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Historical development of employment law Foundations of employment law Masterservant Ordinance of Labourers 1349 rst statute to make the employment contract different from other contracts Prohibited collective bargaining regulated wages Creates vicarious liability EmployerEmployee based on contract Government regulation of employment Legislation National Labor Relations Act 1935 gave employees the right to organize into unions Fair Labor Standards Act 1938 established minimum wage Equal Pay Act 1963 prohibited sex discrimination with regards to wages Title VII of Civil Rights Act of 1964 prohibited all discrimination in employment on the basis of race color religion sex or national origin Age Discrimination in Employment Act 1967 prohibited age discrimination Occupational Safety and Health Act 1970 established minimum health and safety standards for the workplace Rehabilitation Act 1973 de ned employment rights for individuals with disabilities Employee Retirement Income Security Act ERISA 1974 protected pension entitlements Since the mid1980s Employee Polygraph Protection Act ADA Civil Rights Act of 1991 and FMLA Katherine VW Stone From Widgets to Digits Employment Regulation for the Changing Workplace New Deal labor laws created a division between the privileged workers unionized white males and the periphery women minorities migrant workers Minimum wage antidiscrimination and other safety net laws were originally conceived to protect those not protected by the collective bargaining process ie non unionized labor Views of the value of work Alain De Botton Workers of the World Relax 5 The idea that work should make us happy is a uniquely Western phenemenon Cynthia L Estlund Working Together The Workplace Civil Society and the Law 7 The workplace can become a locus of genuine social integration across lines of race and ethnicity Outsourcing and the Global Economy Daniel W Drezner The Outsourcing Bogeyman 65 Protectionism is far more harm il to the economy and US workers Nothing to worry about creation of new jobs overseas will lead to more jobs and higher incomes in the US Loss in manufacturing jobs can be traced to technological innovation not outsourcing Solution expand the criteria under which the Trade Adjustment Assistance Program applies to displaced workers David W Levy Offshoring in the New Global Political Economy Corporate wealth via outsourcing does not equate to national wealth Outsourcing is simply an income transfer from workers to shareholders Balanceofpower shift between firms countries and social groups Thomas L Friedman The World is Flat 69 Overseas jobs are not only 75 cheaper but 100 more productive Employee or independent contractor IRS Revenue Ruling 8741 Week 1 An individual is an employee for tax purposes if the individual is an employee under common law Employer must not only control the result of the work but the details and means by which the result is accomplished Employer doesn t actually have to exercise this control he only needs to have the right to Labels or designations are irrelevant Vizcaino Gives 20 factors to consider Vizcaino V Microsoft D made P employees sign contracts saying they were independent contractors not employees Worked with other employees received admittance card keys Court nds that contracts do not change legal status the employees are employees The Hiring Process Overview George Ritzer and David Walczak Working Con ict and Change People are more likely to use informal rather than formal means of searching for a job But this is inherently discriminatory those who lack contacts are usually those discriminated against bc of race sex etc Nepotism not a per se violation Title VII but it is illegal if its e ects are to cause discrimination Asbestos Workers Local 53 v Vogler Kotch v Board of River Port Pilot Comm rs Prospective river pilots allege that apprenticeships required for certi cation are only granted to friends and relatives of incumbent river pilots Practice sanctioned by Louisiana law which requires apprenticeships Equal Protection challenge under 14th Amendment Supreme Court upholds the practice bene ts Comradeship morale close association with pilot community Most importantly it ensures that the best possible pilots get the jobs Backlund v Hessen nepotism in government hiring requires some measure of justi cation before it can pass constitutional muster e g in Kotch hiring the best river pilots Here D hired family members over P who tested higher re ghter EEOC v Consolidated Service System EEOC claims Korean employer violated Title VII by relying on word of mouth to obtain new employees all Korean 7th Circuit upholds dismissal of suit No direct evidence of discrimination intentional or otherwise Wordofmouth was merely the cheapest means of recruitment D was entirely passive during the recruiting process Discrimination is not preference or aversion it is acting on the preference or aversion That people of a common culture tend to work together well is not evidence of discrimination Undocumented aliens Immigration Reform and Control Act of 1986 8 USC 1324a b Applies to all employers regardless of size or industry Prohibits the hiring of undocumented workers and provides civil penalties for each one hired Subsequent offenses may lead to criminal ne and imprisonment Required to ask all employees for documentation but not required to check authenticity Form I9 Employment Eligibility Veri cation Form Must be completed for every new employee Employee provides driver s license birth certi cate passport etc Enforced by ICE Collins Food Int l v INS Constructive knowledge of an employee s illegal status under 8 USC l324aal is not created simply because the job offer was extended prior to the veri cation of documents Veri cation must take place within three days of the hire employees may be hired prior to veri cation Besides preemployment questioning about national origin may subject employer to Title VII discrimination claim Employers are advised to extend offer of employment rst to negate discrimination claim Also an employer needs only to ensure that the veri cation documents reasonably appear on their face to be genuine in order to satisfy l324ablA Constructive knowledge should be sparingly applied Employer must have been legitimately put on notice Must have will il blindness Residency requirements Wardwell V Board of Educ D required all employees teachers to move within the city limits P challenged based on constitutional right to travel Upheld right of intrastate travel is subject to the rational basis test Numerous rational bases Hiring committed teachers Involved in school activities Understand local community Preemployment inquiries Lawful v unlaw il preemployment inquiries Chart on 122124 Inappropriate Questions about dates of graduation from schools reveals age Citizenship Military discharge Related to anyone employed by this company may indicate marital status race national origin Appropriate Dates of prior employment and level of education even thought it may reveal age Name and local address even though it might reveal race What must employer tell employee Job description Skillstraits necessary for the job Employer may ask whether employee can perform necessary job inctions without an accommodation Berkeley Job Interviewers Dirty Little Secret Week 2 packet Sneaky ways for employers to circumvent the law Solution encourage discussioneducation on the subject Kendra Hamilton What s in a Name Discriminatory effect for blacksounding names Unsolicited misrepresentations Lysak v Seiler Corp P employee tells D she s preggers and is red D feels betrayed that P previously said she had no interest in having more children even though she knew she was preggers at the time Employment decisions may be made based on unsolicited misrepresentations Employer liability for the acts of others References and defamation Doctrine of compelled selfpublication D can be liable if 1 P is compelled to selfpublicate and 2 if it was foreseeable to D that P would be so compelled Lewis Defenses truth and quali ed privilege but not if there s actual malice or abuse Lewis Chambers Lewis v Equitable Life Assur Soc y Ps red for insubordination then have trouble getting new jobs sue D for defamation Publication problem Ps have trouble satisfying this elements because they themselves are the ones publicizing the reasons for their termination But D can be liable if 1 P is compelled to selfpublicate and 2 if it was foreseeable to D that P would be so compelled Defenses Truth but there must be truth in the underlying statement e g that P was grossly insubordinate Even if defamatory statement is false D can still rely on quali ed privilege Public policy interest in employers being truth il But court nds that this privilege was abused because D acted with actual malice Burden is on P to show abuse of privilege Chambers v American Trans Air Court nds quali ed privilege in D s negative statements to P s prospective employers Quali ed privilege can be lost upon a showing of abuse including Employer was motivated by ill will Must show more than simply a contentious relationship between P and D the animosity must provide the underlying basis for the otherwise privileged statement Employer made excessive publication Employer made the statement without belief or grounds for belief in its truth References and duties owed to third parties Liability may be imposed where the recommendations amount to af rmative misrepresentations presenting a foreseeable and substantial risk of physical harm to a third person Randi W But there is no a irmative duty to disclose employer may choose to remain silent kw Randi W v Livingston High l3yo P sues prior employers who sent letters of recommendation for principal who molested her Do D s owe a duty of care to P a third party Rowland v Christiansen all persons have a duty to use ordinary care to prevent others from being injured as the result of their conduct considerations Foreseeability could D foresee that its representations would lead to physical harm to P They knew that principal would be put in contact with young girls as a result on their glowing letters Moral blame Unreserved recs Failure to disclose past incidents of molestation Alternative courses of conduct Could have written either ill disclosure letter or no comment letter Extent of burden to D Consequences to the community of imposing duty Availability cost and prevalence of insurance for the risk involved Liability may be imposed where the recommendations amount to af rmative misrepresentations presenting a foreseeable and substantial risk of physical harm to a third person Moore v St Joseph Nursing Home P killed by employee of j anitorial rm Maintenance Management killer had previously worked for D D knew of killer s violent tendencies but did not disclose No duty to warndisclose Mere existence of qualifed immunity does not create a duty to warn Also no foreseeability merely random and violent behavior Different from Randi W where D made numerous a irmative misrepresentations here D was silent Negligent hiring Traditionally Fellow Servant Rule an employer is not liable for an injury to an employee caused by a coemployee Today employers have an af rrnative duty to provide a safe workplace Including a duty to not hire dangerous employees Breach of this duty leads to negligent hiring cause of action Ask did D act as a reasonable person when hiring Mallorney Question of fact Mallomey V Bamp L Motor Freight Trucker rapes P hitchhiker P sues D trucking company for negligent hiring Does D have a duty to investigate employee s nonvehicular criminal record Trucker told D he had no criminal records Basic duty of employer Must act as a reasonable person in selecting a driver Must deny entrustment of vehicle to a person who the employer knows or could have known through reasonable diligence is incompetent Questions of negligence and due care are questions of fact for the jury to decide Reasonable people could disagree over whether D employed due care in hiring trucker Consider burden imposed on D here court says it s minimal to conduct background checks Respondeat superior Courts generally do not hold employers liable for an employee s intentional tortious conduct Unless tortious conduct was motivated by the workplace dynamic e g a ght between an employee and a customer Lisa M P pregnant woman went to hospital for ultrasound technician sexually molested her No liability the act was personallymotivated no aspect of the workplace dynamic motivated the assault Privacy Drug testing Overview Weigh the strength of expectation of privacy v degree of intrusion v employer s interest Von Raab Expectation of privacy promotional or hiring Von Raab Loder Degree of intrusion is medical test already required Loder Employer s interest what is the nature of the job Von Raab Must there be a preexisting drug problem No Loder Von Raab Beware of purely symbolic testing Chandler Scalia dissent in Von Raab Mark A Rothstein Drug Testing in the Workplace technological stuff Does employee drug testing work Declining rates of drug use can be explained by 1 Employer drug testing has reduced drug use 2 Drug users simply no longer apply for those jobs Little effect on productivitysafety especially compared to alcohol and prescription drugs Almost all drug testing implicates the Fourth Amendment the question becomes does the program satisfy the reasonableness requirement Justice Holmes dissent in Skinner Principles of law once bent do not snap back easily Elements of CA constitutional right to privacy in the context of nongovemmental agencies Article I Sec I Hill v NCAA P must identify A type of legallyprotected privacy interest that is implicated In Hill an autonomy privacy urine sample in monitored setting and informational privacy D obtained con dential medical information A reasonable expectation of privacy with respect to that interest in the particular circumstances In sports context this expectation is diminished athlete undergo frequent physical examinations Conduct by D constituting a serious invasion of privacy Serious not intended to be fatal to P s case D can prevail by negating any of the three or by proving affirmative defense that the invasion is justified because it substantially irthers one or more countervailing interests Need not show compelling interest National Treasury Employees Union v Von Raab Ps seeking promotions challenge drug testing requirements they were applicants for drug interdiction jobs D made no showing that drugs had been a problem Mostly concemed with reputation Fourth Amendment analysis are searches legal Was there a search Yes bodily integrity implications when breathurine are pulled from the body Urine analysis can also reveal private medical conditions Act of passing urine is extremely private Reasonable expectation of privacy Was there a warrant or an exception to the warrant requirement Doesn t make sense for a warrant requirement This is not a criminal or law enforcement situation it s preventativeregulatory Besides everything is con dential results aren t referred to law enforcement Applicants voluntarily subject themselves to the test the drug testing program is wellknown to them Was there probable cause Don t need it this isn t a criminal investigation it s a routine administrative function Plus the goal is prevention Nor any individualized suspicion Gov t s need to conduct suspicionless searches outweighs privacy interests of Ps directly engaged in drug interdiction Was the search conducted in a reasonable manner Balancing test Strength of expectation of privacy vs degree to which privacy was intruded vs government interest in drug tests Expectation of privacy diminished Applicants knew they would be tested Degree of intrusion slight Nobody actually watches the peepee come out just listens Notice given no one singled out all applicants tested Test results didn t leave the workplace Government interest Tested employees are 1 working with top secret material 2 carrying guns and 3 involved in drug interdiction Argument for prevention ScaliaStevens dissent these searches are particularly destructive of privacy and offensive to personal dignity No demonstration of a drug problem whatsoever Without particularized suspicion the 4th has become frail This is political bullshit the real motivation is for gov t to show that it s tough on drugs 188 The impairment of civil liberties cannot be used to make a point or for symbolic reasons Chandler V Miller Overtumed Georgia statute requiring all candidates for public of ce to be drug tested The purely symbolic function of the law was insuf cient to pass 4th Amendment scrutiny Rehnquist dissent prevention argument no need to wait until our elected of cials have drug problems Hill V NCAA a studentathlete s already diminished expectation of privacy is outweighed by the NCAA s legitimate regulatory objectives Two objectives fair and vigorous competition and protecting health and safety of studentathletes Regulations include Advance notice Random selection Monitored collection to avoid substitutioncontamination Chain of custody limited disclosure other con dentiality procedures Loder v City of Glendale CA Sup Ct Invalidates acrosstheboard drug testing for current city employees approved for promotion but allows preemployment testing for job applicants Under both US and CA Constitutions Testing must be catered to the speci c job no blanket testing e g Von Raab customs agents handling drugsgunsclassi ed material The reasonableness of the testing tums upon the nature and duties of the position in question Lower expectation of privacy compelling government interest justi es drug testing in this case Diminished expectation of privacy a standard medical examination was already part of the employment process And P didn t contest that the preemploy medical exam was itself unconstitutional Compelling govemment interest testing took place in the application process not the employment context Gov t has less chance to observe prospective employees Constitutionally permissible when the program is administered in a reasonable manner as part of a preemployment medical examination required by all applicants But not when it is required for promotion and not speci cally catered to the job in question Truthdetecting devices National Research Council the Polygraph and Lie Detection Little scienti c basis to support conclusion that they have extremely high accuracy Better than chance but wellbelow perfection Theoretical rationale is quite weak Research on polygraphs has not progressed over time in the manner of a typical scienti c eld Employee Polygraph Protection Act 22 USC 20012009 SS 27 Prohibits most uses of polygraphs in employment Exemptions Does not apply to federalstatelocal govemment employers Does not prohibit testing of people engaged in national security intelligence or counterintelligence Permits testing of employees reasonably suspected of involvement in a workplace incident that results in economic loss or injury Sec 2006d Employer may request employee to take polygraph if he suspects economic loss E g theft sabotage Not sexual harassment no economic loss Once test is complete employer must still have additional evidence before taking action 2007al Usually whatever caused the employer to administer the test in the first place Permits testing of prospective employees of armored car security systems and security guard rms Permits testing of some current and prospective employees in rms authorized to deal in controlled substances Employee may not be asked about religion political beliefs etc David T Lykken A Tremor in the Blood Nun fails honesty test author says they re unreliable Personality tests and psychological screening Background Susan J Stabile The Use of Personality Tests as a Hiring Tool Suggests costs unreliability invasion of privacy outweigh the bene ts William D Hooker Psychological Testing in the Workplace Scienti cally valid when conducted properly but often abused Wade Lambert WSJ Flunking grade psychological tests designed to weed out rogue cops gets a D Testing is a charade no way to test for racism Too easily evaded Often used as a guise to weed out blacks Two part inquiry Is the test testing for what it claims it s testing Is the test valid Greenawalt v Indiana Dept of Corrections A psychological test is not a search under the 4th Amendment But D may still be liable in some cases under state law or for intentional in iction of emotional distress What about under CA constitutional right to privacy Loder analysis Is there a reasonable expectation of privacy in these particular circumstances Depends on what sort of job applicant or current employee Greater expectation of privacy once you re hired Is there a countervailing interest At the very least in order to show the countervailing interest the employer should have to show that the psych test will provide accurate valid and relevant information Medical screening Background Mark A Rothstein Medical Screening and the Employee Health Cost Crisis Shift from diagnostic to predictive screening Less concerned with employment hazards than with employee health in general Some screenings instituted as a costcutting measure Employers seek lower workers comp disability costs Americans with Disabilities Act of 1990 Prohibits preemployment medical screenings Sec l02d2 May only make inquiries about the ability of the applicant to perform jobrelated inctions Medical exam may be conducted after a conditional offer of employment l02d3 Need not be jobrelated but must be given to all employees in a job category After employment begins periodic medical examinations are allowed but they must be jobrelated and consistent with business necessity l02d4 Nonjobrelated examinations may be offered but employee participation must be voluntary Genetic testing Genetic Information Nondiscrimination Act of 2008 GINA Act Sec 202 prohibits employer discrimination on the basis of an employee s genetic information Trying to even get genetic information is prohibited genetic tests family medical history Exceptions Accidental Voluntary For purposes of family leave etc Publicly available For genetic monitoring of biological effects of toxic substances in the workplace Discrimination Overview Balancing act employer s right to manage its business free from unnecessary govemmental intrusion v statutory rights of different individuals competing for the same position While Title VII proscribes certain practices it does not prohibit irrationality per se US Code Cong amp Admin News High unemployment among blacks mostly unskilled occupations this is economic waste National prosperity will be increased with the removal of barriers to skilled employment Owen Fiss A Theory of Fair Employment Laws Not clear whether the goal of the law is equal treatment or equal achievement Under equal treatment disparities will continue to exist for reasons of nepotism for example Michel Rosenfeld Substantive Equality and Equal Opportunity Removal of obstacles is de cient everyone encounters different obstacles bc of their various backgrounds Richard Posner The Efficiency and Ef cacy of Title VII The market not Title VII should determine the rate at which discriminators are eliminated Adjustment costs are higher if the process occurs too quickly For example disparate impact of requiring high school diplomas makes it more costly for a firm to operate in a mostly black labor pool Bc its decisions will be compared to the relevant labor pool But John Donohue A Reply to Judge Posner There is rigidity in the market that requires intervention Richard A Epstein Forbidden Grounds The Case Against Employment Discrimination Laws Each person is the best judge of what he wants and what to pay for it Free entry and multiple employers provide ample protection for all workers Skimming from the top of two pools eventually smart firms will tum to the other pool Smarter employers will beat the crowd and start hiring from the second pool earlier The average firm may not be rational but the marginal firm will break ranks The strategy of the law should be to encourage the free ow of individual information to facilitate this process Irrational discrimination is costly limited opportunities plus additional opportunities for rivals Commonality of preferences may be bene cial see Consolidated Service System people of common culture may work together better Although antidiscrimination laws may be justi ed in monopoly situations inns hotels Chemerinsky Society Needs Employment Discrimination Laws Flaws with Epstein s arguments History proves him wrong Prejudice distorts employers evaluations Epstein fails to account for customer preference or perceived customer preference Epstein assumes the market will create enough jobs for minorities Employers may rather discriminate even when it s costly Employment discrimination imposes enormous costs on society Title VII SS 38 Legislative history Primary focus was race discrimination Both speci c instances as well as broader economicsocial effects De nitions 701 b employer Applies to all government employers and private employers of gt 15 employees Excludes Indian tribes and bona de membership clubs Club must be devoted entirely to personal social recreational activities no business f employee Doesn t include independent contractors Unlaw il acts 703 a 1 fail or re ise to hire discharge or discriminate with respect to compensationterms or 2 limit segregate or classify employees in any way because of race color religion sex or national origin Exclusionsexemptions 703 e Religion sex or national origin is a bona de occupational quali cation BFOQ g National security h Bona de seniority or merit system or professionallydeveloped ability test 702a Religious organizations including schools discriminating on the basis of religion j Businesses operating on or near and Indian Reservation Remedies 706 Enforcement EEOC Employee must rst le complaint with EEOC before going to court Agency tries to settle claim then makes a determination if there s cause to le a claim EEOC has authority to go to court on behalf of claimant More likely EEOC makes a nding is there a basis or not for suit then sends P a right to sue letter EEOC does not have rulemaking authority It merely issues clari cations interpretations and guidelines No force of law but considered by courts 706g types of relief Injunctive reinstatement or hiring Back pay but not more than two years prior to date of ling with EEOC 1991 Amendments SS 5759 for claims of intentional discrimination disparate treatment compensatory and punitive damages are now available Sec 1977b b3 But there s a cap depending on the size of the employer Disparate treatment intentional discrimination in violation of 703a1 McDonnell Douglas v Green What evidence must P establish in order to establish a prima facie case under 703 a1 Elements P is a member of a protected class P applied and was quali ed for a job for which the employer was seeking applicants Despite his quali cations P was rejected After the rejection the position remained open and the employer continued to seek applicants This creates a rebuttable presumption of discrimination P must only show this by a preponderance of the evidence 10 Burden then shifts to the employer to articulate some legitimate nondiscriminatory reason for P s rejection Examples poor performance lack of credentials even zodiac sign Need not be rational just can t be racesex based D bears burden of production only not proof Once D meets this burden presumption of discrimination drops off At this stage don t ask whether the reasons are true save that for the next step P doesn t technically have to do anything now he s met his burden of proof but he has the opportunity to respond to D s evidence by showing that D s stated reason for rejection was a mere pretext Eg if P had never had a poor employment review P retains the burden of persuasion P may succeed by showing either 1 the discriminatory reason more likely motivated the employer or 2 the employer s proffered explanation is unworthy of credence St Mary s Honor Center v Hicks A nding that an employer was not actually motivated by the reasons asserted for dismissal is not the equivalent of nding a discriminatory animus Fact nder must still determine whether the employer s motivation was racial Burden shifting P s prima facie case black quali ed but demoted position lled by white D s legitimate nondiscriminatory rationale documented instances of P not following directions and having verbal confrontations with subordinates P s responserebuttal other employees were also having dif culties with subordinates not just P Trier of fact accepts P s rebuttal Dissent says this is enough P is now entitled to prevail D s rationale narrows the inquiry Once D offers that reason that must be accepted as the primary reason and if it is success illy rebutted by P then P is entitled to prevail Majority This process is ctional the only question is did the employer take adverse action because of race There is no narrowing of the inquiry Simply showing that D s rationale is false does not automatically make P entitled to prevail although in some cases it may Even if D s rationale is unconvincing P s allegation may be unconvincing as well P could have simply been red because of a personal vendetta Mixed motives Price Waterhouse v Hopkins P female rejected for partnership generally wellquali ed although some comments suggest she s macho and unladylike Evidence that there was some sex discrimination but there were mixed motives She was also mean to the staff which is a legitimate non discriminatory reason Sex doesn t have to be the only reason behind the adverse action it merely has to play a part in the decisionmaking process P must simply show that sex was a motivating factor This was codi ed in 703m added in the 1991 Amendments Direct evidence not required circumstantial evidence is okay Then D bears burden of proof by preponderance to show that same decision would have been reached regardless of sex Dissent because of sex means but for sex sex must be the deciding factor Antiretaliation provision 704a SS 46 prohibits employer retaliation for an employee s participation in an investigation 11 Burlington Northern V White Retaliation need not be employmentrelated retaliation can occur even outside the workplace But 704a only covers those actions which would have been materially adverse to a reasonable employee or applicant Ie harm il enough to dissuade a reasonable worker from making a charge of discrimination Crawford testifying in an employer s intemal investigation does not qualify as participation in an investigation Participation requires some sort of overt action here the employee was merely asked to testify Only quali es under 704a if the intemal investigation is related to some charge that has already been led under the EEOC So whatever actions were taken against her she does not have a claim under 704a BFOQ defense 703el SS p 42 no cause of action in those instances where the protected characteristic is a bona de occupational quali cation This is an af rmative defense Only applies to sex religion and national origin Employer carries the burden of proof Ask two questions Is there some aspect of the job that can only be performed by people with these characteristics Is this job reasonably necessary to the normal operation of the business Ie Is the discrimination necessary for the business to operate Examples Theatrical productions Hooters female sexuality is a BFOQ The essence of Hooters is the Hooters girl In the context of sex discrimination the BFOQ defense does not apply when the re isal to hire is based on The preferences of the business s clients or customers But it s okay in the medical context hospitals nursing homes Patient s privacy interests as a defense Some courts have allowed foreign customers to be relevant NonMuslims ying into Mecca are beheaded p 286 A belief that women cannot be aggressive salespersons Wilson v Southwest Airlines When can sex be considered a BFOQ Business specializing in vicarious sexual recreation actoractress D s ability to perform its primary business function the transportation of passengers would not be jeopardized by hiring males D brought the female image onto itself it wasn t forced to adopt the image Disparate impact 703klA SS 44 Prima facie case P must demonstrate burden of persuasion that An employer s practice Causes a disparate impact on a protected group Must show a causal nexus between the two Where there are multiple practices alleged P must demonstrate that each particular practice had a disparate impact 703klBi from Ward s Cove If P can prove that D s practice cannot be analyzed in separate distinct parts then decisionmaking process can be analyzed as one single process 1991 Amendments l2 Rebutting the prima facie case D must demonstrate burden of persuasion that the practice is jobrelated and consistent with business necessity Or claim that no disparate impact exists argue that P failed to make a prima facie case P can then show a lessdiscriminatory and equally effective means of achieving D s goals Four fths rule if the hiring rate of the protected group is less than 45 of the hiring rate of the dominant group the selection process will be presumed to have an adverse impact Basically D can avoid liability through quotas Consider whether numbers are big enough to be reliable is it statistically signi cant Relevant labor market those potential quali ed employees in the geographic area where the employer draws Griggs v Duke Power D instituted requirement that transfers between departments have a high school diploma Despite lack of discriminatory intent Supreme Court recognizes discriminatory consequences More whites had diplomas and whites passed the aptitude tests at much higher rates Faciallyneutral requirements will not be upheld if they merely freeze the status quo of prior discriminatory employment practices Employer can still argue business necessity no violation so long as requirements are job related But neither a high school diploma nor passage of the aptitude test bore a demonstrable relationship to success il job performance in this case Wards Cove v Atonio P failed to show causal nexus between employer s practice nepotism wordofmouth and discriminatory impact P must speci cally identify the employer practice and the effect it has this is part of the prima facie case No lumping a bunch of things together If D rebuts P then has opportunity to show lessdiscriminatory and equally effective means of achieving D s goals Af rmative action 703i nothing in Title VII requires employer to grant preferential treatment to any protected group in order to maintain minority population in proportion to population within community 7031 can t adjust scores or use different cutoffs But consider whether the challenged practice applies to hiring promotions or training programs Overview Remedial plans are okay Johnson Nonremedial plans okay Grutter not okay Taxman Consider context training program okay Weber promotion okay Johnson but not in Wilks Quotas approved Weber disapproved Wilks Grutter plus factor okay United Steelworkers v Weber Positions in inhouse training program reserved speci cally for blacks D promoted om within training program Valid the language of Title VII does not forbid an employer om granting preferential treatment to minorities Rejects literal interpretation of 703a and d it must be read in the context of the legislative history protecting minorities Twostep analysis Is the underlying purpose of the plan permissible Does the plan unnecessarily trammel the interests of the nonminority employees RehnquistBurger dissent Plain language of 703a expressly prohibits discrimination based on race it s supposed to be raceblind If the language is plain there s no room for legislative history interpretation l3 Johnson V Transportation Agency D county adopted voluntary af rrnative action plan to remedy past practices considered sex as a factor until 36 of the positions were female upheld Plan did not unnecessarily trammel the rights of men No quota sex merely considered as a factor Note that this is a promotion case P had no entitlement to the position in the rst place he was in competition with 7 others Scalia dissent Title VII has been converted from a guarantee that race or sex will not be the basis for employment determinations to a guarantee that it often will D now free to engage in reverse discrimination Battling to Climb the Ladder LA Times article Wilks case 50 of positions allotted for blacks until numbers increased to acceptable levels 11th Cir too arbitrary Okay in the hiring context you can always get another job but in the promotion context the whites rights were trammeled It s a smaller group so the difference felt was much stronger Grutter v Bollinger Equal Protection case not Title VII Purpose of law school affirmative action is not remedial but to gamer the bene ts of diversity Upheld compelling interest in diversity Remedying past practices is not the only justification for a racebased admissions system But is it narrowly tailored to serve this purpose Or does it unnecessarily trammel on the rights of whites0 Yes no quotas but rather race used as a plus factor Everything taken into consideration Taxman v Board of Education School district lays off white teacher instead of black Does Title VII prevent an employer with a raciallybalanced workforce from imposing racial factors in order to promote diversity Yes twopart Weber analysis Is the underlying purpose of the plan permissible No remedial is proper but promoting diversity is not Opposite conclusion om Grutter Does the plan unnecessarily trammel the interests of the nonminority employees A nonremedial AA plan even with laudable purpose cannot pass muster Discrimination based on religion 70li employer must demonstrate burden of proof that he is unable to reasonably accommodate to an employee s or prospective employee s religious observance or practice without undue hardship on the conduct of the employer s business 702a not applicable to religious corporation association educational institution or society 703 e2 TWA v Hardison To what extent must D accommodate P s religious beliefs which prevent P from working on Saturdays D s actions were suf cient tried to nd P another job held several meetings tried to swap shifts Need not vary from the seniority system already in place Essential to D s business to require Saturday work Undue hardship to require D to bear more than a de minimus cost Ansonia Board of Education v Philbrook 7010 is satis ed when the employer demonstrates that it has offered a reasonable accommodation to the employee Ie that s all D has to do Discrimination based on disability Overview 14 The central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people s daily lives not whether the claimant is unable to perform the tasks associated with her job Toyota When the major life activity under consideration is working P must allege that he is unable to work in a broad class of j obs rather than a speci c job Sutton Consider impairment in its mitigated state Sutton New amendments unmitigated state exception for eyeglasses It is not reasonable to trump the rules of a seniority system U S Airways You are regarded as impaired if Sutton Employer accidentally thinks employee has an impairment and they don t Employer accidentally thinks employee with disability is substantially impaired when he s not Rejected by new amendments reinstates reasoning of School Board V Arlene predated ADA Someone can be considered impaired if the perceptions of others is that he s impaired even if no impairment actually exists e g cosmetic dis gurements but which don t affect daily life ADA SS 77 Coverage applies to same group of employers as Title VII De nitions 32 Disability means with respect to an individual A a physical or mental impairment that substantially limits one or more major life activities of such individual OR Impairment must be more than a difference lefthanded it must be a true impairment Substantially must be permanent or longterm not broken leg E3Lta Limits present indicative tense right now One or more major life activities Major of central importance to daily life Toyota B a record of such impairment OR C being regarded as having such an impairment Could be either D mistakenly believes P has impairment D mistakenly believes an impairment substantially limits a major life activity 5 l 1 not disabilities Homosexuality transvestitism gambling Remedies same as those under Title VII Back pay up to 2 years equitable relief get the promotion if you were denied Compensatory and punitive available only in cases of intentional discrimination disparate treatment Attorneys fees for prevailing party Health insurance decisions 50lc nothing in act should prohibit or restrict a covered entity from underwriting or classifying risk in ways not inconsistent with state law Allows employer not to cover certain conditions in insurance plan so long as it s consistent with state law Congress didn t want to force employers to cover every single condition that disabled employees had Left these judgments up to the employer Otherwise there s an incentive to discriminate to keep insurance costs low Preemployment process employer can only ask if employee can perform essential job inctions without an accommodation After offer is made it may be conditioned on a preplacement medical screening But every employee must take one not just suspected crippleds And info must be kept con dential l5 Then there must be dialogue with disabled applicant can you perform the essential job inctions Here employee asks for reasonable accommodation This interactive process is required before employer denies employee P s prima facie case Quali ed individual with disability 32 Disability able to perform the essential job inctions with a reasonable accommodation if necessary Adverse action was taken l02b Could be re isal to make reasonable accommodation l02b5A Or if there was an accommodation P bears burden of proof that reasonable accommodation was not reasonable Must show causal nexus This creates rebuttal presumption that adverse action was disabilityrelated Disparate treatment Employer then bears burden of production for 1 showing legitimate nondiscriminatory reason or 2 negating the prima facie case e g showing that the P is not disabled or not quali ed in the first place Can argue that the proposed reasonable accommodation was not reasonable or would create an undue hardship on the business Undue hardship an action involving considerable difficulty or expense But employer has burden of proof to show this Disparate impact Employer must show that action was job related and consistent with business necessity and that such performance cannot be accomplished by reasonable accommodation Distinction between reasonable accommodation and undue hardship Bamett Then plaintiff has opportunity to rebut Toyota Motor Mfg v Williams Pneumatic tools caused P s carpal tunnel syndrome Major life activity substantially impaired performing manual tasks The central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people s daily lives not whether the claimant is unable to perform the tasks associated with her job Sutton v United Airlines Twin sisters suffer om myopia but have 2020 corrected vision When considering impairment the determination should be made with regard to measures that mitigate the impairment 32A limits as in now Ps are not disabled nor did D regard Ps as disabled under C D is ee to establish physical criteria so long as it doesn t make a decision based on an impairment of a major life activity When the major life activity under consideration is working P must allege that he is unable to work in a broad class of jobs rather than a speci c job Ps were only prevented om one particular job ying planes ill of people there were other piloting jobs available US Airways v Bamett P competing for job that is seniority based asks D to stay in his job as a reasonable accommodation D refuses D argues that it is never reasonable to accommodate a request that con icts with the seniority system What does reasonable accommodation mean P need only show that the accommodation seems reasonable on its face ie ordinarily or in the run of cases Then D must show undue hardship It is not reasonable to trump the rules of a seniority system But P can rebut this conclusion by showing that D frequently circumvents the seniority system 16 O Connor concurs Undue hardship should depend on whether D is contractually legally bound to follow the seniority system e g under a collective bargaining agreement Here it s a voluntary system implemented by D Scalia dissents What should a reasonable accommodation be Narrow interpretations of statute RA means removing obstacles that speci cally prevent disableds from performing essential job inctions E g installing volume enhancers on telephones But it shouldn t come into play in a seniority system which doesn t have a speci c disabilityrelated obstacle inherent in it Majority shouldn t have even given P chance to rebut no seniority system should ever be trumped by disability Note the issue here was not undue hardship but whether the accommodation was reasonable New amendments to ADA January 2009 Primary purpose to reject Supreme Court in Toyota and Sutton Amendments seek to provide more broad protection to people with disabilities Look at disability in the unmitigated state not mitigated rejects reasoning in Sutton Exemptions ordinary eyeglasses or corrective lenses Sutton stands It is suf cient that the disability affects one major life activity current ADA says one or more so no major change When working is the major life activity you must be shut out from an entire class or whole range of j obs not just one job in particular Sutton Substantially limits Amendments reject Toyota s high level of impairment Left to EEOC to esh out the principles An impairment that s episodic or in remission still applies if it substantially limits when it s in effect What does it mean to be regarded as impaired Sutton this covers two prongs Employer accidentally thinks employee has an impairment and they don t Employer accidentally thinks employee with disability is substantially impaired when he s not Rejected reinstates reasoning of School Board v Arlene predated ADA Someone can be considered impaired if the perceptions of others is that he s impaired even if no impairment actually exists e g cosmetic dis gurements but which don t affect daily life Discrimination based on national origin National origin ancestry where P or his ancestors were bom Even if national origin no longer exists as a political entity What must P prove when the alleged disparate impact is on the conditions terms or privileges of employment Existence of adverse effects of the policy Impact is on the conditions terms or privileges of employment of the protected class Adverse effects are signi cant Employment population in general is not affected to the same degree Garcia v Spun Steak Does Englishonly rule in workplace violate Title VII P argues disparate impact based on national origin Three arguments by P all rejected Rule denies P the right to cultural expression But this isn t protected but Title VII it s only concemed with disparities in the treatment of workers 17 Rule has a disparate impact because it deprives P of the right to converse in the language in which he feels most comfortable But there s no disparate impact where the P is bilingual it s just a matter of preference Title VII doesn t protect against mere inconveniences only signi cant impacts Spanishonly employees may have a legit claim though they re deprived of the right to speak at all Rule creates an atmosphere of isolation and intimidation Actually rule was designed to x that atmosphere which already existed Either way P hasn t shown this Hostile atmosphere must be pervasive not just vaguely alleged Remanded P must conclusively demonstrate the disparate impact in order to satisfy its prima facie case Maldonado v City of Altus Where the justi cation for an Englishonly rule is less apparent it is more reasonable to infer that it creates hostility toward the minority employees Consider EEOC guidelines 45 Englishonly rule that applies at all times is considered a burdensome term and condition of employment a presumptive Title VII violation Rationales Creates atmosphere of inferiority and isolation Adversely affect employees with limited English Barrier to employment Risk of discipline falls disproportionately on bilingual employees But a rule that only applies at certain times does not violate Title VII if the employer can show business necessity D has not demonstrated business necessity SJ is inappopriate Fragante v City amp County of Honolulu P not hired because of his heavy lipino accent argues disparate treatment Was the ability to communicate effectively a legitimate occupational quali cation for the job in question Yes af rrned Court notes that accent and national origin can be easily intertwined but nds that D gave suf cient reasons that its decision was based solely on accent not national origin Accent must materially interfere with job performance No hint of mixed motive Discrimination based on age Age Discrimination in Employment Act part of FLSA SS p 62 Purposes 62l to promote employment of older persons based on ability rather than age De nitions 630 applies to employers of 20 or more employees Age limits 63 1 must be at least 40 to be protected Basic prohibitions 623a very similar to Title VII Defenses 623f BF OQ Reasonable factors other than age RFOA e g seniority Enforcementremedies 626 P must go through EEOC procedures before ling claim Equitable relief same as under Title VII reinstatement hire etc Liquidated damages for willful violations of the act reckless disregard Burdenshifting use Ward s Cove disparate impact analysis P identi es practice that causes discriminatory impact Replacement by an employee who is substantially younger is suf cient to establish that element of the prima facie case it doesn t matter if replacement is also within the ADEA protected class D must prove job related and consistent with business necessity Or D has burden of production and proof to show the RFOA Ie burden of persuasion 18 Meachem V Knolls P claims D designed its layoff process to eliminate older employees argues both disparate treatment and impact Managers gave scores which tended to penalize older employees the most Jury found for P on disparate impact claim only D bears burden of persuasion of proving an af rmative defense like BFOQ and RFOA D must show a nonage factor that is reasonable and which happens to attribute to the disparate impact Hazen Paper V Biggins may have public policy claim D res P a few weeks before his pension bene ts vest claims disparate treatment There is no disparate treatment under the ADEA when the factor motivating the D is some feature other than P s age For disparate treatment the P s protected trait age must have played a role in D s decisionmaking process and had a determinative in uence on the outcome Here age was not a motivating factors pension status was the motivating factor It doesn t matter that pension status is correlated with age it is possible for D to take account of one factor years of service while wholly ignoring the other age It is not true that a decision based on yearsofservice is agebased Smith v City of Jackson Mississippi D plan gives of cers with more than 5 years experience a lower percentage of pay raise than those with less than 5 years experience Is a disparate impact theory cognizable under the ADEA Yes Language of the Act is almost identical to Title VII 623a2 or adversely e ects the employee Speci cally deals with effects in addition to D s motivations But P fails in this case RFOA job related and consistent with business necessity Dissent no it means any legitimate nondiscriminatory reason eg zodiac sign O Connor dissent Focuses on nal line of 623a2 because of such individual s age This requires disparate treatment intent RFOA provision expresses clear congressional intent that D not be held liable absent proof of agebased discrimination D simply needs to show an RFOA that is his safe harbor No room for disparate impact Discrimination based on sexual orientation No federal protection for sexual orientation only state law about 20 states and only then against the public sector not private DeSantis v Paci c Telephone Telegraph Co still mostly good law Af rrned dismissal of claims by gay P under Title VII P claims discrimination on the basis of sex is intended to include on the basis of sexual orientation Disproportionate impact on men Court disagrees Congressional intent was to put women on equal footing with men Based on sex means based on gender D did not discriminate against men liking men more than women liking men D discriminated equally against men and women who preferred samesex relationships It s the nature of the relationship that s being discriminated against not the gender of the participant Attempted amendments to Title VII have tried to include sexual orientation but have failed Discrimination because of effeminacy does not violate Title VII Reconsidered in light of Price Waterhouse l9 If evidence suggests P is being discriminated against for not acting like a male Title VII applies If evidence suggests P is being discriminated against for being gay Title VII does not apply Dissent P has stated a valid disparate impact claim While Title VII indeed does not protect homosexuals the practice of using homosexuality as a disquali cation for employment has a disparate impact on males Labor Code l l0l applied in CA until 2000 no longer now discrimination based on sexual orientation is covered by the CA Fair Employment and Housing Act Prohibited employers from prohibiting employee s political activity Espousal of a cause and some activity to promote it Is being openly gay political activity CA Sup Ct yes part of the gay movement is to come out and let everyone know you re gay 1102 la prohibits discrimination based on actual or perceived sexual orientation Padula v Webster Female P charges D FBI with discrimination based on lesbianism in violation of equal protection Judgment for D af rrned Do homosexuals constitute a suspect class thus entitled to strict or heightened scrutiny No Is sexual orientation status or conduct Court says it doesn t matter it s not a suspect class Sup Ct has already sanctioned discrimination against that class Bowers v Hardwick Besides rational basis national security Witt v Dept ofthe Air Force 9th Cir 2008 P honorably discharged from D Air Force after D discovered she was a lesbian Under Lawrence what level of scrutiny should be applied Not rational basis not strict scrutiny some intermediate level Is there an important govemment interest Unit cohesion morale and order is suf cient Does the intrusion signi cantly serve that interest Is there a less intrusive way to advance that interest Remands to determine factual issues Cook v Gates 1st Cir 2008 Equal protection due process and First Amendment challenges to Don t Ask Don t Tell Lawrence recognized a protected liberty interest for adults to engage in private consensual sexual intimacy But this does not automatically mean that strict scrutiny is appropriate What is the standard for a substantive due process challenge after Lawrence Balancing test between the l strength of the state s asserted interest in prohibiting immoral conduct against 2 the degree of intrusion in P s private sexual life D wins here Lawrence only applied to sexual intimacy in the con nes of one s own home not between military personnel potentially onbase Broad deference given to Congress in military affairs Speci c First Amendment aspect of Cook Under DADT if you state that you re gay you then face a rebuttable presumption that you are you must prove to the military that you are not in order to hold your position Q majority claims this is a contentneutral restriction on speech It is the conduct that is being punished the speech merely provides evidence of the conduct Statement propensity conduct Is this a fair presumption Isn t I m gay just a statement of status Remember the court acknowledges that homosexuality as a status is not a violation of DADT Being gay is not incompatible with military service saying you re gay is a violation because it raises presumption of conduct 20 Wage and hour legislation Fair Labor Standards Act 29 USC 201 Legislative history standard New Deal garbage Bernard Schwartz Statutory History of the US Labor Organization Labor was generally S11CCCSSf11l at the state rather than federal level To conserve our primary resources of manpower government must have some control over labor conditions FDR Commerce Clause power Established Wage and Hour Division of the Department of Labor Intent was to establish federal minimum wage that was higher than the market rate in most states Overtime provisions were intended to increase the size of the workforce encourage employers to hire more people rather than simply force workers to work more Equal pay provisions added in 1963 FLSA does not regulate vacation holiday sick or severance pay Basie provisions SS 94 Minimum wage Section 206 Applicable to all employees of covered employers Need not be computed on an hourly basis so long as employees receive at least the minimum wage for time worked Less for tipped employee De ned in 203t regularly receives more than 30 per month in tips Not in CA waiters get minimum wage In order to change minimum wage statute itself must be amended Wage de ned in 203m includes things provided by employer for employee s bene t eg meals lodging But not things of bene t to the employer uniforms safety equipment Richard B Freeman The Minimum Wage As a Redistributive Tool Consumers foot the bill for minimum wages Low wage workers also pay through loss of jobs Supply of workers increases but not demand Distribution of jobs shifts om the poor to the middle class Maximum hours and overtime No limits on hours worked but merely require overtime pay for covered employees who work more than 40 hrsweek 207al 15 times the regular wage All principle as well as incidental job activities which are an integral part of their work Required breaks waiting periods staff meetings But not preliminary and postliminary activity PortaltoPortal Act Waiting to be engaged meals longer than 30 minutes union meetings absences for illness holiday vacation FLSA looks at weekly hours CA looks at daily hours IBP Inc V Alvarez Is time spent walking between the changing area and production area compensable when employees are required to wear protective clothing for their work Predonning and postdof ng walking time Time spent changing is already compensable PortaltoPortal Act exempts two activities om compensation Walking on D s premises to and om the actual place of performance of the employee s principal activity Activities that are preliminary and postliminary to that principal activity Sections 4al and 2 Predonpostdof time is compensable 21 The relevant walking in this case occurs after the workday begins and before it ends It does not fall outside of the employees principal activity it falls within it Holding any activity that is integral and indispensable to a principal activity is itself a principal activity Any walking time that occurs after the beginning of the employee s first principal activity and before the end of his last principal activity during a continuous workday Child labor employees must be over 16 to work in most nonfarm jobs and over 18 to work in nonfarm jobs declared hazardous Sec 212 Under 14 you better be a babysitter doing chores working in family business or an actor M Neil Browne Universal Moral Principles and the Law the Failure of OneSizeFits All Child Labor Laws Major loophole of FLSA was that it allowed child farm labor Seymour Moskowitz Malignant Indifference the Wages of Contemporary Child Labor in the US Youth employment is dangerous doesn t teach responsibility and negatively affects school work Kids spend too much money on luxury items FLSA should require parental consent Remedies sections 216 and 217 Unpaid wages liquidated damages Employee need not exhaust administrative remedies P can go directly to court In CA people generally le with the Labor Commissioner in order to avoid court although this is not required just costeffective especially for smaller claims Who is a covered employer Sec203 Businesses which meet the de nition of an enterprise 500000 annual gross volume of sales made or business done What constitutes the enterprise The company must Perform related activities Under uni ed operations or common control For a common business purpose Individuals which meet the commerce test goods or services produced by the business cross state lines broadly construed State and local govemments In CA almost all businesses fall under state law and the law is very employeefriendly Who is a covered employee 203 e4A does not include volunteers for state agencies or independent contractors 213a any employee in a bona de executive administrative or professional capacity is exempt from minimum wage and maximum hour requirements Construed narrowly against the employer who asserts them Employer bears burden of proving that employees are exempt De nitions Dalheim Executive primary duty consists of the management of an enterprise in which he is employed or a customarily recognized subdivision thereof Work must include the customary and regular direction of the work of two or more employees Administrative primary duty consists of of ce or nonmanual work directly related to management policies or general business operations that includes work requiring the exercise of discretion and independent judgment Professional both leamed and creative Leamed extensive schooling apprenticeship doesn t count 22 Creative primary duty consists of work that is original and creative in character in a recognized eld of artistic endeavor the result of which depends primarily on the invention imagination or talent of the employee Computer employees Outside Sales Standard Duties Test for each exemption 418419 Dalheim v KDFWTV P reporterseditors in D s news and programming departments claim they were denied overtime pay in will il violation of Sec 7 of FLSA D bears burden of proving that P s are exempt under 2l3al Exceptions should be construed narrowly so FLSA covers as many people as possible But you must make more than 455 per week 640 in CA to qualify and you must make a salary not hourly wage Reporters are not exempt artistic professionals Distinction between persons whose work was creative in nature from those who work in a medium capable of creative expression but whose duties are nevertheless functional in nature Reporters success depends not on creativity but skill diligence and intelligence News producers are not creative professionals administrators or executives Not administrators Not responsible for setting business policy negotiating salaries or bene ts Simply because their work is of substantial importance doesn t automatically make them administrators Must look at the nature of the work and its ultimate consequences Not executives Do not perform training supervision discipline or evaluation of other employees Simply distributing assignments is not enough without supervision over the process Equal Pay Act of 1963 29 USC 206 SS Basie provisions Prohibits sexbased wage discrimination 206dl equal pay for equal work where performance requires the same l skill 2 effort 3 responsibility and 4 which are performed under similar working conditions Four exceptions Seniority system Merit system System based on quantityquality of production A differential based on any other factor other than sex catchall provision Wemsing this need not have a valid business consideration simply something other than sex Equal Pay Act only applies where employees are performing substantially equal work not similar or comparable work Coming Glass v Brennan Night inspectors all male paid more than female inspectors all female eventually night positions open to women and pay between nightday equalized Burden shifting P bears burden of proof of showing that D pays different wages to employees of different sexes for equal work where performance meets four factors in 206dl No need to show discriminatory intent Then burden shifts to D to prove that the differential is justi ed under one of the Act s four exceptions Affirmative defense burden of proof Working conditions surroundings hazards 23 Surroundings elements e g toxic chemicals regularly encountered by the worker and their intensityfrequency Hazards physical hazards regularly encountered and their frequencyseverity of potential injury Time of day is not a relevant criterion to consider when evaluating working conditions What about catchall exception for shift differential This would be a valid argument but D never proved that this was the reason for paying higher wages to night workers Even when night shift was open to women the pay differential existed Wemsing v Dept of Human Services D gives lateral entrants at least the salary earned before and sometimes a 10 raise Result P performs equal work as male employees but for less Are wages at one s prior employer a factor other than sex allowed under the Act P s two arguments D lacks an acceptable business reason for its approach But what about the bene t of making the job more attractive to the best candidates Besides the statute looks for a reason other than sex it doesn t look for an acceptable business reason This is not Title VII Equal Pay Act deals only with disparate treatment And under that analysis D need only show nondiscriminatory reason not necessarily a strong one justi ed by business necessity Congress has not authorized federal judges to serve as personnel managers for America s employers Because all pay systems discriminate on account of sex any use of prior pay to determine salary must also be discriminatory Relying on the market wage is not discriminatory it is impersonal Relationship between the Equal Pay Act and Title VII Washington v Gunther 475477 US Sup Ct P female prison guard claim lower wages than males under Title VII intentional discrimination Bennett Amendment of Title VII no violation of Title VII if the differentiation is authorized by the Equal Pay Act What is authorized by the Equal Pay Act Differentiation based on merit seniority other factor all of the aj rmative defenses This doesn t mean there s no Title VII claim it just means that the EPA af rmative defenses are available Female guards guarded far fewer prisoners and did more clerical duties claim rejected under the equal skill effort and responsibility standard Ledbetter v Goodyear Tire Under Title VII when does discrimination occur P must le charge with EEOC within 180 days of incident Here P retires and sues D for wage discrimination Claims sexuallydiscriminatory evaluations caused gradually lower wages over time Claims each paycheck re ected past discrimination Court disagrees the act that consummates the discrimination shows the intent and that only happened once a long time ago Different from Coming Glass where the policy continued into the iture here there was a single isolated act of discrimination 24 Health Bene ts Family Medical Leave Act of 1993 29 USC 26012654 SS 114 Requires that employer provide leaves of absence up to 12 weeks unpaid for childbirth or the care of children or other family members with a serious health condition Must have been employed for at least 12 months with at least 1250 hours of service Employee must provide notice p 545 Serious health condition an illness injury impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider Period of incapacity requiring absence of more than three days and continuing treatment from a physician Employer must do two things when employee goes on sick leave Maintain payments on medical insurance Restore employee to same or equivalent position Enforcement federal or state suit individually or on behalf of themselves and similarly situated employees or by the Sec of Labor Remedies Lost wages and bene ts plus interest or actual monetary losses Attorneys fees Commentary Robert Kuttner The Limits of Incrementalism Universal health care relieves the problem of people being dropped from insurance when they lose their jobs Nancy E Dowd Family Values and Valuing Family Why are family leave and child care treated separately Child care is essential for parent to return to work Craig J Cantoni The Case Against Employee Bene ts Employers and employees would be better off if medical coverage and retirement programs were independent of the employment relationship Paternalistic relationship is at odds with the economic decisions of running a business and gives employers reasons to intrude on employees personal lives History McCarthyFerguson Act 1945 returned regulatory powers to the states but left open the option of national regulation of insurance if states did not act MedicaireMedicaid 1965 gov t programs for the elderly and indigent ERISA Employee Retirement Income Security Act of 1974 Increased federal authority over employee bene ts Mostly directed at private employer pension plans and employmentbased health plans Selfinsured employers are exempt from several consequences Various state taxes and regulations p 495 Basic requirements Information reportingdisclosure Prudent exercise of duciary responsibilities Limits on disproportionate bene ts for highlycompensated employees HIPAA Health Insurance Portability and Accountability Act of 1996 Individuals cannot be charged higher premiums than other similarlysituated individuals Refers to illtimeparttime status or geographic location Prohibits insurers and health plans from using an individual s health history or risk factors in denying eligibility or setting individual premiums No discrimination based on participation in risky activities Privacy Rule employers must build a re wall between employee health bene t information and other employment records Seidle v Provident what is a serious health condition P claims violation of FMLA for termination after 4day leave claims son s earache was a serious health condition 25 Judgment for D no hospitalization or surgical intervention merely a minor illness which lasts only a few days What is continuing health treatment Two or more treatments or once but with continuing treatment under the supervision of a health care provider either in person or by telephone Kelley Co V Marquardt What is included in other terms and conditions of employment What is an equivalent position P retums from pregnancy leave to nd old position split into two different ones pay and bene ts were the same but P no longer interacted with salespeople had fewer people to manage and did more clerical work New position must contain the same statusauthorityresponsibility Otherwise other terms and conditions is just meaningless surplus language Same duties are not necessarily required D is free to reorganize but here it clearly demoted P But couldn t D have done this while she was there Why is she protected by going on leave O Connor v PCA Family Health Plan P argues that D red her while on medical leave in violation of FMLA D must demonstrate that the P would have been red anyways Judgment for D ring was part of a legitimate reduction in force Posttermination bene ts Vacation bene ts considered compensation for past services rendered Employee is entitled to it when he leaves and it cannot be reduced or taken away ex post facto No use it or lose it policies Sick leave is a contingent bene t that you only get if the circumstances sick arise Not compensation for past services rendered you don t get it when you leave Health bene ts are not subject to income tax So a dollar of health bene ts is worth more than a dollar of wages Harassment in the workplace Harassment unwelcome sexual advances requests for favors and other verbal or physical conduct of a sexual nature Harassment will violate Title VII if the conduct has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating hostile or offensive working environment Meritor Savings Bank v Vinson sexual harassment constitutes sex discrimination in violation of Title VII Two types of sexual harassment Quid pro quo agreement to engage in sexual activity is made a condition of employment Hostile environment statements of conduct of a sexual nature creates an atmosphere of intimidation insult or ridicule Bc of P s sexraceage etc Unwelcomeness not consent is the standard for determining whether unlaw il harassment has occurred P must show through her conductstatements that the conduct was unwelcome Elements of a hostile environment claim see Suders Employersupervisorcoemployee participated in conduct that was l unwelcome 2 suf ciently severe or pervasive as to alter working conditions and create an abusivehostile work environment 3 because of a protected characteristic Basis for employer liability Coemployees D liable for conduct it knew of or should have known of negligence Supervisors vicarious liability even where D did not know nor should have known about harassment Faragher Three agency principles Conduct occurred within scope and course of employment 26 Apparent authority Harasser was aided in accomplishing the harm by virtue of his agency relationship F aragher Applicable even if harasser never acted on his threat to redemote What is sufficient remedial action to limit sexual harassment liability Did employer take suf cient action to 1 stop action from occurring and 2 prevent it from recurring Ellison transferring victim is insuf cient Faragher failing to disseminate sexual harassment policy insuf cient Depends on the conduct does the offender s mere presence in the of ce create a hostile environment Has there been a clear course of discipline lacking in Ellison Commentary Vicki Schultz Talking About Harassment Not all harassment is topdown e g boss to subordinate this is an oldfashioned view Exclusion from work rather than abuse of sexuality should be at the forefront Pennsylvania State Police v Suders US Sup Ct Prima facie case for hostile work environment P must show harassing behavior suf ciently severe or pervasive to alter the conditions of employment To establish constructive discharge P must show that the abusive environment became so intolerable that her resignation quali ed as a tting response Worstcase harassment harassment ratcheted up to a breaking point Conditions so intolerable that a reasonable person in P s condition would ve quit Employer can defend by showing both 1 it installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment and 2 that the P unreasonably failed to avail herself of that employerprovided preventive or remedial apparatus This defense is not available where the P quits in response to an employersanctioned adverse action officially changing her employment status or situation e g a humiliating demotion Faragher v Boca Raton An employer is vicariously liable for the sexual harassment of a supervisor subject to an affirmative defense D may defend by showing that 1 it exercised reasonable care to prevent and correct promptly any harassing behavior and 2 the employee unreasonably failed to take advantage of the opportunity But here D failed to disseminate its harassment policy Harris v Forklift Systems Must P suffer psychological injury in order to state a claim No It would be evidence of a hostile work environment but it is not required Even without injury a hostile environment may detract from job performance So what is sufficient Insuf cient Consider frequency severity whether it is physically threatening or humiliating or merely offensive and whether it unreasonably interferes with P s work performance Objective standard reasonable person Oncale v Sundowner You can state a sexual harassment claim when both parties are the same sex How can you prove that the discrimination is because of sex Sexspeci c derogatory terms One sex being harassed not the other in a mixedsex workplace But P must always prove that the conduct was not merely tinged with offensive sexual connotations but that it constituted discrimination because of sex Title VII not intended to create a civility code irtation and horseplay are okay Reasonable person standard in P s position Coach s buttslap not harassment where it would be elsewhere Ellison v Brady 27 Whether conduct was pervasive or severe should be viewed from the perspective of the victim reasonable woman or man standard Even if harassers do not realize that their conduct creates a hostile work environment Suf cient remedial efforts must be reasonably calculated to end the harassment Here transferring victim to another office was insuf cient Occupational Safety and Health Act 1970 Regulatory approach to occupational safety and health Three possibilities Leave the problem for employersemployees to work out State regulation Federal regulation OSHA allows states to enact their own legislation which preempt federal activity OSHA provisions Standardsenforcement model There must be preinspection compliance employers penalized for violations found during inspections Each employer must comply with two provisions 5al the General Duty Clause requires employer to keep place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees Recognized known to the employer or industry See Pepperidge Farm for elements 5a2 requires employer to comply with OSHA standards 6b modi cations must be approved through the standardmaking process 6c emergency standards Where a standard exists employer is cited under that standard where there is no standard the employer is cited under General Duty Clause Under 6d employer may petition Secretary of Labor for an order granting variance from any particular standard 8a empowers compliance of cers COs to inspect any workplace covered by the Act Programmed v unprogrammed inspections Programmed regular and routine inspections of certain employers workplaces no complaints or problems reported Employer can require inspector to get a warrant Inspector looks at OSHA logs logs of every employee injury Employer has 15 days to contest a citation Goes to OSH Review Commission Secretary of Labor is the Complainant and has the burden of proving the violation Circuit court of appeals handles appeals Unpopular for three reasons Broad jurisdiction regulates all industries in all states except for those already regulated by another agency Intrusive inspections are unannounced Regulations are costly and may infringe on management prerogatives intrudes into labor relations on the side of labor Commentary Joseph Page amp MaryWin O Brien Bitter Wages Depression resulted in people accepting bad working conditions Gauley Bridge disaster 476 dead 1500 disabled to build tunnel Settlements were miniscule The Benzene Case Under 38 what is a standard Standard establishes conditions or adoption of methods etc that are reasonably necessary and appropriate to provide safe or health il employment How does 38 mesh with 6b5 28 6b5 toxic material standard Sec shall set the standard which most adequately assures to the extent feasible on basis of the best available evidence that no employee will suffer material impairment of health or functional capacity with regular exposureworking life Before issuing a standard the Sec must determine that it is reasonably necessary and appropriate to remedy a signi cant risk of material health impairment Sec has burden of proving more likely than not that the current conditions present a signi cant risk of material health impairment and that the risks can be eliminated or lessened by a change in practices This is the threshold determination Safe does not mean riskfree workers must be threatened with a signi cant risk of harm Sec need not do a costbene t analysis but economic feasibility is a valid consideration The threshold nding was not met here Three main ways to calculate risk assessment Short term in vitro tests estimate toxicity of a substance In vivo tests determine the effects on lab animals Problems costly take time to complete all species react differently disease may take years to develop Epidemiological studies attempt to discover correlations between mortality death or morbity illness rates and exposure Problems takes many years dif cult to obtain information about exposures below the current standard multiple factor interactions Ergonomics and musculoskeletal disorders MSDs Pepperidge Farm may the Secretary apply the General Duty Clause to issues of ergonomics speci cally with regard to repetitive motion injuries Yes But how to set an appropriate standard when it s impossible to say when the hazard is created Court Commission in circumstances where there is actual harm associated with actions in the workplace we can proceed under the general duty cause even though we can t pinpoint exactly when the injury took place Basic elements of general duty clause Does a hazard exist Two factors 1 actual or potential physical harm and 2 a suf cient causal connection between the harm and the workplace Here this evidence comes from D s own medical records of employees injuries Experts testi ed that repetitions and ergonomic harms caused the injuries Was D aware of the hazard Yes Do feasible means exist to eliminate or materially reduce the hazard Sec fails to show that proposed improvements would materially reduce the hazard Here D took some remedial action already Sec can t show that more would make a difference OSHA Ergonomics Program standard effective January 2001 When employee reports an MSD employer must 1 Determine if it s an MSD incident Days away from work Restricted work Medical treatment beyond rst aid MSD symptoms persisting for more than a week 2 Determine whether employee s job has risk factor that meet the action trigger Repetition awkward posture force vibration and contact stress But if they don t exceed the action trigger then there is no need to implement an ergonomics program for that job 3 If MSD incident is reported and the risk factors meet the action trigger then employer must establish an ergonomics program for that job 29 Requirements hazard information and reporting training MSD management etc Quick Fix exception to full program requirement if employer can implement controls that eliminate MSD hazards within 120 days and remain effective for 36 months Worker s comp Worker comp statutes require employers to provide cash bene ts medical care and rehabilitative services for workers who suffer injuries or illnesses arising out of and in the course of their employment Basic workers comp conditions Sec 360 of the Labor Code liberally construed to ensure greatest possible coverage OSHA is preventative worker s comp deals with postinjury Compensates for lost income and earning capacity Six objectives Prompt and reasonable income Single remedy reduce court delays Relieve public and private charities Eliminate costly trials and appeals Encourage maximum employer interest in employee safety Promote frank study of the causes of incidents rather than concealment of fault Types of bene ts Temporary total for injuries that prevent an employee om working until he is illy recovered Temporary partial paid during a period of reduced eamings and cease when the worker retums to ill earnings or found eligible for permanent bene ts Permanent total paid to workers who are completely disabled for an inde nite time Permanent partial paid where the employee suffers an impairment that causes a permanent but partial loss of wages or wageeaming capacity If worker is killed employer must pay burial expenses and bene ts to speci ed dependent survivors History Employees used to sue their employers in tort Contributory negligence assumption of the risk were applicable Fellow servant rule employer not liable for injury caused by coemployee Then we decided to impose costs on the employer Tradeoff between employees and employers An employee who becomes injured on the job due to the conditions of work will have their wages and medical bills paid for by workers comp Nofault system doesn t matter if employer was liable or not In retum employers get the fact that employees cannot sue in tort workers comp is the only possible remedy Limited exposure no punitive damages CA covers employees who commit serious and willful misconduct but only pays out half Defenses available to the insurer Injury is not compensable E g not within the course of employment Challenge the extent of the disability Unable to work temporarily You can recover 23 of average weekly wage capped at 900wk in CA medical expenses This continues until worker retums to work or when condition stabilizes Permanent disability or residual permanent disability after temp disability Ask to what extent is the disability Can they still work at all What else can take someone out of workers comp Section 3600 Injury caused by the intoxication of the injured employee Intentionally selfin icted injuries or suicides Injury occurs during the commission of a felony for which P was convicted Injury arose out of a physical altercation where P was the initial physical aggressor Commentary 30 Gary T Schwartz Waste Fraud and Abuse in Workers Compensation Fraud concerns in CA p 824 Incentive for those who hate their job they can get paid not to work Emily A Spieler Perpetuating Risk Workers comp programs paid out 100 times more than combined budgets of occupational safety and health programs Yet injury rates have not declined and employers have not been motivated to change Who is covered Eckis V Sea World P injured by Shamu wants to sue in tort but D claims workers comp is her only remedy P workers comp doesn t cover this claim because I wasn t acting within the scope of my employment She was hired as a secretary not to ride a whale What does court look at to determine that accident occurred within the scope of employment P was trained during business hours her conduct was to the bene t of the employer she was injured on the employer s premises during what were her regular business hours P covered by workers comp Perry V State Wyo P injured while violating a safety rule does that take her out of the scope and course of employment Unlike Eckis P wants workers comp coverage court says no Smith test if these elements met no workers comp Employer speci cally and carefully informed the P not to perform a speci c task P knew and understood the restriction Employer did not knowingly accept the bene t of the violation Distinction between whether P 1 does work that is speci cally prohibited or 2 does work that is authorized but in an unauthorized way P falls into rst category which does not fall within the scope of employment D met Smith test no workers comp Weiss v Milwaukee twopart test to determine scope of employment P claims emotional distress when D gave her personal information to abusive former spouse good tort claim Two questions at the time of injury Was P performing services incidental to her employment Yes she was working when husband threatened her The act of taking a short personal phone call does not cease the employment Did the accident arise out of P s employment Causal connection between the incident and work P was required to provide her personal information as a condition of employment D facilitated the injury Dual capacity doctrine an employee may recover in tort for negligent aggravation of an initial industrial injury against an employer who assumes the capacity of medical care provider by undertaking to treat the employee s injury itself Not limited to situations where employer is a medical care provider Weinstein v St Mary s Med P injured after slipping in hospital was being treated for workrelated injury at the time P wants out of workers comp to pursue tort claim Court allows the tort claim at the time of the injury she was a patient not an employee hence dual capacity Doesn t matter that the original injury was workrelated P s identity was different when she retumed for treatment 31 Different results if P was required to seek medical care from D as part of employment relationship But here D merely accepted P as a patient Occupational disease Two kinds of work stress Single causative incident bank robber Strong causal nexus usually covered by workers comp Longterm gradual buildup of stress Commentary Schroeder amp Shapiro Responses to Occupational Disease Employers intemalize little of the cost of occupational disease Claims often not led and dif cult to win Six reasons why p 799 Psychiatric injury CA Labor Code 32083 Must have been an employee for at least six months Unless injury caused by sudden and extraordinary employment event Actual events requirement similar to Guess If the stimulus was a violent act then P need only show that it was a substantial cause 3540 of the injury Posttermination lings P must meet 51 burden and show some other evidence of the injury and its cause Even if P can show all this no compensation of pay if the injury was substantially 35 40 caused by a law il nondiscriminatory good faith personnel action E g disciplinary action taken against P for good cause re isal to promote Guess v Sharp Mfg P spattered with blood after coworker s injury she believed the coworker was HIV positive and develops PTSD P bears burden of proof to show that actual events not perceived were predominantly gt 51 the cause of the injury But P must prove actual exposure absent this P cannot show that her injury arises out of employment Properlydiagnosed psychiatric injury is compensable Must have resulted from an identifiable stressful workrelated event More than merely worry anxiety or emotional stress of a general nature Court distinguishes from case where P was held up at gunpoint real undeniable danger but what if the gun wasn t loaded Concem for prejudicesstereotypes surrounding AIDS Leaving the job Handicapped Children D school re ises to release P from work contract doctor says her stressful medical condition will not improve unless she s released and that it would be dangerous to require her to commute to D s school She resigns and the Board sues her for breach of contract Board is success il in recovering cost of replacement Was the breach justi ed P says it was justified for health reasons But a health danger will not excuse a breach if it was caused by the breaching Party Here danger was selfinduced Besides health wasn t the reason for the breach she just wanted to work closer to home D acted reasonably in mitigating and is entitled to the increase in salary it had to pay P s replacement 32 Postemployment restrictions Estee Lauder V Shashi Betra D employee given signing bonus as consideration for signing a noncompetition non solicitation and con dentiality agreement D violates the agreement then tells P that he s going to resign Contract upheld P demonstrated irreparable injury resulting from breach Even though it s very dif cult to calculate the money damages D had knowledge of con dential product information and sought employment with P s competitor But court limited its length from one year to ve months Widespread geographical restriction is reasonable bc P paid D during that time So if D couldn t nd a job no biggie These agreements analyzed under a rule of reason They re enforceable but scrutinized is D really working for a competitor Does D really have access to trade secrets Are they reasonable in terms of timescope NOT the CA approach this is the NY approach CA more frequently refuses to enforce these contracts CA will enforce nonsolicitation and con dentiality agreements but not non comp agreement Whyte v Schlage Lock Whyte used to work for Schlog now he works for a competitor Has access to trade secrets that were of independent economic value to competitors which Schlog had taken steps to protect CA doesn t recognize inevitable disclosure doctrine theory that Whyte planned to use trade secrets There was no use or even threatened use It s effectively a trade secrets agreement which is not recognized in CA We have separate statutory protection for trade secrets So can an employee in CA re ise to sign an unenforceable noncomp agreement Most employees won t know it s unenforceable so they ll abide by it The employer effectively gets the bene t of the agreement Nevertheless employers can be punished for re ising to hire an employee who refuses to sign against public policy Discharge Atwill employment An employment having no speci ed duration may be terminated at will by either party Even without cause no justcause protection CA rebuttable presumption of atwill employment Historical development of atwill employment Jay M Feinman The Development of the Employment at Will Rule 29 English courts have addressed the issue by using presumptions of longterm hiring one year according to Blackstone bene t of the seasons rationale and requiring reasonable notice of termination Intended to avoid injustice of merely hiring laborers for the harvest season But rule developed to require simply reasonable notice of termination typically 13 months depending on the trade American law was less friendly Horace Gray Wood in the 1870s a general or inde nite hiring is presumed to be at will and the burden is on the servant to show that it should be a yearly hiring Clyde W Summers Employment AtWill in the US The Divine Right of Employers Labor legislation in the US is halfhearted should go irther Collective bargaining could solve problems but CB laws are not adequately enforced Employment atwill is the major barrier to establishing effective CB 33 Problem we view the labor market like we do the sh market Employer s perceived property rights give him the power to subject his employees What is just cause Consider Keep in mind the strong judicial policy against interfering with the business judgment of a private business entity Was there a legitimateimportant employer interest ef ciency productivity Was there poor performance by the employee Was employee on notice of employer s expectations Is there a factual basis for the termination Did employee have an opportunity to know of the problem and to respond Cotran v Rollins P red for sexual harassment jury nds no harassment occurred Jury s role is simply to assess the objective reasonableness of the employer s factual determination of misconduct Not whether the basis of the ring is true or not Was the factual basis on which the employer concluded a dischargeable act had been committed reached honestly after an appropriate investigation and for reasons that are not arbitrary or pretextual Good faith investigation speci c rationale substantial evidence and must allow P to know the evidence and respond This standard only applies where there is an impliedinfact promise of justcause protection Good cause according to Pugh a fair and honest cause Rebutting the atwill presumption There is some legallyenforceable promise by the employer that I can only be red for good cause or that some condition must be met before I m red Express oral implied basic contracts Keep in mind the strong judicial policy against interfering with the business judgment of a private business entity Written contracts Generally where there s a de nite term an employee can only be discharged before the expiration date for breach of contractual provision or good cause Gordon v Matthew Bender P put on probation needed to meet certain sales quotes in order to be restored to his original position P claims this means he s not atwill he had a legallyenforceable expectation of iture employment so long as he met iture sales performance goals Judgment for D A acceptable sales performance is a question of fact Other cases hold that satisfactory or acceptable performance language does not transform an atwill contract into one requiring good cause This could be implied in every contract Scribner v Worldcom D had stock option contract with P options would vest if red without cause P not red for performance de ciency but to facilitate the sale of the division where he worked Judgment for P as a matter of law Termination with cause can only mean termination for de cient performance D does not get to de ne the term cause although it did have broad discretion to interpret the contract 34 Implied contracts Pugh V See s Candies P red after 32 years of S11CCCSSf11l employment When hired D president repeatedly told him that if he was loyal his iture is secure Never received any bad evaluations P has a causeofaction P must make prima facie case of implied 1ture employment and breach of this implied promise D can rebut presumption of implied promise or argue good cause P can then say this cause was merely a pretext or not cause at all No need for additional consideration to support an oral promise of future employment Performing services is the consideration for both pay and continued employment Employee handbooks Woolley v Hof nanLa Roche D employee handbook set out conditions under which ring may occur and required D to follow procedures P red in violation of handbook Handbook doesn t claim promise of continued employment but promised not to re without cause D distributed the document voluntarily and reserved the power to change its terms at any time unilaterally without notice D these were guidelines but nothing binding contractually but D expects employees to rely on the handbook P has a cause of action Absent a clear and prominent disclaimer an implied promise in an employment manual that an employee will only be red for cause may be enforceable against an employer Court must construe terms in accordance with the reasonable expectations of the employees Handbook referred to as company policy Changes almost always favored the employees An employer cannot offer attractive inducements and then simply renege Manual viewed as an offer that seeks the formation of a unilateral contract Consideration employees continued work Public Policy Discharge in violation of public policy is a recognized tort wrongful discharge Rationale such discharges harm not only the discharged party but society as a whole Acquiescence in past illegal acts does not preclude a claim CA can t re an employee for 1 re ising to violate public policy or 2 for exercising some legal right protected by public policy eg voting ling a workers comp claim Peterrnann v Teamsters Local 396 Atwill P 1 Cf11SCd to commit perjury before state legislative committee and was discharged as a result Court recognizes tort not contract claim Public policy having people tell the trust under oath Source CA Penal Code D must be denied his right to discharge atwill when the reason for the discharge is P s re isal to commit a crime Foley v Interactive Data What is public policy and what is merely an ordinary employment dispute P states public policy wrong il discharge claim when 35 The public policy in question involves a matter that affects society at large rather than a purely personal or proprietary interest of the P or employer The policy must be indamental substantia and well established at the time of the discharge in order for D to have notice Gantt V Sentry Ins P supports coworllter s sexual harassment claim demoted and constructively discharged forced to resign as a result Public policy must have a basis in either Statute Constitution The policy in question must be tethered to a statutory or constitutional provision Judgment for P FEHA speci cally enjoins any obstruction of a harassment investigation Arres v IMI Comelius P suspected D of hiring illegal aliens red for objecting to D s practice of letting employees correct errors in W2 forms Problem with her claim D was actually following the law She misinterpreted it her acts were essentially insubordination No goodfaith exception her discharge was legitimate Hanson v AOL P claims he was wrong illy terminated for exercising his legal right to bear arms under Utah constitution D prohibited rearms in the workplace P had his gun in the trunk of his car Court weighs interests in workplace safety v constitutional right judgment for D Legislature purpose illy declined to give the right to bear arms preeminence over the right to regulate one s own private property Gardner v Loomis Armored P armored car driver discharged for leaving truck unattended he was trying to save someone s life Judgment for P society values and encourages voluntary rescuers when a life is in danger Dissent there s no source of public policy requiring P to save someone s life If P had not done the act he would not have been violating the law D s don t leave truck unattended rule was to protect public policy in the rst place Can we really say we ll accept the violation of one policy in order to 1l ll another Green v Ralee Engineering P discharged for objecting to the shipping of defective aircraft parts Judgment for P federal safety regulations may serve as a source of indamental public policy Note the purpose of the regulations is public safety This doesn t apply to all administrative regulations they must be protecting public policy Other regulations which are purely intemal may not give rise to a claim These regulations are tethered to statutory provisions because the FAA had authority to enact regulations What is and isn t public policy Is Public policy of a foreign country where relevant Re isal to take prohibited lie detector test Filing injury suit under Jones Act Discharge to prevent pension om vesting Re isal to vote for a merger Re isal to do things that violate bodily privacy mooning 36 Distinction between reporting violations to law enforcement agencies public policy and to the company itself not public policy Giving racist comments to newspaper Threatening to consult an attomey Being a victim of domestic violence General counsel eases Inhouse counsel has no causeofaction for wrong il termination in violation of public policy Flows om the notion that a client may re an attomey at any time Balla V Gambro P inhouse lawyer discharged for notifying FDA of D s use of defective dialysis machines Court recognizes clearly recognized public policy in preventing serious bodily harm to patients but judgment for D AC privilege we want to encourage employers to tum to their lawyers for advice P must protect public policy because he is bound to by the professional rules he doesn t need the wrong il termination remedy Note No source for this public policy it s merely asserted This is an Illinois case it would be thrown out in CA under Gantt because it s not tethered to statute or constitution General Dynamics v Superior Court CA P discharged for investigating D s employee drug use Judgment for D P does not allege that conduct was requiredsupported by the Rules of Professional Conduct or a relevant statute This favors allowing a tort claim l for reasons that contravene an attorney s mandatory ethical obligations or 2 where a nonattomey employee could maintain such a claim and a statute or ethical code provision permits the attomey to depart om the usual rules of client con dentiality Rationale inhouse counsel like regular nonattomey employees relies solely on employer for income D retains its unfettered right to discharge its lawyer but in some cases it must be held liable for its action Inhouse lawyers must have access to a judicial remedy where they adhere to their professional ethical duties either by aj rmative act required by ethical code or by resisting an employer s demand to do something that is barred by the code Covenants of good faith and fair dealing ALI restatement of employment law every employment contract imposes on each party a nonwaivable duty of good faith and fair dealing Does this require good faith or simply a lack of bad faith Fortune v National Cash Register P atwill employee given notice of termination then kept on to complete pending sales then red without receiving bonuses on sales Does a bad faith termination constitute a breach of an atwill employment contract Yes Atwill contracts contain an implied covenant of good faith and fair dealing a termination not made in good faith constitutes a breach Jury found that termination was motivated in part by a desire to pay P as little of his bonus as possible 25year salesman red the next business day after obtaining 5000000 order P s continued work does not constitute waiver or estoppel Note implied covenant of good faith bc this is a contract claim other cases are tort claims 37 Tort remedies Cleary V American Airlines Was there an implied covenant of good faith Two factors to consider Longevity of service Express policy of the employer eg speci c procedures for adjudicating employee disputes These operate as a form of estoppel precluding discharge without good cause And it establishes causeofaction for both contract and in tort Entitled to compensatory and punitive damages Foley v Interactive Data CA Implied covenant of good faith gives rise to contract but not tort damages P was good employee for 7 years D maintained termination guidelines which P reasonably believed meant he would not be red but for good cause P red for reporting criminal conduct of new employee Court dismisses claim for wrong il discharge in violation of public policy No tort claim contract damages are suf cient to deter breach Unlike insurance contracts the interests of employers and employees are frequently in alignment D has no reason to re a good employee tort disincentives are not as necessary as they are in the insurance context Dissent most of us can live without insurance few can live without a job The majority underestimates the value of employment Guz v Bechtel Nat l postFoley Where there is breach of an actual term of the contract a separate implied covenant claim is super uous And where an implied covenant claim alleges a breach of obligations beyond the agreement s actual terms it is invalid Covenant is essentially meaningless It cannot go beyond the express or implied terms of the contract If you have promise that was broken you d have a valid case with or without the covenant Here there were clear written contracts and no evidence of an implied agreement on additional di erence or broader terms of employment security The mere fact that employee has worked a long time cannot alone form an impliedinfact contract that the employee is no longer atwill Raises and promotions are their own rewards they do not impose additional guarantees of future employment security P s remedy depends simply on proof that D violated its own personnel policies and that these policies were contract terms on which the parties actually agreed Reconsidering employment atwill Richard A Epstein In Defense of the Contract AtWill Atwill contracts should be respected for two reasons Parties should be permitted to adopt this form of contract if they so desire freedom of contract argument It is the most ef cient way to ll in the gaps in contract language Atwill lends predictability to litigation and advances the joint interests of the parties Pauline Kim Bargaining With Imperfect Information Employees don t know to use their bargaining chips there is no free exchange of information Employees don t know the relevant law Cynthia Estlund Wrongful Discharge Protections in an AtWill World Why don t we require the employer to document any legitimate motive for ring an at will employee Fair treatment should not be a special privilege 38 Let s get rid of the old rule of unfettered employer discretion and replace it with a rule of fair treatment a requirement of just cause for discharge and a fair process for enforcement Montana Wrongful Discharge from Employment Act SS p 174 Wrong il discharge only if Retaliation Not for good cause or Employer violated express provisions of its own written policy Good cause Sec 35 reasonable jobrelated grounds for dismissal poor performance disruption or other business reason Marcy V Delta Airlines Montana Good faith discharge based on mistaken facts is nevertheless suf cient for a cause of action Dissent we cannot permit a jury to secondguess a good faith employer decision No evidence of arbitrariness capriciousness or ulterior motive P got caught idging her hours Model Employment Termination Act SS p 178 Good cause Section 14 i reasonable basis in light of relevant factors performance employment record etc or ii Exercise of business judgment in good faith Only applies to atwill employees you can be dismissed following the expiration of an express oral or written agreement of employment Legal status of employment Board of Regents v Roth Sup Ct recognizes property interest in employment suf cient to invoke the due process clause of the 14th Amd P clearly must have more than an abstract need or desire for employment he must have more than a unilateral expectation of it he must have a legitimate claim of entitlement to it What process is due Statement of reasons for termination hearing prior to termination Perry v Sindermann a written contract with an explicit tenure provision is clearly evidence of entitlement to continued employment unless suf cient cause is shown Tenure provisions induce employee not to leave during peak years by promising to keep him on in his later years when productivity declines yet pay remains high 39
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