Free Speech in the Workplace Final Review
Free Speech in the Workplace Final Review
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Date Created: 05/29/14
Comm 172 Study Guide 52914 226 AM Week 1 At will the presumption is that you are employed but you can be red for any reason no reason a bad reason and 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 and 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 nonintegral 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 52914 226 AM 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 lawsuit 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 eligible 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 lawsuit 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 52914 226 AM 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 casebycase 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 re 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 there39s 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 lowincome 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 comp pay sitting on a jury voluntary re ghter Week 4 Notes 52914 226 AM 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 a disproportionate impact on minorities so anyone who is non Persian 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 Aaron Hemandez 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 whom 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 your employer rapes you 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 fewer 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 woman 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 201 l 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 5 0 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 30minute 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 Week 5 Notes 52914 226 AM Week 5 Notes You can t be red for race discrimination Pretextual the reasons they re giving are not credible suspicious There are ways that defendants can get a case dismissed Hypothetical secretary Michelle Messhoo Boss Tom Gengley Michelle accuses Gengley of harassment Gengley the supervisor had an affair with Messhoo He wouldn t leave her alone he harassed her and was fired Tries to contact her with Linkedln Few weeks later dead owers appear at her doorstep If it s him do you see a problem here Is this harassment No What if he finds a way into your FB and finds a photo when you 2 were going out with each other and he posts a photo saying that you two will be together forever What if he messages you and says I have a surprise for you I m going to deliver something in person Now he s crossing the line He hasn t hittouch her What to do Get a temporary restraining order credible thread of violence knowing a willful statement or course of conduct that will place a reasonable person in fear of safety o Temporary Restraining Order court order that prohibits contact between the person requesting the order the petitioner and the person whom the restraining order is against the Respondent Very difficult to get a restraining order A lawyer cannot take an unconscionable fee Gregory Lyons case a 17 year old who was molested wasn t Lyons fault but this has haunted him his whole life He is now a 46 year old security guard but he wanted to be a cop Lyons gets fired by Finks client by making threats When Fink communicates to Lyons does he have free speech rights to say what he wants No he reported Fink to the Barre 3 times Legal rule you cannot communicate with the party that will communicate with the counsel Lyons filed a lawsuit but he was fired for threatening one of his coworker Lyons came up with legal theories Remember that insurance is a good thing If you win a civil rights case then you get fees Finally got a restraining order on Lyons but it wouldn t stop Lyons he would circle around and try to find them city attorney called him and then Lyons faxed a picture of a 9 mm handgun to the attorney Lyons was in jail for 1 year he gets out of jail for 1 year and he was not allowed to look up Keith Fink s cases online He s out for 20 minutes he does his search and sends an email and then had to be sent to jail for 5 years If you go to an employer you have a riskanalysis Riskanalysis technique used to identify and assess factors that may jeopardize the success of a project or achieving a goal Restraining orders when people break up and someone won t leave the other alone sending multiple texts Restraining order temporary court order issued to prohibit an individual from carrying out a particular action especially approaching or contacting a speci ed person Sterling housing discrimination Tape recording is illegal someone violated his rights in a private conversation and gave this to the public media Penal code 632 0 Anyone who intentionally and without the consent of all parties to a con dential communication by means of any electronic amplifying or recording device eavesdrops upon or records the con dential communication Jury nullification Constitutional doctrine which allows juries to release criminal defendants who are technically guilty but who do not deserve punishment Theory common law invasion of privacy Invasion of privacy is an offense based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intruders into hisher private affairs discloses hisher private information publicizes himher in a false light or appropriates hisher name for personal gain Employee with surveillance equipment employee should know that the equipment is present and cannot have reasonable expectations of privacy Donald Sterling may have a lot of dirt on the other owners of the NBA Article 13 you can get rid of someone for nancial problems Ethical conduct in business dealings Some arguments that could be made no nancial trouble No speci c morals clause Capital gain taxes Tax on capital gains the pro t realized on the sale of a noninventory asset that was purchased at a cost amount that was lower than the amount realized on the sale In the cases we are reading we see that the judge decides something and then there s an appeal Something called a standard of review Unless it s a paralegal or fresh review judges don t look at things as brand new Review will be arbitrary and capricious Week 6 Notes 52914 226 AM Week 6 Notes 5714 Condalisa Rice has blood on her hands and wasn t allowed to speak at a university graduation Just happened this last week Criticism from the student body to have a speaker at UCLA who was a former actor Turtle Rock studios CA game company he tweeted on his private account something about Sterling What would you do If he s atwill then he could be fired This is not protected by the first amendment no first amendment claim so he could be fired You can be fired for no reason a rational reason but just not an illegal reason o All speech has consequences Who s going to run the Clippers now What happened to the president why isn t he getting the job o He was endorsing Donald Sterling Mark J ackson good guard in the NBA He coached the Golden State warriors He did a good job but what happened to him He got fired Another case where someone works 40 years the hair salon and then they get fired It s not good to fire someone after they ve worked for so many years Do you think that the women who leaked Sterling s interview got paid Yes she most likely got paid at least 7 figures I If you misclassify someone as an independent contractor when they are an employee you can get misclaiming and public discrimination on your website There is an actress who gets fired after she gets pregnant no reason given Do you think it s illegal to re someone because they are pregnant Yes because pregnancy discrimination is a statute What is the key to look at The right to control This is the ticket for analyzing the claim Hooter s possible legal claims BFOQ Dress code is the essential function of the job Who can do this job Why are only women being hired for this job o Good sex discrimination claim for men o What other claims can the women have o Can compare this to Rockettes in New York a troop of women o Customers prefer to have an attractive women to work at Hooters I E g former Hooter s employer but she got cancer cannot wear a wig they tell her to work in the back I This is a good disability claim it is a de ned disability 393 If she got red it would be wrongful termination she has an actual illness it s not an appearance issue Certain areas in the US have enacted their own legislation to protect against appearance discrimination If a father threw acid at a child this is still not considered a disability Midterm question 34 If the tape was made without Sterling s consent then 0 You should know that his rights were most likely violated Question 35 Everest is demonstrating against discrimination at the Clipper game What does Sterling do He sues him for trespass so Everest should file an antiSLAPP New case Charter school that goes on a eldtrip In CA there s a place called Riley s farm that has various reenactments of historical events This school brought their 8th grade class to see a reenactment of the civil war This is the first time the school has visited this place The employee from Riley s farm asked the teacher if they have a volunteer of someone who is popular goodspirited person They chose a black student All the kids go home and tell their parents what they did and one mother was upset and came to complain at the school At this point in time has the school done anything wrong in your knowledge No the school seems to be doing the right thing they are trying to educate the kids If the kids go to a Holocaust museum then you should know you would seehear some horri c things If a school knows that going to a candid exhibit of historical signi cance that they should not allow the students to go out of fear 0 Parents usually need to sign a waiver to allow the kids to go on the field trip In this case there was a racial complaint what should the school do An investigation 0 Paid administrative leave 0 Do you fire the principal if they didn t immediately suspend the teacher No 0 What s really happening here The mom is trying to make some money 0 Education code 220 I No person shall be subjected to discrimination of the basis of disability gender gender identity gender expression nationality race or ethnicity religion sexual orientation or any other characteristic contained in the definition of hate crimes 0 If the claim is one of a hostile racial school environment then think if this is severe or pervasive I Someone can make an argument that this could cause severe damage by reenacting a death by placing a rope around their neck I They have to have actual notice and be deliberately indifferent You would have more right s as an employee vs a student In the article that covered this there were wrong statistics she said there were only 2 African American students 0 What would be her point of including this To show that the school in the first place is racist Not all speech is protected defamation is not protected child pomography is not protected Alvarez claims he won the medal of honor although that never occurred False statement of facts If you get sued you need to think can I file a cross complaint If you can file an antiSLAPP this is also great Religious discrimination if you played for a team in the national football league and they didn t play you because you were Jew do you think they could do that No Do you think that would happen No National hockey league they are very white This is a Canadian sport Can have a claim for religious harassment and claim for retaliation Previous Midterm Exam Review Fariba filed a lawsuit against the employer which would help her claim She s a regular person who wants to sue the business Make her an employee If she filed a lawsuit against MN which facts would NOT help her If she was an independent contractor that would NOT help Which would you tell Fariba are correct When you have your own business and want an independent contractor the agreement will only help you If they have an agreement it will be of M weight What classi cation would you tell Fariba would be best to file a lawsuit and collect the biggest judgment employee If MN decided they don t want Amby to work there and she wanted to sue MN which classification should she choose An employee If Amby complained to Quinn about unsafe working conditions then Make have a claim for wrongful termination If workers at MN paid only for 8 hours of work and work 10 hours a day MN Would have to pay overtime attomey fees may be subject to statutory penalties misclassification on the website What would you tell MN about the workers gas Must be reimbursed for the gas labor code 2802 If you were explaining the law what is most important about status Right to control SM high school received phone call from Los Pollos seeking to know why Salazar left SM high school what would you tell them to do Avoid directly answering why he left simply state position he held civil code section 47 What would you tell SM high school s principal about recommendations Any lawsuit may protect defamation you have to show malice Wrongful termination lawsuit He had to show he was constructively discharged tuming a quit 9 firing What time of viable claim might Walt have against SM disability discrimination If Skinny B is not hired what best describes his rights Disproportionate impact Goodman having found lecture notes will no doubt have HP adopt the following Arbitration agreement atwill agreement If Goodman hired you as a law clerk what would you tell them ls consistent with atwill Article suggested that Goodman watches money gain illegally what would you say about defamation Public gure malice face antiSLAPP Fink s roasted peaking duck Lin was working at restaurant but fired after her family opened snow ice company If she is let go because they leamed she was from Taiwan then what National origin discrimination If restaurant delivers Reimburse treat as employers and workers comp What describes Chow s rights if the customers speak Mandarin She does not have a strong legal claim because she doesn t speak Mandarin If Lee applied for a job and doesn t get hired Strong discrimination claim Referral hiring is bad impact theory Word of mouth What would you tell about antinepotism Marital discrimination Owner about adopting a nonfrat policy This is wiselimits sexual harassment issues How admits he grabbed Kelly s butt without her permission assault respect to ADA lawsuit with no handicap parking spaces indemnity provision agreement with the landlord What best describes Chatom s comments to his associates if you sleep with him you get a bonus Quid pro quo Doesn t matter that it s both sexes Momingside s rightssleeping with receptionist for 2 years and he s married Watches pom She will be rewarded attomey s fees She has claim for hostile environment if it wasn t welcome DCH employees who saw the porn magazines and heard the pom It wasn t directed towards them so it makes their claim very week may not be severe or pervasive Week 7 Notes 52914 226 AM Week 7 Notes Once you raise religious discrimination you re out of the atwill box If you re implying title VII there has to be at least 15 employees If someone on your football team sees a picture of their teammate ex Michael kissing a man and they tweet Omg Is that inappropriate No Next tweet is horrible is this inappropriate No sounds like they have a problem with homosexuals Miami Dolphins tweeted about him omg horrible and then Michael had to get educational training On social media you must watch everything you do Company called Mozilla the CEO resigned under public pressure after revealed that he donated money years ago to the Prop 8 campaign this was to ban gay marriage He took a position on a public issue that won Hookup policy in the dorm it s okay as long as you re quiet and shut the door You play truth or dare and during this an RA exposes her breast takes off her pants gives you a male lap dance and kisses you Then she invites you to her room What are you going to do She is not under the in uence She asks you to put a condom and you have sex with her Is this a problem The RA has a problem because they are not allowed to have any relationships with the students on the oor She goes to the campus police and she says that she was raped Now if the law investigation believes her claim is false they tell the school to calm down to let them nish their investigation so they can see if they want to proceed Kangaroo court found that he committed the crime and the student gets throw out of school The school then announces Xavier University found this basketball player in violation of the school s conduct He is saying it didn t happen what are your legal claims o Defamation You will have a liable claim o Title 9 claim when you deny educational opportunities on the basis of sex He has this claim against the school Cheerleader for New England Patriots She made the mistake on Halloween to go party o There s a photo from the party where she has a marker in her hand and there is a guy passed out with drawings all over him o It looks like she wrote on him Someone posts this on FB and it gets picked up Will probably get tweeted faster because of her position 0 What do you think happened They red her Will they ask for an explanation Yes Maybe she didn t write on the guy 0 She was red for this Someone has a second job and that is running a maleorder business that sells neoNazi material lt s called 188 records 88 means Hail Hitler The employer nds out that this person who is a store clerk has worked there 7 years and is a perfect employee Do you think the person will be red Yes why 0 To be protected in lifestyle discrimination one has to engage in lawful behavior outside of employment Antimoonlight provision Seems like he would meet test for lifestyle discrimination In America things are different in different states The US constitution applies no matter where you are Each state has its own statutes Life style discrimination doesn t stem from the constitution Have to hope that the exceptions to the statute don t swallow up your conduct What would make this ring legal Issues on social media and your employer may look at it and take action against you Statutes under the national relations act Section 7 and 8 provide employees certain rights Not only public institutions but also public The act protects employees right and in concerted activity Rights are referred to as section 7 rights Post cannot be disloyal reckless or untrue to loose the protections People make FB posts if you complain about your employer and says how he refuses to pay them what s fair You are doing this for your behalf and your coworkers to be paid right This could be under what section 7 protects Handbook says no union activity at work probably violates section 7 and 8 You have rights under an Unruh act civil code 51 to not be discriminated in various outings All persons within the jurisdiction of this state are free and equal and no matter what their sex race color religion ancestry national origin disability medical condition genetic information marital status or sexual orientation are entitled to the full and equal accommodations advantages facilities privileges or services in all business establishments of every kind whatsoever At a restaurant they can t treat you differently because of the color of your skin or your religion Walt Disney many people thinks his is antiSemitic He said you can t trust women 0 Lina R she was a famous Nazi lmmaker 0 There was a film where Donald duck wore a Nazi outfit 0 There are many examples and a lot of facts that may lead one to believe that Disney was antiSemitic 0 Disney was extremely antiunion Religious discrimination can be claim for retaliation wrongful termination You re the manager at 800 degrees pizza The first person applying for a job is a Suni Muslim and they have a beard and because of the religious beliefs they can t cut beard unless it s fist length They have a policy that you can t have beards Is this a religious issue Yes so then what can this employer try to do Put a hair net on the beard Firing would be a mistake Next person is of Pentecostal faith You have to cover your head and dress conservatively Wear a long skirt of dress in black slacks What about someone that s Muslim Someone who has to wear a hij ab Examples of undue hardships for a business decrease in efficiency infringing on other benefits Examples ship swaps exceptions to dress and grooming requirements if they re not essential to the business Religious discrimination title VII only kicks in if you have 15 or more employees Major religions Hinduism Islam Buddhism and Christianity Religious discrimination will apply Certain religious organizations will be exempt If you have a Jewish temple you would be required to hire someone who is Jewish this is an exception Religion concems ultimate ideas about life purpose and death CA had statute recently for the CA workplace freedom act came into act 113 If you live in the state of CA you have moreless rights if you live in CA In employment setting you may have more rights if you lived in another state Includes religious dress and grooming practices expansion accommodation isn t reasonable if it requires segregation of employees from public general public The law does not deal with tri es If you were red for pregnancy discrimination then you get hired back one day later What s the harm Should you le a suit Don t forget about emotional distress CA law has to be signi cant dif cult or expense Abercrombie amp Fitch look policy it would inhere to their nancial bene t but there was no empirical data to support this Is it illegal for an employer to tell their employee to tape down their breasts Yes Week 8 Notes 52914 226 AM Week 8 Notes You have sex with a girl under 18 years old and you re older you may think it s consensual but it s statutory rape Your parents are not the people to go to you need to see a lawyer You re the 20yearold kid in those circumstances do you care if there s a judgment against you for 1 or 2 million dollars No When you re sleeping with this girl where might you want this to take place to have insurance to help 0 At your house 0 Your parents home will have at least 1 million dollars in coverage 0 If you re a smart girl you should take that million dollars and run Who committed the rape Who should be responsible The kid 0 A bad lawyer would knock out the parents 0 Conversely if you destroy her and the parents still hang in and there s insurance and you tell the insurance company then it may cost money Cheerleaders paid 100 per game There may be 3 hours and that s only 33 per hour Did they pay for practice No They didn t pay for dance routines or charity events They weren t paid for anything other than the game If they didn t go to practice they couldn t perform in the game and therefore wouldn t get paid This is a good claim Individual is an editor for a small town newspaper has his own social media pages and has a personal blog Very religious person with standard Catholic views He states that we must ght gay stoppo and the enemy He is angry about a new version of a Bible Editor from LGBT he might get red Legal claim probably doesn t What happened to first amendment There is no state action here Wrongful termination in violation of public policy Get s hired for orthopedic surgery during first year you report a con ict of interest that may affect patients safety Chair of the department Less than a year later you re asked to step down because they say you can t get along with your coworkers 0 Retaliation And whistleblower 0 Your institution allows doctors to cut deals with outside faculties o This person reported the con ict of interest because he thought there was fraud Entering into a settlement agreement based on false information Chancellors email he condemns any remarks that are disrespectful or hurtful if we have a place of business and have a policy of no smoking why would you do this Health concems Health insurance what is the nexus between cigarettes and health insurance 0 Medical care 0 Your rates are going to go up Now someone is smoking marijuana Quadriplegic needed to take marijuana Perfect employee with no problems but they fired him after they found this 0 Federal law may be superior to state law 0 This is a case where if you get it to a jury it s a winner The doctor prescribed this for his pain 0 But judges don t find this in his favor 0 He s an ordinary person with nothing to lose 0 But there can be consequences to your actions Loyalty oaths A loyalty oath is an oath of loyalty to an organization institution or state of which an individual is a member In this context a loyalty oath is distinct from pledge or oath of allegiance It is an affirmation by which a person signs a legally binding document or warrant Comes from the people s republic in China 0 lnstituted a few years ago Starbucks is all over China 0 Lease agreement between Starbucks and the Forbidden Palace 0 This bothered Fink o A famous Chinese newsperson said that this was disrespectful to Chinese culture 0 How can you be faithful to the motherland and the people Do women make less than men Matemity leave or childbearing It is said that men will work more hours so they have higher salaries Shengau Chinese concept for left over women Professor Davis she was a communist and got red from UCLA because of this Reagan said she was red because she was unprofessional This happened during the 1960s How come people don t care about communists anymore Her contrast was renewed and then terminated Find doesn t agree that all loyalty oaths are legal important for the eXam Disclaimer oaths certify that you re nothave not been a member of certain groups That would be unconstitutional Week 9 Notes 52914 226 AM Week 9 Notes 52814 Santa Barbara shooting who s to blame Parents shooter the two police officers who came the week before and didn t check the room the media Fink believes that the individual is the main person responsible for the UCSB shooting Has to be a serious threat of physical harm there s a reporting obligation This is an interstate Have to look at the psychiatrist s notes to see what they said See if there s evidence which said he is a harm to individuals Who s best to do a mental health check o Wouldn t it have made more sense to send a medical expert instead of the police lt s lawful to have fire arms Gun control If you were to go on YouTube and talk about how you hate girls is that illegal No Ex you re a UCLA student and you write a law and send this to a friend talking about how you want to dismember women In the conversation you mention one specific woman in the class and how you want hurt her Someone reports this to the authorities Did they person commit a crime o The women would take this as a threat Student Jake Baker Said he would rape and sodomize women and young girls Legal test to analyze this properly Craig vs Rich Townshift high school district High school guidance counselor that also coaches sports teams The guidance counselor wants to write a book about adult relationships and titles the book lt s her fault He focuses on adult relationship dynamics Was discharged from the school Craig determined that women act on emotional alone vs on emotion intellect He has years of experience in helping out others with relationships If you were a woman at this school you would not want to seek him out more often ls his book a matter of public concem Yes Some student s may be apprehensive to ask Craig for help after this May 6th 2014 Santer vs Board of education in east meadow Bargaining agreement you can only be red for a cause The teacher s were trying to get together They will go in front of the school so people can see them protesting Is this going to be a problem Yes because in high school you need your parents to drop you off now they can t find a place to park Do they have a legal claim against the school Yes 0 Speech of public concem o This is a nonacademic case 0 Seems to be problematic or troubling if you apply it to higher education 2014 assistant state attomey gets fired for an inappropriate mother s day post on Facebook He confirmed he wrote the post Other posts on his FB page that are also inappropriate If you are this guys boss what would you do Discipline him for this Fire him Is he commenting on issues of public concem Yes He talks about how political speech protected by first amendment Fink says this statement is wrong Urban outf1tters they design a shirt with the Star of David same color scheme as dresses made in the Holocaust Very offensive Final Midterm Review If you have a nice car then hopefully it s not in your name or your parent s name Should be held in separate LLC You need asset protection when you have your own business You may be sued for harassment and don t have harassment Some of us will get job offers you re applying for a job and you need references this is because of what defamation Independent contractor probably okay with that because you know you re misclassi ed You re not the one violating the law and you have something over them key right to control fight them because they don t want to pay the extra employer taxes the downside is too great for you to misclassify you independent contractors huge penalties Public shame getting a big ticket item The employer should keep time records is a burden but if you re not keeping them you should be smiling the absence of records whatever you say you will be paid Most of us will be nonexempt 9 overtime sometime tech people are put on call 247 you have to be in that area when you get a call to go to work you39re also entitled to have all expenses paid as an employee labor code 2802 you re in the workplace hiring various limitations on what you can say There is no free speech in the workplace you can say what you want but you can get hit with religious discrimination you can talk negative about woman and blacks but will get in trouble for this being an underwriter is an important job harassment religious sexual harassment we went over what is severe or pervasive individuals can be named and held liable for harassment If you lose you might get cut out they may not defend you 2802 action Recent case on lesbian discrimination If you want to pursue a claim it s a ticking clock Stack your limitations You have 1 year to file a complain When you re fired what do you do Don t get unemployment insurance You will get offered a severance People will do what is in their best interest If someone offers you 6 weeks 11k what does that mean Is that it No if they offered 11000 they will probably give you 12000 This is all a negotiation Many questions of exam require you to understand atwill employment No reason have reason or an illegal reason One exception lawful termination of public policies Ask you to lie about taxes commit perjury jury duty complain about people not being paid overtime There are so many exceptions DON T QUIT You need to show intolerable conditions and the employer needs knowledge of that o If you re going to get fired you need to send an email and complain about the illegal conduct going on 0 Now if they re ring you you will have a good reason They are ring after you complained You either have a good claim or you ve pinned them back File wrongful discrimination claim le lawsuit 0 Loss of eamings can get a job in human resources expert in accounting emotional distress damages For the nal exam look at dress code religion lifestyle harassment 40 new questions know the SLAP and restraining orders if you re dealing with someone you would rather they never led for restraining order than you ling for one nk will look at the facts to see if ling a restraining order makes sense there may be a way around this in order to get a restraining order then 0 harassment 0 violence 0 a pattem SLAP statute when you engage in protected activity District treatment when you treat similarly situated people dissimilarly White male get s 10k raise While female get s 5k raise 0 Both doing the same job I Treating similar situated people dissimilarity District impact take a neutral policy and this has an impact Medical condition that affects black people s skin If you have that policy it would have district impact on blacks Fink went to a restaurant in Hollywood to get Russian food everyone spoke Russian Someone quits and they want to hire someone They say to ask your friends if they want a job Russians will get it Wordofmouth hiring If you host for a job in an area populated by Chinese then Chinese people will apply for the job
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