage o FLSA- specific exemptions in section 13 o Best when there is no coverage even if the employer did violate the law o Distinction between employee and independent contractor § Don't always have to be an employee if they work for someone

- Historical perspective: employment law is one of the youngest bodies of law

o Didn't beginning regulating employment until the Industrial Revolution o 1868- historian Richard White identifies this as the year the US economy began its transition from farmers and independent artisans to large factories and wage labor o Part of that transition is redefining the nature of citizenship in such a nation o Master- servant? § It is only in recent times, following profound changes in society and widespread industrialization that the status of employee has become an enviable one o State legislation began to be enacted in the 1840s § 1932- the Norris-LaGuardia Act § 1935- the Wagner Act- the NLRA § 1938- the fair labors standard act § 1963- the Equal Pay Act § 1964- Title VII of the Civil Rights Act of 1964 § 1970- OSHA (Occupational Safety and Health Act) § 1974- ERISA (Employee Retirement Income Security Act) § 1993- Family and Medical Leave Act o Look for on the Exam: What are some things you would change about US Employment Law? o How to explain US Labor and Employment Law? § At the end of the 12th Century, the body of law of employment in the US has evolved to a scarcely rational patchwork. It is comprehensible as a whole if at all, only when viewed through the lens of its history

- How effective are our labor and employment laws in a crisis?

o During the recession in 2007 and following? § E.g. work sharing arrangements o During the COVID-19 pandemic of 2020 and following? § E.g., leave laws- created more paid leave § E.g., sources of income for unemployed- stimulus checks § E.g., coverage of workers other than employees- more coverage for independent contractors who needed help

i. Williams v. Delta Haven, Inc.

o Employee was fired because he didn't turn over his patients at a nursing home o Looked to the employment manual because there were 3 warnings required to be terminated o He didn't have a definite duration contact, so he was an employee at will § No definite durations, court will not recognize employee at will

- Employment Law

o Employment at will, contracts: formation and termination, torts, employee or workplace privacy (or autonomy), FLSA, FLMA, OSHA, ERISA, etc. o Employment laws vs. labor market § Labor market controls many things o Immutable vs. default rules § Most federal and state minimum rights employment laws are immutable rules rather than default rules · Limiting to what you have to do for immutable rules § Default rules can provide bargaining leverage · If Congress did default rules for x number of paid weeks, it could be better because it is not an absolute obligation · Congress and state legislators may feel better to do this, but it is hard to give employees the power to bargain § Why do we enact rules? § Do we have any examples of default rules in employment law? · Employment at will, but... o There are exceptions: collective bargaining, civil employees, and professors o Many employers don't want to negotiate employment at will, usually don't bargain about that · Noncompete o Basic law: can compete with your employer after you leave unless you sign a noncompete o Very common, signed by many employers o A lot of times, if you don't sign it, you don't get the job, employers want to negotiate · Mandatory arbitration agreements o Part of an agreement to purchase a service o Usually employers will not give you the job if you don't sign this · a lot of push and pull and between default and immutable rules

- The glory of remote work

o Is remote working overhyped? § The work place is a social environment and business in any form is a social phenomenon § We have been in the midst of a loneliness epidemic among the 20-something for the better part of the last two decades. It is a particular problem for young new graduates moving to an unfamiliar city on their first job. With no family or friends nearby, work is the only place they can find friends and arrange social events. § Third, the digital world of Zoom and Skype is no substitute for face-to-face meetings. It is easy to hide away reading your emails and newsfeed. People find the virtual environment awkward and very quickly get bored. There is a very strict limit on the size of natural conversations of four people.

- Issues

o Labor segmentation and polarization o Business fissurization—employment has been pressed down the chain to smaller business units o The Demise of Unions—around 35% in the 1950; about 20% in 1985; 10.5% in 2018 o Privatization of labor law § Arbitration agreements

- Is employment law a discrete area of law?

o Law and o Torts o Contracts o Constitutional law o Intellectual property o Various and sundry statutes o Consider ALI project: RS 3d of Employment Law—approved May 2014 § RS of a bunch of different laws coming together § Summary of what the law overall looks like throughout the nation

- Employment law and politics

o When democrats are in power does it result in drastic changes in labor and employment law? § Consider the Clinton and Obama administrations o In what ways can change occur? Statutes, regulations. Agency decisions o Possible changes: mandatory arbitration, amendment of the remedies under Title VII and the ADA o When there will be a potential change in regulation, tries to change the regulation? § New legislation that favors a finding of independent contractors · Will probably not be passed in time and will probably be frozen

- Cradle to grave employment laws

o While we have a lot of employment laws, does not mean that they provide coverage

- Stakeholders

o ployers/owners o Employees/labor o Government o Society § Consumers o In the EU, the social partners are the bodies representing the two sides of industry: the employers and the employees

Rayborn v. Bossier Parish School Bd.,

—Court said must have an "adverse employment action" to have a claim under 23:967. Problem with this is that they do not look to the definition of reprisal in the actual statute, but instead they look to what is considered an adverse employment action borrowed from discrimination law.