By Shannon Russell,2014-08-11 10:04
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A. Employees versus Independent Contractors (ICs)

    [Secretary of Labor v. Lauritzen (CB 13-29); EEOC v Sidley Austin (CI)]


    Sometimes “employees” get the most leverage (see Sidley); other times ICs get more leverage

    Emplees: emplr subj to min wage and child labor laws

    ICs: not subj to WC can sue in tort

    Crit of the leading test below is it’s too flexible and vague

    Easterbrook says shouldn’t have a universal emplee test for all fed stats

     Should look to indiv stat’s LH and the harm it seeks to remedy to determ “emplee”

     Is this the maj approach??

    FLSA meant to prot workers with low human capital who make lowest wages


    Employees versus ICs per Secy Labor v Lauritzen 7th cir

    1. Court looks at economic realities to determine status, not just the job title 2. To determine econ reality:

    a. Control

    Nature and degree of control of manner of work

    More control over time and manner of work ? more like emplees

    b. Profit and loss depending on managerial skills

    How much say the worker has in managing work on a day to day basis

    Whether they stand to gain and lose money

    More the person has at stake ? more like IC

    Reduc in money earned due to ineffic work is not “loss”

    c. Capital investment

    Investment in equipment and material

    More you have invested ? more like IC

    d. Skills

    Special skills ; IC

    Need training ; emplee

    e. Degree of permanency

    Less permanent the relationship is ? more like IC

    Migrant workers can be pmt is pmt and exclusive for purps of harvest season

    f. Integral part of business

    Greater the integralness ? more like emplee

    g. Economic dependence of workers on D’s business

    More economically dependent ? more like an employee

    *Most important factor; the other ones are secondary 3. Don’t need to be exclusively employed to be an emplee

    4. Alt test for emplee (Easterbrook conc): Costliness of pursuing other options

B. Covered Employees

    [Vizcaino v. Microsoft Corp (CB 29-40)]


    Just cuz a worker is emplee doesn’t meant they get full emplee bens

     Part-time, home workers, leased workers, and other “contingent” workers sometimes exempt

    Emplrs not reqd to treat all emplees the same

    Ks may be explicit on emplee’s exact status and on what bens they can/can’t get

    Common theme: Should emp relationships be treated like any other K

    Or more strict scrutiny for exploitation fear?

    Question of whether to be more deferential to the relationship, or to the K provisions


    Covered Emplees per Vizcaino v Microsoft 9th cir

    1. Largely K law

     a. If offer, acceptance, etc. ? valid K

     If state allows enf of K even with mistake ? enf the K

     b. Mutual mistake

     c. Ct can ignore conflicting provisions declaring IC status and read rest of K as emplee relatnshp

     Meeting of the minds thy of K law

    2. Alt Approach: Enf the written K over practice of the parties


A. Historical Foundations of Employment at Will

    Introductory Concepts

    Emp relationship can only last as long as both parties want to and can be severed by either party

    Default doctrine of U.S. emp law

B. Tort Erosions of Employment at Will

    1. Wrongful Discharge in Violation of Public Policy

    [Nees v. Hocks (CB 147-150); Adler v. American Standard Corp.; Notes (CB 156-163)]


    WDVPP grew out of concern for 3d parties

     Want emplees to be able to say no if emplr asks them to do sth that will harm 3d pty

    Some cts inconsistently allow emplees who committed the bad act asked of them to still have CoA

    Jury duty can be sufic pubpol

    Source of the pubpol is key cts cautious to infer new pubpol where not clear in legis Sometimes requiring specif stat violation makes absurd result Cts can allow or prohib looking to fed law as evid of pubpol


    NY looks for specif type of 3d pty harm

More prot of pub emplee whistleblowers

    Some whistleblowing stats prot any reported viol of law

    Others only prot illegal acts threatening pub health and safety


    1. 4 general categories of wrongful discharge claims (what states tend to recognize):

    a. Employee is fired for refusing to commit an unlawful act (e.g., perjury)

    b. Employee is fired for exercising statutory right (e.g., filing worker’s comp claim)

    c. Employee is fire for fulfilling a public obligation (e.g., jury duty), Nees case

    d. Employee is fired for whistle-blowing (disclosing illegal company acts), Adler case

    2. To recog a new WD CoA, need to find that emplr had fired for very socially undesirable motive

    a. Undesirable to extent that emplr must respond for injury done (to 3d pty)

    i. “Community interest that rises to level of public interest”

     b. Some states require pubpol harm to be very specific look to stats for specific protected pubpol

Whistleblowing rules perAdler v American Standard Corp MD app ct:

    1. Emplee must allege a specific stat violation same as recog new pubpol

    a. Disclosure may have to be external (cops) as well as internal to company to show clear pubpol

     b. Cf. some cts req internal reporting to avoid unnecessary lawsuits will prot internal whistleblowing 2. Need 3d pty harms as well as harm to indiv emplee

    3. Most whistleblower stats prot if reas or GF belief that conduct illegal 4. Mere warning insufic

    2. Intentional Infliction of Emotional Distress

    [Agis v. Howard Johnson Co.; Notes (CB 181-184); Bodewig v. K-Mart, Inc.; Notes (CB 184-191)]


    Ps have tried to use IIED as backdoor for WD claim

     But it’s not a backdoor when P args that the manner of dismissal is what’s wrongful

     Also to comp IIED is to remedy private harm, not pub harm

    Cts wary of IIED

     More difficult to prove severe emot distress ? std of proof relatively high

     More decisions deny IIED than grant them

    Policy behind lower intent req for special relationship:

     Greater power/control over emplee

     Emplr in better position to do more harm than stranger

    Underlying reason for the supposed outrageous conduct may affect how eval outrageousness Prof. Regina Austin says IIED should first ask if any emotional mistreatment was justified


    Intentional Infliction of Emotional Distress (IIED) per Restat II Torts 1. Intent: D either meant to or knew or should have known that emot distress was a likely result

    2. Conduct: extreme and outrageous, “utterly intolerable in a civilized community”

    3. Causation: action of D had to have caused P’s emotional distress

    4. Injury: emotional distress has to be severe so that “no reas man could be expected to endure it”

IIED w/ special relationship per Bodewig v K-mart OR app ct non-Restat

    1. Higher duty created by relationship btw emplr and emplee 2. Allows conduct in “reckless disregard” to be sufic intent for IIED does not require purposeful

    3. Still requires conduct to “exceed bounds of social toleration” – same as regular IIED

     [Still need to show other two reqs? Causation and injury?]

Examples of extreme/outrageous conduct

    1. Interrogation of emplee in small windowless room for 3 hrs cuz suspected of stealing

    2. Store security guards grab emplee and interrogate him for 35 mins in glass-enclosed room

    5,000 emplees going in and out see him

    3. Not sufic: 2 FedEx emplees interrogated about missing watch; security guard flashes gun

Restat Test Involving Special Relationship adopted by many states

    1. No special relationship

     Must show extreme / outrageous conduct

    Must show intent to harm or reck intent

    2. Special relationship

     Must show gross insults but don’t need show extreme and outrageous behavior

     Must show intent to harm or reck intent

C. Good Faith Limitations on Employment at Will

    [Fortune v. National Cash Register Co.; Notes (CB 193-199)]


    This is first of K-based incursion into EAW in the outline Based on implicit covt of GF and FD

     About 11 states extend GF/FD covt to emp Ks ? restrics circs under which emplrs can fire emplees

    Is state mod to EAW emplr and emplee don’t have to explicitly agree on it

    GF/FD looks like tort CoA redresses emplr misconduct

     Also looks like K CoA ct is implying K term that it presumes parties would have wanted explicitly


    1. GF/FD cov reqs absence of bad faith in emp decisions

    2. Two key versions of GF/FD in emp Ks:

     a. GF/FD in all EAW Ks

    To balance emplr’s intrst in effic/profitable mgmt of business vs emplees’ intrst in stable emp

    No BF or malice allowed in emp decision

     b. GF/FD only in Ks where emplr fired emplee to deprive of benefit of the bargain

     e.g. Emp Ks that involve commission

     Timing of the firing may be material i.e. if P was fired on eve of vesting benefit to bargain

     This rule sometimes may actually cover circs missed by other (seemingly broader) rule

    3. P suing in tort vs K is material to the remedy gen GF/FD treated as K claim

     Only if sue in tort can get compensatory dmgs and punitive dmgs

     Compens dmgs: emotional distress

     Punitive dmgs: if conduct sufic extreme/outrageous

    4. Reinstatement as remedy may be possible

     Ct reluctant to order reinstatement cf. Title VII, other discrim, and NLRA

     Is this true for all forms of EAW limitations / WD remedies?? Or does it stem from K law inj reluctance

D. Statutory Changes to the At-Will Doctrine

    1. Stats can:

    a. Define good cause

    b. Impose reasonability requirement on emplr

    c. Specify remedies

    d. Stipulate arbitration

E. Contract Erosions of Employment at Will


    Three types mods to EAW Ks:

     1. Express mods

     a. Agreem to emp for def term DT Ks

     b. Agreem to fire only for just cause JC Ks

     2. Implied mods

     a. Promissory Estoppel

     b. Implied-in-fact K modifications

     3. Handbk mods

     a. Granting further prot

     b. Rescinding prot

     c. Effect of express disclaimers on handbook enforceability

    1. Express Modification of At-Will Contracts

    [Chiodo v. General Waterworks Corp.; Notes (CB 96-101);

    Hetes v. Schefman & Miller Law Office; Notes (CB 101-104)]


    Most obvious way to overcome presump EAW is to have express K term modification

    Cts will read JC provision into DT K because at the very least parties expected JC, if not outright non-firability

     Also to prevent moral hazard of emplee shirking cuz of guaranteed emp DT may make emplee liable for dmgs if quits before te term is over Casual words of encouragement may rise to level of K mod for JC or satisfaction Mods here occurred before job began

     For mods once work began, see Implied in fact Ks below


    DT w/ implied JC vs IT JC Ks

    1. DT Ks bind emplees as well as emplrs

     a. IT JC only binds emplr

     b. Some cts suggest that JC in DT K runs both ways emplee can quit, but only if JC 2. DT Ks give empees greater prot from termination

     a. Std IT JC K allows more reasons as JC

     b. With DT, can fire for misconduct, incomp, or fault only

     Not for gen econ downturn that makes empee’s work no longer neces

     c. Std IT JC K empee can be fired for misconduct, incomp, fault, or econ downturn

    3. B of pf

     a. DT Ks b of pf on empr to show JC in firing empee

     When empee sues for firing w/in DT, JC is aff dfns that empr has b of pf to show

     b. JC Ks b of pf on empee to show no JC

     JC presumed

When Cts Will Find DT Ks

    1. Clarity of terminability provision may win over a sloppy DT provision

     Even if DT is “year to year”

    2. “Statement of expectations” is not binding, doesn’t rise to level of creating DT K

     Even if statement says “for period of 28 mo.”

Oral Mods Writing in JC Provision into Emp Ks per Hetes v Schefman MI app ct

    1. Can occur as result of policy statements inducing expectations

    In addition to express agreem

    Must be pretty clear statement of JC limitation though 2. Must occur before job begins not after emp relationship starts

Satisfaction Ks/Clauses

    1. Gen interpd as unmodified EAW but some cts say GF oblig to show GF dissatiscation 2. JC obligation is higher than satisfaction K

    2. Reliance and Implied-in-Fact Contracts

    [Grouse v. Group Health Plan, Inc.; (CB 113-115);

    Veno v. Meredith; Notes (CB 115-120);

    Pugh v. See’s Candies, Inc.; Notes (CB 120-128)]


    PE allows relief where anticipatory repudiation or insufic evid to show actual mod to EAW creating JC K

    Life cycle of emplee concept here

    Position in exec management may be key exec mgmt may have rt to JC

    When cts read implied JC provisions into emp Ks, think about:

    1. Whether emp provisions really look like trad K rts

     To what extent to they fit trad K reqs offer, acceptance, consid, etc.

     Or is ct just fudging it to provide the protection

    2. Are there good pubpol reasons why cts want to find these K protections

    3. Whether there are better ways to do this better ways to find these prots rather than thru K law


    1. PE allows possible claim where unmodified EAW K exists

    2. PE can give emplee rt to assume GF opportunity to perf job to emplr’s satisfaction

    3. CoA for PE exists for some time even after emp has begun

     How long CoA lasts probly depends on amt of detriment suffered by emplee 4. Dmgs for PE more limited to reliance dmgs not expectation dmgs as in BoK cases

     a. Expectation dmgs: [Where would have been] [Where is]

     b. Reliance damgs: [What was given up] [Where is]

Promissory Estoppel

    1. Promise (from D to P)

    2. Reas expected to induce action/forbearance

    3. P does actually rely

4. Reliance is to P’s detriment

Implied-in-fact K Mod to JC

    1. JC reqs sufic add’l consid

     Ct may say giving up other job opp insufic consid cuz all emplees do it 2. Emp K can be mod’d to JC after emp begins

     Reqs add’l consid

     Ct may be lax: continued emp is sufic add’l consid as long as other evid of implied mod

Cts differ on level of evid reqd to support a JC emp decision

    1. Subj GF req no investigation needd to check accuracy of belief

     Empr has JC as long as believes has JC

    2. Reasonable GF req investigation reqd

     Empr can term for JC as long as believes in GF that has JC and does some reas investig

     Reas efforts to determ wheter belief is right

    3. Obj GF req dismissable offense must have occurred

     Emp’s reason for firing must actually be right

    3. Employment Manuals

    [Woolley v. Hoffmann-La Roche, Inc.; Notes (CB 128-138)

     No written K; emplee reads emp manual to say JC emp and estab’d procs reqd before termination

     ? Emp manual binding unless clear and prominent disclaimer

Demasse v. ITT Corp.; Notes (CB 138-145)]

     On rescinding job prots


    Most juris hold that emp manuals can K bind emplrs and can mod EAW Ks

     Thus obj thy of K doesn’t focus on emplr’s intent w/r/t K

    Burden can be on the more sophisticated party the emplr

     Cts fuzzier w/ K reqs when want to find emplee protection If continued empmt were sufic consid for revoking job prots, then emplees must quit to object to changed terms


    1. When does lang in emp manual estab K rt

    2. When and how can empr change terms/provs of its empmt manuals

    3. How can an empr prot itself from having its manual read as estabing K rts (mod-ing K rts?)

    Cts harsher on emp manual provisions that will take away existing emplee prots


    1. Continued work for emplr can be sufic consid for emp manual to be binding K mod

     If ct wants to find prot for e.g. a vulnerable worker

    2. Cts can presume that emplee relied on handbook in continuing work 3. Lang must create reasonable expectations in emplees that they are given K prots:

     a. Explicit provisions outlining procs reqd before firing sufic to create reas expectations

     b. “Fair play, just and equitable dealings” – probly too general to create JC K mod 4. Emplr disclaimer of K rts in handbook should be prominent

Rescinding Promises of Job Protection Three Approaches

    1. Handbk estabs K rts that can’t be diminished w/o clear meaningful acceptance and indep consid

    Emplees must be informed that continued emp would manif acceptance of mods

     Continued emp is insufic consid cf. mods in emplees’ favor

     Strict application of need for additional consid

    Meeting of the minds must be clear mutual assent

    2. Each new bk is unilat offer of emp promise in exchange for action

     a. Offer is accepted by continued work

     Continued work is sufic acceptance of K mods

    3. Handbks can diminish K rts if:

    a. In effect for reas time

    b. Reas notice given

    c. Vested bens not affected by the change

    4. Emplr has to have disclaimer again disclaiming what??

    4. Disclaimers

    [Reid v. Sears, Roebuck & Co. (CI)]


    “Caveat emptor” to emplee – burden on them to know what they’re signing


    1. Express, very clear, signed K disclaiming EAW mod can overcome lang in emp manual

     Balancing test between strength of the original K provision barring mods and emp manual language

    Look to reas expectations did provision set up specif enough expectations 2. When K mod occurs even before offer of emp made, ct can still say it’s part of the emp K

     Infer that emplr trying to be very clear make emplee know that job is EAW up front 3. Gen cts look at phys size, placemnt, wording of disclaimers

     Also look to see if Ps should have known of disclaimer

Disclaimer Examples

    1. Lang stating IT EAW K only ? cts split on whether can be mod’d by emp manual

    2. “This manual solely for guidance and not intended to create any K right” can still be insufic

F. The Future of Wrongful Discharge Law


    Args for EAW as Best Default Rule

    1. Good for emplees free to leave at any time

    2. Good for emplrs econ efficiency; emplrs can easily get rid of ineffic emplees

Limitations of EAW

    Performance on both sides must be simultaneous

    EAW doesn’t handle well – delayed payment situations, on the job injuries, torts



1. Pvt citizens entitled to most FS and privacy prots

    Then pub emplees

     Cuz only pub sector gets 1st Amd prots

     Pvt emplees entitled to least FS and privacy prots

    2. Pub sector workers rt to speech and priv comes direct from Const

    SC has outlined tests for viols

     a. Rankin pub concern (2 thys of defn of pub concern Roe, Rankin)

     Bal test speech interests of emplee vs govt in maintaing efective perf of pub service

    b. Pub emplees prvcy rts NTEU

     Effective perf of pub sevc vs emplee priv

    3. Pvt sector workers don’t use fed Const – uses broader array of sources

     State Const, state stats, state common law

    Unless direct state const rt or state stat rt, have to look for gen pubpol interest or CL

    Prots tend to be lower than those pub sector emplees get

A. Free Speech and Privacy Protections of Government Workers

     1. Public Employees’ Free Speech

    [Rutan v. Republican Party; Notes (CB 236-243);

    Rankin v. McPherson; Notes (CB 243-249);

    Roe v. City of San Diego (CI)]


    Indiv is entitled to diff elevels of spech and privcy prot in cap as citizen than as pub emplee

     Ctzn entitled to higher levels than pub emplees

    Logic to disting btw firing and other emp decisions: firing is a touchier thing, special case

     But idea is that don’t want to infringe 1st amd rts – logically this extends to hiring, transfers, etc. FS prots extend to probationary emplees

    Roe defn of pub concern makes pub emplees very high protectn w/r/t pvt emplees


    Party Patronage per Rutan v Republican Party US SC

    1. Viol 1st Amd to make promotion, transfer, recall, hiring decisions on basis of party affil/support 2. Also viol to fire on basis of party affil/support

    3. Unless party affil is approp req for effective perf of pub office involved

    I.e. policymaking positions or other politically oriented jobs

Infringement of Free Speech per Rankin v McPherson US SC

    0. Applies to speech on and off the job the content of speech matters, not the location of speech 1. Was speech on matter of public concern?

     Govt can act freely w/r/t private speech

    2. Pickering balancing test

    Balance emplees’ speech interest vs state interest as emplr to promote effic and effective perf of pub svc

    How destructive is the speech for the office incl prestige of emplee’s position

    Degree to which speech will undermine emplee’s ability to do her job

    Extent to which speech impairs discipline and harmony/emplee morale

    Was speech in public or meant to be a private conversation

Examples of “Public Concern”

    1. That relating to matter of political, social or other concern to the community

    a. E.g.:

    Comment made in context of discussion of policies

     Emplee in DA’s office fired for asking if pressured to work in polit campaigns

    Emplee saying overheard supervisors say would not keep an intern who filed discrim claim

    2. Examples of not pub concern:

    a. Making antisemitic comment to get under someone’s skin not pub concern

    b. Unauthorized intraoffice survey on office morale is not pub concern

Expansion of Public Concern per Roe v City of San Diego 9th cir

    1. Reps at least 3 circuits jurisprud 9th, 4th, 10th

    2. Pub concern is that which is not on matrer of personal interest

     Directed at gen public or segment of it

     Not relevant solely to his emp

     Occurs outside the workplace

    3. Personal interest defined as matters only internal to the workplace narrow defn

     Everything else is pub concern

     2. Public Employees’ Privacy

    [National Treasury Employees Union v. von Raab; Notes (CB 280-285)]


    Drug use is off-duty activity

    Compare with pvt emplees drug testing below


    Privacy Rt w/r/t Mandatory Drug Testing per NTEU v von Raab US SC

    1. Balancing test

     a. Govt interest must be compelling is this always true?? Always SS for 4th amd? P. 294 says usu RB

     b. Emplee interest in privacy may be diminished safety- or security-sensitive positions

     Ct particularly concerned about type of job involved

     Upper level Navy officers ok

     All postal workers not ok w/o individualized reason for testing

     c. Relationship must be close or substantial

B. Free Speech and Privacy Protections in the Private Sector

    1. Protections While on the Job

     a. Private Employees’ Free Speech

    [Novosel v. Nationwide Insurance Co.; Notes (CB 249-256);

    Timekeeping Systems, Inc.; Notes (CB 256-262)]


    Pvt emplee FS privacy w/r/t polit activity sim to pub emplee

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