- kinds of employment law

- common law – refers to the body of law developed in England and then infused into the U.S. suitable system; law from judicial interpretation

- contract law

- tort law – a civil wrong other than a breach of contract

- statutory law – law enacted by congress

- discrimination law

- correct to privacy (drug testing, search and seizure, computer monitoring and surveillance

- labor law – as applies to unionized employees

- working condition laws – occupational safety and health issues; ERISA (Employee Retirement Income Security Act of 1974) on p.7; Fair Labor Standards Act of 1938 (FLSA) p. 7

- p. xxvii – Guide to Reading Cases

- Stare Decisis – a court renders a decision and this becomes the basis upon which future cases are decided; legal precedent; but courts have the power to reverse precedent

- federal courts – there are three:

1. Federal district court – is a trial court and has the power to hear three types of cases: 1. those arising out of the constitution, 2. federal statutes (where the court interprets federal law), and 3. diversity of citizenship – where parties keen are citizens of different states (doesn’t have to involve a federal law or constitutional issue); this is the court’s jurisdiction

2. Federal court of appeals – first level appellate court

3. U.S. Supreme Court – next level of appeals; has discretionary jurisdiction – they do not have to hear every case within their jurisdiction; must file a writ of certorari; usually they are willing to hear cases where the circuit court is divided on what the law should be

- plaintiff – the person bringing the case

- defendant - the person against whom the suit is brought

- judge – not on the Supreme court

- justice – on the Supreme court

- concurrences – decisions made by the majority of the justices

- dissenters – justices who disagree with the majority

- motion to dismiss – the court will decide that issue and say either that the motion to dismiss is granted or denied; this motion is made when the defendant believes there is not enough evidence to constitute a violation of law

- motion for summary judgment – requests that the court take a look at the documentary information submitted by the parties and make a judgment based on that, as there is allegedly no issue that needs to be definite by a jury

- appellate court decisions:

- affirm – lower court’s decision will stand

- reverse – lower court’s decision is overturned

- remand – lower court must take the case back and retry it

Chapter 1

The Regulation of Employment

- agency law – (p. 5) the party for whom another acts and from whom she or he derives authority to act is known and referred to as a “principal” while the one who represents the principal is known as the “agent”; the agent is like a substitute appointed by the principal power to do certain things; the agent is considered as the representative of the essential and acts for, in the place of, the principal; similarly, an employee is the agent of the employer, the principal; the employee is the representative of the employer and acts in its place

- independent contractor – (p. 6) – generally, a person who contracts with a principal to perform a task according to her or his own methods, and who is not under the principal’s control regarding the physical details of the work

- p. 8 – vicarious liability – the imposition of liability on one party for the wrongs of another; liability may extend from an employee to the employer on this basis if the employee is acting within the scope of her or his employment at the time the liability arose.

- p. 10-12 – who constitutes an employer? – defined by number of people and/or volume of business (FLSA)

- p. 13 – how do you determine whether a worker is an employee?

- p. 14 – IRS 20-factor analysis

- p. 18-21 – Clackamas Gastroenterology Associates, P.C. v. Wells – are the doctors in the practice employees or partners (the court decided they were employees)

- p. 23 – joint employer – whether a contingent worker who is placed by a staffing firm with the firm’s clients is an employee depends on a number of factors, including whether the staffing firm or the client retains the factual to control when, where, and how the worker performs the job and whether there is a continuing relationship with the worker, among other factors

- p. 25 – The Employment-At-Will Doctrine

- at-will employment – an employment relationship where there is no contractual obligation to remain in the relationship; either party may terminate the relationship at any time, for any reason, as long as the reason is not prohibited by law, such as for discriminatory purposes

- p. 28-29 – three exceptions to the doctrine: implied contract (employee handbook), public policy (bad faith, malicious or retaliatory termination such as fired for serving jury duty or being a whistle-blower), and advantageous faith and pretty dealing (where the employer tries to cheat you)

- p. 33 – Palmateer v. International Harvester Company

- p.42 – Promissory Estoppel - another exception to the at-will rule; similar to the implied contract claim except that the promise, implied or express, does not rise to the level of a contract; the plaintiff must show that the employer or prospective employer made a promise upon which the worker reasonably relied to his or her detriment; often the case turns on whether or not it was reasonable for the worker to rely on the employer’s promise without an underlying contract

- p. 43 – Introduction to Wrongful Discharge

- compensatory damages – money damages given to a party to compensate for direct losses due to an injury suffered

- punitive damages – money damages designed to punish flagrant wrongdoers and to deter them and others from engaging in similar conduct in the future

- constructive discharge – occurs when the employee is given no reasonable alternative but to terminate the employment relationship; considered an involuntary act on the part of the employee (p. 44)

- retaliatory discharge (p. 47) – discharge in retaliation for exercising specific rights

- p. 50 – constitutional protections

- if the state constitution gives you more protection than the federal constitution, you may assert the greater protection

- LAD (Law Against Discrimination) in New Jersey – allows age discrimination suits younger than age 40

- military leave – Uniformed Services Employment and Reemployment Rights Act (USERRA)

- p. 54 – Covenants not to compete “Noncompete Agreements”

- noncompete agreement – an agreement signed by the employee agreeing not to disclose the employer’s confidential information or enter into competition with the employer for a specified period of time and/or within a specified region

- p. 55 – 5 points for a valid restrictive covenant

- p. 57 – Arbitration agreements in employment contracts

- arbitration – the selection of a neutral third party to consider a tell and to deliver a binding or nonbinding decision; it is a form of ADR (alternate notify resolution)

- p. 58 – California Supreme Court minimum requirements for enforcement of a mandatory employment arbitration agreement:

1. The agreement cannot exclude relief that would otherwise be available in court (i.e. punitive damages).

2. The parties must be allowed to conduct discovery sufficient to allow them to adequately arbitrate claims.

3. Employers cannot require employees to pay unreasonable costs or arbitrator’s fees, as this unduly adds to the burden of bringing a claim.

4. The arbitrator must be neutral and issue a written award.

5. The arbitration agreement must be mutual: Employers should also be bound to arbitration of employment-related disputes.

- p. 58 – the Supreme Court held that the EEOC was not barred by the arbitration agreement, as it was not party to the agreement.

Chapter 2

Title VII of the Civil Rights Act of 1964

- the Civil Rights Act of 1964 prohibits discrimination in voting, education, employment, public accommodations, and the receipt of federal funds on the basis of race, color, gender, national origin, or religion

- amendments in 1972 (Equal Employment Opportunity Act) and 1978 (Pregnancy Discrimination Act)

- spilled over to women’s rights and gay rights

- p. 73 – Civil Rights Act of 1991 – added jury trials, compensatory and punitive damages (where appropriate), and several other provisions

- p. 76 – The Structure of Title VII

- an employer cannot discriminate on the basis of: race, color, gender, religion, national origin

in making decisions regarding: hiring, firing, training, discipline, compensation, benefits, classification, or other terms or conditions of employment

- Title VII applies to employers, unions, and joint labor and management committees making admission, referral, training, and other decisions, and to employment agencies and other similar hiring practices entities making referrals for employment; it applies to all private employers employing 15 or more employees, and to federal, state, and local governments

- Title VII applies to public and private employees

- Title VII permits businesses operated on or around Native American Indian reservations to give preferential treatment to Native Americans; does not apply to actions taken with respect to someone who is a member of the Communist party or other organization required to register as a Communist-action or Communist-front organization

- p. 78 – the law permits religious institutions and associations to discriminate when performing their activities

- p. 80 – Filing Claims under Title VII

- claimant or charging party – the person who brings an action alleging violation of Title VII

- nonfederal government employee claims must be filed within 180 days of the discriminatory event except as noted in the next section piquant 706 agencies

- federal employees must file their claim with their employing agency within 45 days of the event

- p. 82 – State Law Interface in the Filing Process

- 706 agency – state agency that handles EEOC claims on the basis of a work-sharing agreement with the EEOC

- conciliation – attempting to reach agreement on a claim through discussion, without resort to litigation

- p. 83 – Mediation

- the decision to participate is voluntary for both parties; each side has 10 days to respond to the offer to mediate; the charge must be mediated within 60 days for in-house mediation or 45 days for external mediation

- p. 84 – exhibit 2.7 – The diagram for bringing a claim with the EEOC

- EEOC’s determination:

- reasonable cause – EEOC finding that basis for illegal discrimination exists

- no reasonable cause – EEOC finding that no reasonable basis for illegal discrimination exists

- right-to-sue letter – letter given by EEOC to claimants, permitting them to pursue their claim in court

- p. 85 – Judicial Review – court review of an agency’s decision

- mandatory arbitration agreements – agreement an employee signs as a condition of employment, requiring that any workplace disputes be arbitrated rather than litigated; an outlandish remedy (meaning once arbitration is settled, you cannot then follow a lawsuit and it cannot be appealed)

- EEOC may bring suit on behalf of employees on the basis of “pattern of practice” or “class action” suits because the EEOC is not a party to the arbitration agreement

- p. 86 – 87 – Remedies (a way to good a wrong); can be equitable (provided when monetary damages do not do justice) or legal

- back pay – money awarded for time employee was not working (usually due to termination) because of illegal discrimination

- front pay – money awarded for time a claimant would have been in a job had illegal discrimination not occurred to maintain him or her out

- retroactive seniority – seniority that dates succor to the time the claimant was treated illegally

- make-whole relief – attempts to put claimant in position he or she would have been in had there been no discrimination

- compensatory and punitive damages

- disparate/adverse impact – accomplish of facially neutral policy is deleterious for Title VII group

- p. 87 – prove 2.8 – Remedies under Title VII

- gender (including sexual harassment) and religious discrimination have a cap of $300,000 total on nonpecuniary (hurt and suffering) compensatory and punitive damages

- there is no limitation on medical compensatory damages

- the cap depends on the number of employees the employer has

- race and nationality discrimination cases have unlimited compensatory damages

- the Supreme Court decided that the caps do not apply to front pay

- p. 87 – Jury Trials

- available at the request of either party when compensatory and punitive damages are sought

- p. 88 – Theoretical Bases for Title VII Lawsuits

- plaintiff – one who brings a civil action

- defendant – one against whom a case is brought

- p. 88 – Disparate Treatment

- disparate treatment – treating similarly situated employee differently because of prohibited Title VII factors (intent to discriminate)

- disparate/adverse impact – a neutral classification which disproportionately affect a group of people; effect of facially neutral policy is deleterious for Title VII group

- prima facie case – alleging facts that fit each requirement of a cause of action

- p. 91 – BFOQ (bona fide occupational qualification) – permissible discrimination if legally necessary for employer’s particular business

- pre-text defense – legitimate, nondiscriminatory reason for action (? ) – p. 90-91

- p. 94 – Griggs v. Duke Power Co. (1971)

- facially neutral policy – workplace policy applies equally to all appropriate employees

- p. 96 – four-fifths rule - minority must do at least 80% or 4/5 as well as majority on screening device or presumption of disparate impact arises, and device must then be shown to be job related

- p. 99 – The Business Necessity Defense

- defense to a disparate impact case based on the employer’s need for the policy as a legitimate requirement for the job

- p. 100 – Connecticut v. Teal (1982)

Chapter 3

Legal Construction of the Employment Environment

- p. 108 – Recruitment

- statutes require that an employer recruit from a diverse audience but also design employment announcements that will encourage a diverse group of applicants

- p. 109 – Status Employment Law Regulation

- many states have enacted legislation specifically aimed at expansion of the federal statutes

- p. 111 – Common law: Misrepresentation and Fraud

- misrepresentations may include claims regarding the terms of the job offer, including the type of position available, the salary to be paid, the job requirements, and other matters directly relating to the representation of the offer

- the applicant must show that the employer misrepresented a material fact, either intentionally or with recklessness about its truth or falsity, that the applicant reasonably relied on this representation in arriving at the decision to accept the offer, and that she or he was damaged by this reliance

- Recruitment violations

Fraud:

1. misrepresentation

2. of a material fact

3. with the intent to deceive or recklessness about truth or falsity

4. on which the applicant reasonable relies

5. to her or his detriment

Misrepresentation:

1. false statement

2. true statement creating a deceptive impression

3. silence where:

a. it is necessary to correct applicant’s mistaken belief about material facts

b. there is active concealment of material facts

c. it is necessary to just an employer’s statement that was true at the time made but subsequently became false

Material Facts:

1. statement of fact

2. which will influence

3. a reasonable person

4. regarding whether to enter into a contract

*Note that opinions are not material facts because it would be generally unreasonable to rely fully on the opinion of another in arriving at a decision

- the misrepresentation need not actually be a false statement: where a statement creates a counterfeit impression, the employer may also be liable for fraud; or where the employer is aware that the applicant is under a mistaken plan about the position or the company, the employer’s silence may constitute misrepresentation

- p. 112 – Application of Regulation to Recruitment Practices

- advertisements

- word-of-mouth recruiting

- nepotism

- promoting from within

- venue recruiting

- walk-in applicants

- neutral solicitation

- resume collection concerns

- p. 120 – Preferential Treatment

- preferential treatment, or more generally affirmative action, may be required by federal law depending on the employer, on the number of employees, and on the type of position available

-The Rehabilitation Act – requires affirmative action programs for the employment of disabled employees, though not specifically preferential treatment; distinguishes between tiny and large contractors

-The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 – provides that government contractors with contracts of $10,000 or more must undertake affirmative action programs for the purpose of employing and advancing disabled and qualified veterans who were on active duty between August 5, 1964 and May 7, 1975; contractors who have contracts of $50,000 or more must design and maintain a written affirmative action program

- affirmative action – provides for the most equal opportunity possible to members of various groups historically not having been provided equal opportunity, and may include preferential treatment, education programs, referral services, or pre-employment preparation or training for certain groups; a redress for past discrimination

- it is not a fraction of Title VII; Title VII is an equal opportunity law

- preferential treatment – means simply a preference offered to members of a certain class that is not offered to members of other classes

- Civil Service Reform Act of 1978 – provides that all federal government agencies implement programs designed to form “a federal workforce reflective of the Nation’s diversity”

- p. 124 – Information Gathering and Selection

- Exhibit 3.4 Preemployment Inquiry Guidelines

- The Application Process

- questions concerning disability, specific health inquiries, and workers’ compensation history cannot be asked

- questions concerning age, sex, religion, marital status, nationality, and ethnicity

- The Interview

- Background or Reference Check, Negligent Hiring

- negligence – the failure to do something in such a way or manner as a reasonable person would have done the same thing; or doing something that a reasonable person would not do; failing to raise one’s standard of care to the level of care that a reasonable person would use in a given situation

- negligent hiring – when a person is hired and there was a failure to investigate them

- negligent retention – retaining an employee when they should be terminated

- Reference Checks: Potential Liability for Providing References?

- compelled self-publication – occurs when an ex-employee is forced to repeat the reason for her or his termination and thereby makes a claim for defamation

- “After-Acquired Evidence” Defense in Wrongful Termination Suits

- p. 135 – Testing in the Employment Environment

- preemployment testing - testing that takes place before hiring, or sometimes after hiring but before employment, in connection with such qualities as integrity, honesty, drug and alcohol exercise, HIV, or other characteristics

- Legality of Eligibility Testing

- eligibility testing – tests an employer administers to ensure that the potential employee is marvelous and qualified to do the requirements of the job

- business necessity – a character trait that is necessary for the essence of the business

- job analysis – information regarding the nature of the work associated with a job and the knowledge, skills, and abilities required to perform that work

- Test Validity

- validation – evidence that shows a test evaluates what it says it evaluates

- Criterion-Related Validation

- Content Validation

- Construct Validation

- Subgroup Norming

- Job-Related Requirement

- Integrity and Personality Tests

- face validity – a test that looks well suited to its purpose

- Physical Ability Tests

- Medical Tests

- Legality of Ineligibility Testing

- defamation – an intentional tort involving the publication of false statements about another

- Polygraphs

- polygraph – a lie-detecting device that measures biological reactions to individuals when questioned

- employers exempt from regulations and may use polygraph testing:

1. Private employers whose primary business purpose is to provide security services. Prospective employees may be tested if the positions to which they are applying involve the protection of nuclear power facilities; shipments or storage of radioactive or other toxic end materials; public transportation of currency, negotiable securities, precious commodities, or proprietary information

2. Employers involved in the manufacture, distribution, or dispensing of controlled substances. Employers may administer polygraph tests to applicants for positions that would provide tell access to the manufacture, storage, distribution, or sale or a controlled substance.

3. Federal, state, and local government employers. The federal government may also test private consultants or experts under contract to the Defense Department, the National Security Agency, the Defense Intelligence Agency, the Central Intelligence Agency, and the Federal Bureau of Investigation.

- Drug and Alcohol Tests

- p. 152 – Show 3.16 – Benefits and Drawbacks of a Drug-Free Workplace Policy (DFWP)

- the most well-liked form of employee drug-use screening test is an immunoassay test; the test is subject to cross-reactivity, where the test detects small amounts of similarly structured drugs, some which are legal; the test does not evidence the time or quantity of ingestion, or the effects of the impairment on job performance; it can only detect the presence of one drug at a time

- the second get is testing hair follicles (radioimmunoassay of hair); any positive response is confirmed by a more sensitive gas chromatography/mass spectrometry test

- Genetic Tests

- genetic testing – investigation and evaluation of an individual’s biological predispositions based on the presence of a specific disease-associated gene on an individual’s chromosomes

- Unique Considerations of HIV/AIDS Testing

- p. 161 – Management Considerations: Testing

- p. 162 – Performance Appraisals, Evaluation, and Discipline Schemes

- performance appraisal – a periodic assessment of an employee’s performance, usually completed by her or his immediate supervisor and reviewed, at times, by others in the company

- p. 163 – Indicate 3.18 – Myths about Performance Evaluations

- Good Implications of Performance Appraisal Systems

- Disparate Impact

- the legal implications of performance appraisals become relevant when their information is used as the basis for any employment-related decision

- improper performance appraisal systems are those that do not fairly or adequately evaluate performance but, instead, perpetuate stereotypes that have an adverse impact on protected classes

- Disparate Treatment

- a performance appraisal may also result in disparate treatment, such as where a female employee is rated subject to different criteria than are the male employees

- p. 165 – Hopkins v. Price Waterhouse case

- Defamation

- may exist where the employer:

1. States false and defamatory words concerning the employee.

2. Negligently or intentionally communicates these statements to a third party without the employee’s consent.

3. Thereby subjects the employee to harm or loss of reputation.

- if the employer makes a counterfeit statement during the course of an employee evaluation, and that evaluation is transmitted to a third party (such as a future employer), the employee may have a claim for defamation

- p. 167 – Procedural Recommendations for Legally Sound Performance Appraisals

- Negligent Performance Evaluations

-negligence – the omission to do something a reasonable person would do, when guided by those considerations that ordinarily regulate human affairs, or something that a prudent and reasonable person would not do

- p. 171 – Discipline

- all discipline decisions must be nondiscriminatorily applied and objectively administered; discipline systems that have the purpose of educating the employee who is found to be in violation are generally considered by employees to be more fair and less arbitrary than weak punishment

- progressive discipline involves a set of steps before a challenging employee will be terminated for awful performance

- an employee who is subject to discipline has a right to request that a co-worker be present as a witness during an investigatory interview; this right is not limited to the union employee: nonunion employees have a right to representation under Epilepsy Foundation of Northeast Ohio v. NRLB

- documentation of discipline, as well as of appraisals, warnings, and commendations, should be retained in each employee’s file and should be given to the employee to provide her to him with the opportunity to appeal the action

Mid Term Review (to be taken 10/16/07)

Chapter 1

- concept of agency law [respondiat superior (? )]

- related to thought of being vicariously liable for the damage by the employee

- independent contractor

- what constitutes an “employer”

- p. 14-15 – what constitutes and employee

- employment at will

- p. 27-29 – three exceptions to employment at will

- whistleblowers

- p. 42 – concept of promissory estopple – court will enforce a contract where there was not one originally but was implied

- wrongful discharge

- constructive discharge

- covenant non-compete – agreement not to compete with your former company

- p. 57 – arbitration

- labor arbitration

- private sector employer promulgated arbitration (non-union) – the employer wants arbitration in the event of potential litigation

- punitive damages

- discovery and due process; arbitrator’s fees must be fair and ruling must be mutually binding

- p. 14 – IRS 20-factor analysis

Chapter 2

- p. 71 – pre-Title VII Newspaper Want Ads

- structure of Title VII

- protected classes (p. 77)

- in making employment decisions

- p.80 – claimant or charging party

- p. 82 – understand the process is 2 phased:

- law was intended to minimize amount of cases the EEOC would have to hear; state agencies could now hear the cases – 706 agencies

- if the EEOC gets enthusiastic, they will give you a “factual to sue” letter

- conciliation – trying to settle the matter

- anti-retaliation procedures

- mediation – another form of dispute resolution; has no legally binding power

- reasonable cause – EEOC believes that there was discrimination followed by issuing of a “right to sue” letter

- exhaustion of administrative remedies – you have to go through all of the administrative processes before you can go to court

- judicial review – a judge reviews the decision and determines its legality

- p. 85 – de novo review – complete fresh look at administrative case by the reviewing

- p. 86 – 2 U.S. Supreme Court cases:

- Circuit City v. Adams

- EEOC v. Waffle House Inc.

- remedy – to make you whole

- back pay

- front pay

- reinstatement

- seniority

- retroactive seniority

- injunctive relief – prevents the employer from engaging in determined behaviors

- compensatory damages

- attorney’s fees

- medical costs

- jury trials were allowed in 1991

- plaintiff

- defendant

- disparate treatment

- disparate impact

- BFOQ defense

- 4/5 rule in relation to employment testing

- business necessity defense

Chapter 3

- the lawful environment of the employment relationship

- how you secure connected to the job (recruitment, etc)

- common law

- fraud

1. misrepresentation of material fact

2. of a material fact

3. with the intent to deceive or recklessness about truth or falsity

4. on which the applicant reasonably relies

5. to her or his detriment

- misrepresentation

1. false statement

2. true statement creating a false impression

3. silence where:

- it is necessary to correct applicant’s mistaken belief about material facts

- there is active concealment of material facts

- it is necessary to correct an employer’s statement that was true at the time made but subsequently became false

- material facts

1. statement of fact

2. which will influence

3. a reasonable person

4. regarding whether to enter into a contract

- nepotism

- p. 124 – information gathering – what you cannot ask

- negligence

- in hiring

- in retention

- “after-acquired evidence” defense in wrongful termination suits

- employment testing

- reliability

- validity

- physical ability tests

- defamation

- slander

- libel

- polygraphs are legal

- drug and alcohol testing are legal – both random and probable cause

- genetic testing – testing to find out if you have or are predisposed to a certain disease

- HIV/AIDS testing – dissimilarity between the virus and the disease

- performance appraisals – the systems should be consistent, quantifiable, non-subjective

- p. 165 – disparate treatment

- defamation can occur with performance reviews

- discipline – must be applied without prejudice and with consistency

Employment Law Notes Part 1 Picture

Employment Law Notes Part 1 Pic

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Employment Law Notes Part 1 Image

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