Free Speech in the Workplace Midterm 1
Free Speech in the Workplace Midterm 1
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Date Created: 04/26/14
Comm 172 Midterm Study Guide 42614 1028 PM Week 1 At will the presumption is that you are employed but you can be red for any reason no reason a bad reason a logical reason Examples DeSean Jackson a football player was red because they thought he was in a gang He was bom in poverty and his friends were gang members but they red him because he had friends that were gang members and they thought he was a gang member Sexual harassment is prevalent in the work place Unwanted physical contact If the employer raped the employee this is considered severe Lifestyle discrimination protects employees against employers who impose certain lifestyle requirements such as only hiring nonsmokers This becomes a lifestyle discrimination if the company requires that employees not smoke when they re not at work off duty andor off work premises Many states don t have this If you have off duty behavior in certain states it might be protected Loyalty oaths you swear certain allegiances to your employer An oath of loyalty to an organization institution or state of which an individual is a member Contingency work Lawyers will work for you for free This means that when you get a recovery the way you pay your lawyer they get a percentage of it You are free to negotiate with the lawyer over contingency percentages A lawyer agrees to represent you and to get paid only if you win then takes his or her fee as a percentage of what you are awarded Common sorts of cases that lawyers will take on contingency fees involve personal injuries employment discrimination sexual harassment malpractice etc Counter sue Represent people sued for malicious prosecution Due to slap statute so it renders a death Suing because led a lawsuit against you To bring proceedings against a plaintiff in direct opposition to a suit brought against oneself Slap statute this rendered a dead letter If you le a lawsuit it is based on protected activity If you lose on a slap motion you must pay the other side Generally there is nothing to lose Quid pro quo means an exchange of goods or services where one transfer is contingent upon the other Most commonly recognized form of sexual harassment Give me a blowj ob and you can keep your job Severance package the written offer after you get red They are paying you It is a release claim Pay and bene ts an employee receives when they leave employment at a company May include an additional payment based on months of service Independent contractor issue people such as doctors dentists vets lawyer accountants and contractors are generally independent contractors Whether these people are independent contractors or employees depends on the facts in each case An individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done Hair dresser situation there were two best friends one is a hair dress and leaves perm in too long and bums her friends hair 0 What would you do Sue the employer That presupposes the hairdresser is employed Are hairdressers employees or independent contractors Hair stylists pay rent for their space sometimes they bring in their own supplies They decided to sue They sued the employer the hair salon and the hair stylist If you want to get a haircut you call to make an appointment You call the hair salon If this is Beverly hills and you park in valet they are an employer employed by the hair salon When you sit down they bring in espresso and coffee and magazines purchased by the employer Independent person does the wash employed by the employer not done by the hair stylist Before you get a wash you need to put a smock on with the name of the salon If you are seeing a therapist they will use that against you They asked Fink if he knew they were in a fight with their husbands or that they are seeking therapy So is the hairstylist an independent contractor or employee If you are sued as an independent contractor you need to have your own separate insurance You should have a contract between hair stylist and salon Try to create the situation where the person looks like the independent contractor LA Bites case If you want to eat at Califomia pizza kitchen and order it through LA bites they may bring you 100 worth of pizza to your door LA bites gets 30 the drivers end up having to pay LA bites for advertising They get paid zero 0 Labor code 2802 they are being paid zero which means that they didn t pay them minimum wage didn t pay overtime didn t pay them with proper checks The penalty for this is between 5 l5000 Class certification a class action class suit or representative action is a lawsuit where a person sues a group of people or a group of people sues a person The judge determines if this is appropriate The LA bite is a good example of how guys are making a lot of money and ONE person can take you down One person can take you down for a misclassi cation When you go into a club and buy a token if the person you re buying the token from considered as an employee or an independent contractor They are an employee If Fink owned the club and told the dancer they can choose their own songs and wear their own clothes then they would be an independent contractor Labor code 2922 an employment may be terminated at the will of either party on notice to the other Midterm Review Notes Know classi cation differences between an independent contractor and an employee Common law principles de ne independent contractor status by method of compensation If a person is on an employer s payroll and receives a steady paycheck that person is an employee rather than an independent contractor who likely receives payment in a different manner When identifying someone as an independent contract this may include o If the worker supplies his or her own equipment material and tools 0 If all necessary materials are not supplied by the employer 0 If the worker controls the hours of employment thus indicating they are acting as an independent contractor When work is considered integral to the business is more likely the person is an employee When work is temporary and non integral this many imply independent contractor status The independent contract is his or her own boss work stays within the definitions of oral or written contracts and adheres to certain requirements An employee on the other hand relies on the business for steady income gives up elements of control and independence is eligible for certain benefits and works within constraint of workplace Know the key of the right to control a bunch of factors that courts look at to determine this Primary factor considered by court tums on who has the right to control the methods and means of the worker s performance If the worker retains control over methods and means by which he or she performs the work courts generally will consider the worker to be an independent contractor Principles on wage and hour laws overtime 8 hours a day 40 hours a week Constructive discharge when an employee is forced to resign there has to be tolerable conditions and the employer needs to know about it You have to conclude that the employee was forced to quit To prove a constructive discharge the employee must establish that working conditions are so difficult or unpleasant that a reasonable person would feel compelled to resign Getting your title cut back doesn t lead to constructive discharge 42614 1028 PM Week 2 Arbitration the use of an arbitrator an independent person or body of cially appointed to settle a dispute What type of person serves as an arbitrator Retired judges people who have been lawyers for 3040 years The employer must pay for all the costs associated with arbitration In the Fed Ex case Discussion of labor code 2802 if you re an employee your employer is responsible to reimburse you for all costs associated with your employment They didn t reimburse them for all the miles that they were driving 2802 deals with reimbursement and it is also an important statutory provision 0 You need the court to issue an order to stop the illegal practice If you re a male accused of sexual harassment then any type of harassment is a type of claim where you can be sued individually Your employer in CA is strictly liable If you re being sued in connection with your employment your employer should reimburse you for the cost associated with your lawyer Attorney fees the amount billed to a client for legal services performed on his or her behalf They may be set by an attomeyclient compensation agreement or in certain types of cases by statute or a court The winner in every law suit is the attomey The America rule in this country when you re involved in litigation there are only 2 ways for you to get the other side to pay attomey s fees 0 One is by contract For example we have a contract with the landlord in our apartment complex 0 The second is by E a written law passed by a legislative body Because of the importance of civil rights Congress and legislatures have given civil rights statutes of prevailing party provisions Class action the class gets certi ed If an employers made misclassi cation of one person You re only looking at paying off one person If the class get s certi ed then it could change to millions of dollars It has to be approved by a judge A lawsuit led or defended by an individual or small group acting on behalf of a large group There are various tests to determine if someone is an independent contractor From the Estrada reading if it looks like a duck walks like a duck then it must be a duck They try to give people fancy titles Some people will take less money to get a bigger title The test in the cases we read is the agency test the hiring party s right to control the manner and means by which the product is accomplished There are various tests used The common law test who has the right to control 0 Test that measures the control and direction than an employer has the authority to exercise over a worker Think is it better or worse to be an employee or an independent contractor If you re an independent contractor what are you loosing You re loosing all the protections you would have as an employee You wouldn t have the general protections against race discrimination you don t get employee bene ts I Progressive discipline The discipline gets more severe as you have more infractions First your receive an oral waming then written waming then suspension and then termination It is not consistent with atwill employment If you are the employer and want the atwill then you don t want to take steps that are contrary to it This is good for the employee and it is a very important concept I There is another doctrine called removal Date of removal doctrine is a legal principle that sates that the deadline for removing a case from state court to federal court is 30 days from the day that any defendant receives a copy of notice of removal of a civil action or proceeding 0 Fink sued Starbucks several times If you work for Starbucks and you re a barista you close up at 10 and at 959 someone comes and put gun to your head but they find out they actually came at 1001 when it needed to be closed at 10 pm and you left some patio fumiture outside Since you violated their policy you get fired 0 Seems like they are now firing her because she will now have a mental disability and might have to go on a leave 0 This reason doesn t make any sense 0 Starbucks will remove the action to federal court they don t want to be in state court 0 In state court you do not need a unanimous jury you only need 9 And in federal you need an unanimous jury 0 Federal judges are very smart and have the best law clerks in the nation 0 In order to remove a case you need complete diversity 0 You cannot sue an individual for a personnel decision You can sue a person for harassment Compulsory selfdefamation you get fired and you don t think you did anything wrong but the boss says that you stole Now you leave and have to get another job If it s false then you can sue for defamation Most states have atwill 30 or more states have it When someone is red you can look at different aspects Was it because you were a woman were gay were Catholic Etc There are some people who are employed not at an atwill basis If you are ever in a position to command a written contract you need to hire a good lawyer Position that you can be fired for cause is if you re a union employee Implied fact contract if you have this with your employer they need cause to fire you This is an exception around atwill o Is a contract agreed by nonverbal conduct rather than by explicit words Is a contract claim If you re successful you only get contract damage and not attomey fees Cleary case He won Why was he able to stay to claim the implied fact contact One factor is longevity of service Second is oral assurance may be the employer Third is personal service of the employer Wrongful termination of public policies you get injured you say you want to file a workers comp 9 you get fired The labor code says you re allowed to go to jury duty 9 you get fired Marvin Howard Fink Is a lawyer and had 3 kids who were lawyers He was working for 40 years and then got fired They were having a reduction force 9 got rid of all the highranking Jews Good case of age discrimination You can quit but they say that you re red constructive discharge If you came to work everyday and you re being harassed and they re not doing anything about it You can quit and claim that you re fired One employee can wipe you out and sue you for 1 million What s the magic word Insurance EPLI POLICY EPLI protects you against employment claims discrimination termination Is a specialized kind of insurance designed to protect your company in ways that are essential to today s litigious society Civil code 47 Affords certain privileges that protect a person from liability even if he speaks or writes something that would otherwise be defamatory I Labor code 1150 get double damages about certain employers Each member of the board and the general counsel of the board shall be eligble for reappointment and shall not engage in any other business vocation or employment I Nonfraternization no hooking up allowed in the work place Forbidding employees to maintain certain kinds of relationships with each other Midterm Review Notes I There are ways around atwill I Courts have carved out exception to the atwill presumption 3 major common law exception public policy implied contract and implied covenant of good faith Most widely recognized common law exception to the atwill presumption protects employees against adverse employment actions that violate a public interest Also several statutory exceptions to the atwill employment doctrine Retaliation is another statutebased exception 0 Ex Cleary v American Airlines Case employee had worked for the company for 18 years and was terminated without any reason given CA appellate court held that in virtue of airline s express policy of adjudicating personnel disputes and the longevity of the employee s service the employer could not fire the employee without good cause I Defamation getting references civil code 47 Defamation is the communication of a false statement that harms the reputation of an individual business group govemment religion or nation Under common law to constitute defamation a claim must generally be false and have been made to someone other than the person defamed A person who has been defamed can sue the person who did the defaming I You re giving advice to an employer and he values free speech would you advise if you were a lawyer to state what they did No because you are trying to avoid defamation law suit I If you have a statutory claim you get attorney fees What s the rule on attomey fees The American Rule Each side pays their own costs 42614 1028 PM Week 3 Only the boss has authority to re a worker not the supervisor Wrongful termination Describes a situation in which an employee s contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of employment or a statue provision in employment law Retaliation This occurs when an employer punishes an employee for engaging in legally protected activity It can include any negative job action such as demotion discipline ring salary reduction or job or shift reassignment 132A if you re an employee for ling a working compensation claim then you can sue them you cannot re an employee to get out of paying for wages 2 types of sexual harassment 1 quid pro quo this just covers sexual favors I can t offer you a job unless you sleep with me If you give me oral sex l ll give you a raise I m really attracted to you will you go outwith me If he says no and then you re him because he won t go outwith you then he has claims What if he s pissed off about this Then he can still sue What if he s posting pics of himself naked on FB can he still sue Yes What if the boss puts hand on employers knee and asks to go back to her place If she does this one time is it severe 2 hostile work environment this type of sexual harassment occurs when a coworker of supervisor in the workplace makes sexual advances or comments to an employee that while not affecting promotions or the future of the employee s job makes the working environment of the employee offensive and hostile In general the comments tend to affect the employee s ability to do her job If the boss calls Jennifer a cunt for not getting an assignment right is that severe No What if she calls her a cunt once a day every day for 7 days Is that pervasive No it s not Pervasive Can she sue for hostile work environment Yes Pervasive case by case basis Look at the totality of the cases Courts require actionable harassment to consist of one extremely severe incident or to continue long enough to become cumulatively severe or pervasive If an employee is called a cunt 7 times and then never again it s not pervasive but it s offensive If all the attorney s are working it s late at night and Sherwin is there Jen says you have a nice ass another guy says looking good today is this a hostile work environment Yes An employer is obligated to prevent claims of sexual harassment and discrimination Failure to prevent harassment and discrimination employers has a duty to prevent these types of cases which is why they will have a sexual harassment policy and an investigation policy Unwelcomed advances if you ask someone to meet up later in a hotel But this is not offensive What if you have an office bully who is an asshole to everyone Do you have a claim The law doesn t protect you from working for bullies or assholes They haven t done anything illegal What if you re favoring the women over the men The women are getting raises and promotions Is that illegal And the men are performing more work This is discrimination based on gender Does it matter if it happens outside of work No it doesn t matter Sexual harassment claim If you re on gchat or using email at work you do not have any privacy You have zero expectations of privacy if you file a lawsuit What if the harassers are homosexual men harassing other homosexual men Can they bring a claim even if they re both gay Yes They can be damaged as much as a heterosexual Retaliation claims what happens after you complain in a case and then get fired Claim for retaliation Can t demote him or cut his pay if you were sexually harassing him What if you don t fire him and instead show up at his house and yell at him Does he have a claim for that Yes that can be retaliation Can he have a claim for retaliation if you give him a bad performance review Yes because the poor performance review can affect his chances of getting a raise Wage garnishment is one way to collect Any legal or equitable procedure through which some portion of a person s earnings is required to be withheld by an employer for the payment of a debt Not going to stop until collection of the judgment is received If you don t do any asset protections then each asset could be gone after As a judgment predator you re going to keep going after the judgment debtor for as long as the debtorcorporation leaves 0 There are some exceptions You can keep your house under the name of a trust Then can someone go after these homes if the judgment is against her individually No You can t go after homes in the trust s names However if you transferred her title in the home to the trust on the day of the judgment then that s not okay This is fraud Homestead consumption if there a main house that someone lives then there s an exemption But if they have a vacation home you can go after that and seize it When a creditor is very aggressive it may push the debtor to file for bankruptcy because no other options Maybe bankruptcy is the best option if you are a low income person Allows you have a fresh start But if you have a business and investments it won t be so easy Different ways to pursue this 0 File a proof of claim saying you have an outstanding judgment that is unpaid o If there is fraud then fraud claims are nondischargeable in bankruptcy because fraud is such a morally reprehensible act Judgment debtor examinations where you can ask questions on where you keep your money Which bank What s the account number One of the first thing a judgment creditor will want to do when a judgment creditor gets a judgment entered o Held in the courthouse o Debtor is ordered by the court to answer to all questions pertaining to his assets that may be used to satisfy the judgment current assets future assets 0 Car insurance How do you pay for that How do you pay for gas How did you get here today How did you pay for your car A diamond ring can be seized get it assessed get the value of the ring have the sheriff sell it o Are you involved in a lawsuit Are you suing anybody Could put a lean on the lawsuit Are you looking for employment Can t go after child support disability social security unemployment If you owe federal govemment taxes they get paid first You can argue some things are business expenses Dinners drinks golf etc OOOOO The dinner is not privileged the conversation is privileged but not the fact that you had dinner 0 I can t ask you what you discussed but I can ask who the person was that you ate dinner with If Sherwin is suing Sara for sexual harassment because he had to sleep with her 50 times Why can t he go to court and le a lawsuit He hires an attorney Can he le a lawsuit tomorrow What does he need to do before he les a lawsuit There is a prerequisite for ling a lawsuit under discrimination or harassment You have to exhaust your administrative remedies You have to le a complaint explaining how you were harassed and on what basis If you re going to sue your boss on disability age sexual orientation you have to le a complaint then you have the right to sue If you get the right to sue you can le your case in the superior court and sue for everything If you want to le a lawsuit on either of these claims and want to go to federal court have to le a complaint with the EEOC Then you have the right to sue and your clock starts ticking 365 days You want to be in state court because you don t need a unanimous decision from your jury A lot harder to have your case litigated in federal court If an employer has 50 or more employees you must provide 2 hours of sexual harassment training to all supervisors Must take place every two years Midterm Notes Examples of wrongful terminations of policies Serving in the military testifying in federal court if someone les for bankruptcy can t re for these reasons state laws workers comm pay sitting on a jury voluntary re ghter Week 4 Notes 42614 1028 PM Week 4 I In a harassment claim who would you rather be An employee because you can have a harassment claim against an employer o Independent contractor has less rights o An intern has no rights Assault and battery claim if Sara grabs his ass Attomey fees Common law claim In a few years if Fink let s Sherwin do the hiring what would his work force going to look like It will mostly look like his own community will look Persian Is this violating the law You would be discriminating against other ethnicities other than Persians Word of mouth hiring seems as if it s a good policy Facially neutral policy unfortunately has have a disproportionate impact on minorities so anyone who is nonPersian could have a good claim that they are being discriminated against If they had a policy that they wouldn t want to hire convicts this policy would have a disproportionate impact on Blacks Nepotism policies usually prohibit a position of power The practice among those with power or in uence of favoring relatives or friends especially by giving them job o You can work at the place of business but perhaps in a different department so it doesn t show favoritism If you have a policy no hiring anyone who is a relative do you think that would be legal or illegal Aron Hemadez committed many murders it s not illegal to not want to hire him or his family members If his employer s spouse wants a job the policy does not allow her to get hired is this illegal o It is illegal because the law protects discrimination on the basis of marital status If Fink opens a Chinese food restaurant who will he want to hire Will he hire someone with blonde hair No he will want to hire Chinese students and everyone has to speak Mandarin Is this illegal o Yes because the reality is when you go into the restaurant the hostess who takes your name can be any race The same goes for the server they are bringing you the food o It may be different if you had an authentic French chef He believes that these authentic restaurants are illegal All of these statues that we re talking about Title VII the family of medical leave act etc these are all crafted by legislatures and each statue has a numerical threshold for the number of employees to employ BFOQ provision of Title VII prohibits discrimination by covered employers on the basis of race color religion sex or national origin Recap on Sexual Harassment 2 types of harassment claims quid pro quo asking for a sexual favor hostile work environment if you have a professor who makes sexual comments about you do you have a good sexual harassment case against the employer The employer has to have an official notice there has to be actual knowledge and needs to be deliberately indifferent The conduct has to be severe or pervasive you work for me I can grab your ass once this is not pervasive and one grab of the ass is not severe conversely if you get raped by your employer there isn t a greater violation of one s privacy 0 What about the in between There s an inverse correlation between the severity o The more severe the less instances you need You have a rape you only need one instance We have a restaurant and a man owns a restaurant He has a general manager who is a women and is sleeping with her for 5 years yet he is married She s going to sue you for sexual harassment because he has a lot of money You admit you slept with her does this mean he committed sexual harassment No You can sleep with your subordinates o How is it harassment if she s slept with him 200 times I Check to see if there were any text messages of emails talking about how she loves him wants to marry him see if she ever talks to her friends about it I Better to find questions that you know are the truth and she then look likes a liar But there can be instances where it can be sexual harassment There is a nonprofit company and person who got fired has worked there for 16 years When people work there along time there is a part of you that you loose He was 43 and got red when he was 5 9 He said his female boss wanted to have sex with him started 2011 in 2012 his boss hit him he then complains to the bosses boss about the hitting and not the harassment The next year he gets red Not age discrimination Why would you complain about the assault but not the harassment What was the reasoning for the ring 0 Their theory was because he has anger issues so they put him on a program where he had to go to anger issue classes and then they red him PAGA claim they kept employee time cards but lost some of them They didn t pay on Saturdays Didn t pay for overtime on Saturdays The PAGA divides labor code violations into 3 different types and prescribes different procedures for each class ADA disabilities act Is a wideranging civil rights law that prohibits under certain circumstances discrimination based on disability They kept people who have disabilities 0 Somebody who is dis gured is not disabled but they will still have a hard time getting hired o The law should try to protect someone in this instance 0 There is no law on the basis of appearance overweight dis gured face A shakedown you re a lawyer and say that you just want the money le lawsuits to just shake them AB 1825 you give 2 hour training Part of the Fair Employment and Housing Act Statewide sexual harassment training for any employee who performs supervisory functions within a company of 50 employees or more Sexual harassment cases always depends upon the facts If you le a lawsuit you re not doing it to try to change the employer No matter what he s going to be the same If you re changing the beast you need to be compensated You need to think if there s enough money in the lawsuit for you They will look at your email history be cautious about the emails you sent out They re going to look at your cookies They will see if you re watching pom on the company s website They will use social media against you They will be able to track phone calls Don t make a 30 minute call to your lawyer with the company phone Football player has type 2 diabetes and was kicked off the team He might have a disability claim Who makes money in class action The Attomeys Dress codes can you work for Fink and has all the sides cut off of his hair would this work well in his law office No it wouldn t work and yes it is legal to not allow him to work Long hair for males is not acceptable in his work place but for females it is okay 42614 1028 PM
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