Employment Law

Cooperative Ownership

1) 1 wrker = 1 share = 1 vote. All ownership is by owners. 2) Decisions/majority votes, often hire separate management. 3) Fire/Buyout - Workers fired by majority vote and must be bought out. 4) Termination = Any time a worker is bought out it must be at Market Value. 5) Profit/Loss per share - Workers share profits and losses for earnings. 6) Subject to state and federal laws for employees.

FMLA (Family Medical Leave Act)

1) Applies to ER's with more than 50 employees. 2) Applies only to EE's who worked at least 1250 hours during a year. 3) Allows for private suits for violations. Similar to NRLA where the Sec of Labor can take over suit if the person does not have the means. 4) Act ensures care for self, child, pregnancy, spouse, parent - up to 12 weeks leave. 5) Serious illnesses - only leave for serious illnesses. 6) Intermittent - Don't need to take leave all at once. Serious illness of self or a dependent requires intermittent leave. 7) Must give notice to ER to use leave, ER can require doctors certificate specifying illness and reasons you cant work. ER can pay for up to 2 other opinions if they don't like the one you got.

JUST CAUSE (Reasons that justify firing someone)

1) Business judgment - Lost sales, need to fire someone; Fitness of employee to enterprise - Lazy, doesn't do well. 2) Disloyalty - Insuboridnation - If EE is disloyal, insubordinate or disruptive, this justifies employee termination. 3) Violence - Illegal - If EE is engaged in violence or illegality, these are good cause reasons for discharge.

ERISA (Characteristics)

1) Future Benefit Plans 2) Preempts State Laws, except health. Only present health benefits insurance is not preempted. 3) §404 - Fiduciary obligations - Duties of administrators is that they have fiduciary obligation to the participants. 4) §502 - Suits/Participant Beneficiary - Permits different suits under different circumstances on behalf of participants to ensure fund is acting properly.

Fair Labor Standards Act (Characteristics)

1) Minimum Wage set at $5.15/hr. anything over 40 is overtime. 2) Earnings >1/2 million 3) Exemptions - People with irregular hours are exempt from overtime provisions. 4) No preemption - State must be > minimum wage.

At-Will Employment With no specific provision in a contract then it is terminable at will for any reason or no reason at all.

1) Mobility at will. 2) Mutual- Freedom has to be mutual, EE can leave, ER can fire. 3) Bargaining power is irrelevant here. 4) Competition of Labor as commdoity - If bargaining power is irrelevant than competition is important.

At-Will-Employment Exceptions

1) Prom. Estoppel - A promise that meets the requirements. 2) Additional Considerations - EE offers add. considerations such as agreeing to do extra work or services in addition to normal tasks. 3) Implied in Fact K - Handbooks- If handbook promises discharge only for cause. 4) Implied in Law K - Includes a clause of good faith and fair dealing - Discharge for no reason or bad reason would be a violation of GF&FD. 5) Contract v. Public Policy - K discharge may be void as against public policy sounding as a K claim. 6) Tort v. Public Policy - Certain discharge is void against public policy sounding in tort, this allows both consequential and punitive damages. 7) Independent Tort involved in the discharge - Intentional infliction of emotional distress.

Worker's Compensation

1) State law - Workers comp is a state fund. State law requires you have one or the other. (State fund or self insurance) 2) ER -Either pay into state fund or self insure. Self insuring cheaper if you never have accidents otherwise the state fund is cheaper. 3) No tort claims unless gross negligence or Intentional harms by ER. 4) Sched of Damages - Tells what you get for what injuries. 5) Job caused illness or injury

Just Cause Legislation

1) Uniform Law Commissioner's Model Termination Act (1991) 2) Montana Wrongful Discharge from Employment Act

Vizcaino v. Microsoft F: : Microsoft hires freelancers to help the other programmers with software. The two are doing the SAME WORK.

1-ERISA—Employment Retirement Security Act—applies to any future benefit plan. Create strong regulation that terms of K will be carried out, must vest w/in 10 yrs and that it will be funded. SPP future benefit plan only if paid to employees paid by payroll, and temp emps were paid by acct's receivable not payroll. Ct says it doesn't matter what acct label the comp paid out of, but mattered that it was money from US accts going to be paid to common law employees. • These workers fulfilled a majority of the right of control factors and thus they should be entitled to the benefits. • 2nd what about ESPP—not future benefit plan, so not ERISA problem. Temp emp's knew they were signing up for something that didn't provide benefits. So may not be able to circumvent SPP but that doesn't mean they get ESPP. Microsoft getting a tax break by offering this type of benefit to emp's, it may not be enough of a break to pay for it. But can't hold out benefit being partially subsidized by us, but then deny it to some common law employees. IRS reg prohibits from discrim btwn class of emp's.

Holloway v. Fisher, Inc. F: P was injured and incurred med expenses which he believed would be covered by med ins procured and maintained by employer. After being sold and bought out and having the company change the insurance situation changed. BSSi was taking money from P's paycheck but not making COBRA payments on his behalf.

1. Taking $ from P's paycheck and not paying premiums was fraud. 2. SJ for conversion claim is improper if P can prove conversion in ct. 3. P failed to prove IIED.

Magnuson v. Peak F: : P brought sex discrim claims against 4 D's—volkswagon, Peak, Fairfax Volks and Blaylock. Worked at one, trained by one, paid by one, and transferred to one after unwanted sexual advances.

All D's statutorily fall w/i def of employer. Peak issued paychecks, VW had control over terms and conditions of P's employment, Fairfax provided workplace and supervisors to monitor P's work, Blaylock supervised P. • Peak and VW don't have a direct employment relationship w/ Blaylock but can still be held liable for agents sex discrim in workplace if o 1. They knew of harassment and o 2. Failed to remedy situation. Peak and VW knew and did nothing. P must still prove Fairfax knew in order to hold them liable as well. • Under Title VII you don't have to show that a male got advancement because of your discharge for gender discrimination as long as the reason for your discharge is gender based. • If she tried Tortious interference with contract than the at-will statute won't hurt her claim. o She has to show her contract was terminated and improper methods were used in order to show tortious interference with contract.

At-Will-Employment

Can be fired at any time for good reason, bad reason or no reason at all.

Vega-Rodriguez v. Puerto Rico Telephone

Ct says there are 4 variables that have to be investigated to determine reas exp. of pvcy @ workplace 1. Degree of surreptitiousness of video surveillance—is it hidden?, 2. Whether others have access to specific work place, 3. Whether the nature of the employment suggests that there's an expectation of privacy, 4. Whether the employees are on notice that the surveillance is taking place.

Martin v. Funtime F: D employed 14 and 15 yo children in amusement parks, and worked more than FLSA permitted.

D was assessed a monetary penalty. 5 yrs later found 135 children employed in violation of FLSA. Later found 80 violated FLSA. Ct concluded violations were willful and injunction was issued against D. • RATIONALE: The dept of labor cannot be in the business of checking up day by to make sure serial violators have stopped violating.

Labor Law

Defined in terms of federal legislation, primarily the National Labor Relations Act, governs collective bargaining and union representation.

Employment Law

Diverse body of state and federal law that regulates individual employment relations.

Unemployment Insurance Program

ERs pay in based on high rating, the more an ER fires an EE when EE not at fault, the higher the payments—this incentivizes and ER "searching" for cause when it may not exist. To qualify, 1) EE must work for 17 weeks, 2) register with state unemployment service, 3) and must be able and available for work (that is, go to unemployment office and tell them you are looking for a job). EEs may recover when locked out, but not when on strike (compare with food stamp/strike case, Lyng.) One is disqualified from receiving benefits if voluntarily unemployed, may not refuse suitable work without good cause. Good cause includes risk, skills, prior training, earning, distance from work, duration of unemployment.

Unemployment Compensation

Employer - Federal Tax Offset • Emplyer = Exper. Rated • Employee = 13 weeks at 50-60% of your wage. o MUST have been involuntarily terminated. Qualifications for unemployment • Worked 17 weeks • When terminated you must register and report to a state unemployment service office about your good faith efforts to find a job. • Then you must, at all times receiving benefits, be able and available for work. • Initial disqualification o Leave work without good cause attributable to the employer • Continuing disqualification o Refuse suitable work without good cause. o Not Suitable work when: required prior training, skills that you don't have; particular hardship associated; Wage $ is appreciably lower 20% to 50%; transportation issues (40+ miles) • Leased employees: When a job is finished you must go back and report that you are finished but are able and ready to work again, unless the employer says stick around and a new job is on its way.

Whitaker v. Bosch Braking F: Indiv is pregnant, works on assembly line, more than 8 hrs day, more than 40 hrs per wk. Dr. says bc pregnancy she can't be on her feet that long w/o endangering the pregnancy. Tells her boss. Employer says if can't work the overtime then have to take disability leave, not fam med leave. Prob w/ that is that there's less of a protection of the indiv in the disability leave provisions. Whitacker suing for diff btwn the 40 hrs wasn't allowed to work and the bonuses she would get. Don't let her choose to work at all. She wants the diff btwn her disability leave and what she would have made if she worked 8 hrs a day, 40 hrs a wk.

Employer forced emp into taking disability. Ct says once show a violation of the act, then entitled to damages regardless of employer intent. • Pregnancy by itself is not a serious health condition but it is also not a license to the employer to require an unusual amount of work that will risk the pregnancy. • Pregnancy, under certain contexts can become a serious disability. (when the job will risk the pregnancy by performing the job as usual.) • Once employee shows the health condition legitimately the burden is on the employer to try and disprove the condition is serious by getting another opinion at their own cost. • She was given damages because of the employer forcing her to either work overtime or take disability without the choice of family medical leave.

OSHA (29 USC 15)

Enforces job safety standards for workers. Compensation of workers for job injuries is left up to state law. However, legislative intent is to encourage ER's and EE's in efforts to reduce number of safety and health hazards at workplace. Const. power from commerce clause. OSHA commission established to do research (asbestos, etc) and provide grants to states to encourage state enforcement. As a general rule, ER's must make sure EE's are free from dangerous environments. OSHA can penalize ER's for $1-$7,000 a day for not remedying a violation on good faith of ER, gravity of violation, past compliance, and size of ER.

Wright Line Doctrine

General counsel must first establish a prima facie case that protected activity was a motivating factor. Once established, the burden shifts to the Employer to show by a preponderance of the evidence that it would have taken the same action even absent the prohibited motivation. If unable to make this showing, the employer is in violation of section 8a1

Uniform Law Commissioner's Model Termination Act

Good cause defined broadly to favor ERs: "reasonable basis in view of relevant facts and circumstances." ER must act in good faith, EE may seek arbitration and ER may respond, filing counter-claim arguing good cause; EE burden to prove lack of good cause. The arbitration system is procedurally efficient, cheap, quick and arbitrators specialize. ER and EE agree on arbitrator, remedies for EE include reinstatement, lost wages, severance, but not for emotional distress, defamation, fraud or other common law/state type actions. Reinstatement is the preferred remedy. -Effects: at-will Ks done away with in most states (excluding FL and TX), Ps win 70% of discharge cases under arbitration system, but most of them due to better representation, high paid job positions and better counsel.

Dubkowski v. Administrator, Unemployment Comp. Act F: Comp. Act Company needs to lay off workers. Don't want them to go on unemp ins, so offers them jobs in other departments. Result is wageloss—2.35 an hr to 1.65 per hr. Have a pvt k which allows them to refuse transfer to another dept and maintain seniority, but if take new job may not be able to get old one back. Old emps say no to new jobs and apply for unemp ins.

H: Before work calling for less competence can be found suitable, a claimant is entitled to a reas length of time w/i which to find work at higher skill. The longer unemp, the more obligated to take less suitable work. In this case, work offered was to begin immed at the term of emp. P's did not have reas time tUnder circ job offered was unsuitable.

U.S. v. Silk F: 2 groups of workers—1 group of workers are coal unloaders, They come into coal bus when they feel like it, work as long as they feel like, bring their own pick and shovel and can work for others.

H: Coal unloaders were employees. Truck drivers are not employees. Drivers were in a sense small businesses, they could hire people and work for others, so they had more control over the situation. Even though characteristics seem to be the same for coal unloaders and truck drivers, truck drivers seem more like they're engaged in their own business. Decided that truck drivers invested in their business, so they were IC's.

AFSCME v. State of Washington F: Class action against the state on behalf of 70% female. Dist ct found the state discrim on the basis of sex by compensating emps in predominantly female jobs w/ lower rates than emps in jobs predominantly male.

H: Ct said that emps must show a discrim motive which has not been made here. Law does not permit fed cts to interfere w/ state compensation if discrim can't be proven. Showed NO disparate impact here. Title VII discrimination proven two ways: 1) Disparate treatment • Employer intends the treatment based on sex, race, or religion, etc. • Interpreted the same as equal protection 2) Disparate impact • Employer uses facially neutral practice and you show that it has a disparate impact on the bases of race, gender, religion, etc.

Department of Industrial Relations v. Robert O. Henry F: Door to door salesman must carry 50lbs of stuff w/ him. Does for a # of yrs. Gets flu which leads to chronic and deteriorating lung condition (pulmonary emphysema) after 14 yrs says it makes it impossible for him to do his job. Brings in Dr. ltr saying can no longer do manual work. Prior law in Alabama say ill health is a good reason for leaving job, but not attributable to employer.

H: Ct says no indication got flu b/c of job, but he was an outdoor salesman and that aggravated his physical condition. Case says if illness is aggravated by work being done, that is good cause attributable to the employer.

Coppage v. Kansas F: Coppage was found guilty of violating the Kansas state law that prohibited employers from asking employees not to join or remain a member of a labor union as a condition of employment.

H: Employment relations are the same as a contractual arrangement. Both contracting parties have the right to terminate the employment 'at-will' for any reason. At the onset, the employee has the choice to refuse employment if union membership is more valued than the position offered. Employee can voluntarily give up rights through K as a condition of employment.

Lyng v. International Union (UAW) F: Union workers stopped working (strike) for bargaining. They were denied Food Stamps under the Food Stamp Act

H: Food Stamp act is constitutional, if you give the workers food stamps you are providing them with a government subsidy thereby making them take a side. Unions should provide for their members.

West Coast Hotel F: (P) was a maid who earned less than the state issued minimum wage for women and minors and brought suit to recover the difference.

H: Minimum wage for women and minors is constitutional, The exploitation of a class of workers who are at a disadvantaged bargaining position is in the best interest of the health of the worker and economic health of the community. The state is justified in adopting such legislation to protect the rest of the community from the burden of supporting economically disadvantaged workers.

Borelli v. Brusseau F: Appellant Borelli, entered into a contract with her late husband to provide nursing care for him at home in exchange for property. Appellant's husband did not leave her the promised property in his will. Appellant is bringing this claim against Appellee Brusseau, also the executor of her husband's estate, to recover the promised property.

H: No Consideration. Wife had a duty of consortium. • This is an unenforceable promise, b/c there was no new consideration for her taking care of him. K is void b/c against pub policy b/c no independent consideration provided by the woman in exchange for property. Says there are uncompensatable duties that run both ways in a marriage. The other party owed a duty of care. Ct also says there's a possibility of fraud, since the dead husband can't testify. • She wasn't giving anything that she wasn't legally obligated to give. o The CA statute does not apply because she gave no consideration.

Int. Brotherhood Teamsters v. Daniel F: Union says workers pension should be considered a security and should receive full disclosure of all information reported to SEC.

H: Not entitled to disclosure. Howey test: (A security is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.) Workers work for wages not investments.

Donovan v. Dial America F: They hire home workers to come in and pick up cards, then go home and find the numbers. They can take as many as they want. They go home, find as many numbers as they can and put there initials on the card. They are told to weed out schools and government agencies. They get $.05 per card returned. They are making roughly $2/hr. Not minimum wage in 1985.

H: Rutherford, Six factors: 1) Emp. Right of control; 2) Emp opportunity of profit/loss; 3) Emp investment; 4) Special skills; 5) permanence in work place; 6) integral part. • Phone checkers - emp. • Distributors - Ind. • if the economic realities of the relationship signal dependency than it will likely be judged employer/employee regardless of the right of control elements. • There is already difficulty with the elements to determine where a worker lies: Employee or Ind. Contractor. o Furthermore, employers have incentive for the workers to be ind. Contractors as the laws are less controlling upon them.

Collins v. Harker Heights F: EE dies of asphyxiation while working in manhole. Wife said company violated his const right to be free from unreasonable risk for not training him properly.

H: The law does not apply b/c the conduct does not violate the DP clause. EE voluntarily accepted the employment and a good salary that paid for the risk he took. State had to choose how to allocate resources and chose not to spend on safety and training.

Payne v. The Western & Atlantic RR F: Payne had his general store by the huge railroad junction. RR said they don't want their employees trading with Payne, he sues saying it was a Tortuous interference with his business.

H: Trade is free, so is employment. Payne had no contract with the company so he had no right to sue. "At-will employment and discharge rule" is first announced. Both sides must be voluntary free to choose to work or choose to fire. Otherwise it wouldn't be truly voluntary.

Allen Family Foods, Inc. F: Employees left early due to worsening road conditions. The Employer did not have a policy regarding bad weather. The Employees did not complaint to the Employer about its lack of formal policy concerning bad weather. The Employees did not attempt to persuade the Employer to permit them to leave work early on account of the blizzard.

HOLDING: • Court said that there was no evidence that these Employees, by leaving early, were protesting the Employers policy as to snowy road conditions. • Basically the Employees needed to directly state that they were leaving and protesting due to a POLICY of the Employer • The Employees actions indicate at most an attempt to set their own terms and conditions of employment. These employees were not engaged in a protected work stoppage over terms and conditions of employment • Here, Employees were not engaged in protesting actual terms and conditions of employment (weather and weather policy). In Washington Aluminum, the Employees were protesting heat, which is a working condition and the Employees had complained about it previously.

Timekeeping Systems and Leinweber FACTS: Employer sent out an email to Employees regarding a proposed plan for an incentive bonus system and changes in vacation policy. Employees emailed the other employees that spelled out the result of a proposed vacation policy change. The Employer required the Employee to write an apology. The Employee said he couldn't come up with anything and the Employer fired him.

HOLDING: Court held that this was concerted activity • Plainly, in communicating with his fellow employees, Leinweber was attempting to correct any misimpression of the vacation proposal and to arouse support for his own decision to appose the proposal. Court further held that this was Mutual Aid and Protection • Leinweber's effort to incite the other employees to help him preserve a vacation policy which he believed best served his interests, and perhaps the interests of other employees, unquestionably qualified his communication as being in pursuit of "Mutual Aid and Protection." • The activity did not lose its protection because the Employee used the company's email system. The Employee was not taking over the computer system.

NLRB v. Weingarten FACTS: Employer saw that Employee only put $1 into the cash register and then left with a box for the larger, and higher priced $2 chicken lunch. Employee was called into the office to discuss the issue. The Employee requested her Union Steward, but the supervisor would not allow it.

HOLDING: Employer's denial of Employee's request that a union representative be present at an investigatory interview which the Employee reasonably believed might result in a disciplinary action meant that the Employer interfered with, restrained, and coerced the Employee's right to engage in concerted activities for Mutual Aid and Protection and constituted an unfair labor practice.

Oil, Chemical, & Atomic Workers v. Am. Cyanamid Co. F: Comp produces lead based paint. b/c lead based, can't reduce lead standards in air to a level where it's safe for child bearing women. So create policy saying women can't work in lead part of plant unless provide proof saying they've been surgically sterilized. (They would pay for it.) Choice: You can either quit, transfer, or be sterilized. OCAW sues to find Am violative of the gen duty clause. Assume women can find work elsewhere, but this is a small town and AM is the only manufacturing comp in the city.

Held: 2 step argument on upholding the decision: 1. Not the employers fault, fetus protection program is independent. Say some women will have to take the higher paying jobs and be sterilized to take care of their fam's but that's just the way it is, the job is offered on the terms offered by the employer—can take it or leave it. • It was not economically feasible to reduce the amount of lead in the paint at this juncture. They either had to shut down the department or find a way to keep pregnancy age women from being exposed in the event they become pregnant. Would be a different scenario if they were passing the cost onto the women for the right to maintain an illegal amount of lead, they need to keep the lead at this point. Plus they are offering to pay for the sterilization.

Pugh v. See's Candies Facts: Employee works up from dishwasher to VP of Production in See's Candies over 32 years. Pugh had been told by a previous president that if he did a good job his future with See's would be secure. No written contract, only an oral claim. He volunteered to work for an at-will contract for his 32 years. He was eventually terminated for no reason.

Held: An implied term read into the contract does not require independent consideration. Implied term and obligation of good faith does not depend on Handbook, it can be employer common practices, longevity, or practices of the industry. Here the longevity is the most glaring. • Job security is important especially for someone who worked for one industry. When you come out you wouldn't know much else but that work and you would be difficult to hire elsewhere. • Longevity and good work should create evidence of a presumption that a covenant of good faith and fair dealing should be abided by. • "We hold that the longevity of the employee's service, together with the expressed policy of the employer, operates as a form of estoppel, precluding any discharge of such an employee by the employer without good cause." • Without good reason you cannot terminate an employee who worked loyally for 32 years without violating the Cov. Of good faith and fair dealing. • 15 years is a common term for "long."

Cleveland Board of Education v. Loudermill Facts: When asked if convicted of a felony on job application Loudermill said no. He was hired as a Security Guard. Then some time later it is found that he was convicted of grand larceny. He was terminated for lying on the job application. NOT for the felony. Under Ohio Statute Laudermill was a classified civil servant who can only be terminated for cause and administrative review is granted if discharged.

Held: Court says this is a property interest issue guaranteed except for dismissal for good cause. The question of whether there is a property interest and how much process is due if it is a property interest are independent issues of constitutional law. Property interest is created only by a source of state law. Once this interest has been created the amount of process due is a matter to be determined by federal courts. • DP will be based on the individuals interest in accuracy vs. the cost of the government in maintaining a due process.

Krebs v. Ryan Oldsmobile F: P was discharged after providing info to Montana crim investigation bureau re: illegal drug activity by other EE's. Then a fugitive dropped of a vehicle at dealership, and P notified bureau. Owner of comp found out P had called law enforcement. Other EE's schemed to set P up to see if he would call law enforcement. When he did, he was fired.

Held: Ct correctly denied P's request for SJ b/c D presented genuine issues of material fact. But lower ct was incorrect in finding that P was not covered by stat and was more like law enforcement than employee. He was clearly an EE who decided on his own to report activities to auth, was not paid and relationship only lasted 6 days

Ricci v. Corporate Express F: P/EE Ricci sells business and remains an EE under 2-year K, company reserves right to fire him for good cause including failure to perform duties, dishonesty, crimes, substance abuse. He gets 6 month severance if terminated without good cause. P was critical of how firm was being run and was fired, Ricci sues for damages for breach of K.

Held: Ct decided for EE, No well-run company would dismiss an EE for advising upper management for making suggestions, court prefers that he tried to solve problem internally. Insubordination is not met here, there was no willful failure to follow directions.

McIlravy v. Kerr-McGee F: EE's had handbooks, a number of new versions were issued. EE's were fired during a reduction in force at mine, where decision about who to terminate was not based on length of time there, but performance. Sue saying not fired for good cause, and there was a violation of the covenant of GF and FD in Wyoming. Argue that handbooks say can only be discharged for cause and any layoffs would be based on seniority. Language was changed by most recent handbooks. To warn EE's that handbook wasn't an employment K. Mere fact that they could change it, means there's a possibility that the earlier K may still govern as an implied in fact part of K.

Held: Ct decides earlier K didn't create this expectation. B/c employees received the manuals, and were given notice of the changes, and employers need to be given leeway to change their policies.

Koepplin v. Zortman Mining F: P engages in sexual harassment and roughs up some employees. Mgmt investigates and says no harassment and scuffle was calisthenics. Mgmt said going to investigate further. P is told not to threaten anyone involved in investigation. P calls one of investigating mgrs and threatens him. P is discharged.

Held: Ct finds P to have been engaged in disruptive behavior, no employer has to tolerate threats and abuse of this nature and insubordination is good cause for dismissal. *Case is impt b/c there is a broad definition of business reason, and extends ability of employer to discharge further than Uniform Termination Act.

Moench v. Robertson F: Statewide Bank offers EE's ESOP. Company is to buy shares of stock with money they receive from ESOP. Statewide is mismanaged and stock goes bad. Beneficiaries lose their money.

Held: Ct finds that the plan was not explicit. Plan called for purch of Statewide stock, but admins still had discretion to diversify if they thought that was a good idea, and admin's never had mtg to decide otherwise. Std must be to show that lower ct found facts in an arbitrary and capricious manner (285—1. Whether interp consistent w/ goals, 2. If lang is inconsistent, 3. Conflicts w/ ERISA, 4. 5. Whether interp is contrary to clear language of the plan.) Ct finds using reas person standard, that plan not only didn't foreclose discretion in buying stock but that internal auditors and firms fiduciary, that when the stock dropped below .25 per share it was time to stop buying it w/ beneficiaries money.

Corning Glass Works v. Brennan F: Equal Pay act mandated equal pay for equal work regardless of gender. P was paying a higher base wage to male night shift inspectors than to female day shift inspectors performing the same task, when a night shift differential was already being paid.

Held: Ct found the higher night rate was in place b/c male workers wages were generally higher, and showed the need to compensate men more for doing demeaning tasks—previously womens jobs. Differential arose b/c men would not work for the same rate as women would accept. Even though women can now work nightshift discrim is still in place. • Situations where pay can be different for same jobs: o Seniority system o Merit system o Measure by quantity and quality of production • Piece work system • If gender discrimination occurs you cannot bring the higher gender down to equal it out, to solve the violation you will have to bring the lower rate up. Then you can try and bargain both down.

Edmondson v. Shearer Lumber Products Facts: P was employed by D for 22 yrs. Received very good perf review but was then terminated and told b/c of continued involvement in activities that are harmful to comp. P was part of a group which opposed some of his comps projects.

Held: Ct granted SJ to ER on EE's claim of breach of pub policy exception to at will doctrine. Pvt emp's are not protected as highly as pub when exercise free speech.

Board of Regents v. State Colleges v. Roth Facts: Roth was hired as prof, completed term of emp and told not going to be rehired. Law said new teachers are not entitled to anything other than their 1 yr K's.

Held: Ct held that Roth did not have a const right to find out the reasons he would not be rehired. There was no stigma assigned w/ this that foreclosed his freedom to take advantage of other emp opp's. Triggers of due process: Liberty and property. o You need arbitrary restraint to have a liberty issue.

Whirlpool v. Marshall F: Have conveyor belt, sometimes parts drop off conveyor belt. Comp puts up screen 20 ft above floor, but maintenance employees have to go out onto mesh in order to retrieve parts. Many people fall through, and the screening is still in place, this has resulted in death. Employees refuse to follow order to go up, and are told to punch out and go home and they won't be paid.

Held: Ct reaches conclusion saying when employee reas believes of serious hazard and refuses to do work they aren't paid for time they are off, but the ct provides damages to employees for the time they were off and not paid. Says employees were given no choice as to whether they could continue work for the rest of the day, so b/c forced choice of loss of pay on employee, employer should be punished. Even though the job is protected, the income is not protected under the OSHA act, unless employer says either do the work or go home. It was retaliation if the employers sends you home for refusing to do the hazardous work. • IMPLIED RIGHT OF SELF HELP o If employee refuses to do the work with 1) no reasonable alternative, 2) reasonable person would have the fear or apprehension, 3) real threat of injury or death, 4) insufficient time to use the Act's situation.

Sanchez v. Unemployment Insurance Appeals Board F: Woman refuses to switch to weekend shift b/c she must take care of children, discharged, is she entitled to unemployment benefits?

Held: Ct says whether she's avail for work depends on whether she's attached to labor market. Say it's not whether the restrictions limit her but whether there's still reasonable prospects out there w/ the restrictions. As long as you open up yourself to a market where's there's economic demand, you've opened yourself up to work. • You don't have to be able and available for ANY job similar to your old one, but you cannot reduce your availability to where there is no jobs available. • An unemployment insurance claimant who is parent or guardian of a minor has "good cause" for refusing employment which conflicts with parental activities reasonably necessary for care or education of minor if there exists no reasonable alternative means of discharging those responsibilities Unemployment changed from insurance to just a supplement to keep people with purchasing power. • Fiscal stimulus package. • If people are unemployed and cannot buy your product, you will go out of business too. • Recipients become vehicles for stimulation and not qualifying recipients.

National Treasury Union v. VonRaab Facts: Raab Important part of customs svc job is seizing illegal drugs. Commissioner announced drug tests to be a condition of placement or employment for positions that 1. Involve direct drug interdiction or enforcement, 2. Req that they carry fire arms, 3. Req to handle classified material. Test results are confidential between EE and ER. Claim drug testing is overly intrusive.

Held: Ct upheld the constitutionality of drug testing for people involved in drug interdiction or who carried fire arms but not for confidential info. Customs employees have a diminished expectation of privacy.

Connick v. Myers Facts: Myers was employed as ADA, she was then told she was being transferred. She opposed the trans and expressed view to supervisors incl Connick. Myers prepared a questionnaire about office trans policies, and supervisors found out. Connick then told Myers she was being term b/c of her refusal to accept the trans and b/c questionnaire was considered an act of subordination.

Held: D. Ct had her reinstated and awarded backpay. S. Ct reversed. Speech is protected as a matter of pub concern. Myers speech was not a pub matter it was personal interest. B/c Myers conducted speech in the office, functioning of the office was endangered. Her speech was an individual EE grievance, while 1st amends primary aim is full protection of speech upon issues of pub concern.

Rulon-Miller v. International Business Machines Facts: Machines Corp EE works her way up to management, but is still in at-will situation, given choice to end relationship with ex-EE employed by competitor or be fired, justification for discharge was "conflict of interest, she sues for wrongful discharge and IIED under state law, awarded $100,000 comp and $200,000 punitives below, IBM appeals.

Held: Dec affirmed, jury was justified; in CA fair dealing is implicit, regardless of whether employment was at-will, ER invaded in privacy and there was no ev that she leaked any pvt work info, jury justified in not buying the "conflict of interest" reason for discharge, Ct had sympathies and IIED met, anything can happen when case goes to a jury and jury did not appreciate ER's ultimatum.

Aluminum Company v. Walker F: 5 employees of alum co. sue for unemp benefits b/c they were laid off after refusing to accept a job which req's less skill and pays less.

Held: Here, the ct says there is a job avail and emp's must take it. Purpose of state unemp statute is to provide benefits for unemp, maintain purch power and limit social consequences; this is not a risk that should be charged to the unemployment funds. • Insuring employment in the labor market, not skill level.

K-Mart v. Trotti F: 88 ER provided lockers to EEs to put personal belongings in, provided locks. For ER provided locks, kept copy of key or combination, but also permitted EE's to provide their own locks. Did not req combo or key if provided own lock. ER claimed it had a policy of conducting unannounced searches in all areas of the plant but policy was not communicated to EEs. Under what circumstances should EE have right of privacy against ERs unannounced and unconsented search. Tx ct gives doctrinal COA for invasion of privacy. For tort claim, must prove 1. intentional intrusion, 2. must be into persons expectation of privacy, 3. Must be highly offensive or cause outrage in an outrageous sense.

Held: In this case there was something willful and intentional b/c ER lied and said no search, and 1 month later came out and said there was. Need to balance EEs interest in keeping something personal v. the ERs interest as the lockers themselves as comp prop, or someone violating comp policy. Problem b/c the ER did not maintain a pub policy of locker searches and the ER also permitted that EEs have their own locks and not furnish the codes, so there is an implied idea that the lockers are meant to be under the control of the person w/ the lock. In this case, jury provided $8,000 in compensatory damages, but to get punitive damages, the EE had to show malice on the part of the ER. Jury awarded 100,000 for punitive damages.

Donovan v. McKissick F: D has 2 wage plans. K #1 gives 3.94 per hr for 1st 50 hrs and then 1.5x per additional hr. K #2 says pay 6.34 per hr and all work in excess of 40 hrs shall be paid at 1.5x per hr, but then says guaranteed work wk 44 hrs.

Held: K #1 clearly doesn't comply w/ stat that says emp must be paid overtime for over 40 hrs work. • K #2 creates a salary b/c will be paid 6.34 for 44 hrs per wk regardless of how many worked. K doesn't comply w/ stat either. • Can only pay a lump sum if work is on an irregular basis and can't be estimated, salary must be enough to cover 40 hrs. iii. Child Labor • It is prohibited below the age of 12. Btwn 14-16 yo child can work up to 18 hrs over 3 days, and must work btwn 7-7 on school days and 7-9 on non school days. Up to 40 hrs a week when not in school • After 16 there is no restrictions. • This req is violated all the time by employers who employ temp or part time labor.

Rankin v. McPherson Facts: Whether clerical EE in city office was properly discharged for remarking after hearing an attempt on the life of the president, "if they go for him again, I hope they get him."

Held: McPherson's statement did not amount to a threat and couldn't be criminalized. It was made during a discussion about the Presidents policies. She addressed an issue of pub concern, but did not disrupt the office. Statement was not a part of her firing, should be reinstated. Garcetti v. Ceballos (2006) • When an employee speaks in their capacity as an employee about employment issues within the company it is not speech as a matter of public policy to satisfy first amendment protection under Pickering doctrine.

Stejskal v. Department of Admin. Services Facts: Employee of dept of admin svcs. High stress job, some kinds of personality conflicts not unusual. P doesn't get along w/ supervisor. 1st under civil svc req's for discharge, given a warning, then engages in more negative behavior, given 6 mos probation. 1yr later, again placed on probation for walking away from supervisor, completes it. Then comes back from vacay a few yrs later to a huge stack of invoices and thinks he's being set up for discharge. Supervisor says to do immediately and give hrly updates. P doesn't give updates, so P is fired.

Held: No showing he failed to complete his work on any of the occasions he was disciplined. He had bad attitude and was insubordinate but this did not hamper his ability to complete his work.

Aladdin v. Scott F: Facts: Woman refuses to change to he evening shift b/c she must take care of children, so she is discharged, is she entitled to unemployment benefits?

Held: No, she refused suitable work w/o good cause and her reason was external to the work itself. She could refuse work for good cause but NOT for child care duties. • An offer to change jobs that is substantially lower than what your making already than it would be good cause to leave and be able to receive unemployment insurance.

Mohler v. Dept. of Labor F: Women are seasonal workers working a few months a year for vegetable canning, they file for unemployment compensation. The Millford canning company only hires during certain times and then lays the people off during down times. They are wives of farmers and don't live near other suitable job opportunities.

Held: Not entitled to unemployment compensation, women are not ready and available for work and voluntarily choose seasonal work. The purpose of the unemp compensation act is to a pool of skilled labor, but these women are content waiting for the next year to come around, will not seek work in the meantime; also, it would hurt the canning company to pay out for all of their seasonal workers. • The women are too detached from the market to be "available" by terms of the unemployment statutes. Meaning of involuntary departure: • Modern statutes require the employee left for "good cause attributable to the work unit

Poulos v. Pfizer Facts: P worked for D, and took home a product he'd ordered w/ comp money. He was caught. P was then suspended. Mtg was held about P's work and misconduct, and decided he should submit to a fitness for duty eval. P claims Pfizer req him to submit to drug testing in violation of stat. He was offered place in drug assistance prog, agreed, re-tested, found pos and term based on results of his test.

Held: P voluntarily consented to the drug test. When a comp has reas suspicion EE is using drugs, EE will be subj to a fitness for duty physical exam and testing for drugs or alc will be conducted. In this case, D did not exhibit specific ev to show as req by stat reas suspicion that P was using drugs.

AFL-CIO v. Unemployment Insurance Appeals Board Facts: Appeal s Board---Private Sector - Worked as housekeeper on an offshore oil drilling platform. EE's had handbook saying they had to have yrly physical w/ drug test and were subj to random drug testing. EE tested pos mult times. Was discharged for refusing to take a drug test, for misconduct connected w/ his/her most recent work and therefore ineligible for unemp benefits.

Held: P worked in a hazardous environment, therefore he demonstrated a wanton disregard for his ER's bus int's and refusal to submit to drug screen was misconduct. EE's privacy expectations were minimal since he knew he could be drug tested at any time when hired. Drug testing is allowed here.

Kurtz v. City of North Miami Facts: Job applicants must sign affidavit before employment that they will not use tobacco as a government EE, Kurtz admits she was a smoker, does not sign the affidavit and sues for being denied employment.

Held: SJ reversed, in favor of EE, no smoking reqt is unacceptable despite ER's argument that taxpayers should not have to bear the incr cost of med ins for smokers. Kurtz's winning arg was that smoking had no bearing on her ability to perform her job, right to privacy prevails. Ct says if they affirm SJ, where does ER intrusion on EEs life end—can they prohibit certain eating/sexual behaviors? To do so would be contrary to fundamental constitutional rights.

United Steelworkers v. Auchter F: OSHA institute recommends that Sec of Labor creates standard that ER inform EEs of hazardous materials in workplace, provide EEs training, create a data sheet and label hazardous materials, this is focused in the mfg sector for the time being and petitioners argue that other sectors, such as svc, construction and ag should enjoy similar safeguards.

Held: Sec of Labor says he must bite off most important chunk (mfg sector) before getting to the rest; Ct says this is not acceptable, OSHA language requires mandatory standards for all production, not just mfg.

Varity Corporation v. Howe F: Massey Ferguson makes farm stuff. Had a # of prod lines doing badly. So wanted to spin off those comps into a new subsidiary—Massey Combines. Got all divisions doing badly and debts tied to Massey Combines. Expectation is Combines would fail and Ferguson would be able to write off debts, but this included pension plans, so need to convince employees to switch over to Combines, so Ferguson would no longer be liable. Plan to screw emps. 1500 emps switch and lose their pensions when the corp goes bankrupt. Emps sue re: fiduciary duties. Here they represented that the benefits were secure and they were acting as plan administrators. Now need to determine if there is a remedy.

Held: The actions by Varity, in assuring the beneficiaries the plan was secure, was in the capacity as an administrator and not an employer. §404(a) says that to participate knowingly in deceiving beneficiaries in order to save the employer money at the expense of the beneficiaries is not acting solely in the interest of the beneficiaries and thus they have violated their fiduciary duty. 502(a)(1) allows individual beneficiaries to sue pension fund for failure to pay benefits. Ct says 502(a)(3) allows a beneficiary to obtain other equitable relief for violation of the statute, b/c not suing for benefits/payments, but for a remedy. • Ct ordered that Ferguson reinstate its former emps into its own plan.

International Union v. Johnson Controls F: ER bans fertile women from work, but findings of fact show work could harm men's reproductive health as well. Women bring Title VII discrimination action instead of OSHA. Claim brought because only women of child-bearing age are required to show sterilization, men were not.

Held: fetal protection policy was not facially neutral because it did not apply to males as well as females despite evidence that lead exposure also harms the male reproductive system. Since this was a policy of "disparate treatment," it could be justified under Title VII only as a bona fide occupational qualification (BFOQ). However, the Court held that since pregnant employees must be treated the same as other employees unless they differ in their ability to do the work, and since there was no showing here of such a disability, the BFOQ exception was not justifiable. The company's main concern was not with whether the female employees could do the job, but with whether lead exposure would harm their unconceived fetuses. However important this may be, the Court said, the health of a fetus is not essential to the business of battery manufacturing and thus cannot qualify as a BFOQ. The Court also rejected the company's claim that its policy was justified by a fear of tort liability.

NLRB v. Washington Aluminum F: Employees had been complaining about working conditions (too cold in the building). One day, the furnace breaks and the working conditions are unbearable. The employees leave without telling management. The employer assumes that either the employees (1) quit, or (2) even if they didn't quit they were fired for leaving without permission.

Holding: • Court said that this was concerted activity, even though the employees did not complain about the activity as a group and left individually. • Workers took the most direct route to protect their conditions (they did not have an established bargaining unit) • Reasonableness is not part of the inquiry into the activity • Workers do not forfeit their section 7 right even if they do not make a demand upon the employer

DeGroff v. Mascotech Facts: Degroff was given a conditional employment as long as she signed an agreed to the policy of the company to arbitrate any employment disputes. She was given no chance to read and she just signed it quickly. She left and then filed a sexual harassment suit. (D) tried to say she had to then arbitrate. Under state law, "anything you sign, you are presumed to have read."

Holding: (State law is preempted by federal law of collective bargaining.) • Although whats in the contract is an issue, its an issue and arbitrator should resolve, State laws bearing no weight. Court says although these can be problems they don't automatically render the provision unenforceable. • MIGHT Still be a problem: o Voluntary Waiver o Question whether the provision creates an effective alternative for enforcement of a statutory right.

Winter v. Houston Chronicle F: EE claims ER inflated subscriber #s, inventory theft rampant, and illegal kickback scheme. EE reports to management, then is fired, before going to police.

Holding: A pvt emp has no protections for whistleblowing on other coworkers under law. He should've gone straight to police, then he wouldn't have been fired. A private EE only protected when safety at issue (reporting of hazardous chemicals, etc.). Concurrence: Primary reason for discharge must be retaliation. • Reported in good faith not done with malice or spite. • Emp must have reasonable belief that activities had adverse effect on public • Whistleblowing should be protected whether it be to superiors or a public official.

Monge v. Beebe Rubber F: Poor immigrant woman moves from her teaching position in Costa Rica to NH to work factory job to provide for family, supervisor harasses and demotes her, she is overworked and gets sick. She calls in absent a couple days, when she tries to return to work she collapses and eventually ends up in the hospital. She doesn't call in the next three days from hospital, company knew she was in hospital. When she returns, employer says says she has voluntarily quit, she was under an at-will K, she sues under breach of oral employment K/failure of ER good faith and fair dealing.

Holding: A termination that was based on bad faith and malice or retaliation is not in the best interest for the economic system and is a breach of the employment contract. There is a broad protection for low level EEs who do not have very much power and all the more reason for a ct to step in to their rescue. This should not interfere with an employers normal exercise of his right to discharge. • The interest of the employer maintaining his work and the employee and public maintaining employment must be balanced. Monge will not really apply to the same range of cases as Pugh. • Pugh covers longevity • Monge covers bad reason or malice • Perhaps you could say that the longevity would make that termination bad faith or malice to reconcile the two cases.

Rehabilitation Specialists v. Koering Facts: Ex-employee started a competing business and solicited the employer's customers and took with her various documents from the company.

Holding: An employee's duty of loyalty prohibits her from soliciting the employer's customers for herself, or from otherwise competing with her employer, while she is employed. Even without a non-compete o There is a duty of loyalty o Not to engage in unfair competition o Duty not to disclose trade secrets

Fortune v. National Cash Register Facts: Salesman with good record working under at-will K fired to prevent him from collecting commissions.

Holding: An implied covenant of gf and fd, where a commission has already been earned or is about to be earned that prevents termination and nonpayment of the bonus. Goes slightly farther than NH, it doesn't require bad faith or malice. o Here: you cannot use an ordinary rule of discharge to avoid upholding a contract obligation (commissions.)

United Mine Workers v. Clinchfield Coal Facts: America, Dist 28 v. Clinchfield Coal Comp D operated a mine, sole customer was a Canadian steel worker. K every yr was entered into and renewed based on current prices for coal at the time. Canadian comp complains saying coal is not up to std they could get elsewhere and they're not willing to pay amt for coal. But did say they would buy a substantial amt of coal for 10% less. Mine says not financially feasible and they're closing the mine the next day. What does mine have to meet to get exception?

Holding: Circs are not reas foreseeable if they are caused by a sudden dramatic unexpected action outside the ERs control. ER must exercise reas judgment in protecting itself in the market. Is D in the clear b/c Canadian comp makes a counteroffer of 10% less than proposed price. Ct says it was unexpected b/c this was the 1st time price was discussed, Canadian comp had never come forward in past saying price was an issue. They had a longstanding relationship and had always been able to work things out before, coal comp had thought they'd be able to work things out before.

Gant v. Sentry Insurance F: EE suffers constructive discharged (pressured) in retaliation for supporting co-workers sexual harassment claim (was otherwise good worker, not fired for $ reason), claim for tortious discharge in violation of public policy

Holding: Claim is actionable under Tameny. The pub policy advanced must be for greater society, not just indiv. • Discharge contrary to pub policy usually falls into 1) refusing to violate a statute 2) perf a stat obligation [like jury duty] 3) exercising a statutory right of privilege [union activity] 4) reporting violation of statute of public importance [whistle blowing. Here, ER was pressuring EE to perjure self during the sexual discrim investigation, EE wins.)

Thomspon v. St. Regis Facts: At-will EE asked to resign after 17 years, severance under policy manual given at first, and then terminated without cause. EE sues for wrongful discharge.

Holding: Ct found for EE, the policy manual provided that treatment will be fair, reasonable and just, EE was doing a good job and it was implied that he could only be fired for cause. Ct said they should proceed with caution when proclaiming pub policy exceptions to at will when leg/const is silent. Here, at-will terminable for any reason unless there is an express or implied agreement or if EE gives consideration in addition to the contemplated service. If an employer creates an atmosphere of job security and fair treatment with promises of specific treatment in specific situation and an employee is induced thereby to remain on the job and not actively seek other employment, those promises are enforceable components of the employee relationship.

SI Handling Systems v. Heisley Facts: In bus of designing, man, and installing materials handling systems (forklifts, conveyer belts). SI purch rights to CARTRAC. SI entered into a # of tech agreements which provided exchange of tech info relating to improvements. SI was trying to come up w/ system for GM. Heisley was officer at SI, quit, began new comp and came up w/ competing prod.

Holding: Ct issued injunction b/c had inside info, but this makes it virtually impossible to do any work in this area. Remanded to determine what appellants can work on w/o stealing proprietary info. • "Know-how" is not a protectable trade secret. • Injunction is only limited to protecting information that was not open to the public and not a skill.

Baiton v. Carnival Cruise Lines Facts: Baiton compelled by ER to give untrue statement in co-worker's retaliation suit, then discharged.

Holding: Exception to the at-will emp rule when whistle blowing in play. ER may not discharge EE for refusing to participate in illegal action (perjury), and ER may not retaliate for EE's refusal. E has alleged proper COA under Jones Act (Fed maritime employment act) and FL whistleblower statute. Interest for EEs to give true statements during government investigation.

Muller v. Stromberg Carlson F: Muller claims he was denied salary increases in violation of ER's merit review policy and that he was discharged without good cause; he was told he would be a permanent EE, but never formalized in K.

Holding: For ER, Mere expectations are insufficient to create a binding term of employment. FL afraid that making decision based on policy cheapens the law and is of course an at-will state and it concerned that just cause rule would cause a flood of litigation—leave it up to legislature to carve out exceptions to at-will rule, even though the exceptions are carved out in other states through common law.

Watson v. Zep Mfg. F: Watson given mfg job and discharged, argues that there was an implied agreement to not fire him w/o cause and that social policy (job security important to all) required end of strict at-will rule. Zep replies that this would increase the cost of business.

Holding: For Zep, up to the legislature if they don't like it—rule is that employment Ks of indefinite duration are at will.

Tameny v. Atlantic Richfield F: 15 year veteran with great record and no disciplinary marks sues former employer for allegedly discharging him after he refused to participate in an illegal scheme to fix gas prices.

Holding: Forcing someone to participate in illegal act is exception to at will emp. Employee can bring an action in tort for wrongful discharge or in K law. • Claims under contract are related to the express terms of the contract. BUT Atlantic's duty comes from general duty not to induce employees by threat to violate state laws. Thus the duty may have only arisen from the fact that Tameny was employee but it is separate from the contract. • Prior to this wasn't clear whether cause of action sounded in Contract or Tort.

Woolley v. Hoffman La-Roche F: Facts: EE in at will K, but argues that the handbook states that EEs may only be fired for cause and ER did not articulate why he was fired, he had a history of promotion and solid work, sues for breach of K, so do terms of the manual contractually bind the company?

Holding: Handbook is implied-in-fact binding to the extent that EEs reasonably rely on it. ER wrong to think they had no duty to treat Woolley fairly. Many states have poked holes/exceptions in the terminable-at-will rule, this being one of them. The EE has created this environment of good faith and prevented unionization with reassuring statements in handbook, such as firing only for good cause.

Lingle v. Norge F: Facts: state law created a tort claim for wrongful discharge. Federal law (Labor Management Relations Act) said it was wrongful discharge and had to go through arbitration.

Holding: If the resolution of a state-law claim depends upon the meaning of a collective bargaining agreement, the application of the state law (which might lead to inconsistent results because each state could have different laws) is pre-empted and federal labor laws (which are uniform throughout the country) must be employed to resolve the dispute. • In Illinois, the application of the state retaliatory discharge law does not require a court to interpret any term of a collective bargaining agreement. All that the court has to look at is: o The employees conduct and o The conduct and motivation of the Employer • Thus, the state law does not depend on the meaning of a collective bargaining agreement and the state law is not preempted.

Perry v. Sindermann F: Sinderman was a professor turned president of the college. . Sindermann filed suit in the United States District Court for the Western District of Texas. He alleged that his termination was due to his disagreements with the Board of Regents, a violation of his First Amendment right to free speech, and that the lack of a hearing violated his Fourteenth Amendment right to due process. The District Court ruled for the Board of Regents without a full trial. He appealed to the United States Court of Appeals for the Fifth Circuit, which held that his termination would have been unconstitutional if it was based on his exercise of free speech or if he had a reasonable expectation of continued employment. The Fifth Circuit remanded the case to the District Court.

Holding: The Court acknowledged that Sindermann did not have a contractual or tenure-based right to continued employment by Odessa Junior College. However, this lack was "immaterial to [Sindermann's] free speech claim." Writing for the majority, Justice Potter Stewart relied on Shelton v. Tucker and Keyishian v. Board of Regents in emphasizing that nonrenewal of a one-year teaching contract "may not be predicated on [a teacher's] exercise of First and Fourteenth Amendment rights." However, the Court stopped short of invalidating Sindermann's termination, as the Board of Regents' reasoning had not been established.

Kadlec Medical v. Lakeview Anesthesia F: Anesthesiologist is given good recommendations from a former employer and a neutral reference from former secondary employer, hospital, when he was actually fired for poor performance. He screws up at a new job and a patient dies. The hospital where the patient dies sues former employers for negligent withholding of information. (Intentional misrepresentation.) Anesthesiologist argue intervening negligence, by that 5th patient Kadlex should have known he was incompetent.

Holding: The anesthesiologists are liable but the hospital is not, the hospital made no affirmative representations for Dr. Berry. Ct. says the intervening negligence wasn't good enough because you told them that he was a good doctor so the repeat offense is associated with your misrepresentation. They relied on your recommendation and thought he was a good doctor. • Duty to disclose does not arise but in special circumstances. This was a special circumstance because his recommendation put him in a place of high risk to others.

Central Adjustment Bureau v. Ingram Facts: Each defendant was asked to sing a non-competition covenant few weeks after they started working in order for them to keep their jobs. The defendants signed the covenants and continued to work for the plaintiffs for years and enjoyed promotions and raises. Then the defendants resigned in order to start their own company that would directly compete with the plaintiffs company. The plaintiffs brought action against the defendants.

Holding: The covenants were reasonable under the given circumstances. The defendants signed the covenants and in return, the plaintiffs offered them prosperous work. "...covenant is enforceable provided the employer continues to employ the employee for an appreciable length of time after he signs the covenant, and the employee serves his relationship with his employer by voluntarily resigning." The defendants' argument that the plaintiff had no obligation to employ the defendants and the company could have fired the defendants right after they signed the covenant is not accepted by the court. "The authorities are uniform in holding that where there has been full or substantial performance by one party to a bilateral contract, originally invalid for want of mutuality of obligation, the other party cannot refuse perform • Allright Auto Parks: The time and territorial limits must be no greater than is necessary to protect the business interests of the employer.

Worley v. Wyoming Bottling, Co. F: P's K has explicit at-will disclaimer, job environment gets stressful for economic reasons and Worley asks supervisor if he is secure enough to refinance his home, told by ER that his job is secure and he could have job as long as he wanted; shortly after he refinances, he is fired and he sues on promissory estoppel.

Holding: There was a justifiable reliance. A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a 3rd person and which does induce such action is binding if injustice can be avoided only by enforcement of the promise. Elements: • Clear and definite agreement • Proof party acted in detrimental reliance • Did the promissor intend to make a promise on which the promissee could rely on. • Equities support of the enforcement of the agreement.

Ansoumana v. Gristede's Operating Corp. Facts: Dwayne Reed Stores had own employees in drug stores but leased a number of workers from an employee leasing firm, Hudson Chelsea. Hudson Chelsea really only provided a uniform, Duane Reade handled everything else. The workers eventually form a union. The labor dept goes after Hudson for failure to keep records and failure to pay minimum wage.

Holding: They were NOT ind. Contr, they were employees. Question is who are they employees of? • Duane Reade had control over the jobs done, had record keeping, the employees had to report to the managers of DR and they could be fired by the Supervisors at each store. They were provding same duties as DR delivery employees. Clearly DR and Hudson are Co-employers for liability purposes.

Demarco v. Publix F: Demarco sues for wrongful termination after his daughter was severely injured by exploding bottle at Publix. Publix insurance pays for first hospital visit and then offers Demarco $200 for future expense. Then he was threatened to take the money and not so or he would be discharged if he filed suit. Demarco claims Publix liable for 1) interference with his good faith rights, access to Public courts, 2) damage to reputation by making it seem as if he was incompetent, and 3) severe emotional distress and mental anguish.

Holding: This is at will employment and Publix may discharge for any reason, including for refusing to not file suit against company. No civil action guaranteed as a remedy for interference with good faith right to access to courts. Must prove elements of a separate independent tort to recover for emotional distress.

Cameron v. Merisel F: (D) has a warehouse distribution center. They operated for a while and then bought the building. It is alleged that they knew the building had a toxic mold problem when they bought it. Toxic mold is VERY difficult to get rid of. The (D) did not tell anyone of the mold. Employees, including (P) begin getting sick. (P) became so sick he lost ALL his balance and he was disabled. Cameron sues. Wife sues for loss of consortium.

Holding: To sue for tort while Worker's Comp exists the must fall under one of two exceptions: • Pleasant exception: Employers actions were willful, wanton, or reckless negligence (Sometimes called gross negligence.) You have to prove there was such manfiest indifference to the mold problem it must seem like they wanted Cameron to fall over. • Woodson exception: Employer conduct that is intentional: (1) Misconduct by the employer; (2) intentionally engaged in; 3) with the knowledge that miscondct is substantially certain to cause serious injury or death to an employee; (4) and the employee is injured as a consequence of the misconduct.

Allen v. Diebold Facts: Diebold decides to move from 2 unionized plants in Ohio to 2 right to works states in SC and VA where do same thing w/ non union member. Age discrim claim is filed b/c 80% of ppl in Ohio were over 40 and 83% ppl hired in new plants were under 40 y/o. (Right to work states—means the National Labor Relations Act was amended and permitted states to adopt rules to allow indiv even in unionized facilities to opt out of being a mbr of the union or paying mbrship dues for union activities.) Q is are they guilty of emp discrim on basis of age, if can't show any direct intent on discrim based on age. Clearly there is a disparate impact, but should disparate impact be applied in age discrim doctrine.

Holding: Under age discrim act, either disparate purpose or disparate impact claims may be brought. In Diebold case, is 80% workers over 40 y/o so unusual. Not in this case, b/c plant had already done cutbacks on employees and it was done by seniority, so the younger workers were all gone when Diebold decided to make the move to another state. P's also failed to show any ev that the hiring pool of applicants would be less than 83% under 40 in the new states. Ct said no age discrim.

Carpenters Council v. Dillard Facts: 2 dept stores decided to merge, Dillards survives. Substantial Holmes EEs are going to be fired or reduced. Dillard decided less than 1 mo after merger was to give EEs notice of firing since Apr. 19. Only gave 1 mo. And also decides going to pay the diff btwn the pay workers received at time of notice and what 60 days would have been. Q: did Dillards violate WARN act. Did Holmes/Dillards merger fall into faltering company exemption?

Holding: to fall w/I exemption, ER must meet 4 req's: 1. Actively seeking capital, 2. Enabled postponement of closure, 3. ER had good reas to believe notice would have stopped raising of capital. Is exemption applicable in Holmes/Dillard merger? Holmes is seeking capital to sustain operation. Ct says layoff wasn't caused by failure to obtain capital but b/c of merger. Holmes may have been able to gain further capital but decided to merge instead. Ct says if having merger convos for months, than nothing unforeseen about dec to merge. So Dillard must pay 60 days combined employment and pay from date to close. Is it 60 working days or 60 calandar days? Ct says working days. Employees who were not paid for 60 days are only ones entitled to damages.

Dalheim v. KDFW-TV F: P's are 19 general assignment reporters, producers, directors and assignment editors. P's claim that they were required to work more than 40 hrs per wk w/o overtime pay in violation of the FLSA.

KDFW asserts too much control over functions to qualify for exceptions. • Short Test for Executive Exemption o $155-$250/week o Emp primary duty consists of management of enterprise or a customary subdivision. • Must include customary and regular direction of the work of two or more employees. o Creative professionals • Primary duty is work that is original and creative in character in a recognized field of artistic endeavor that depends primarily on the invention, imagination, or talent of the employee.

MONTANA Wrongful Discharge from Employment Act

More pro-EE, codifying MT common law, punitive damages available. Go to arbitration only if both sides agree to. Good cause defined as "reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of ER's operation or other legitimate business reasons" (Narrower and more pro-EE than uniform Act above). EE may recover wages and benefits for 4 years and recover AND recover punitive damages in situations of ER fraud/malice. EE must exhaust internal procedures before filing wrongful discharge suit under the act.

United Steel Workers v. U.S. Steel F: The demise of the Steel plant results in the demise of the town. The plaintiffs seek to keep the plants operating

No authority to allow the court to require a plant to stay open. No property right to employment. Courts do not have the power to regulate private property. The courts role is to interpret law, not legislate. Promissory Estoppel: 1) Promise created a reliance, 2) Promise has to be one that can be relied upon, 3) There had to have been a detrimental reliance.

Respublica v. Kepperle F: Hannis was bound by indenture as a servant to Kepperle for 5 yrs.

No parent can make his child the servant to another. The parent cannot trans an authority he does not have. Boy must be discharged.

WARN (Worker Adjustment and Retraining Notice) Act

Only applies to employers w/ more than 50 employees. WARN act requires that employer give employees either a 60 day notice of either a reduction of intent to close, or if 60 days is not provided, to provide the equivalent in pay for 60 days employment. 2 exceptions: 1) prove they were seeking alternative capital import or business that would avoid or postpone the shutdown, and that giving notice would interfere w/ ability to raise capital, 2) Bus circumstance is not reasonably foreseeable, if closing is not foreseeable, than business doesn't have to give 60 day notice.

Empty State- Nobody's Market (Collins)

Only direct and specific acts of govt officials acting intentionally are govt action. Govt can't be responsible for every persons power, must draw a line to limit pub responsibility

High Velocity Markets

People moving from company to company throughout their careers to advance. Also involves high tech labor markets.

At-Will Employment: The Rule as Applied • No Termination or Just case = Good reason, bad reason, no reason at all. Exceptions?

Promissory estoppel • "Don't make any promises that an employee might be able to rely upon." Additional consideration • Just doing your job or going above and beyond is simply your consideration to receive wages. • Special consideration could mean: employee transfers something of value to employer (patent?) than just cause is needed for termination. Implied in Fact Contracts (Handbook) • Contract says nothing but at some point the employer introduces an employee handbook saying you can only be fired for three things. • Only interferes with employer prerogative if they issue it. Implied in Law Contracts (Good faith and fair dealing) • Only a few states will treat Emp Contracts the same as contracts under UCC. Otherwise they are distinct. • If the employer fires you in bad faith then the just cause is taken away. Breach of Contract - Violation (Public Policy) • What is public policy determines how much this interferes with employer prerogative. • If you bring this claim than you can only get breach of contract damages. Tort - Public Policy • Some jurisdictions limit discharge in violation of a public policy to being brought in tort actions. Independent Tort • Some circumstances where discharge itself (separate from any contract breach) forms the basis for a tort itself. (Assault, Int. Infl. Emotional distress, etc.)

Gilmer v. Interstate/Johnson Lane FACTS: Employee agrees to arbitrate disputes in his individual employment contract. Employee claims age discrimination under ADEA and wants to pursue right by going to court.

RULING: • To have a private cause of action even though your individual employment contract says arbitration only, Employee has the burden of proving that Congress, in enacting whatever statute the claim is under (in this case, the ADEA) intended to preclude arbitration of claims • Here, ADEA was not intended to preclude arbitration of claims • If the contract says you can only arbitrate statutory rights, then Employee must only arbitrate. However, if there is a showing of fraud or unequal bargaining power, then the contract provision requiring arbitration is not valid • Gardner-Denver is distinguished because of the difference between the bargaining of an individual of an Employee contract and the bargaining of the union for a collective bargaining agreement.

Independent Contractors

Right of Controls: 1) Controls details of work, 2) Type of work - stable EE or quick hire? 3) Tools - Who provides them? 4) Location - Where is the work done? 5) Skills - How difficult and unique is the skill? 6) Length of employment, 7) Form of pay - Hourly? Per job? 8) Is the work done in the regular course of the business?

U.S. v. Booker/Rollins F: Workers arrive to work and realize they have to pay for all their own stuff which they are not making enough money to afford. They begin to occur a debt. They are forced to stay on the property and are told they cannot leave and go to town and buy other stuff, they have to buy from the camp store. Two men leave anyway and are caught before reaching town, taken back to camp, and beaten severely.

S. Ct says that the facts would support a jury verdict of slavery. Def of a slave-physical fear, not legal fear kept the individuals in the camp. Economy of local area was being supported, and stores were benefitting, so citizens of the cty turned a blind eye b/c it benefitted them. Everything permitted by that community was good for the community's social interest.

Wirtz v. Construction Survey Cooperative F: Complaint alleges D violated FLSA by not paying overtime compensation to supervisors and failing to keep certain records. D's admit to violation but claim Act doesn't apply to them. Firm is set up so that all employees are co-workers, mgr's, investors, and owners. No monetary investment is req.

Salary is based only on golden rule formula. Expenses are paid 1st and then remaining profits are distributed monthly. Each member is responsible for debts. Membership mtgs are held and nothing can be done w/o unanimous consent. Withdrawal from cooperative is by voluntary resignation only. Ct found act shouldn't be applied to D's.

OSHA (Process)

Sec of Labor files suit against ER, ER may appeal to a 3 member OSHA commission who reviews de novo, then appealable to circuit court of appeal, then supreme court.

Novosel v. Nationwide Insurance Facts: EE discharged for disagreeing with ins co/ER's efforts to promote no-fault legislation in PA. Sues in tort for discharge in violation of pub policy, and for breach of emp K, even though at will.

There is a COA for wrongful discharge in violation of pub policy, free speech, even though he was speaking against a pvt employer. Ct says const applies to pvt and pub EEs, even if speech exercised is work-related and injurious to ER, must be protected. Emp was not contingent on politically agreeing with ER. • Ps burden of proof on remand, how close was speech related to his job: 1) Whether b/c of the speech, the ER is prevented from carrying out responsibilities 2) whether the speech impairs EEs ability to carry out own responsibilities 3) whether the speech interferes with work relationships 4) Whether the manner, time and place of speech interferes with business operations

H.G. Wood, A Treatise...

Wood says there are 3 types of K's—express/implied/mixed. Says all K's of hiring are mixed K's. A duration shouldn't be legally defined and legally enforced b/c of mobility—if there is a commitment to free labor, should also have one to mobility. Says this is right and just b/c of idea of mutuality labor is free to change jobs and capital is free to change the jobs that are offered. Wood says there are 3 types of K's—express/implied/mixed. Says all K's of hiring are mixed K's. A duration shouldn't be legally defined and legally enforced b/c of mobility—if there is a commitment to free labor, should also have one to mobility. Says this is right and just b/c of idea of mutuality labor is free to change jobs and capital is free to change the jobs that are offered.

Worker Owners

Workers doing the work of employees but who happen to be the owners of the investment. (True Worker owners called Cooperative Ownership

Low Velocity Markets

Workers say with the same company for most of their career and advance within.

Pollack v. Williams F: A Florida statute made it a misdemeanor to induce advances with intent to defraud by a promise to perform labor and further making failure to perform labor for which money has been obtained prima facie evidence of intent to defraud. Court overturned statute. Pollack gets a $5 advance to work and he does not work off his debt and is arrested for criminal fraud.

Writ of habeas corpus issued, b/c Pollack was confined w/o his Miranda rights. Ct says indebtedness does not warrant a one to be free from compulsory work. No state can make the quitting of work a component of a crime.

Occupational Safety and Health Act (OSHA)

§654(a): General Duty: o Each employer shall furnish to the employees, employment and the place of employment that is free from hazards that are likely to cause serious harm or death. o Enforced?? • Sec. of Labor can bring a claim of violation against an employer. The employer has 15 days to file a notice of contest. If the OSH Commission finds against the employer than there is judicial review in the U.S. Ct of Appeals. A wide variety of sanctions can administered: Fines or even criminal charges.

OSHA (EE's Job)

• An employee can submit an OSHA complaint and then OSHA is required to investigate. o Employee has a right to assist in investigation, participate in court, right to be informed, bring claim for injunction, bring a retaliation claim for being discharged or disciplined. o What should they do of they come upon a dangerous situation with no time to call OSHA? • Doesn't say in the Act. • Self-help.

Bureerong v. Uvawas F: Workers from Thailand are contracted w/ by other Thai's to work in CA where they will work in a compound of houses. When they get here discover they owe $ for transportation, can't get mail, must stay in houses 24/7, buy food on debt basis from operators of man facilities. They are being held under conditions of involuntary servitude. • 1. Operators of compounds are under criminal indictment, • 2. Sec of labor is maintaining an action for violation of fair labor standards act against same employers.

• Ct wants to hold operator of compound and ppl who buy merchandise accountable. Say merchants should have known that FLSA was being violated b/c of prices they paid for goods. Ct finds joint employment btwn the manufacturers and the operators. This means to be an employer don't have to have a contractual agreement w/ employee. Employee just needs to rely on employer/ manufacturer to be considered employee. • Factor of whether someone is an "employer" within the meaning of the Fair Labor Standards Act: Whether the alleged employer: 1) had the power to hire and fire the employees 2) supervised and controlled employee work schedules or conditions of employment 3) determined the rate and method of payment, and 4) maintained employment records

FMLA (EE Qualifications)

• Employee has to show she has a serious health condition: Defined with reference to ADA: One which makes one incapable of undertaking the normal activities of life. • Employee must show that he incapacity prevents performing job duties. • Employee must give reasonable notice. If the employer requests documentation of that reason you are leaving, the employee must provide some doctors certificate that explains everything: • Diagnosis • Medical Facts on which it is based. • Reason it will impair the ability to do work. If the employer isn't convinced they can pay for up to two more independent medical examinations.

FMLA (ER Qualifications)

• Employers of 50 or more workers • Employees must have worked 1200 or more hours for an employer in the previous year. • Taken for birth or adoption of child, care for spouse or parent with serious illness, or your own serious illness rendering you unable to work. • Serious illness: Must be in patient care. • You can take up to 12 weeks. o If an employer refused to grant leave or re-employ you at your old or equivalent position, you can sue. • Usually recover lost wages and benefits

FLSA:

• Established a federal minimum wage and overtime procedures • Anything over 40hrs/week is overtime for all eligible employees. • Double time for holidays, and triple time for overtime worked on holidays. • Exempt Employees: o Professional Crabbers o Taxi drivers o Movie theater workers o GENERALLY: Just people who may work more than 40 hours one week but then at times they won't get 40 hours because of the market in their field. o Executives and administrative persons or professionals.

COBRA Insurance

• Insurance is much cheaper when a pool of employees are paying premiums for it. • When you get fired, you can purchase an extension of the similar benefits you got from the employee pool of the company you previously worked for. • You have 18months to find a new employer. • Allows people to move from job to job and still get valuable benefits.

Workers Compensation

• Require workers to pay into an employee insurance fund. o Then we will make payments to the employer or employee based on a scheduled type of payment based on the incident. • On the flipside you give up all possibility of tort recovery if you file for worker's compensation. • PROBLEM: The schedules rarely get increased so the deterrence effect wears off as to employer conduct. Inflation causes living to go up and the payment schedules did not match. • One advance is that illness and disease that is caused and aggravated by the work environment are now included in worker's comp. • Each state has very limited exceptios when an employer may bring a tort action against an employee even with worker's compensation in effect.