Employment Law The Role of Employment Law in society: Economic, work defines social, psychology, politics, public policy:

economics, healthcare, immigrations, trade policy, fiscal policy, financial reform. Impact of changes of Employment Law: Trends: labor markets, bargaining power, low wage section increases, outsider contractors, outsourcing, shift in how capital is being allocated economic, high-tech, information, human resources create value, not to compete agreements. Technology: telecommuting, flexibility, parttime. 30% of the federal civil docket is employment law. Sources of Employment Law: Common Law (C.L.) doctrine, At-Will doctrine, Contract Doctrine (K ) Labor Law, Safety & Health, etc. Employment Law lacks uniform source/ definition, lacks coherence. Various lenses through which to view employment law. NOTE: labor law deals with the Union context, however, portion of market unionized is very small. Themes. 1. Conflict between employer interested, employee interest and broader social interest a. Balancing Test: eg. Employee privacy depends on the circumstances, speech rights, non-competition agreements, and interest of the employers in retaining information vs. free movement of labor. Discrimination law. 2. Job Security term: at will vs. for cause a. At-will is a de-fault rule, only MT not have the at-will default rule. Just cause need a legally recognized reasoning for termination 3. Tension between should the law create default standard to what extent should the clear create immutable rules a. Leave rules to parties themselves or to create immutable laws? b. To what extent should laws be waivable? eg. Time and a half pay. c. See. Pg 31. Of intro Arguments against free K/ Private ordering 1. Bargaining power 2. Asymmetric information/ psychological restraints, cognitive deficiency,, so negotiate suboptimally 3. Negative impact on 3rd parties/ society How to think about private ordering:: How the terms of an employment K are structures, where terms are waivable? how to structure work place as a whole?, chp. 13: to what extent do we allow Ps to alter their relationship in other ways? Eg. By K? eg. Can they alter the forum? Severance agreements?

Chapter 1. The Stakes of Employment:

Why does it matter if employee verse independent contractor (I.C.)? Liability Who is an employer/employee? When does employment law apply? What are the benefits/costs for option for an employment relationship?

A. Distinguish Employee v. Independent Contractor: Respondeat superior Vicarious Liability , Agency Law. Who controls who? Is there an employment relationship? REspondeat Superior: employment relationship and tort in the scope of employment. McCary v. Wade: P 3rd party victim. If employee then liability, if not employee then no liability. But tort feasor is bankrupt/ insolvent. The intermediate hires a bunch of independent contractors. Hold: independent Contractors, so firm win, and there is not an employment relationship. Fitzgerald v. Mobil Person falls off the trailer and claims defective trailer. The activity was outsourced to a truck driver. Issue: if the Fitzgerald driver is an employee of Mobil, then only entitle to workers compensation, if not an employee, then can be sued in Tort. Hold: Fitzgerald was an employed so only got what he was entitled to under workers compensation. However, K between Mobil and TLI )the intermediary) disclaims employee/employer relationship, Mobil tries and does have it both ways. Workers compensation: has a cap to the amount able to recover, cap would not work without exclusivity, ie. Cant collect workers compensation then sure under tort liability. Factors for determining employer. PG 8 Economics Reality Test: pg. 11 About whether or not exacting control, the extend of control over the employer/servant? When do you have an employment relations? 1. Employee? 2. Legally accountable employer? Why do firms structure the firms the way they do? Enterprise structure, middle men, independent contractors. Stakes of Employment: What does it matter if the person is an Independent Contractor vs. Employee? 1. IC v. Ee a. Stakes b. Test [highly fact specific, so many case] i. Structure ii. Private ordering (not dispositive) iii. Planning/ risk management iv. Implications/ critique 2. Employer? a. States/status matter a long. If resolution was easier , more bright line, then not as many cases. 3. Balance sheet employee vs. IC: [ see notes 4-6] Negatives positives Respondeat superior (tort liability) workers compensation Employment Law doctrine (exclusivity and cap on $) Desire ot avoid unauthorization Labor la Tax The above are legal incentives to outsource. Test focus on control to the extent firms have greater incentive to control work (quality control)

Tests: Pg. 5 & g, section 220 of 2nd restatement of Torts. Definition of Servant (for respondeat superior purposes) focus on exacting control over physical conduct of the work, over the details of the work. 1. C.L. Test: a. How much control, multi factual and contextual, factors on section 220 2. Economics realities test a. Pg. 11 per Fitzgerald test. FN 7 on pg 15. Even with more or less economic dependence, vulnerability, courts tend to address control anyhow. 3. Entrepreneurialism Approach a. Bottom of pg. 6. 3rd restatement. Worker deemed employer UNLESS indicia of control, opportunity for gain/loss b. BUT: i. Not final 3rd restatement,, not yet the law ii. Focus on entrepreneurism is starting to play a role on labor law. Natkim v. winfrey pg 17 Oprah photographs used in a book. Sued for the use of the license/copyright infringement. IC Oprah needs license Employee works for hire, so Oprah owns them Company had elected IC stats for P for tax purposes. Normally is one creates something then they are the owners. Works made for hire pg 19. TEST: Reid Factors (13) control? Broad definition, very like the CL test. Lots of focus on the details of the work. Not single factor is dispositive. Outcome is not predictable, highly uncertain factors cut both ways. Mobile had disclaimed ee status, but then argues for ee for workers compensation reasons. Look to the totality of the circumstances. Efficiency reasons and clarity. In Mobil, kind of acknowledge that there are different tests, and reasons for employee definition. Even if ICs Harpo could have protected itself through a license (work for hire agreement) Court says harp can not have it both ways. Private ordering is not dispositive. If not sure if the greater risk is from the intellectual property issue/ tort issues, then keep the relationship amorphous until later. Greater ambiguity may enable firm to act one way or the other. Implication/Critique: 1. Inefficiency/ ambiguous 2. Greater clarity/bright line may lead to unjust outcomes (trade offs) 3. May be that test appropriate sometimes, if not map onto underlying policy not good. Easterbrook: CL focus on control, designed for particular purposes, rather than wage/hour law. None Legal Incentives for Stakes driving employment: Control may have economic value, necessary to assume quality/goodwill, customer relationships, lists, tend to apply to higher skilled workers because of the value in human capital Joint Employment: Smaller the firm, the harder it is to detect violation and legal restrictions may not apply to smaller firms. Employer: a. Stakes: if not er the not on the hook

b. Tests: a. Structure, private ordering, planning / risk management, implication/ critique Ansousaman vs. GRistedes Operating Corp. 3 legal issues: 1. Whether or not employees of chelsea/Hudson? Ee because use the economic reality rest. And how much control, risk of loss 2. Are individual owners of Chelsea Hudson liable? Because operational control employers, ignoring the corporate structure, piercing the corporate veil, because managed the firm, managing owners, Judicial gloss that managers liable for wages personally. However, easily PCV- owner liability- may be a bad policy idea. Structure created problems upstream incentive issue with respect to LFSA argument. FMLA aid abetting exception. Usually the employer is the entity no the individual 3. Whether or not Join Employer: formally separate entity, 2nd circuit test, did it exercise enough control? Touchstone for Joint Employee: Control! Depending on how integral to the business , the business will be liable. Courts remain hesitant about extending joint employer liability too far. Clackamas v. Wells Does company qualify to be sued under the ADA? If the company is large enough. P was an employee. Are the partners employees? If yes, then comply with ADA, sp P has a Claim. Use CL control test: show how much control the partners exercise. For owner manager (worker owners) in a professional association, look at the ee vs. i.c. test to see if employees. Remanded with suggestions of employers. CRITICISM: CL test/reid factor are not designed to defined the employer, if one of the parties sues under employment law, the would have made a different argument. Whether or not employer covered under ADA need 15 employees. Its a threshold question for the ADA to apply. Were the owner shareholders employees? Court looks to Common Law Test for guidance on whether or not the shareholders are employees or employers; employers exercise control over employees, look at Master Servant, so much control such that the person is not an employee. [note: new healthcare insurance laws only apply to 50 + employees] Dissent: criticize: inconsistent with what the common law test was designed to do. Definition of employee/employer should be consistent with definition as pertaining to statute. The Doctors are trying to have it both ways, using the corporate form to avoid liability as employers. Clackamas compared to Yates: Yates: similar because working owner of a Professional Corporation, physician shareholders created the P.C. for a reason to limit their liability. Yates argues for the shareholder to be a participant in ERISA so, Yates wanted employee status because money in the ERISA plan are not dischargeable in bankruptcy. If not ERISA plan, then the 3rd parties can go after the money. Hold: Yates is considered a participant because the STATUTES ITSELF contemplated it, (or at leas a fair reading of the statute contemplates its use) Clackamus: reliance of Common Law standard, the ADA language was not clear. Yates: not look at the Common Law, clear intent identifiable behind the statute, because congress addressed sole proprietors can be treated as participants. Yates confirms that sometimes people can have it both ways, considered employees for some purposes and employer for others. Page 55 note: using corporate structure to avoid regulatory issues (# of employees as the threshold). Note: courts are loath to pierce the corporate view, control is not enough. Page 56: Foreign subsidiaries: if parent directs illegal activity controlled and fail to adhere to formalities.

Why does it matter? 1) insolvency, 2) all doctrines limited to enterprise of a certain size.

Chapter 2: At- Will Doctrine

[default rule] Express modification Promissory estoppel Notion that Job security is most critical. At will doctrine: either party can terminate at any time. Why? Policies/ Justifications: 1. default rules to enforce personals expectations when not manifested/specified, seeking to reflect unstated expectations/intent 2. balancing of other interests, vulnerabilities, efficiency, procedural, promote social welfare, create incentive, it is good for society, ECONOMIC EFFICIENCY note: Montana is the only exception to the At-Will default, they need good cause. Note: other default rules: 1. just cause default rule in other countries, protect the employees and right to employment. 2. Definite term default of 1 year, 3. rate of pay default rule, reflecting term of relationship. Express Modification to the At-Will Default Rule Hanson v. Central Show Printing Guarantee 40 hours of work until retirement, 2 years later employee was discharges. Hanson claims lifetime/ permanent employment contract for life. P claims that employer breach the agreement as evidenced by the letter. HOLD: At will employee. Reasoning: must have additional consideration, clear stipulation of the employers promise end date. In order to Support an additional term there must be additional consideration to support such a term beyond his labor. This concept is not consistent with Contract Law because one promise can support the other, forbearance as consideration, and generally we dont look at the magnitude of consideration. Hanson suggests that the at-will doctrine is more than just a default rule. It created a presumption of at-will and overcoming that presumption is difficult. Reasons: 1. to protect employers, 2. court efficiency from the benefits of a bright line rule, 3. if the employee walks away its very hard to recover from the employee and one direction of obligation is troubling, 4. uncertain damages rationale. When dealing with a Definite Term Contract, the employer can still terminate for just cause even if it is express. Employer bears the burden of demonstrating just cause. Greene v. Oliver P claim existence of K, thus the at-will doctrine does not apply, claim there was a lifetime relationship so therefore could only be fired for cause. P claim forbearance, argue additional consideration in exchange for greater job consideration. Court does not require additional consideration, the function of additional consideration is as one factor to consider INTENT consideration is merely indicative of

the intent of the parties. Court looks to indicia of intent, the evidentiary function, factor in The atwill presumption may only be rebutted by clear evidence that the parties contracted for a definite period a primes of permanent or lifetime employment may be nothing more than a casual aside pg. 69. POINT: 1. Takes traditional barrier and redefines functions, looks at the types of evidence to overcome at-will 2. Focus on the expectations/ intent of the parties Five Historic justification for the At-Will Presumptions: 1. Freedom of Contract a. Presumption should not defeat the parties intent, eg. in Hanson clear expression of parties intentions were not honored. 2. Need for Mutuality of Obligation a. Consideration could be an evidence issue, it is inconsistent in Contract Law to match the magnitude / adequacy promise not need to equate forbearance. 3. Common experience that usually effectuates the intent of the parties 4. Procedural protection against meritless but vexation lawsuits 5. Fairness & Equity TAKE AWAY: Green Court recognized additional consideration is inconsistent with Contract law, so made consideration as evidence of the intent of the parties. Reconciling Employment law with Contract law. Clear Evidence opens possibility that express modifications may overcome at-will presumption. It lowers the bar to overcome evidence. Remise of reasoning: at Will doctrine does reflect the parties expectations. At Will Default Rule Presumption: 1. express modification a. definite term for a period of time [er can terminate with Just cause] b. lifetime/ permanent [er can terminate with Just cause] c. just cause indefinite term K 2. promissory estoppel 3. implied in fact modification 4. manuals/ handbooks At Will operates more as a presumption than a default rule, absent a contract to the contrary. Hanson required additional consideration, which is inconsistent with modern contract law, mutuality of obligation concept is inconsistent with contract law. Green required clear evidence, rejects the mutuality obligations: at will serves important procedural functions, and courts should look to see if the at will reflects expectations of parties. The nature of the Just Cause protection may vary, generally more narrow in definite term than indefinite term just cause. Indefinite term could also included economic necessity. Point: definite term is more protective that indefinite term. Oral & Implied Contract Rights Reliance on Offers of Employment Promissory Estoppel:

1. Courts are split 2. Appropriate because detrimental reliance Goff Case Prospective employee gong to start work at a OBGYN, day prior to the start, the offer was rescinded. She would have been an at-will employee, so express modification will not help P. theory: promissory Estoppel. Issue: whether promissory estoppel many be asserted as the basis for a cause of action for detrimental reliance into a contract upon a promise of at-will employment. Split courts: 1. detrimental reliance when employer knows or should know that a promise of employment will induce an employee to leave his/her current job, such employer shall be liable for the reliants damages 2. Inappropriate for some courts: reliance on a promise consisting solely of at-will employment is unreasonable as a mater of law because the employee should know that the promised employment could be terminated by the employer at any time for any reason without liability. Alleged promise of employment. An illusory promise. Hanson leaving one job to get another is not sufficient forbearance for consideration needed for express modification. Here, forbearance: cant be sure she would have remained employed at former job. Should she be given a good faith opportunity to perform? But there is no assurance in at-will. HOLD: Court lets P look to promissory estoppel. Schoff v. Combined Insurance Company of America Employee had criminal record, misdemeanor. The bonding company (a 3rd party) refused to bond, and without the bond, the firm is at risk. Theory used by P: promissory estoppel no disclaim of atwill. Not clear nor definite enough. Causal element is the 3rd party denying the bond. Mere assurances are not enough. Question of what is clear and definite enough. Even assurances create an inducement or reliance, very difficult for Ps to prevail. Note 3: theoretically promissory estoppel is available, it rarely succeeds. There has been some entrenchment, and the court sets the bar high. Assurances of Continued Employment Shebar v. Sanyo Business Systems Corp. Hired, not getting bonus, going to resign, the company says youre with us for life, then terminated ee months later. 1. Evidence VP outright lied, hear from employment firm that ER was looking to get rid of the ee. 2. Norm of lifetime employment in Japan, expectations can vary by workplace culture. HOLD: no breach of K for life-term. However, a lifetime contract that protects an employee from any termination is distinguishable from a promise to discharge only for cause. The latter protects the employee only from arbitrary termination. Pg. 88. Court conceptualize K as a for cause, just cause K. therefore question of fact exists. POINT: 1. Court points to prior case law that courts loath to recognize literally Ks based on oral Ks. 2. Claim is that P had just cause indefinite term K, so sets the bar lower and is less protective of ee. Could P have tried to express modification? Clear oral assurances, additional consideration in the form of a job offer at Sony. Implied Rights:

Pugh v. Sees Candies Inc. Rags to riches story, worked for the company 32 years, relied on polices and course of conduct of the company. P claim just cause indefinite term K. HOLD: Factors: In determining whether there exists an implied-in-fact promise for some form of continued employment courts have considered a variety of factors in addition to the existence of independent consideration. The have includedpersonnel policies or practice of the ER, the EEs longevity of services, actions or communications by the ER reflecting assurances of continued employment, and the practices of the industry in which the EE is engaged pg 94. POINT: at the time the factors would have helped the EEs giving them more potential rights. The need for Independent Consideration follows Green, independent consideration serves merely as an evidentiary function, intent of the parties via clear evidence of express modification. Court moves to a more Contextual inquiry to get to the fact finder is not really as difficult as it was in Green. How does the court define potential relationship? Eve if implied in fact modification, the Court adopts CA Good Cause. Pg 94 CA Good Cause: 1. Burden of persuasion (usually ER bears the burden for showing cause) ER had to affirmatively prove/show cause. CA standard: EE must bear the burden of showing wrongful termination. 2. Cause means you have demonstrated that cause existed (not merely a belief) there must have been an Actual Violation. CA standard: Fair & Honest reasoning/ cause regulated by good faith on the party exercising. Pugh standard: 1. makes standard lower/ easier for EE 2. suggest ER need not show ACTUAL violation of good cause, can be satisfied by a good faith belief, therefore less onerous. [however, subjective standard is belief only, subjective and objective standard requires belief and reasonable. The fair element suggests a subjective and objective standard, needing an actual and reasonable belief. ] TAKE AWAYS: 1. Implied rights case 2. Gives history of At-Will doctrine 3. Court seeking to strike a balance, recognition of job security term but counter balance with how it affects the ER - loosened ability to modify at-will, soften the obligation associated with cause. (as opposed to Guz case which shows entrenchment. ) How to Overcome the At-Will Presumption: 1. Express modification 2. Promissory Estoppel 3. Implied in Fact K 4. Handbooks/ Manuals Pugh set the high watermark of loosening the presumption. Court shifts: P bears the burden of showing lack of good cause, puts into place an objective Good Faith Standard. ER will have to show ACTUAL and reasonable Belief there was a terminable offense. Guz v. Bechtel National

Division eliminated, claim he could have transferred him to another department. P claims: 1. Breach of implied K, 2. Breach of implied covenant of Good Faith & Fair Dealing. Breach of implied K: personal policy written. Court looks to the Foley factors of. 98. 1. Stress here must be ACTUAL understanding of the parties. P must establish that there was a mutual understand. [the court diverges from Pugh] court rejects this theory, not enough to get to a jury unless there was a different understanding of the parties. 2. Court is willing to find implied in fact agreement as to the how the ER was terminated. ** court rejects substantive aspect of claim that this is good cause relationship while allowing procedural based on ERs written policy. Can challenge ERs policies/ procedures for termination. Problem: remedies (ER remove policies going forward) 1. Pugh factors analysis are not enough, must give rise to something other than at will relationships 2. Address policy/ procedural possible claims. Breach of Implied covenant of Good Faith & Fair Dealing: you can not have an implied cove/ term to deal in Good Faith that frames conduct that does not exist in the K. it is an illusory claim: that have to terminate in GF when EE is at-Will because explicit in At-Will is that ER can terminate for any reason. The job security term the court already rejected from being in the K. If At-Will wither or not person can be fired for any reason but would have claim covenant of GF & FD. When they agreed to other terms, eg. Compensation, eg. Bad faith denial of benefits earned. Note 1pg 104. Very few workers have such relationship with ERs. The workplace is a changing environment. Note 4. Good Faith Theory. Written Employment Manuals & Employee K Rights Handbook Manuals- implied in Fact K cases. Involve representations to work force, not individual representations. Woolley Case Rejected earlier cases of lifetime employment Ks look to context. More willing for indefinite term causes protections pg 109, how could manual create a binding K if given the manual after employment? Consideration: continued employment for alleged promises made in employmentthey are at will so they can walk away, ees gain tremendous benefits from manuals providing job security. Acceptance: unilateral K, offer = distribution, continued employment = acceptance. This applied event to ee who did NOT read the manual, individual reliance need not be shown. (similar to Fraud on the Market Theory). Employers get a lot in exchange, expectations prevent reason for Ers to unionize, ensure a happy loyal workforce, reducing probability of unionization. Point: ERs have an out: prominent Disclaimers, ERs can minimize risk. Conner v. City of Forest Acres Questions: 1. is there a binding K? 2. Was the disclaimer clause sufficient? Despite mandatory nature of the language, these disclaimers were clean and conspicuous. If disclaimer is inconsistent with the manual, courts go to a jury determination. 1. Disclaimers must be Sufficiently Clear & Conspicuous! 2. Make sure your EEs read it, show they signed and read it. 3. the Conner pitfall, in drafting terms, avoid making them look mandatory. Balancing act, not too soft. Note: find ways to make sure at-will relationship stated in disclaimer, can not be modified in other ways (integration clause) later by oral written or otherwise.

Flipside issue: Er may want portions of the manual binding, eg. Arbitration to be mandatory and noncompetition agreements. Test: if the fact finder finds a K to terminate only for cause, he must determine whether the employer had reasonable good faith belief that sufficient cause existed for termination pg. 113 Demasse v. ITT Corp IN AZ, can handbooks constitute implied in fact K? yes. Are the able to modify job security provisions after? Yes with limitations assuming there is a handbook binding K. When is modification ok? Pg 118. 1. Offer to modify 2. Assent/ acceptance (not continued service), AND 3. Consideration Substitution is not automatic if Ee stays after the change. Treat the change as new K. Constitute working is not enough to create acceptance, because only alternative is to quit. Binding K is meaningless if the Er could unilaterally modify it later. In K law, we dont measure sufficiency of consideration, so ER could offer new consideration/ provision of benefit, so not particularly burdensome on EE. From at-will default rule comes the presumption. Guz narrowed the scope of Pugh, how er policy/ procedure MAY create biding terms/ obligations. Wooley permits clear and conspicuous disclaimers. Dimassi if there is handbook/manual, what is required for modification of those terms? Enter into a new K, requiring consideration. Note: assuming the raise/ bonus was not part of the agreement to begin with. Connoly case suggests ERs should be careful.

Chapter 3: Written Contracts & Expressly Negotiated Terms of Employment

ERs have incentive to reduce relationship into writing in light of Pugh/ Guz. Incentive to include arbitration clauses and anti-competition clauses, state At-Will, and what that means, be careful not to include contrary terms (eg. Connoly case), dangers of writing about probationary period.

Job Security Terms

Tropicana Hotel Corp v. Speer Errors in negotiation employment terms. Disagreement about handling stock options, claim just cause K and entitled to stock options. Hold: At-Will ee, could be terminated at any point, attorney said do not sign the agreement and made an oral agreement instead. Constructive discharge: measures Er took were such that it was so intolerable no reasonable person could be expected to perform. Issue of meeting of the minds. POINT: care in negotiation tactics. Care in drafting agreements. Could have agreed to certain terms and leave open other terms, eg. Agree to just cause. Cave Hill Corp v. Hiers Hold: no breach of K. Ee did not have a for Term K. J is clear and unambiguous. So extrinsic evidence can not be used to interpret clear and unambiguous. At-will K because Er need give cause, but there is a definite term, however default rule that can only be terminated for just cause. 5 yar term

indicated when to re-negotiate compensation, PER can not come into clear and unambiguous. Parol Evidence Rule permits extrinsic evidence when 1. Type used to intent K terms (except when clear and unambiguous), 2. Type to supplement written, whether or not another other consistent terms, 3. Evidence of subsequent understanding. Ebsensen v. Userware International Inc Dispute termination/ at-will. Court hold for P termination provision does not assume at-will, so it is a triable fact. D claim at will relationship because terminable for any reason interpret if termination for any reason, then the salary would stop. Q2: was the K fully integrated? Because not at-will, then it was only partially integrated, sp the Parol Evidence is allowed. If fully integrated then no evidence of supplemental agreements because this is meant to be a full K. POINT: include an integration clause. Defining Just Cause to Terminate Bensen v. AJR, Inc. How just cause clause operated. Sale of family business K agreement giving 3 reasons to terminate. Termination reason not match the reason stated on termination papers. Perhaps say nothing or the reason is better than the wrong reason. ER defined for cause in a very narrow manner/ terms. Define cause in ways that link it back to the job. Dissent: legal hair splitting. Concurrence: not a case by termination, they bound themselves to continue to pay, really only entitled to Money, private ordering limitation based on terms of the K. At- Will there is express apparent modification, what is that? Prior to 1960s not many incentives to put agreements in writing, because there was potential to enforce not express terms. Just Cause: defined narrowly, top executives is an example. Uintah Basin v. Hardy How court interprets undefined just cause terms when there is a just cause provision. Pg. 157-8 : balance of Er interest with Ee interest. Court rejects the assertion just cause term is construed another way. unambiguously must be just cause. Standard pg 158: legitimate business reason for fair and honest cause, from the Implied in fact CA good Cause (Guz case). Point: Court does not get ambiguous right & incentive to define cause as clearly as possible because not defining cause carries risks. Three Aspects of Cause: 1. who bears the burden of persuasion [ ER D or EE P ] 2. is the standard requiring objective good faith or does it require the existence of actual cause? [Objective GF v. Actual ] 3. Is the content of cause protection? Does cause include something beyond performance, eg. Economic/ market based justifications. [ Substance: content of cause E;E performance or included other reasons/ broader so as might include economic downturn. Uintah court cause: 1. Burden on the Defendant, ie. ER 2. Objective Good Faith & Reasonable belief [required reasonable belief, ER differential] 3. Substance/ content of cause includes other reasons, is broader. CA Good Cause (most ER friendly): Definite Term K (just cause most protective of EE, narrow definition of cause) 1. ER burden

2. Actual cause must be shown 3. EE performance Majority View: Indefinite Term For Cause: 1. Burden on D, ER 2. ER has to show actual Cause 3. Broader Definition of Cause

Compensation Terms
Contractual Rights to Incentive Pay Uphoff v. Wachovia Secuties Retention bonus promised, fairly standard in the industry because want to keep the clients when the parent company merges. Breach of K claim: mutual assent of an oral K, court found no sufficiently definite money terms. Promissory estoppel claim: reasonableness questions go to a jury. Look to reliance to the detriment, measure sufficiently of promise via reliance, ie. was it definite enough to have promise and have then detrimentally relied on that promise? (see Schoff). Promissory estoppel: 1. Detrimental reliance, 2. D reasonable to expect reliance, 3 in justice (reputation cost, in the time of economic peril, business decisions. Can not proceed with class act, each individualized detrimental reliance must be proving reliance and a detriment. Issue of remedy: usually get the recovery of what you lost, ir. The detriment, very particularized in class suit, so not a good claim to win on class action. Compensation & Contract Ambiguity Arbeeny v. Kennedy Exec. Search, Inc. Dispute over commissions/ compensation. Claim: some money to be paid in period 2, but fired prior to period 2. At will relationship is undisputed. For an at-will, without express terms. K expressly states no commission due if EE is not employed at the time. Because there was no express intent to deny payment on commissions retroactively earned, so pay. Opportunism Theory: implies covenant of GF &FD that is pretext not to pay. Guz reject cov. Of GF &FD, termination of at-will employee can give rise to challenge of the termination, however, here, atwill termination is not challenged, rather only the denial of benefits of what he had earned earlier. Does he have oty show bad faith on the part of the ER? termination designed to deny benefit to EE, generally showing of bad faith is needed. Can parties use K to work around it? Can that negate implied theory of GF&FD? Onl if there is any implied theory. However, if court view it as K theory, hard to waive implied cov. Of GF&FD.

Chapter 4: Public Policy Exception to the At-Will Rule

Tort based theories/ limitations. (externally imposed, therefore these theories are not waivable)

Common Law Public Policy

Public Policy Exceptions: Why Should the Law interfere? In what circumstances should the law intervene? Rationale: public policy justifies intervention because of adverse affects on third parties/ the public as a whole. The cases are about narrowing the scope of this doctrine: 1. Ee protected from termination based on their refusal to commit an unlawful act wrongful discharge 2. Exercising a statutory right. Eg/ for filing workers comp claims] 3. Fulfilling a public obligation. Eg. Jury duty 4. Whistle blowing: reporting unlawful conduct When case is beyond tese 4, courts are reluctant to extend policy doctrine to cover other situations. The Sources of Public Policy: courts are reluctant to leave inquiry just to courts. No protection |----------------------- some protection -----------------------| Lots of Protections Eg. NY not recognize C.L. public policy public policy found in statutes, See Murohy constitution, judiciary. Eg. Palmetier Most jurisdictions look for sources of public policy in the constitution or statutes, rather than their states C.L. Public Policy Exceptions: 1. Traditional Categories New Restatement 4.02 og 185 a. Refusal (to commit and unlawful act) b. Exercise of a statutory right c. Fulfilling public obligation (eg. Jury duty) d. Whistle blowing e. Catchall/ ER conduct shocks the conscience 2. Sources : a spectrum in terms of what they are willing to recognize as a viable source. 3. Federal vs. State Law , a split authority 4. Public is it sufficiently important/ substantial? 5. State of mind requirement 6. Internal vs. External reporting as limit on public policy doctrine. Public policy exceptions to the AT Will doctrine are based in tort theory. For reasons of public policy we interfere with relationships between EE and ER, because interference is justified on need to protect certain public policy that are threatened when the ER terminates the ER/ They are unwaivable, possibly narrowed, nut not waived. Three is tension between when to extend protections of public policy as opposed to in what circumstances intrusion is not justified. Fitzgerald v. Salsbury Chemical, Inc.

What acts of the Er might violate public policy? An Ee was fired because he had given deposition on another claim, and the other EE has exercised a public obligation by answering truthfully in the deposition. Source of public policy Clear & Well- Recognized. Looking at statutes, and the constitution. The court did not decide if judicial decisions/administrative rules are sources of public policy. Federal vs. state law: some states limit public policy sources to state law because of the notion that it s a state Common Law Tort theory. Claim 1: there are specific statues that prohibit retaliation based on not agreeing with the decisions to terminate another EE/ but there was no public obligation/ other tradition categories. Court was not willing to expand beyond the traditional categories, so this claim failed. Claim 2: Court recognizes possibility that there is a viable public policy violation so the question should go to a jury. ER intimidation creates a chilling effect because of the same underlying concerns. Causation: has a very high standard. Determinative factor, similar to but for causation. Elements for Wrongful discharge claim: 1. engagement in protected activity 2. discharge 3. causal connection between the conduct and the discharge. Note 5 pg 196. Policy must protect the Public. The violation must affect the public, many jurisdictions only find public policy when it is Well Defined and Substantial. Note 7 pg 197. Whether or not something is a public policy related conduct is a questions of Law. The Judge decides. Which branch of Government should decide Public Policy? Separation of Powers? Murphy: Common law creates law. Court say cant impose limits on the C.L> at-will doctrinewhich is odd, according to Glynn. Note 8 pg 197. Tort vs. Contract? The state of mind requirement. Subjective Good Faith | --------------| Objective Good Faith |-----------------------| Actual Violation [objective GF = reasonableness standard= EE actually & reasonably believed. The majority] note on Attorneys: are they protected like other EEs? Courts are torn because independent obligation not to engage in unlawful conduct. Some courts give attorneys robust protections. Illinois historically has provided NO protection for attorneys despite leniency in finding sources of public policy . NY is the converse. Rackley v. Fairview Care Center, Inc. Utah recognizes public policy exceptions when they are Clear & Substantial. Public policy is clear if it is plainly defined by one of three sources: (1) legislative enactments; (2) constitutional standards; or (3) judicial decisions. Public policy is substantial if it is of overreaching importance to the public, as opposed to the parties only. The court does not recognize administrative code as a source of public policy. POINT: which sources are clear & substantial. Is the source of public policy of the kind sufficient to support the claim? The Utah code is too broad because it is not clear and not

specific, not directed to this particular issue/problem. Court indicates that Federal Law can form the basis for public policy. The administrative Code & the Federal Administrative regulations are NOT recognized as sources of public policy, though they seem to be right on point, because there are not a proper source of public policy. Unless the legislation clearly recognized, and here it was not the purpose of the administrative regulations, the purpose of those codes/regulations was not to support the E;E. Though there may have been an actual violation, it was not enough to claim public policy.

Statutory Public Policy

CEPA NJ statutes. Creates whistle blower protection. Includes both internal and external reporting, needing a reasonable belief and objective good faith, open in terms of sources. See pg. 212 &213. Why higher standard for refusal or whistleblower? Refusal has more gravity. If you can do refuse, could harm workplace so more disruptive. When you refuse to do something, it shuts down the business is not economically efficient, however, reporting does not create as much harm because is does not shut down the work. The refusal theory is broader than whistle blowing. CEPA contains internal exhaustion. Note 2. May create reputations harm to ER because EE may be wrong and actual costs associated with an investigation. EEs have duty of loyalty. Seeing an ambivalence of whistles blowers, rarely win in court. Maimone v. City of Atlantic City Supervisor stops prosecuting prostitution, so the detective gets demoted to patrol. Detective claims Adverse employment retaliation. Must show that his conduct was protected and it was the cause of the adverse employment retaliation. Is this a whistleblower case? No. Was he fulfilling a public duty? No affirmative duty fulfilled. Was he exercising a statutory right? No. was there refusal to commit an unlawful act? No. was there an unlawful act? No. So, this lies outside the scope of categories, really it is an objection case. The NJ statute is broader than the traditional categories, so the definition of whistle blowing is VERY loose. The detective was objecting to a policy of the department. 34:19-3(c )(3) the catchall. Object to and refusal claims in NJ are broader than traditional whistleblowers. There is not internal exhaustion, only applies to whistle blowing to supervisor. Issue: is there a clear mandate of public policy subject mater of the Ps objection implicated public policy. POINT: clearly public policy is implicated. Dissent: policy should not be dictated by one officer, there is an allocation of resources and decisions.

Note: there is an ambivalence, increasing number of protections but when it comes to enforcement, very few EE Ps win. Collins v. Beazer Homes USA, Inc. Protected conduct must be a contributing factor. whistle blower under SOX. Federal court. 1. Where you see disclose based regimes, frequently contain the most far reaching whistle blower. 2. Whys SOX case? Alleged misconduct of company paying bills because friends, ie divesting corporate funds, so SOX is super broad, but shareholders are affected, bec publicly traded firms often implicates SOX, so long as it has a material affect. Hold: fell within protection . Causation: failure to communicate with supervisor and temporal proximity.

Chapter 5: Traditional Torts in the Employment Relationship

1. Intentional interference with Contract a. Address circumstance when 3rd part unjustifiably interferes with a contract/business relationship between 2 others. 2. Defamation 3. Intentional infliction of emotional distress 4. Fraud Where physical injury is involved generally workers compensation, so no tort based claim. Dealing with non-physical injury cases. Negligent Infliction of Emotional Distress. NIED When can you treat one who is within ERs as a 3rd party? That is what troubled Easterbrook. Easterbrook said greed is not a motive. Whether or not the action is privilege, then solely for the benefit of ER, so cannot give rise to tort. Easterbrook Point 2: what might be personal motive could be a collateral matter, suggesting he categorized improper motives as VERY narrow. Pg 245: Restatement: claim against new ER by old ER. 3 types of jurisdiction: 1. small number of jurisdictions simply do not recognize tort, dont consider supervisor as a 3rd party. 2. There cannot be interference of supervisor unless the sole purpose is furthering a personal end, usually acting within the role of supervisor. 3. Might allow recovery in mixed motive, might allow for but for causation.

Intentional Interference with Contract/ Employment Relationship.

a 3rd party. Eg. Competition between ERs to ER claim sue 3rd party for intentional interference 2. allegation 3rd party, EE bring claim Courts refer to relationships, not K, so includes at-will EE. 1. Kumpf v. Steinhaus P claim intention to cut out P via merger. Business Judgment Rule: limit to board of directors decisions, not exactly what we are dealing with here. Interested parties involved. Reason: flood gates issue. Not really involve 3rd party. Conceptual difficulty: when and to what extend do we treat supervisors acting as supervisor as a 3rd party? How to deal with multiple motives.

Defamation
Restatement (3rd) of Torts 6.01 (draft, 2009): Elements of Defamation: a. false & defamatory statement concerning another b. an unprivileged publication to a 3rd party c. fault amounting at least to negligence on the part of the publisher; and d. either actionability of the statement irrespective of special harm OR the existence fo special harm caused by the publication. Government Micro Resources, Inc. v. Jackson Alleged defamatory statements must be false & defamatory. Statements made to a 3rd part, publication is met, not have to be in writing. When hired, at less pay because dismissed for defamation. Where the statements false? If the statement was meant to be a fact, then yes. Fact vs. Opinion: loot at context: factual presuppositions, opinions that contain certain factual things could be falsified. Statements of fact must be false. True statement = absolute defense to defamation theory. Defamatory tends to harm ones reputations in the industry. Proof of actual Malice: to get punitive damages you need intentionally / knowingly false statements. More than proving negligence. Fault requirement in VA would be satisfied with a showing of actual malice deliberate interference. Actual Malice is the standard that normally applies when there is some qualified privilege. A qualified privilege can be overcome by showing of actual malice. Often ERs say not a good fit to protect ER, or Creative differences. Notion of Compelled Self-publication: narrow doctrine. See p g 260. Note 4. Privileges: qualified: based on Public policy and the interest in the community and furthering public policy interest, etc.

There is a concern that Defamation claims might kill/ chill free speech. Eg. Randi. W. case the public policy of giving information, the ideal of privilege is that it protects the concern of giving information. When looking at Privilege: 1. does it attack? Narrowly confined? 2. If it does, is it overcome? If publication has gone beyond the circle, then no privilege. Shannon v. Taylor AMC/Jeep Criminal activity clearly qualifies as defamatory. Common policy interest Pg 266. The ER did not have a qualified privilege to defame. Privilege: sharing information with the government, prospective E;Rs, other EEs. Qualified privilege overcome via actual Malice. Defamation makes punitive damages available. Fear of defamation ahs had an impact on the part of ERs. The notion that created lack of information in market place, so fear of sharing information may cause harm.

Intentional Infliction of Emotional Distress

Elements: 1. actual intent/knew & recklessly disregard ER context, sometimes courts say negligence is enough, which is a lower bar 2. conduct is extreme and outrageous 3. causing distress 4. distress so severe no reasonable person should be expected to endure it. These claims are rarely successful. Workplace has different effect in different jurisdictions. Subee-Hirt v. Baccigalupi Wanted to get the EE to quit. Conduct found to be extreme and outrageous. Dissent: Should there be a lower bar to outrageous conduct in the employment context? Public Policy shocks the conscience, resistant because it exists in tort, nonetheless the bar is very high. 2. Similarity with Public Policy gatekeeper function, deference to ER, setting bar high. 3. When tort is likely to success? Not often 4. Europe: workplace bullying laws. US: harassing behavior only really arises under discrimination. [note: bullying in legislation is emerging in education and cyber fields. ] 1.

Opinion vs. Fact in defamation context: falsified facts underlying an opinion leads to defamations. There are few statements that would constitute pure opinions. Dont lie x might not be falsifiable, if the opinion is based on true statements, then it will not support defamation. Defamation is often pled, but not often successful except in cases of harassment or privacy implications. The work environment might change expectations of works. The level needed for outrageous behavior. NEID: Negligent infliction of emotional Distress: 1. need to show physical manifestation of emotional distress. Might mean its a workers compensation case depending on the jurisdiction. 2. Must be with in the zone of danger of physical injury/impact. 3. He/she negligently placed in the zone of danger reasonably feared fro safety, suffered emotional distress with attendant physical manifestations

Fraud
Shebar v. Sanyo Business Systems Knowledge belief in falsifying. Promissory estoppel. P must establish falsity of statement and the persons understanding of falsity AT The TIME it was made. Tort theory of Fraud: very different from making a statement inducing detrimental reliance that was not intent to defraud. Need actual fraud at the time to get punitive damages for fraud even thought the Promissory Estoppel standard is easier to prove. Note 5 pg. 280: more general statement can not support theory of representation like not giving accommodations.

Chapter 6: Workplace Privacy Protections

Five circumstances when privacy implicated in the workplace: 1. test 2. ? 3. monitor surveillance 4. regulate offsite conduct 5. revelations of private matters Basic framework of protective privacy interest as same for all 5 scenarios: 1. Sources of protections 2. Framework

3. Deference/ balancing: EE vs. ER interests 4. Private Ordering/ Ks

Sources of Privacy Protections

Constitutional Protections City of Ontario v. Quon Police officer texting on government phone. Source of protection: 4th amendment. Communications Act, federal govt (all they need is consent), CA constitution interpreted to apply to private employers [Quon can be applied in the private sector]. 1. was a privacy interest implicated? Whether or not reasonable expectation of privacy existed? [4th Amendment only protects if there is a reasonable expectation of privacy] 2. was the intrusion/search/test/ monitoring reasonable in light of the circumstances? Kennedy: policy of auditing: court looks at Operational Realities, a contextual approach. Would P have a reasonable e expectation of privacy? .Contextual approach- overtime likely that reasonable expectations of privacy will diminish. ER can say the EE has no expectation of privacy. The ER via private ordering can eliminate reasonable expectations of privacy. Scalia: norm in the private sector might influence with reasonable privacy expectations in public. Categorical Approach toward reasonable expectations of privacy. 1. brightline rules may lead ER to be on notice, so if they to avoid, then they willp change the work place to conform 2. pracices today and juges perceptions today will drive determination of whethoer or not there is a category protected. While approach might lead to more or lass protection? It is hard to say. Most courts apply operational realities, though this is not efficient because it is case by case. There is incentive to ERs created to put policies into place that reserve the right to monitor at anytime and engage in monitorint to ensure that there is NO reasonable expectation of privacy. In Quo, the ER made the mistake by encourgaign the EE to believe the text messages might be private. Reality, in practice, is that often the approach is a categorical one. Special needs exception to the 4th Amendemnt arises for drug testing in schools and helps deall with warrant requirements normally to intrude if they have probable cause. Standard: ER must articulAte a legitimate work related rationale

Intrusion/means can not be excessively intrusive. Intrusion/methods/means must be related to the reason for the intrusion. A reasonableness standard sets a low bar. The 9th circuit least intrusive means was too onerous a burden according to the court. Leeway/deference is given to government agencies at ERs. The government agency is a regulator and law enforcer, they have performance standards, and the government needs fort he work place efficiency and the need to protect the tax payer. Sometimes the 4th amendment gets applied to private parties because of the nature of state laws. Oconnor and Quon after apply to private parties. Electronic cummincaiotn: whether or not there ought to be a right to privacy on the ER provided equipment? Is it a dead end issue? Why should protection extend to the ER provider equipment? Note: Novacel is alone in using the frist amendment speech as a course of private ordering. Sources: federal constitution, state constitution, statutory, tort (PP, intrusion upon seclusion), contract. Framework : Quon 2 step inquiry 1. reasonable expectations 2. was the intrusion reasonable ie. legitimate work related justification and whether or not there was reasonable means employed. Balancing/ deference Private ordering Greater privacy interest at stake, there may be more scrutiny. Borse v. Piece Good Shop. Allege breach of privacy, urine test for drugs. Current employee refuses to take the drug test. Public policy? Generally limited tort to clear and defined public policy. P claims the sources of public policy as: 1) US constitutions providing reasonable expectations of privacy over bodily fluid, us constitution protects against government actions not private actors, 2) state constitutions, 3) PA common law, tortuous invasion of privacy, intrusion upon seeks. PA takes a broader approach to finding public policy for protecting privacy because only neef common law, not specific statutory/ constitutional sources. Was it highly offensive? that is a question for the jury. Need an intrusion, in the case at bar, there was no intrusion. Link tort claim to the instruction doctrine. Catch 22: if consent, then defeat the reasonable expectations or reasonableness of the intrusion, or ig not consent and not pee, then there was no intrusion to be upset about. The catch 22 arises when courts are not willing to broaden. Intrusion Upon Seclusion Tort: (Borse LAF) 1. ) must establish place of solitary seclusion or private affairs. Concerns

2. substantial and highly offensive intrusion to the reasonable person . Ps burden. More deferential or same as Quons objective standard? Very similar. POINT: here P may be entitled to damages for alleged wrongful discharge. Notes give examples of the exceptions. If the jurisdiction requires 3rd party impact/ harm to society, one could argue intrusions in the work place do not et protection because they are not a 3rd party, but allowing no direct 3rd party harm, possible public benefits. Many statutory Protections have gaping holes. See pg. 320 Private Ordering exempts protection of privacy. Polygraph Act generally bars use, general prohibitions. GINA Genetic information non discriminations act, few ERS engaged in genetic testing ADA- reasons to protect privacy. Contract Privacy Protections Rulon-Miller v. IBM Alleged discharge because dating competitor. IBM large company, long term EEs. Implicit contractual relations, Watson Memo policy, theory comes from implied in fact contract theory, based on policies and procedures of the company and continued adherence to those policies. EE is not likely to wi in a handbook case because ER can have clear disclaimers of at-will. Even if let cause for ER to discharge, do they need to show ACTUAL evidence of harm or is an inference enough? Eg. Of K protections: collective bargaining agreement, just cause clauses, implied in fact contract (handbook) Balancing: how much deference is and or should be accorded to ERs engaging in intrusions where there are expectations of privacy? National TEsaury EEs unions (customs) v. Von Raab (1989) Searched only be reasonable; deferential standard to ERs. Court said overbroad, as to those with firearms, engaging in direct activity. Then government interest was enough. Preventable potential harm is greater then infringement of rights, lower expectations of privacy, but still expectations of privacy. Dissent: need compelling reason and problems concerned about in order for government. Point: how much do we defer to governments articulated interest, or do we make them show problems to be able to infringe? Limits to Consent? Feminist Womens Health Center v. Superior Court (LA)

Cervical self examination demonstration. Extent to which, if any, there are limts to conse. Goes: to demystify womens body and health, de-medicalization of the issue, claim it is central to what they do. 1. Implicates a sphere of privacy (operational realities, dimisnished expectations- clear reasonable expectations of privacy) 2. Is the intrustion reasonable? Note: Quone: private ordering can affect the sphere of priacasye, then wehtehr or not reasonable expectations of privacy exists. Qoun really focuses on reasonable expectations of privacy, Van Raab suggests even if reasonable sphere exists, it could be diminished. Source: CA constitution articulates public policy, so can bring case. Framework: 1. Legally protected privacyright 2. Reasonable expectationsof privacy in the circumstances 3. Conduct by defendant constituting serious privacy invasion Balancing of what serious invasion. Cervical slef-examination not absolutely necessary but court acknowledges historyand mission of the centers reputation of cnaodr. Court: says consent exists, however here it was a reasonable condition of employment pg 363. Serious privacy interest, meand may not have been close enough. YET Consent Tumps. Point: Shows how consent can trump/prevail in showing that an ER is reasonable. Consent renders the intrusion reasonable. Whether intrustion is reasonable may depend on context: when did consent occur? Applicants vs. EEs already hired. Close tie of invasion of privacy to mission. Potential limits: 1. Clarity 2. Positions of person agreeing- applicant vs. EE 3. Nexus 4. Alternative means 5. Shocs the conscience 6. Let the market regulate (bargaining power) 7. Form of consent (written?) Monitory risk related reasons, part of general expectations. Should there be a Rigth to privacy in the work place? What types on autonomy interest should be protected and how?

Chapter 7: Workplace Speech and Association Protections Course issue is even greater.

1.

Very few protections in private sphere (except statutory and state level) in public sphere there are more protection 2. Balancing competing interest if ER and EE to what extent do courts actually engage in balancing, or do they adopt a categorical approach 3. Trajectory toward greater deference to ER Disputes arise from : 1. EE speech at or related to work context 2. ER regulations over coercion of retaliation for EE association religions etc associational preference 3. ER response to attempted regulations of EE speech/ expression on the outside of work related to work, reference work, non related to work. Speech: Source of speech protection Connick v. Meyers (1983) Transfer, oppose transfer, sent questionnaire to colleagues, district attorney office. Claim that speech of survey was protected. Speech in the work place. Frame work : 1) matter of public concern? EE burden, 2) balancing EE interest v. ER interest in efficiency- ER burden to say disruptive, justified interference with speech EE bear burden of showing matter of public concern ER bears burden of showing distruption is to great as to justify interference with speech

Howe much deference to affor dot eR? Crsical issue. Hereh, level of public concer was low because other questions address how the office is functioning internally. Could undermin the publics faith in justice sytem, need braoder social significance. Mostly internal grievance, so court usesd the balancing. ER did not need ot show tha EES actions caysed distruptions, not a rigorous standard. Pg. 370-1, N.2. mere internal speech may not be a matter of public concern, however internal speech CAN be published speech to outside public.

Snyder v. Phelps.

First amendment shields tort liability from picketing outside funeral. Dpend on whether speech conerns a matter of pulic concern. * contextual inquiry, content from and contenxt of the speech. Despite direct of speech, it was about matters beyond a particular soldier. Guinere 131 S.Crt. 2488 (2011) Repition clause, claim that retaltions against him violated the petition clause, court applied speech framework to the the petition context. As a general matter a petition filed in an internal system will not trigger public affect , not involve a matter of public concern. Law suits are distruptive to ER , so even if a matter of public concern involved , then still may be hard for P to overcome. Courts tend to focu on strength of ER efficeny claim. Efficiency viewed more important than matter of public concern. Connic viwed as limiting speech. No EE friendly; however the framework is more protective than post- Garcetti.

Garcetti v. Ceballos. DA defense attonry find affidavit incorrect. Speech addresses public concern becase Government EEs justice and truth, goes beyond the internal system bec affect the external; about the integrity of law enforcement. The seech was kept internal, not publicized to public. Speech within the official job duty is not protected even if it invoices matters of public concern. Narrows the protected speech at or realted to work. Speechnot within the official duties (eg. Rankin Case). Promotes more disruptive speech external, but then the ballacnign issue; gate keeping by drawing the ilne of official duties more efficient. Narrow to look at what thee is actually expected to preform; there are other Statutroy claims that could prevail. Dissent: constitutional analysis shoud not depend on statutory interpretations. Majority: when speaking asnan EE, acting as an egeny of the government, agency principels apply. Abalcning: court moves away from balancing because it its highly protecteive. Dissent: says balancing is highly deferenctialto efficiency and effecieincy of the ER. Hwoever, the notion that the categorical rile that flows from the balancing of interest leave ad hoc balancing in favor of categorical rule. Who gets to decide what is realted to work and what is not? Higher ranking official shave less protection because more likely to be distruptive.

Lower level workers have greater protection generally. Academic treatment: Adams v. Trustee NC Willimington Garcetti does not apply, Questinos as to whether GArvettis official duty immunity apply in academic context; discusisn indicates that some of gartcettis may apply.

Didle v. City of Chandler We dont know about speech away from work and unrelated to work. Whether or not government ER has sufficiently justifiable for interference with speech. Roe case- office referenced his status as an officer with his uniform etc. 1)whether in order to receive ANY protection off site conduct related to a matter of public concern? 2) how close must the nexus be between on works speech and work speech? 3) what government interest would be sufficient to justify expressive activities conduct of which is unrelated entirely to work? Dible court suggest not involve matter of public concern Police officer; porn/sexually explicit web site. Row: made specific reference to the work place. Dibble: took some precaustions. Activites that discredit the department. Regales of whether or not realted, the corut says the result is the same. The nature of Dibes job suggests that Dibles speech is realted to conduct. It had the practical effecto of bringing the office ot disrepute. Because not a matter of public concern, EK can distupt, therefore , under the Picking Connick speech, his claim fials. Irony because publics conernce is what led the ER to terminate. If it was a matter of public concern, then the court would have to balance rights: 1st amendment id deferential to ER. Concurrence: different speech analysis, speech unrelated, and interference not enough. Heightened standard of scrutiny. Government need to show interference. . Union teacher case undeniably involves a matter of public concern.

Speech at Work/ About Work: Speech must involve a matter of public concern. Where speech interrupts too much __> no problem. Garcettie official duty.

Sexually explicit expression vs. embarrassing political expression? Private order: ER could expand duties, thus decrease speech, eg. Require report internal not protected. Speech Outside Work: Offsite conduct speech does it need to be a matter of public concern? Or more broadly protected because no work place connected? Where is the circle drawn? If we determine speech is beyond the circle, what government interest is enough to interfere? Can the government ER regulate and how much scrutiny/ deference should it be given?

If speech is not a matter of public concern, then speech is not protected. Should we limit private ordering to some extent? If unrelated, the framework is unclear and tends to be a form of balancing. Speech that needs the most protections is often the most offensive. Does private ordering play a different role with different natures of employment? When can EE expand circle of related public interest. If not related to work place, if speech then only protected if matter of public concern. If matter of public conern, the level of scrutiny is not clear. No clear definition of where the Related circle iswhat constitutes public relatedness, if public relatedness is subject to private ordering, then the circle of relatedness may be expansive. Collecting bargaining agreements may protect speech. Hatch Act pg 409 Private Workplace 1st amendment does not apply. Source is a big questions less protections. Emondson v. Shearen Lumber Products Expressive activity: associational political activity. P claim the Idaho Constitution as a source. Publlic Policy Claims try to link public policy to the statutory/ constitutions as source. No alternative source was available. POINT: Novasell based theory of public policy tied to state constitutions is a dry whole. Dissent: such a theory of public policy will chill political speech, and find cause of action for narrow exception. Note: Borse case: drug test, parallel analysis, use the intrusion upon seclusion tort. What if without protection certain interest will affect the legislative process expect for voting?

Federal Labor Law. 8A1 pg 413. Protections only applies to certain categories of speech, ie. Workplace conditions. Contracts: Rulon Miller Case is an example. Collective Bargaining agreements, professors tenure at private institutions.

Chapter 8 : Protections for ER Interest.

1. 2. 3. 4. Duty of loyalty (agency/fiduciary based) Trade Secrets Privately ordered terms (restrictive covenants, covenants not-to-compete) Intellectual Property Rights (inventions, creative works,

Themes: non competitions agreements is most contentious because other protections are very narrow. POINT: optimize competition. Protections creates incentives for Research and Development. Interest in competitions cuts both was for EE and ER because we want progress, competition, but also incentivize R&S, confidence in investments. Doctrines may overlap, individual facts are critical. Fairness considerations often trump.

Duty of Loyalty
Scanwell Freight Express v. Chan Claim breach of fiduciary duty for conspiring to breach fiduciary duty at will EE. (pg 433). May not compete/ act contrary to ER interests. Prohibits against competitors, usurping corporate opportunities. Limitations on the duty of loyalty. Privilege for planning and preparing to compete. When does planning and preparation end and competition begin? Policy issue of encouraging competitions. (notions of honesty and Good Faith/ Good Will). Vulnerabilities of principles to agents, information asymmetry, contacts. Punctilio of honor (meynhardt v. SalmonI miss BA) business opportunity. 1) EE may not act contrary to ER interest nor in direct competitions, however, may plan and prepare to compete. a. Distinction between mere preparation and actual is difficult b. Amount vulnerability and rigor of duty may vary by nature of EEs position. Not able to solicit other EE to join, but you may inform other EEs you are leaving. Cannot compete for customers but can inform them you are leaving. Informing customers/EEs you are leaving, but must also inform your ER because must give ER opportunity to compete on fair ground.

HOLDE: erroneous instructions because they aggregated making arrangement sis not PER SE preparations, could be either planning and preparation or competition against new ER. NOTE: theory of conspiracy against new ER is like a tortious interference with K, so can be held liable for tort. Remedies: duty of loyalty carries remedies beyond normal K, when breach shown often much disgorge benefits. Sometimes shift burden to D EE to show that DEE did not contribute to the harm/causation. Limitation: once the relationship ends, so does the fiduciary duties for at will EEs, which is why non competitions agreements matters so much.

Non-Competition Agreements (NCA)

Post-Employment Restraints on Competition Non solicitations/ non-disclosure narrower The more narrow the prohibition, the more likely it will survive scrutiny. 3 approaches. 1. Blanket prohibition of NCA. CA, ND, complete bar. NCA are unenforceable because it hinders competitions. 2. Restatement f 2nd of Contracts. Most jurisdictions. Enforce NCA only under certain circumstances, only enforce the reasonable terms. a. Must protect legitimate interests to be furthered by NCA i. Cannot be that competition would occur, must be protecting another interest. b. Then NCA must be reasonable in scope i. Substantive, ie. Scope of activity ii. Geographic iii. Time c. Note: very fact sensitive, huge variations on what is permitted. 3. Treat NCA as a K a. Posner Approach, Chicago School. No jurisdiction takes that position. Outsources v. Barton (Illinois) EE opened competing business contrary to NCA. Majority: enough for a preliminary injunctions, real power is through injunctions. Illinois law governs. View extremely narrowly. Only enforce NCA when: 1) near permanent relationship between ER and long term customer, 2) confidential information of ER.

Here, no showing, so majority got it wrong and erred because of Ill. Law. Posner: generally things NCA should be enforceable, per ordinary K principles. Abandons the historical hostilely to NCA, and simple enforce them as Ks, part of the underlying policy debate regarding social benefits. Ren Metals v. Logan Metal works, left when refused pay increase. ER claim very high loss (25K) because of Logans performance ability. Signed a NCA not to work for 6 months. Courte: because what the ER taught him was not a secret, not enforceable. Human capital. General training can not be considered a trade secret. Losing s killed hard worker is NOT a legitimate interest. If we allowed training to provide reason to constitute a legitimate interest, then EVERYONE would use it. However, differentiate this case from training of a unique set of skills, costs often born by ER. Enforcement of Non-Compete: a. Fiduciary duties b. Trade secrets c. Protecting invention, copyright Most jurisdictions enforce NCA when: 1. Legitimate business interest 2. Reasonableness of scope,/substance, time and geography. Enforcement in context when court finds NCA non-enforceable. See note 8 pg. 483. 1. Reform 2. Blue Pencil (enforce reasonable terms and strike other terms, making the K invalid.) 3. All or nothing Other jurisdictions whether or not non competitions when EE terminated the relationship voluntarily? Was there a valid K? consideration? All Pats case. Advanced Bionics v. Medtronics (indicates where the area of law is going). Choice of law, choice of forum generally enforce unless unduly burdensome. Agreement had choice of law clause. Choice of law going to apply in circumstances when it does not defy important public policy, given CA doctrine on whether or not CA finds them enforceable. Filed in CA to contest the CA policy violated CA public policy on NCA. CA law says that NCA are unenforceable as a categorical rule. Min. Law uses a reasonableness standard. Which state has a greater interest in deciding the question of unenforceability? CA prohibits NCA as a matter of public policy. Why should CA care? Because that is how CA attracts ERS from other parts of the country, and EEs. Enforcement of the K would be in CA, so CA has an interest in the matter because seeking ot regulate conduct occurring in CA. Ultimately both states have an interest. Sought ot bar suit in Minn.

Minn aggressive in trying to prevent the CA actions (note: the case was filed in CA first). Both Courts misbehaved. Violation of R. 11, to remove the case to federal court to prevent the temporary restraining order, ie. Interum relief, delay CA, federal court then removed the case to state course. Upheld the temporary restraining order, all courts have the same power to protect their jurisdiction. CA supreme court says should not issue TRO fore respect and comity of the other state. A race to the courthouse and race to judgment which needs full faith and credit. POINT: risk management through use of multiples contractual provisions. More likely that a K with arbitration clause that the arbitration clause would be enforces. Relief sought: injunction to stop the other court. Injunctions are all about stopping the competitor and arbitration takes too long, so ERs do not usually include arbitrations clauses.

Innovation in Contract Drafting

Heder v. City of Two Rivers Fireman, training to be repaid 3 years, fireman quit at 2.5 years and the municipality withheld the package. ER reason: not restricting the former EEs ability ot fight fire elsewhere. Then no a covenant not to compete. If NCA then enforceability depends on reasonableness. If not a NCA then general K law governs so more likely to be enforce. Key feature in determining if repayment provision is a NCA. 1) is the competition somehow defined? Repayment provision no affected by post employment type. 2) even with anti-competitive effects, damped because not restricted in what former EE could do next, additional training than required, so the EE benefited with a cost to the city. Limited by 3yres within employment. Point: might have some anti-competitive effects, but less onerous than other modes of anti-compete. Note: eg. Of bonus which vests in the future, arguably less onerous than NCA. American Consulting v. Schuck Step down reimbursement schedule. Court: liquidated damages or employment penalty? Find: penalty clause, so court could not enforce it. Critics limitation on liquidations damages: does not treat it as Non-compete clause. Concern about liquidated damage clause because actual damages could be much less. Court: cost of what paid EEs is far below. Provide less protections, but liquid damage are more likely to be enforceable. Confidentiality agreements more likely to be enforced because not create anti-t competitions conditions. Defer compensation that does not vest until later incentivize workers to stay. Eg. Use of stock as compensation and automatic need to sell at the time of EEs leaving company.

Chapter 9: Antidiscrimination

1. Individual disparate treatment 2. Federal protections: a. Title VII of 1964 Civil Rights Act b. Section 1981 (race/protected classes) c. ADA d. ADEA age discrimination 3. State laws supplement federal protections Policy Disputes and Tensions: a. b. c. d. e. f. g. h. i. j. Why? Economically make sense? How to define discrimination? What are the best methods/ means of addressing effectiveness? Intent to discriminate? Meaning? Stereotypes? When should facially neutral hiring/firing practices be deemed discriminatory? When is disparate impact discrimination under laws? To what extent does/should law conform? Unconscious forms of discrimination?

4 Models of Anti-Discrimination Law: Protective: 1. Disparate Treatment a. Claim of different treatment based on status, where status was a motivating factor, and intent. 2. Disparate Impact a. Facially natural policy having a discriminatory effect 3. Harassment a. Circumstances when one or more persons create hostile work environment based on persons status. Active accommodations 4. Reasonable Accommodation: a. Protect certain class by requiring ER accommodating, affirmative mandate as opposed to protections. Eg. ADA

Disparate Treatment

Slack v. Havens (4) women, black, terminated because they had to do laborious heavy cleaning, white women not forced to do that cleaning that day. . at-will EES. If they were cause EEs, cause would be insubordination. Only ERs are prohibited from discrimination, must show the intent of the ER by their condoned conduct. Discriminative motive: often to question of supervisors motive. Evidence: transfer of white EE and comments of supervisor statement not reflect animus/hatred, rather reinforcing a stereotype. Circumstantial evidence of discriminatory motive. Similarly situated employees treated differently evidence supporting the inference of discriminatory motive. What are similarly situation EEs? How clear are the job duties defined? POINT: can action upon stereotypes be a discriminatory motive? YES! You dont have to show animus to show a discriminatory motive. Hazen Paper v. Biggs Note 8 on Pg. 516. ADEA protects only those over 40yrs. What does age discrimination mean? EE denied vesting of pension benefits which tie in with age. While pensions vesting correlated with age, mere correlation is not enough (might have ERISA claim but not ADEA), where there is a mere correlation, ti is not enough. Eg. Senior EEs paid more and terminatedis that age discrimination? No because cutting costs is not age discrimination. Just because there is a correlation, not necessarily discrimination, there might be a disparate impact though. Eg. hipness in media context: to what extend is it stereotyping? Matters correlating with age do not per se mean discriminatory motive. Proving Disparate Treatment: Must have discriminatory motive. 1. Smoking gun evidence of animus (rare) 2. ER policy that creates a blanket discrimination base don stereotype (rare) 3. Comparative evidence what is an appropriate comparator? See Ash case N.4 pg. 523 McDonnell Douglas Corp. V. Green P claim reason not re-hired was because of his race. ER argue their reason was the stall-in. Judges Finder of fact until the 1992 Act, then there was a right to a jury. 1. Minority 2. Applied 3. Rejection, positions open and seeking other applications. Ps burden for a Prima Facie Case: a. Belongs to a protected class b. Qualified (only minimally, not need to show you are more qualified than others) c. Adverse employment actions (eg. Failure to hire/promote)

d. Other circumstances suggesting discrimination. See N.1 &2 pg. 520. Factors in the aggregate suggest discriminatory motive. Court suggests it should be an easy burden to overcome to eliminate the most common reason adverse employment actions (not qualified , etc). ADA have to be disabled. Who is covered? ADAA broadened the definitions. Once P establish the Prima Facie Case, Ds burden: a. Show a nont discriminatory reasons for engaging in the adverse employment actions. The reason could be bad, but not one that is discriminatory. Presumption of P, if D does not rebut, P wins. If D bears the burden, the P bears the burden that the reason was pretextual, ie. Reason offered was not the real reason. The ultimate burden of persuasion is on the P. P can also show that while the statement by D may be true, but evidence suggests it was not the real reason. Why might evidence of pretext plus adverse employment action one can infer an underlying motive/ inference. POINT: guide the lower courts in thinking about when one can infer. Notes: Burdine & Paterson cases: court suggest that if ER not come forth with non-discriminatory reason, then judgment for P. St. Mary v. Hicks pg 531. 1. ___ 2. Burden of productions, not persuasion 3. P burden of persuasion Once pretext is proved, P is not entitled to Judgment as a matter of law because the finder of fact could still reject the notions that the hidden reason was really discrimination. Trier of Fact does not have to infer Pretext means discrimination necessarily. What is sufficient to create a fact question? Hicks said that reason was false and that discrimination was the real reason. Three circuit Types: 1. Pretext Plus a. Pretextual reason and other circumstances that real reason was discrimination.

2. Pretext Alone a. Enough to get to a jury 3. Middle Approach a. Prima facie case AND b. Evidence of pretext MAY be enough when combined to infer a discriminatory mode. Pre Reeves: Scenario 57 year old, fired, drop in productivity, but tope 50%, hired a 28 yr. Pretext Plus Need more to tie evidence that the reason offered was not real reason and hidden underlying reason was age and not something else. No jury, maybe the reason was something else Middle Probably get to a jury Pretext Alone Gets to a jury

43 yr old, fired after 2yrs and hires a 35 yr old. EE was in top 50%

No jury because hired when older

jury

Reeves v. Sanderson Adopts the middle approach because the facts differed here, the pretext was enough to show discriminatory intent, but it is not ALWAYS enough, according to the court. In reality it was a pretext plus. PF case: Age, qualified working 40 year, fired comments and additional evidence he was replaced, D reason: not recording times sheets accurately. Pretext: not true: Ginsburg: concern that most of the time PF case and pretext is enough but acknowledges that sometimes it may not be. Court does not suggest that to prove discriminatory intent one must bring evidence beyond pretext. The pretext plus circuits added evidentiary burden to Hicks.

Disparate Treatment
1. Individual a. Motive/ motivating b. McDougal/ Burdine/ Hickes (Reeves) i. PF case Ps burden ii. Non discriminatory reason Ds burden

iii. Pretext Ps burden 2. Systemic a. BFOQ Individual Disparate Treatment Note: on adverse employment actions. See quote from Reeves on pg. 536. Middle or pretext plus approach, suggest pretext plus approach was wrong the whole time. Frequently PF case and Ps persuasion regarding the pretext is enough. Juries are simply instructed to determine if race, sex, national origin was a factor. Juries do not go through the burden shifting analysis. Ash case (see notes) what kind of comparator evidence was needed? How similarly situated were the parties? Patter of the Supreme Court rejected district court overly restrictive approach, but does not give much guidance of how to go forward. PriceWaterHouse. V Hopkins. High review for her work. P evidence that show as not famine enough sex stereotyping. Having sex stereotype of men held against women. Evidence that sex played a role is strong evidence. Ds argument: even if gender was a motivating factor, it was not the ONLY factor. Burden of persuasion shift to D when mixed motive because establish a breach of duty not to discriminate. Affirmative defense based on causation. Even if breach, because same decision, breach did not cause the harm. However, burden of persuasion shift to D usually burden stays with P. Burden of D to show lack of causation. Point: confirmation that decisions based on sex stereotyping by ER is intentional discrimination. Justice Occonnor concurrence: control suggest that P burden that sex not just motivating factor, but a substantial factor. Narrows the universe to which price water house defense may apply, only to direct evidence cases. Separate framework for Direct evidence cs. Circumstantial evidence, only need to show that discriminatory motive was one of the factors. Post 1991 act , only use price water house defense , the court may grant fees, but not damages. However, 1991 act did not resolve whether or not treat direct evidence case vs. circumstantial evidence case as different. Desert Palace v.s Costa: Supreme court. Jury instructions: sex only has to be a motivating factor, burden shift to the D. issue: whether or not instruction should have been there because there was no direct evidence. Supreme

Court: direct Evidence if discrimination is not required under mixed motive case. There is only one framework, regardless the defense is available. Glynn thinks that the Desert Palace does not get rid of McDonald Douglass framework. Can prove discrimination through direct evidence and circumstantial evidence. Reeves may give the minimal standard . What about statistical evidence? Price water causation defenses only as a defenses to damages not to liability. Inference of discrimination via direct evidence, circumstantial evidence of motiving factor, comparator evidence. ADEA Gruss Case: under difference standard. P burden discriminatory motive was a determining factor, ie. P bears burden of showing that AGE was THE determining factor. Ps prima facie case. Systemic Disparate Treatment Discriminate as part of ER practice. 1. Formed express policy BFOQ defenseaffirmative action? a. ER need a viable defense: Bona Fide Occupational Qualification. Limitations it its application. No BFOQ based on race. 2. Showing a pattern and practice of discriminatory behavior. a. Use of statistical evidence to show actual treatment of P group, ideal treatment of that group, compare the two showing a difference from which one can infer. b. How much of a difference? How does one describe / define the group? Relative comparisons. Courts are getting stricter and stricter, because expensive. It becomes a battle of experts and inquiry does not end with statistical evidence. See Hazewood. Note: systemic disparate impact does not require a discriminatory policy. Dothard Case prison, male, one who is not male cannot perform the function. Women serving as guards in other sex max prisons. Use comparators because if one prison does not let women, the it debunks the theory and the blanket statement is not satisfactory. Doctrine: Ds burden (high bar to overcome) 1. Show qualification. Must be reasonably necessary to business, central to the mission of the business, eg. Johnson controls case- essence of business and essence of job AND 2. Qualification must be reasonably necessary: a. Establish a factual basis, belie that all in groups are not able to perform. Dorthard Case (may come out differently today) OR b. Impossible/ highly impracticable to deal with protected EEs on an individual basis. How willing are courts to defer to ER?

Breiner v. Nevada Department of Corrections Prison guard women prison not want men, percentage quota of women because of rape. Worried about female inmate taken advantage of. See pg. 578 for the 3 reasons: 1. Rationale are to conclusory and overbroad 2. No basis in fact (even with history, not a basis for this particular reason) 3. Reverse concerns to title VII, stereotypes held by court How might a prison establish a BFOQ? Empirical studies differentiate prison / circumstances at this facility, use long history of success, etc. Systemic Discrimination Reasonably necessary fo the essence of the business. The extent to which customer preference/ marketing should be part of the analysis of what si the essence fo the business. Should customer preference count? Courts are very reluctant to take customer preference ought to be viewed as core of business for a BFOQ. Even if not essence of business, not practical way to show their reasoning.

Disparate Impact
Does not require showing of discrimination motive, balance: legitimate interest of ERs to hire people vs. barrier to not hire EES. Griggs v. Duke Power Discriminatory against African Americans. High school diploma or pass intelligence test to be promoted. P claim that policy unfairly impacted their ability for promotion because the test did not have anything to do with ability to do the job. Not a facially discriminatory policy, applied across the board, no demonstration of discriminatory intent. Differing outcomes on tests and other criteria by race. Disparate impact decrease access to job opportunity. Idea: get rid of facially neutral polices that disparately harm groups of people without sufficient adequate business related justification. Ps do not often prevail on disparate impact theory but it has had a profound effect on ERS because of the threat of disparate impact theory. Test: 1. Something that creates separate impact on a protected group 2. Is there a sufficiently disparate impact? 3. Is the criteria justified based on business necessity? Wards Cove case narrowed theory and 1991 act. New test:

1.

P isolate particular employment criteria causing a disparate unless two or more components cannot be separated. Ps burden 2. P must establish sufficient disparate impact. EEOC adopts a 4/5th 80% rate less that 80% of white can infer disparate impact, the bar is not high. 3. D bears burden of showing Business Necessity, burden of persuasion. Creates incentives for ERs to ensure they do not have to face a disparate impact case. Much ultimately depends on the level of deference that the court gives to an ER. Mechanism to challenge business necessity: P could show some alterative that has a lesser impact. Physical criteria, P could point to current officers that can no longer pass the physical test, but can still do the job. Look at comparator professions, other police departments, etc. Ricci v. DeStefano New Haven firefighters, city took extra efforts to make test so that no have disparate impact. White outperformed minorities resulting in a disparate impact. Affect the ability to get promotion, which is sufficient impact. Cit throws out the exam result because they were worried about the disparate impact. Whites and Hispanics who qualified for promotion under the tests sue based on races based disparate treatment. Whites won. Revers and grant summary judgment for Ps/ Actions by city constituted disparate treatment. String basis of the evidence would have been liable. When ER can demonstrate had ER not taken the action the would have been liable under disparate impact. If test was designed appropriately, then ER should not be able to throw out the test. Generally D bars the burden of business necessity, but here, court caused test unless ER had strong basis that D could fail to prove Business reasons. If other cities have testing regimes that do not have the impact then the D had burden to show. Dissent: standard should be good cause for believing accepts claim that changing job test to avoid disparate impact constitutes disparate treatment by the other group. Court suggest white firefighters had a claim because they had legitimate expectation of results being utilized. At the time adopted a regime was when the ER can take into account the disparate impact. Pressure is front loaded to the adoptions of the regime. Catch 22 because then they were sued by African American on the basis of disparate impact. Majority: summary judgment for the P. no evidence. Prong 3 (citys burden) could be no conclusion in favor of P. no wa P could have established prong 4. POINT: disparate impact plays a lesser role. Disparate treatment was the thrust of the statute. Court sought to reconcile the two theory vi strong basis in the evidence that the action was required for the disparate impact theory.

Dissent: disagreed on the test and application, but acting to avoid disparate impact IS disparate treatment (agreeing with the majority) See note 4: unintended consequences that broaden the interpretation of disparate treatment. Notes 8&9. Talk about job related business necessity. Note 10. African American brought disparate impact claim not only does the case view altering the test as disparate treatment (for which there is an out by ER) but also avoid disparate impact liability. Ricci provide new deference to disparate impact liability based on disparate treatment. Softening of ER for saving off a disparate impact claim.

Affirmative Action:
Race conscious decision is suspect no matter what. Per Ricci. Johnson Transportation Industry (earlier than Ricci) P challenging ER bears the burden of persuasion. Challenger of affirmative action plan carry burden once the prima facie the burden witched to ER. P must show affirmative actions is pretext or must show affirmative actions plan is invalid. Title VII- to be valid: 1. Any affirmative action decision must be per a plan due to MANIFEST IMBALANCE and effort to equalize. Must show conspicuous imbalance, plan need not be based on ERs past discrimination, no Ad hoc plans, no generalized desire to improve diversity, general goal of diversity is not a justification. Look at the work force, general labor pool 2. Affirmative action plan must not be unnecessary trammel the interest of the other group. Cannot categorically exclude, no absolute bars. Implication: plan must set forth threshold level of qualifications, and then it is ok to use race/sex to plan. Program MUST be temporary, ie. Intended to attain a more balanced work force, not not to maintain the balance. Harassment: Conceptual challenges: 1. When is harassment because of some protected class 2. When does harassing conduct rise to the level of adverse employment actions 3. When can the ER be held to account for underlying harassment If there is not ER liability, there is not claim (cp. 13)

Quid pro quo- supervisor: Almost always sexual harassment, theoretic possibility of converting ot religion or get fired. Hostile Work Environment: supervisor or co-worker HWE: conduct in workplace is spoiled by harassment and has risen to such a level that it changes the term/conditions of work place. 1. Because of (onacle) 2. Unwelcomeness 3. Severe or pervasive 4. Imputable to ER Oncale v. Sundown Offshore Services Same sex harassment. When can ER be held to account? Imputable? Did the discrimination happen BECAUSE OF the sexing the same sex encounter? Scalia: find this is potentially actionable. Who is protected? Not just women, men too. Court: hostile work environment theory covers sexual harassment of any kind and does not need to be motivated by sexual desire. But does need ot be linked with protected class because of the protected status. Hostility requirement must rise to objectively and subjectively hostile / abusive. Recall PWC acting based on sex stereotype that can be harassment because of sex. Sexual orientation is not (on the federal lever) a protected class. But could use a stereotype mode of making a claim of P not fit the stereotype of the gender. Point: the harassment theory really is a disparate treatment. Claim is only actionable id the discrimination is BECAUSE OF the association/group. EEOC v. Sunbelt Religion claim, Islamic. Harassment work, quits because of the harassment from co-worker. Coworkers at time have supervisory authority. Offensive religions charged names. Hostile Work Environment: 1. 1.harasment was unwelcome (file complaint with HR, fight, and quite) 2. harassment because of classed (names called due to religions) 3. sufficiently severe or pervasive such that it alters the terms of employment. (Subjective and objective inquiry. Reasonable person in the circumstances of alleged victim. Severe or pervasive, once incident may be sufficient severe. See note 2. Harris, they aggregate the incidents 4. imputable to ER

Circuit disputes of whether or not unwelcomeness is a needed element/independent requirement. Very subjective inquiry unnecessary. See note 6. It invited in lots of evidence going ot Ps character and off site conduct. Essentially allowed the D to put P on trial.

Harassment
Hostile Work Environment: 1. Because of 2. Unwelcomness (?) 3. Severe/ pervasive enough to alter the terms/conditions of employment AND create an abusive work environment What is required to hold the ER liable? Harris case (in notes): sever or pervasive sets high ba, but permits intangible harm. Tangible harm is not a requirement for actual harassment. Demonstration of psychological inquiry. Reasonably is perceived as hostile/abusive: subjective and objective inquiry. Severe or pervasive are separate inquiries. May be affect by WHO is doing the harassment. Eg. Supervise, number of co-workers. Although targeting is nota requirement, the more targeting, the more likely it will rise to a level of actionable harassment. Note 7: when is severe/ pervasive OK? Consent? By and large the answer is no to consent. Eg. Friends case as an exceptions. Note 11: constrictive discharge: higher bar, no reasonable person could be expected to tolerate the work condition. Constructive discharge is not necessary for recover. Title VII does not require no classification based conduct in the workplace, it creates strong incentive to have a tolerant workplace. POINT: the higher bar to have liability, still creates incentive for ER to act.

Chapter 13:Risk Management

Address measures taken seeking to reduce the legal risks/ liability. Second level risk management. ER attempt to reduce the risks.

Watson v. Home Depot

Caught in the act, then allege sexual harassment, change her work schedule as discipline and in response the EE complains of harassing conduct. Alleged harasser is supervisor. Defense available to ER: Burden on ER to persuade elements. Otherwise, defendant ER is vicarious liable. Affirmative defense: when there is NOT tangible evidence of harassment. Pg 894: a. Exercised reasonable care to prevent and correct promptly any sexual harassment. AND b. EE unreasonable failed to take advantage of any preventative or corrective opportunities. Watsons: no reasonable jury could thing the ER did not establish an affirmative Defense. ER vicarious liable UNLESS, the affirmative defense has preventative and corrective. Court finds adequate preventative measure and EE failed to take advantage. Debate over needing both a) and b). Bot: Baca Raton, Elrith. If innocent ER and innocent EE, then the ER should bear the cost wen the supervisor did the harassing. Who should bears the risks? ERs/ Co-Worker Harassment. Generally a negligent standard. EE bears the burden to show the ER failed to take reasonable care. Unless there was negligence on the ERs part, no ER liability. Affirmative defense: highly criticized because bullet proofing, how effective? Williams v. Spartan: supervisor made woman rent R-rate movie. Dismissed, 3 yeas to report. ER severance pay, EE harassing resigned. Ineffective polices. POINT: not enough to have a policy, but have to good faith efforts to prevent. Whether or not they could actually establish reasonable efforts. Point: an affirmative Defense, is a meaningful effort to support policy formal policy is not enough. Recall: Pretext plus/ Quon. Official duties, notes garrehty, just cause termination, It is NOT enough to have a formal policy, the conduct has to matter. Need policy + conduct = defense Takeaway: Reporting mechanism sufficient correcting, cannot lead back to the harrassor or those who are biased to alleged harasser, 3rd part neutral. When harasser is CEO, very difficult. Harassment: How do you hold the entity responsible?

Boca Raton affirmative defense. Pg 900-901: what occurs when harassment gives rise to constructive discharge. Sutters. FN7: 1. Bar is higher to establish constructive discharge than harassment 2. Constructive discharge will fall into category of tangible employment action only when there is an act associated with it. Colstaed court: provide incentive for firms to engage in proactive compliance efforts as a defense to punitive damages. Expansion of compliance efforts. Distinction: colestead is not a defense to liability, only punitives, unlike hostile work force environment. Colestead is an extension and may be more favorable. Reasonable Accommodation: A way that legislators seeks to address discrimination and failure to reasonably accommodate someone with disability. Focus on the ADA. ADA has disparate treatment, disparate impact, harassment,, too. When do you bring each claim? ADA protect qualified person with a disability. See definition of disability. Disability (narrowly defined) 1. Actual physical or mental impairment a. Physical mental impairments b. Substantially limits c. A major like activity i. ADAA give clearer definition, court cases: running, blindess, Bragden case: HIV because conceiving a child impairment 2. Record of impairment 3. Regard as 2008 ADAA amendments act broadening scope of protection of the ADA statutory protection. 1. Are there ameliorating efforts? (eg. Eye glasses), ADAA says the person still qualified as disabled. 2. Major life activities in statute: includes working 3. Regarded as : earlier case law: said must prove impairment. ADAA overturns, Sutton, subjected to action because actual or perceived whether or not limits a major life activity. Prior to ADAA: must have regarded EE as having an actual physical mental impairment that substantially limits a major like activity.

Post ADAA: broaden because you no longer have to show that the ER regarded the EE as having an actual physical/mental impairment that substantially limits the major life activity. In order to be entitles to a reasonable accommodation, one must have an actual disability. ADAA: included instructions on how to interpret ADAA command to broaden construction of the statute. Qualified person: can perform the essential functions of the job with or without a reasonable accommodation. Deference to ERS, quality of work/ attendance. Reasonable accommodation recognizes that disables workers may not be treated equally, because of affirmative assistance and accommodation. What is Reasonable Accommodation? 1. ER has choice, not mandate giving EE what they want. 2. ER need not create a new job category 3. ER not be punished late for making more than reasonable accommodations today. US Airway v. Barnett: Distinguish reasonable accommodation from undue harassment . who bears the burden? Seniority systems. Disabled from a back injury. Qualified for the position he wants (currently in temporarily) in the mailroom. P claim this is a reasonable accommodation. ER argue that providing accommodation that would trump a seniority systems would be an undue hardship. . EE burden to show the accommodation reasonable on its face. ER duty to engage . ER defense: undue hardship per Van San case. P burden: show the accommodation is reasonable o its face: proportionate costs/ benefits. Generalized inquiry not ER specific. ER while, accommodation is generally reasonable in this particular situation it would work an undue hardship. ISSUE: whether or not this accommodation is reasonable. Court: EE does not have an onerous burden, despite low bar for reasonable accommodation, as a matter of law the accommodation requested is not reasonable. Because it would defeat the expectations of other EEs. Dissent: it is never reasonable to privilege disabled EE at the expensive of other EEs. However the provision is the statutorily expressly indicates it will be unequal, by definition reasonable accommodation contemplates that there will not be equal treatment and costs to the ER.

Court focused on EE expectations even though there was no collecting bargaining agreement. Unilateral policy, not negotiated, yet court gives great weight to the expectations of other EEs. Later, could an ER disclaim that?

Lowe. V. Independent School District (ok) ER failed in duty to interact. Show mistakes parties make when negotiate things. Science Teacher has polio. Wheelchair access issues constructive discharge. Issue: did the school ER engage in the interactive process of reasonable accommodating? School did not answer/ respond to the teachers request. Independent process mandate + statute. Similar to an internal exhaustion requirement to avoid litigation. Barrier to facilitate statutory accommodation. EE obligation to request, EER corresponding duty to figure out what is reasonable in the circumstances. FN 4: long lost of request accommodations, clearly unreasonable. So the school should have just said that and they would have satisfied their obligation. Reasonable accommodation move to middle school is seniority system was not a bar. However, not a costly as it looks because at some point a child may need wheel chair accessibility anyways , or another teacher down the line.