Exam 3: Chapter 13

True or false? employees who report illegal corporate conduct may also find protection under Sarbanes-Oxley or Dodd-Frank.

true

Lazette v. Kulmatycki,

ion of the SCA for its access of a former employee's personal email via a company provided Blackberry turned in by the employee, which the former employee had used to access her personal email account.

public policy

only refers to state constitutional protections or state statutory law. -Other states take a broader view and consider things such as a professional code of ethics and general public sentiment. -A majority of these are whistleblowing

What are the risks of whistleblowing?

Besides the potential for being ostracized within the workplace, the industry, and possibly even in their community, a whistleblowing employee also runs the risk of employment termination.

True or false? Exceptions to employment at will are limited

true

True or false? Government employees are susceptible to drug testing

true

True or false? Some states say random drug testing is not permissible

true

Describe nicotine use in the workplace

an increasing number of employers have adopted "no nicotine" policies that prohibit an employer's use of nicotine products both on and off the job. To ensure compliance with these requirements, employers conduct urine tests to detect the presence of nicotine.

True or false? State minimum wage can not be less than the federal minimum wage?

true

Describe an employer's unfair practices.

-Interfere, restrain, or coerce employees who seek to exercise their rights under the NLRA -Dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it -Discriminate in employment to discourage or encourage membership in any labor organization -Discharge or discriminate against an employee because the employee has filed charges or testified under the NLRA -Refuse to bargain collectively with the employee representative

Describe drug testing in the workplace.

-Most states allow private employers to conduct both job screening drug tests as well as regular periodic screening of employees, but the states vary on the permissible limits of this testing. -A drug test will not run afoul of the Fourth Amendment if the employer has a reasonable basis for suspecting the employee of drug use. In addition, employees engaged in industries that involve public safety, such as transportation, can be subjected to random drug tests.\\

What are some of the exceptions to employment at will

-Public policy exception -Implied contract exception -Covenant of good faith and fair dealing

Describe union unfair practices.

-Restrain or coerce an employee in the exercise of their rights under the NLRA -Cause or attempt to cause an em ployer to discriminate against an employee whose membership in the union has been terminated -Refuse to bargain collectively with an employer in good faith -Picket or boycott an employer for unlawful objectives (e.g., trying to compel an employer to recognize one union when another has been certified) -Charge excessive or discriminatory membership fees -Cause an employer to pay for services that have not been performed

Describe the sullivan case

-Sullivan was a closely held corp and Sullivan owned 15%. You must separate employee and owner status. In many of the closely held corporations, individuals are employees and owners -If sullivan has a dispute with being a minority shareholder, he would bring up minority shareholder rights -Sullivan filled many roles, he was the treasurer, coo, cco, and he was fired by majority shareholder -The president fired him and has right to fire -Fired for performance reasons and misconduct --He challenged the firing and said he objected to do deceptive stock transactions that seemed to be more personal than not --He didn't want to do manipulative practice --Claimed that he qualified for whistleblower -The issue was that there was no whistleblower statute that he could hold on to --Has to be found in a judicial precedent or statute -He claimed that among other things, his employer was engaged in inappropriate decision making -In the end, the court of appeals denied sullivan wrongful discharge claim --Only interferes with employment at will regards in a narrow view

Describe polygraphs in the workplace.

-The Employee Polygraph Protection Act limits the ability of an employer to use polygraph testing. -´Notable exceptions include: -----´An employer's ongoing investigation of a loss to the business. -----´Police criminal investigation of a workplace incident. -The general rule is unless there is some ongoing investigation in the workplace, polygraphs are not allowed on a routine basis

Describe the public policy exception to employment at will.

-This exception to employment-at-will recognizes that employers cannot fire an employee for a "bad reason." -´Whistleblower Protection --´External reporting may receive greater protection than internal reporting. --In order to take advantage of whistleblower exception, under the dodd frank act, you need to find a statute. Dodd frank is only available for public company, not private --Some states have whistleblower stuff but there is minimal help -´Refusal to Perform an Illegal Act --´For example, a company asks its accountant to keep a second set of falsified financial books. If the accountant refuses, she cannot be fired for this refusal. --Ex. you were asked to dump waste into a lake and you refused -´Exercising a Right or Privilege --´For example, a worker is fired in retaliation for filing a workers' compensation claim.

Three D, LLC v. NLRB

-Three D, LLC, doing business as Triple Play Sports Bar and Grill employed Jillian Sanzone as a waitress and bartender and Vincent Spinella as a cook. In January of 2011, Sanzone and other employees of Triple D discovered that they unexpectedly owed more in state income taxes than anticipated and complained to their employer about the discrepancies. Soon after several employees engaged in a Facebook discussion about the error and as part of the exchange made disparaging comments about the employer's handling of this matter. The sister of one of the co-owners of Triple D was also an employee and a Facebook friend of one of the employees engaged in the Facebook conversation. She showed this conversation to her sister and both Sanzone and Spinella were fired for their Facebook activity, which the owners perceived as an act of disloyalty to the company. -Yes. The National Labor Relations Board confirmed that Sanzone and Spinella were engaged in protected concerted activity under the NLRA because the discussion concerned workplace complaints involving tax liabilities. As a result, the Board ruled that Triple D, LLC violated the Act by threatening the employees with discharge for their activities and by interrogating the employees about their Facebook activities. The Board was not persuaded by Triple D's argument that the defamatory nature of the conversation should negate the employees protection under the Act.

What are some of the traditional means for checking an employees work?

-Traditional means used to keep tabs on employee performance include cameras in workspaces, listening to phone calls and voicemail, and reviews of employees' files. -More recently some employers have begun using drones as a means of monitoring employee performance. -Employers should notify employees

What are the two ways of finding a remedy?

-Use the law if there is law available (tort action, breach of contract, product liability) -An equitable remedy. The judge has discretion over issuing this --Ex. minority shareholder rights

Sullivan v. Harnisch

-joseph Sullivan was both an employee and minority owner (15 percent) of Peconic, an investment advisory business. -he fulfilled many roles simultaneously, including executive vice president, treasurer, chief operating officer, and chief compliance officer. -Sullivan was fired by Peconic majority owner and president, William Harnisch. According to Harnisch, Sullivan's dismissal was based on performance reasons and misconduct. Sullivan challenged his firing on various grounds, but this particular case is only focused on one cause of action: Sullivan's claim that he was fired because he objected to certain deceptive stock transactions by Harnisch -The New York Court of Appeals (the state's highest court) denied Sullivan's wrongful discharge claim. This holding is consistent with the New York court's policy of only interfering with the employment-at-will relationship in narrow circumstances. "Absent violation of a constitutional requirement, statute, or contract," the employer could terminate Sullivan at will. The court did not find such a violation to exist. The court did not even find evidence of a company policy against retaliation as claimed by Sullivan, finding instead that Sullivan was relying on the general obligations under securities laws and the firm's code of ethics.

What is required in order to be under leave for the FMLA

-to be eligible for leave under the FMLA, an employee must work for an employer for at least 12 months (nonconsecutive is fine) and have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave -Employees are required to provide 30 days advance notice of the needed leave, when feasible. -During the period of leave, the FMLA requires that the employer continue to provide health benefits to the employee. In addition, upon returning from work, the employee must be given the same position or a position similar to the one he or she had before the leave with equivalent compensation, benefits, and responsibility. Employers who fail to comply with FMLA requirements face monetary liability for their actions.

What are some exceptions to the polygraph rule?

-´An employer's ongoing investigation of a loss to the business. -´Police criminal investigation of a workplace incident.

Employment at will-

-´Employees have the option of quitting their employment at any time for any reason. -´Unless employees have an employment or union contract, employers have the option of firing employees, at any time, for any reason, or for no reason at all. -For most people that work in the us, they work as employees at will --They have the option of quitting employment at any time for any reason -Unless covered under a union contract or have an employment contract, your employer can fire you for any reason at any time -Compare this with europe --The netherlands and nordic countries come to mind where there are protections for the employees --Employers don't have the abilities to just fire people or lay them off -When getting a job, look at the paper at the bottom because thats where they put in the employment at will -Predominant mode of employment

Describe how employees' actions are monitored.

-´Employer notification that surveillance will take place is ideal, but not required. -´Traditional monitoring (cameras, listening in on phone calls, etc.) now supplemented by monitoring of electronic activities. -Employer should notify you that you are being observed, but it is not required

Describe privacy in social media in the workplace.

-´Employers regularly use social media to screen job applicants. -´Social media accounts not set to "private" or "friends only" are publicly available. -´State laws are being enacted to limit an employer's ability to request access to social media accounts of current and prospective employees. -Whatever you post on social media, is permanent

Describe the implied contract exception to employment at will

-´Issue is whether an employer's written or oral statements have created an implied contract for continued employment. -This is an equitable remedy -Ex. you have worked for the same company for 15 years and when meetings are held for those who have an employment contract, you are invited and treated as if you do. Emails are sent to email contracts, yet you are included --The court will look at some of these factors and it looks like you have an employment contract. The court could fashion an implied contract

Describe drug testing in the workplace.

-´Most states allow private employers to conduct job screening drug tests and periodic screening (limits vary). -´Government employers are a bit more limited. -´Random drug tests are permissible in certain industries that involve public safety. -If you want to work for a company, you may be tested. -There are limits, but in general, up front drug testing is permissible.

Describe privacy in e mail communications

-´No reasonable expectation of privacy in employer provided e-mail accounts. -´Increased expectation of privacy for personal e-mail accounts accessed on an employer's system under the ECPA. See, Case Illustration on page 420. -If you are using an employer equipment and you are using your employer email, then you have no expectations of privacy -In general, employer based email you should have no expectations of privacy -If you are using your personal email on a company server/computer, employer could subpoena those files and this varies across states

Describe the covenant of good faith and fair dealing exception.

-´Termination must be based on just cause, not based on malice or ill-will of the employer. -´Only recognized in a handful of states.

What are some of the employees rights?

-´The National Labor Relations Act gives employees the right to unionize. -´Employers and unions must refrain from unfair labor practices. See Exhibit 13.1 on page 412 for examples of unfair labor practices. -Allows you to unionize

Describe cell phone privacy.

-´Very limited privacy rights when using an employer-provided cell phone. -If you are using an employer cell phone with personal texts, no expectation of privacy

Describe the area of dispute of unpaid internships.

Another area of dispute under the wage and hour laws of the FLSA is the unpaid internship. An organization's ability to hire unpaid interns is premised on the fact that in return the organization will provide the intern with valuable training. However, when the organization fails to provide such training and simply uses the intern as an unpaid employee, the entity may be in violation of wage and hour laws.

What is the result of failure to comply with wage and hour laws?

Failure to comply with wage and hour laws may not only impact the business itself but may also result in personal liability for the business owners

public policy exception

In some states public policy protection may only extend to employees who are fired because of their refusal to perform an illegal act, while in other states a public policy exception may be applied any time an employer acts in bad faith or with malice toward the employee

ontario v quon

In that case, the Court upheld the right of a police department to review the contents of messages sent by a SWAT team officer on his employer-provided pager. The Court found that the City had a legitimate business reason to review the contents of the text messages in trying to decide whether the city's current data plan was adequate to support department needs. Keep in mind that Quon involved a government employer and therefore raised Fourth Amendment concerns. In a separate action, Quon brought a claim against Arch Wireless, a private company, for a violation of the SCA. The Ninth Circuit agreed with Quon that by releasing the transcripts of the texts to the city, Arch Wireless, an electronic communications service (ECS), violated the terms of the SCA that prohibits an ECS from releasing information to a party that is not an addressee or intended recipient of the message. Because the city was neither, the release of the transcript violated the law.

Owen v. Cigna,

Lois Owens was employed by Paul Cigna, Professional Consultants, Inc. (PCI). When she left employment with the company, she filed a sexual harassment claim against her former employer with the Illinois Human Rights Commission for fostering a hostile work environment. While she was employed by PCI, she often accessed her personal e-mail on her employer's computer. As part of the discovery process in the sexual harassment suit, PCI gathered information from her personal e-mails, which they were able to access through the work computer used by Lois. In response, Lois brought this case against PCI, in part for violation of the SCA. In denying PCI's motion to dismiss the case, the court found that Lois had a viable claim against her employer because although PCI could clearly access an employee's work computer, it did not have authority to access an employee's personal email account

Describe privacy in the workplace.

Reasons why employers engage in monitoring activities: ´-Protection from legal liability ´--For example, recall from chapter 12 that an employer will be liable for all the actions of its agents/employees that the employer knew or should have known. ´--Track employee job performance ----If there is minimal activity when logged in, you will be contacted -Ensure confidential documents and trade secrets are not transmitted outside the organization -There is minimal privacy in the workplace. Places often have hidden cameras everywhere. As long as voice is not being recorded, companies are able to record.

What are some of the exceptions to the employment at will doctrine?

These exceptions include the public policy exception, the implied contract exception, and the implied covenant of good faith and fair dealing exception.

True or false? If you are working as an independent contractor, the laws that are presented in this chapter don't apply

True. they only apply if you have employee status

Family and Medical Leave Act (FMLA)

a federal law enacted in 1993 that requires employers with 50 or more employees to provide employees with up to 12 weeks of unpaid leave for the birth or adoption of a child, or in the event of serious illness of the employee or of the employee's spouse, child, or parent. -to be eligible for leave under the FMLA, an employee must work for an employer for at least 12 months (nonconsecutive is fine) and have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave

implied contract exception

claim that continued employment was implied by the employer either through written or oral statements by the employer. -comments made by an employer during the interview process could be construed to create an implied contract.

What are Claims for violations of workplace privacy in nongovernment settings are often based on

common law tort of intrusion on seclusion (invasion of privacy)

Occupational Safety and Health Administration (OSHA)

develop and administer whistleblower protection programs to protect employees who report safety violations in certain industries such as airlines, food safety, and maritime -also monitors claims of retaliation against whistleblowers who report employer violations of the Patient Protection and Affordable Care Act.

What must a person do to prevail on a tort claim of invasion of privacy?

employee must show that -(1) the employee had a reasonable expectation of privacy and -(2) the intrusion would be considered highly offensive to a reasonable person

Employment at will

employees have the option of quitting their employment at any time for any reason, and the employer has the option of firing those employees at any time, for any reason, or for no reason at all. -Over time, a combination of state legislative and court decisions have chipped away at this broad latitude given to employers and have created exceptions to the employment-at-will doctrine. These exceptions include the public policy exception, the implied contract exception, and the implied covenant of good faith and fair dealing exception. -if an employee has an employment contract with an employer that contains provisions inconsistent with employment-at-will or if the employee has job security under terms of a union contract, that employee will be exempt from employment-at-will status to the extent provided in those contracts.

Whistleblowers

employees who refuse to commit an illegal act, or employees who are terminated for exercising a right or privilege -A majority of the cases are public policy exceptions -Blowing the whistle on an employer's wrongful actions often is accompanied by a risk of retaliation by the employer

respondeat superior

employer is liable for all the actions of its agents/employees that the employer knew or should have known. -Employers also engage in monitoring activities to track employee job performance. Tracking performance ensures that employees are doing their job which increases efficiency -Employers monitor electronic communications to ensure that confidential documents, files, information, and trade secrets are not transmitted outside their organizations.

Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)

ensures that the employee has the option to continue that coverage for an additional 18 months (29 months if the employee is disabled). -During the period of COBRA coverage, employees are required to pay for the health coverage themselves and may also have to pay a small administrative fee to the employer. -does not cover situations in which the employee was fired for gross misconduct.

Confidentiality agreement

ensures that the employee will not share the employer's trade secrets, business practices, marketing strategies, and so forth with others both during the course of the employment and after it ends.

Electronic Communications Privacy Act of 1986 (ECPA)

imposes civil and criminal liability on those who access data and electronic communications without authorization.

exclusive remedy

meaning that they do not also have a right to bring a lawsuit against the employer for their injuries. -Aka workers' compensation\ -available to employees for work-related injuries -The amounts recovered generally represent a portion of lost wages and do not include recovery for pain and suffering, unless the pain and suffering is at such a level as to be considered disabling.

Fair Labor Standards Act (FLSA)

passed in 1938, mandates federal standards for both hourly wages and overtime pay that apply to virtually all employers. -covers employers engaged in interstate commerce and employers engaged in the production of goods for interstate commerce. -administered by the Wage and Hour Division of the Department of Labor -employers are required to pay their employees at least the federal minimum wage -adjusted by Congress periodically for cost of living. -Employers are also required to pay one and a half times the employee's hourly rate for any hours considered overtime (hours beyond 40 hours per week). Certain categories of employees, namely executives, administrative employees, professional employees, and outside salespersons, are exempt from this overtime requirement. -imposes restrictions on child labor.

Employee Polygraph Protection Act (EPPA)

passed in 1988 to limit the ability of a private employer to use polygraph testing either as part of a pre employment screening process or during the course of employment. -covers a wide range of private employers: those affecting commerce or engaged in the production of goods for commerce -Some exceptions to the polygraph restrictions exist. If an employer is engaged in an ongoing investigation of a loss to the business (such as a theft of trade secrets), the company can ask an employee to take a polygraph test as long as the employer has a reasonable suspicion that the employee could be involved. If the police are conducting a criminal investigation of an incident occurring in the workplace, employers are allowed to cooperate in that investigation by allowing employee polygraph testing to be done by the police. -makes it unlawful for an employer to use the results of a polygraph test to discharge or take adverse action against an employee.

Occupational Safety and Health Act (OSHA)

principal piece of federal legislation designed to prevent workplace injury. -enacted in 1970, mandates working conditions that are free from serious hazards -Secretary of Labor is responsible for ensuring workplace safety standards are met by employers and has the right to authorize physical inspection of workplaces. -Criminal penalties may also be imposed if an employer's willful violation of safety requirements results in the death of an employee. -Can result in citations and civil penalties -often conduct unannounced inspections. If an employer refuses to give the inspector access, the inspector could return with a warrant to inspect the premises. Employers who employ more than ten workers are required to keep detailed records of occupational injuries and illnesses and to make corresponding reports to the Secretary of Labor. -Inspectors will also audit records to ensure compliance with these requirements.

workers' compensation

programs are governed by state law and ensure that compensation is provided to workers who are injured on the job. -helps to prevent disputes between the employer and the employee and helps to avoid the time and money that would be spent on litigation -Workers' compensation amounts are set by state rules and paid from a state fund. Employers make contributions to the state fund, rather than compensating employees directly at the time of injury. -To recover damages, the employee does not have to show that the employer was at fault in causing the injury. All that is required is that the employee's injury occurred during the course of employment. In addition, the employee is not required to go to court to seek damages. The employee can file a form with the appropriate state agency seeking recovery.

Stored Communications Act (SCA)

prohibits the access of electronic communications (such as e-mail) without authorization. It protects the files and records that are held by service providers. -Title II of the ECPA

Wiretap Act

prohibits the actual or attempted interception of any wire, oral, or electronic communication. -Title I of the ECPA

Implied covenant of good faith and fair dealing exception

requires that termination of employees be based on just cause, and not based on malice or ill will by the employer. -only recognized in a handful of states -Examples of situations in which this exception has been utilized include an employer's discharge of a long-time employee in order to avoid payment of retirement benefits and discharge of an employee to avoid payment of sales commission.

True or false? Employees cannot be terminated for exercising a lawful right or privilege

trrue

True or false? 43 percent of organizations have used either social media accounts or online searches to screen job candidates and about 36 percent have disqualified a job candidate because of information found on a social media profile or through an online search

true

True or false? As a general rule, an employer may not terminate an employee for that employee's refusal to comply with an employer's request to perform an illegal act.

true

True or false? At least 43 percent of employers engage in e-mail monitoring, and 28 percent of employers have terminated employees for improper use of the e-mail system

true

True or false? Because workers' compensation provides the primary relief, the employee is unable to bring a tort claim (for negligence) against the employer in addition to filing for workers' compensation

true

True or false? Employees cannot be forced to "friend" the employer or the employer's agents. Violations of the Colorado law result in a $1,000 fine for the first offense and $5,000 for subsequent offenses.

true

True or false? The amount of recovery an injured employee is entitled to receive is governed by state laws.

true

True or false? The employer-employee relationship is central to a wide range of business transactions. It is a relationship in which each party has certain rights and duties.

true

True or false? The greater the number of workers' compensation claims filed against an employer, the higher the amount that employer must contribute, much like a premium increase for car insurance that results when a driver is at fault in an accident.

true

True or false? Voice cannot be recorded, but visuals can.

true

True or false? Workers who want to unionize must file a petition with the regional office of the National Labor Relations Board (NLRB) indicating that at least 30 percent of the employees have interest in a union. A committee from the NLRB oversees an election in which a majority of the votes cast must be in favor of the union.

true

True or false? majority of employers are engaged in some type of electronic monitoring, primarily Web usage and e-mail

true

True or false? to ensure that after termination, employees will not directly engage in competition with the employer, courts will uphold such covenants as long as they do not cover an unreasonable distance and are not for an excessively long period of time, in other words, as long as they do not unduly interfere with the employee's ability to make a living, and are reasonably tailored to protect trade secrets and other proprietary business information.

true

National Labor Relations Act (NLRA)

which became law in 1935, governs the relationship between management and employees. -covers most industries and most categories of employees, although there are some exemptions for certain groups, such as temporary workers and agricultural workers. -purpose of the act is to secure the rights of employees and protect them from unfair labor practices by the employer. -One of the employee's most basic rights under the act is the right to unionize and the right to take collective action.

What are the employer's obligations to the employee?

´Minimum Wage and Hour Laws and Child Labor Restrictions -´Fair Labor Standards Act of 1938. If under age, you need a work permit --Dealth with child labor laws, whichh didn't exist prior to this date --Deals with minimum wage. We have a federal minimum as well as state minimum wage --Violations impact business and also may result in personal liability for business owner. --´States have their own wage and hour laws. --´Issue of Note: the Unpaid Intern (see Case Illustration at page 408). ´Family Medical Leave Act -´Employers with 50 or more employees are required to -provide up to 12 weeks' unpaid leave in certain circumstances. -Federal law does not claim that you be paid during this time -You could have 40 employees and 20 independent contracts, and this would not apply ´Maintaining Workplace Safety -´Occupational Safety and Health Act (OSHA) passed in 1970 to prevent workplace injury. -´Mandates that the workplace be free from serious hazards. -Prior to OSHA there weren't safeguards about the workplace -This could be free from exposure to toxic chemicals and asbestos, which is like an invisible thing -The purpose of osha is too mitigate these hazards. They should also have first aid equipment to be present. ´Workers' Compensation -Governed by state law. -Protection for those injured on the job. -If injured, file a claim. If you qualify, you can get paid COBRA -´Option to continue to purchase employer-provided healthcare for an additional period of time after employment ceases or hours have been reduced. -´usually with health insurance -If you are laid off tomorrow, cobra says that your employer must keep you on the plan for 12 months. You are required to pay, not them. The benefit is that you get to pay the group rate, which is less

What are some employee obligations to employers?

´Nondisclosure Agreement -´Cannot share employer's trade secrets, business practices, marketing strategies, etc. ´Covenant Not to Compete -´Must be reasonable in time, scope, and geographic area.