I. INTRODUCTION TO EMPLOYMENT LAW A. HISTORICAL OVERVIEWS II. LEGAL BOUNDARIES OF EMPLOYMENT RELATIONSHIPS A.

THE IDEA OF EMPLOYEE STATUS

1. EMPLOYEES V. INDEPENDENT CONTRACTORS The Control Test o behavioral control: whether the employer has the right to direct and control the work when and where to do the work what tools or equipment to use what assistants to hire where to purchase supplies and services what work must be performed by a specified individual what order or sequence TRAININGemployment often receive training while independent contractors usually do not o financial control: the extent to which the worker has unreimbursed business expenses (IC have more then employees) ability to profit (IC has an ability to profit whereas employees do not) extent of the workers investment (IC are presumed to invest more) extent to which workers makes services available to others (IC offer their services to a wider market) how the business pays the worker (IC are usually paid a flat fee whereas employees get a wage hourly, weekly, or yearly) the extent to which the worker can make a profit or loss (IC generally can whereas employees cannot) o type of relationship: is there a written contract? are there benefits? (such as insurance, pension, vacation pay, and sick pay) permanent/indefinite (employee) or for a specific project or period (IC)? are the services performed by worker a key aspect to businesses regular activity? (if so then the business is presumed to be more likely to retain the right to control the workers activity) o major criticisms: (1) factors are not weighed, non-dispositive, and do not apply in every case (2) rigid/formalistic and is a one-size-fits-all test used without regard to the many different context in which it is applied (example- there may be good reason to classify a worker as an employee for purposes of Employment Law but classify that same worker as an IC for purposes of taxes and employer vicarious liability) The Economic Realities Test: factors are un-weighted and non-dispositive 1. a limited amount of the workers investment in facilities and equipment 2. the nature (close supervision) and degree of control (high) retained or exercised by the company
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3. the workers limited opportunities for profit and loss 4. the small degree of the workers independent initiative, judgment, and foresight in open market competition with other required for the success of the operation 5. 5. the high degree of permanency of the work relationship 6. The broad extent to which the services are an integral part of the companys business DiChiara Test 1. degree of alleged employers rights to control the manner in which the work is to be performed 2. alleged employees opportunity for profit or loss 3. alleged employees investment in equipment or material required for his task 4. whether the service requires rendered requires a special skill 5. the degree of permanence of the working relationship 6. whether the services rendered were an integral part of alleged employers business National Labor Relations Board v. Hearst Publications (*has been overturned) o o Facts: News publishers refuse to collectively bargain with union representing paperboys because they didnt consider them employees under the NLRA Holding: Union should be allowed to collectively bargain because the paperboys are employees under NLRB. The Court applied the control test to determine that the newsboys (full time newsboys and checkmen) were in employees. Because they rely on wages paid by publishers, and publishers set the minimum prices and give them equipment they are considered employees. Rule: Apply the control test to determine if individual is employee or independent contractor. What if the newsboys had the ability to set their own price for the papers? It would be a more difficult analysis because they would have control over profit however the control test factors are weighed evenlymost focus is on how much control the entity has.

Nationwide Mutual Insurance Co. v. Darden o Facts: Nationwide allowed P to enroll in company retirement plan so long as he sold their insurance. Contract provided that P would forfeit this retirement plan if he sold other insurance within a year of termination. P is terminated and begins selling other insurance. Nationwide rescinds his retirement plan and P sues under ERISA. o Holding: Remanded to determine whether P is an employee under the agency test (CCNV v. Reid) skill required source of the instrumentalities and tools location of the work duration of the relationship between the parties whether the hiring party has the right to assign additional projects to the hired party extent of the hired partys discretion over when and how long to work method of payment hired partys role in hiring and paying assistants whether the work is part of the regular business of the hired party whether the hiring party is in business provision of employee benefits tax treatment of the hired party

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Clackamas Gastroenterology Associates v. Wells o Facts: Bookkeeper was fired and wanted to file a suit against her employer under the American Disabilities Act for discrimination. There is a 15 employee minimum in order for her to be entitled to protection under the ADA, there were 15 including the 4 partner doctors, so the question is whether the partners are considered employees or shareholders. o Holding: Remanded and reversed case. Shareholder-directors or a professional corporation can be employees if sufficient control is exerted over them as in a typical master-servant relationship. SO THE 4 PARTNER DOCTORS WERE CONSIDERED EMPLOYEES? real partner = shareholder = equity in the company o Rule: Apply the control test: 1. can the organization hire/fire the individual or set the rules and regulations of the individuals work 2. how much does the organization supervise the individuals work 3. does the individual reports to someone higher in the organization 4. how much does the individual influence the organization 5. did the parties intend the individual to be an employee as expressed in written agreements or contracts 6. does the individual share in the profits, losses, and liabilities of the organization Vizcaino v. Microsoft Corp. o Facts: Microsoft employs two workforcesone of core employees and one of freelancersthat essentially do the same work under the same supervision. The difference is the freelancers signed a contract that states they were independent contractors ineligible for health and retirement plans but received more pay. They sues under ERISA. o Holding: Freelancers were entitled to retroactive benefits because they were employees in their responsibilities even though they signed papers saying they were independent contractors. o Rule: Just because you call someone an independent contractor doesnt make it so; you have to look at the specifics of their job. An employer cannot contract around a statutory or common law definition of an employee. Connor v. Pier Sixty The factors the court found dispositive were that they were supervised by the same people that Pier Sixty supervised and they provided both training and uniforms. o NOTE: Some employment laws exclude certain employees from coverage. (See FLSA exemptions). Many employment rights are non-waivable. Courts have held that employee agreements to waive FLSA minimum wage and overtime rights are unenforceable. o Some employment rights are waiveable: i.e. the right to a jury trial mat be waived by signing an arbitration agreement and the right to participate in ERISA employee benefit plan is valid so long as the waiver is voluntary and knowing. o An employer MAY NOT use a contract to make an end run around a common law or statutory definition of employee!! (Vizcaino)

2. STATUTORY EXEMPTIONS, SMALL EMPLOYERS, AND JOINT EMPLOYEES small employer exemptions: employment statues often exempt certain types of employers either from the definition of a covered employer or from being subject to some or all of the statutory provisions. example: Why does the ADA require an employer employ 15 employs in order for the statute to apply? Whats the reasoning?

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Cost of compliance. It will cost you more to comply with all of these regulations if there are only 2 or 3 employees. Government says its too large of a burden to make these smaller businesses apply because the costs for them would be too great. The employees of these small businesses can have remedies under state law even if they cant depend on the remedies of the federal law.

joint employees: employees of two or more closely-related companies (ex. contractorssubcontractors or franchisors-franchisees), these types of workers are employees of both companies for purposes of employment laws FLSA finds joint employment when: 1. employers arrange to share a workers services 2. one employer is working in the interest of another employer in relation to that employee 3. the employers share control over the employee or the company employing an employee controls or is controlled by another company Zheng v. Liberty Apparel Company o Facts: PL worked for several Contract Corporations that assembled clothing for Liberty Apparel Company. PL alleged overtime and minimum wage violations of the FLSA. Both partie agreed that the PLs were employed by the Contractor Corporations but disagreed over whether Liberty was a joint employer. District court found that Liberty was not the PLs joint employer. o Holding: Reversed and remanded. o Rule: The district court did not consider many factors pertinent to economic realities test for joint employment, including: 1. were the manufacturers premises and equipment used 2. whether contractor corporations had business that could or did shift as unit from one putative joint employer to another 3. was the work completed integral to manufacturers process of production 4. can responsibility under contracts could pass from one subcontractor to another without major changes 5. how much manufacturer supervised 6. did employees worked exclusively/predominantly for that manufacturer leased employees: a lessor company hires workers and leases them to a lessee company, the lessee pays the lessor, the lessor pays the workers wages, benefits, and payroll taxes o does not allow the lessee company to avoid employment laws, the IRS considers leased workers to be employees of the lessee if the lessee directs the workers as to the work to be done and how to do it if a worker functions as an employee, the IRS will consider that person an employee regardless of the label the company attempts to affix to it

B. THE HIRING PROCESS

1. LEGAL RESTRICTIONS ON JOB ACCESS

Wardwell v. Board of Education of Cincinnati

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Facts: School teacher brought an action against BOE rule stating all teachers hired after a given date (in Cincinnati) had to establish a residence within the citys school district within 90 days of employment because this infringes upon his constitutionally protected right to travel. Holding: The right to INTRA-state travel is not protected by the Constitution, apply rational basis, which there is here. Rule: Government employer can restrict job access where it has rational bases for basis for restrictive measures such as:
1. hiring teachers who are highly motivated and deeply committed to an urban

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2.

3.

4.

5.

educational system, teachers living in the district are more likely to vote for district taxes, less likely to engage in illegal strikes, and more likely to help obtain passage of school tax levies, teachers living in the district are more likely to be involved in school and community activities bringing them in contact with parents and community leaders and are more likely to be committed to the future of the district and its schools, teachers who live in the district are more likely to gain sympathy and understanding for the racial, social, economic, and urban problems of the children they teach and are thus less likely to be considered isolated from the communities in which they teach, the requirement is in keeping with the goal of encouraging integration in society and in the schools.

What if a custodian is applying to the school district and the school says that they must also relocate? Should this rule apply to him? If it applies to teachers why not to the custodian? o All you would need is a rational reason between the hiring process and this requirement. Should costs be considered? What if the town is extremely costly to live in? Why else would cities want people to live in the communities where they work? o They can get to work on time, the quality of their work would be better, to recycle taxes, help your own community by cutting down on unemployment. City lifted the requirement to have been living in the city for certain jobs because they were not getting enough qualified applicants for the position. What if a private employer made the same requirements of relocation (similar to Wardwell)? o When you have a government actor then you have constitutional consideration in any policy that you have, if you are a private employer you can make any sort of rules you want as long as they are not discriminatory. A job offer which requires you to live within a certain mileage of the office, it is perfectly alright for this employer to do so The government will not interfere in private hiring practices unless they are illegal or discriminatory. Private employers can really set whatever parameters they want as long as they are not discriminating.

Collins Food Intern, Inc. v. INS o Facts: Collins, through a store manager, hires an employee from Sizzlers in California to work at a Sizzlers in Phoenix. When employee shows up to work he doesnt have his
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working documents so he is not allowed to work. The next day he returns and presents drivers license and fake SSI card. INS fines Collins for hiring an alien to work.
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Holding: Offering an alien a job prior to verification of documents could not support finding of constructive knowledge, and employer complied with verification requirement. Employer offered the job on the telephone and accepted his forged documentation. The INS charged the employer with hiring an alien. Rule: Employers need not verify documents prior to extending an offer to work but must before commencing employment. Documentation only needs to reasonably appear valid to meet the verification requirement.

2. EMPLOYER INFORMATION GATHERING

I. INTERVIEWS Lysak v. Seiler Corp o Facts: In an interview, a woman tells the employer without solicitation that she is done having children. She is terminated after she discloses that she is pregnant. It comes out that she was pregnantand knew of itduring the interview. P brings sex discrimination suit against employer. o Holding: Employer was entitled to discharge employee on basis of her unsolicited and false statement at time of interview when she knew she was pregnant. o Rule: Employer can terminate employee for giving knowingly false information on an interview. If she had been asked the questions and then you lied about it, you can also lie in response to an illegal questions so then it would have been okay. II. EMPLOYMENT REFERENCES

Whenever an employer publicizes the reasons for firing an employee, gives a negative reference to a subsequent employer, or discloses sensitive employee information to other employees, there is a risk that the employer will be subject to either a defamation or invasion of privacy claim.

DOES AN EMPLOYER HAVE A LEGAL OBLIGATION TO PROVOIDE A REFERANCE FOR A FORMER EMPLOYEE?? o NO but if the employer does decide to provide a reference then it must be factual, the employer can simply say that they do not give references and simply avoid a lawsuit altogether. o Does the employer have an obligation to inform the new prospective employer of the negative activity? o Do we want to instill a burden on the former employer to make them divulge this information? o What if the prospective employee is applying for a job as a janitor in a school and he was fired form the last school for molesting a child? Singer v. Beach Training Co.
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o o o

Facts: Employee is terminated from new job when her old job tells the employer that she was not a VP but a customer service representative. She sues for negligent misrepresentation. Holding: Reverse and remand to use new negligent misrepresentation test. Rule: Employer can be held liable for the negligent misrepresentation of a former employee's work history. Negligent misrepresentation if: 1. the inquiring party clearly identifies the nature of the inquiry; 2. the employer voluntarily decides to respond to the inquiry, and thereafter unreasonably provides false or inaccurate information; 3. the person providing the inaccurate information is acting within the scope of his/her employment; 4. the recipient of the incorrect information relies on its accuracy to support an adverse employment action against the plaintiff; and 5. plaintiff suffers quantifiable damages proximately caused by the negligent misrepresentation.

Defamation Focus on reputational injuries to persons as a result of false statements being published to others about them elements: false and defamatory statement unprivileged publication to a 3rd party negligent dissemination of the information on the publisher* harm caused by the publication *for non-public figures, the requirement is negligent dissemination of information, for public figures the standard is malice which is reckless disregard public figures include celebrities, senators, congressmen, courts have found police officers, doctors and nurses as public figures but it depends on the circumstances defenses: the statement is true conditional privilege of common interest (should the new employer know why the former employer terminated the employee, ex. such as a criminal offense), must be disseminated in good faith and balanced with public policy concerns eliminated by the presence of malice or reckless disregard!! eliminated by abuse of privilege, which may occur if the defamer engages in excessive unnecessary publication of the defamatory statement defamation by self publication: if compelled to communicate defamatory statement to a third person, and if it was foreseeable by employer that employee would be so compelled, defendant can be held liable for defamation (Lewis v. Equitable Life Assurance) Lewis v. Equitable Life Assurance o Facts: Employees were ill-advised about travel expenses, and upon returning from a business trip, they were told they needed to pay the company $200. Those who refused were fired for gross insubordination. Employees were ultimately forced to disclose that they were fired for gross insubordination when interviewed by potential employers. Holding: Defamation by self-publicationemployer was found liable. Rule: Self publication is a legitimate substitute for the traditional publication requirement.

o o

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III. INVASION OF PRIVACY

pubic disclosure of private facts require that the disclosure of the private (TRUE) facts be highly offensive to a reasonable person and that such facts are not a legitimate concern to the public different from defamation claims because they involve (1) a true statement of facts, and (2) the focus, rather than on publication to a third party, is on unwanted publicity to the public at large Eddy v. Brown o Facts: OK SC considered a public disclosure of private facts claim in the context of a supervisor disclosing to a limited number of other employees that the PL had seen a psychiatrist. o Holding: Court rejected a claim because only a small group of co-workers were told and this tort normally requires that the general public be informed, did not constitute publicity. Also, psychiatric visits are a legitimate concerns of his supervisor, they were not actionable as unreasonable intrusion upon employees seclusion. o Rule: To establish invasion of privacy must establish: 1. publicity: the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge ... the difference is not one of the means of communication ... [but] one of a communication that reaches, or is sure to reach the public. (Rest. 2d Torts 652d) 2. unreasonable 3. given as a private fact Bratt v. IBM Corp. o Facts: An employee was referred by his supervisor to a psychiatrist under contract with IBM, the psychiatrist later discussed her findings (that he was paranoid) without the employees consent with a number of IBM officials. Bratt sues IBM for violation of right of privacy for disclosing Ps use of a company wide open-door policy, circulating memos that said he was paranoid and had mental problems; and allowing IBMs physician to discuss Ps medical problems without his permission. o Holding: Court found for PL on the privacy claim after balancing the employer legitimate need for the information against the substantiality of the intrusion into the employers privacy reasonable expectation of privacy in providing in-house doctorseven though the doctor that disclosed this was not in-house but a local examining physician. o Rule: invasion of privacy balancing test: degree of intrusion on privacy created by disclosure v. legitimate business interest in that information held by the employees to whom the disclosure was made Nelson v. NASA (*no longer good law) o Facts: Science support staff is applying for renewal of contract with NASA which now requires the completion of an extensive background investigation, including: any residential, educational, employment, military history, 3 personal references, emotional and mental stability and if they had used or been treated for drug use in past year, and included a form authorizing the release of this information to other government agencies that may need it, all in the name of national security. The employees sought injunctive relief.
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Holding: The court found that all of these questions into a persons background is too broad and the court is not narrowly tailoring its actions to meet the interest of security. The choice facing these employees was simply that they either disclose the confidential and private information to potentially have their rights violated or you lose your job. Injunction granted. Rule: The government is subject to heightened scrutiny when prying into someones personal background, which requires showing a legitimate state interest and the governments action have to be narrowly tailored to meet that legitimate interest.

Is it a legitimate concern for employers to ask about the financial background of their prospective employees, credit checks or about their previous mental conditions? Probably depends on the position and the type of job you are trying to get 3. NEGLIGENT HIRING/RETENTION

Malorney v. B&L Motor Freight Inc. o Facts: Trucker is hired by B&L. On the application, he is asked if he has committed any vehicular or criminal offenses to which he answers nothe answer is not verified by the trucking company (D). While on duty, the trucker picks up a hitch-hiker (P) who he rapes and beats. The employer is held to have a duty to select an employee with reasonable care. In this case they have a duty to entrust the car with a competent employee. The prior employer of B&L has records of an aggravated sodomy charge but B&L did not the check his criminal record. P sues company under respondaet superior. o Holding: Employer has a rule against picking up hitchhikers but the court says they knew or should have known they were prone to pick up hitchhikers. Determining whether there is a duty is a matter of law and whether they exercised reasonable care is for the jurynot entirely based on foreseeability. Employer has a duty to select an employee with reasonable care, meaning check criminal background. o Rule: Employer failed to check the criminal background and that was a breach of their duty to their own employees and a breach of the duty to third persons. Must show elements of negligence: o duty o breach o causation o damages Keller v. Koca o Facts: D owned drycleaners where Uzan was GM and had keys to the store but was not allowed to let 3rd parties in during non-business hours. Uzan lets in a 12-year-old (P) during non-business hours and sexually assaults her. P sues. o Holding: Employer did not owe duty to victim, since harm to her was not a foreseeable risk. o The court said that this was not foreseeable, but did leave the possibility open for this girl to bring premises liabilityunwilling to place entire responsibility solely on employer. o Rule: Duty element requires foreseeability. Kadlec v. Medical Center v. Lakeview Anesthesia Associates o Facts: Anesthesiologist lets patient lapse into vegetative state at current job. Admits to onduty narcotic use. Current employer sues old employer for and intentional negligent misrepresentation (two different claims) on old referrals and omissions of the employees drug use.
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Holding: The defendants had duty not to make affirmative misrepresentations to clinic in their referral letters concerning anesthesiologist; referral letters were materially misleading; but they did not recommend anesthesiologist to clinic so this was not affirmatively misleading; defendants did not have duty to disclose in their referral letters, absent misleading statements. Rule: Employer does not have a duty to disclose, but if they choose to disclose, they have a duty to not make affirmative misrepresentations concerning previous employees.

elements of intentional misrepresentation: misrepresentation of a material fact intent to deceive causing justifiable reliance with resultant injury elements of negligent misrepresentation: duty of defendant to supply correct information breach by omission or affirmative misrepresentation cause damages to the plaintiff based on the plaintiffs reasonable reliance on the misrepresentation

C. TESTING OF APPLICATIONS AND EMPLOYEES

1. POLYGRAPH AND PERSONALITY TESTS

o o

Congress passed the Employee Polygraph Protection Act of 1988 which makes it unlawful for an employer to require or request an employee or applicant to submit to a polygraph or use the results of such tests, except in limited circumstances. The act does not apply to public employees (because they have constitutional protections), national defense and security contractors, security guard firms, and drug manufacturers and distributors.

Concerns About Lie Detector Tests 1. Lots of questions about the accuracy and reliability of the tests, none of the validation studies are recognized by the scientific world 2. Not everyone has these physiological manifestations when they lie 3. What may be observed may be an emotional reaction to the question but they may not mean they are lying 4. The chart doesnt tell if they are lying the interpretations by the examiner determines what is a lie a. Their backgrounds have been called into question b. There is no benchmark of scientific background required Soroka v. Dayton Hudson Corp. o Facts: Target security applicants brought class action suit against the company for requiring them to submit to a psychological screening. The test involved questions of religious beliefs and sexual orientation. o Holding: Target's pre-employment requirement of psychological screening violates both the constitutional right to privacy and statutory prohibitions against improper pre-employment
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inquires and discriminatory conduct by inquiring into its applicants' religious beliefs and sexual orientation. CA Constitution requires a compelling interest when violating the right to privacy of job applications. no compelling interest in asking a store security officer about sexual orientation or religion employers justification was that these questions measure emotional stabilitycourt says you cannot assess emotional stability by asking about their religion/sexual orientation Rule: Under California Constitution, any violation of the right to privacy of job applicants must be justified by a compelling interest.

2. DRUG TESTING AND THE CONSTITUTION

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In the public employment the laws governing drug testing are governed by the 14th amendment whereas in the private employment context employees must rely on statutory schemes or common law theories like the tort of invasion of privacy. Public employees and the 14th amendment-- employers must satisfy a less stringent reasonableness standard in order to engage in drug testing. public employees are most successful in challenging drug testing when they are not involved in dangerous, sensitive work or where there is no evidence to suggest that employees have been using drugs random drug testing have been allowed for positions such as teachers because they play an impressionable role in the lives of young children

National Treasury Employee Union v. Von Raab o Facts: Customs agents being promoted to positions where they would have access to confidential information, use of firearms, and direct intervention of drug interdiction were notified that they will be subjected to drug testing through urinalysis (even if there was no history of drug use). o Holding: Urinalysis does not violate 4th Amendment because Government has a reasonable interest in drug testing customs officersimmediacy of the government concern outweighs the minimal intrusion, diminished expectation of privacy. The court applied a balancing test based on the reasonableness standard, the court notes that the immediacy of the governments concern and the minimal nature of the intrusion outweighed the individuals privacy interest and permitted the government to drug test customs agents. o Dissent: There is no evidence that drug use caused agents to take bribes or if they carry guns, cause poor aim and shoot a person. If you test people that carry firearms because they are responsible for keeping our public safe, then youd have to test people like bus drivers, crossing guards, and others who are also likely to cause harm to the public safety. o Rule: Drug testing balancing test: public need for programs vs. individuals privacy concerns and the determination of whether a warrant, probable cause, or some level of individualized suspicion is required Chandler v. Miller o Facts: State statute in Georgia requires those running for public office to submit to a drug test. o Holding: Georgia's requirement that candidates for state office pass a drug test does not fit within the closely guarded category of constitutionally permissible suspicionless searches o Rule: Where public safety is not genuinely in jeopardy, Fourth Amendment precludes suspicionless search, no matter how conveniently arranged.
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for private sector employees: such challenges usually maintain that the process of specimen collection invades employees privacy or that the test itself reveals sensitive private information. o rely on legal arguments based on state constitutional provisions, statutory regimes, or common law doctrines but are generally less successful than their public employee counterparts 3. DRUG TESTING (CONCLUSION) 19 Solid Waste Dept. Mechanics v. Albuquerque o Facts: City employees challenge citys alcohol and drug policies on the grounds that they are violations of 4th and 14th Amendments. o Holding: City's program requiring drug testing of trash truck mechanics not authorized to drive city vehicles on streets and highways was not warranted by a special need, and thus constituted unreasonable search and seizure o Rule: Court examines the nature of the privacy interest upon which the search at issue intrudes and the character of the intrusion that is complained of, and, the nature and immediacy of the governmental concern at issue and the efficacy of the challenged test for meeting it. Luedtke v. Nabors Alaska Drilling Inc. (right to privacy in the private sector) o Facts: Paul and Clarence Luedtke worked on an oilrig for Nabors Alaska Drilling. During a 28 day of absence, Paul had a physical where he provided a urine sample that was unbeknownst to Paul was tested for drugs and came back positive for marijuana. The report was given to his employer. He was suspended and the company decided to instituted a blanket suspicionless drug testing policy, which both brothers were refused and were terminated. cause of action: intrusion upon seclusion (aka the right to be left alone) AND breach of good faith and fair dealing. o Holding: Remanded on if the initial suspension violated the implied covenant of good faith and fair dealing (he didnt know he was being tested then). The court held that the termination did not: 1. drug testing program did not violate state constitutional right to privacy because provisions do not apply to private actors; 2. constitute a public policy tort because the employer had the right to make sure employees did not put themselves or others in danger 3. discharge of employees did not violate implied covenant of good faith and fair dealing because that test was proposed at a time reasonably contemporaneous to the employees.. o Rule: With private employer (at-will doctrine!), the state constitution must afford a right to privacy to invalidate drug test program. public policy: employees have some right to privacy based on common law, statutes, and state Constitution private employees will have a difficult time mounting state constitutional or common law challenges to private work place drug testing programs as long as some basic procedural benchmarks, concerning notice and timeliness, are followed by the employer **this case was assigned so that we can see when the court can infringe upon a persons privacy rights because of the job they hold

D. WORK ENVIRONMENT
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1. GROOMING AND DRESS Kelley v. Johnson o Facts: Policeman brought suit under the Civil Rights Act of 1871 challenging validity of county's hair grooming regulation for the male members of its police force. The regulation required short hair, no sideburns, moustaches, beards or goatees except for medical reasons. o Holding: Police force regulations were not arbitrary enough to deprive an officer of his liberty because they were rationally related in fostering an esprit de corps and making officers readily identifiable to the public. o Rule: Choice of organization, dress and equipment for law enforcement personnel is a decision entitled to the same sort of presumption of legislative validity as are state choices designed to promote other aims within the cognizance of the state's police power. Jespersen v. Harrahs Operating Co, Inc. o Facts: Female bartender at a casino is told to wear make-up. She refuses and is terminated. She brings a suit against the casino under Title VII sex discrimination. o Holdings: 1. requirement that only female employees wear makeup was insufficient to establish prima facie Title VII sex discrimination based on disparate impact; 2. Court of Appeals would not take judicial notice of asserted fact that it cost more money and took more time for a female employee than a male employee to comply with employer's grooming policy; and 3. grooming policy did not constitute impermissible sex stereotyping, as would establish that gender played a motivating role in employer's policy. Rule: Private employees may reasonably regulate the grooming and dress of their employees.

E. PROTECTING PRIVACY ON THE JOB

1. CONSTITUTIONAL AND STATUTORY RESPONSES Fourth Amendment protections (searching offices). In deciding whether public employees have such protections, the court should first decide whether the employee has a (1) reasonable expectation of privacy in different parts of her office. If so, the court should next (2) balance the privacy interests of the employee against the legitimate interests of the employer in running an efficient governmental workplace. The special needs for legitimate work-related, non-investigatory intrusions and investigations for work-related misconduct mean that it is not necessary to obtain a warrant based on probable cause in this context. Such searches are instead judges by overall reasonableness. Bodewig v. K-Mart, Inc. Facts: Plaintiff was a K-Mart checker accused by customer of stealing her $20. Manager turned-out plaintiffs pockets then had female supervisor observe strip search down to underwear. Customer also observed strip search. Plaintiff quit the next day and is now claiming the tort of outrageous conduct, and K-Mart defends by saying she consented.
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Holding: This court says there are two kinds of outrage: intentional and that based on a special relationship between the parties. The customers manner was outrageous: she did have a right to seek her money back but did so outrageouslyand because of employers dominance over the plaintiff here was sufficient to establish a special relationship. Court analogized to landlord-tenant. Rule: If the plaintiff had been put on notice that she might be strip-searched or she consented to it without coercion, then her privacy claim would fail. This court denied K-Marts consent defense because the plaintiff (16 year old) was in an inferior position. What are plaintiffs chances of a wrongful discharge tort claim? Possible sources of public policy: 4th amendment, state privacy statutes, common law tort claims for privacy violations.

Vega-Rogriguez v. Puerto Rico Tel. Co. o Facts: Employees contest 24-hour video surveillance at workplace, claiming this policy constitutes an unreasonable search and seizure. o Holding: Court assumes that employees have subjective expectation of privacy while at work so the issue is whether this is an objectively reasonable assertion of their expectation of privacy. o Employees lacked objectively reasonable expectation of privacy against disclosed, soundless video surveillance while toiling in open and undifferentiated work area. o Employees lacked fundamental right to be free from surveillance. o Surveillance did not violate employees substantive due process rights. o Rule: To violate 4th amendment rights, the complainant must have an actual expectation of privacy and that expectation must be one which society recognizes as reasonable. Court also held that businesses have lesser expectation of privacy than homes you do have some expectation of privacy at work however you need to consider whether the area in question was given over to an employers exclusive use. 2. COMMON LAW RESPONSES The common law recognizes 4 causes of action for invasion of privacy: 1. The defendant has publicly disclosed private facts about a person 2. The defendant has intruded upon a persons seclusion 3. The defendant has shown a person in a false light 4. The defendant has appropriated the name or likeness of a person The cause of action most often used by employees is intrusion upon seclusion. The elements of this tort are: 1. An intentional intrusion by defendant 2. Upon the plaintiffs seclusion or private affairs 3. In a manner that is highly offensive to a reasonable person Smyth v. Pyllsbury Co. o Facts: Employee is discharged for what he sent over company e-mail server. o Holding: Termination of at-will employee for sending inappropriate e-mail did not violate public policy. o Rule: Reasonable expectation of privacy is lost when you send an e-mail over the company server.
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Catalano v. GWD Management Corp. Facts: McDonalds strip search case. Holding: Rule: 3. OFF WORK ACTIVITY Rulon-Miller v. IBM Corp. o Facts: IMB terminated low-level employee after accusation that she was in a relationship with a manager of a rival company (a former employee at IMB). IMB knew about the relationship before offering a promotion, which she accepted. One week after her promotion, she was called into the office and told she had to stop dating because he worked for a rival company. Then call her in the next day and said she was reassigned due to a conflict of interest. She says she was terminated claims wrongful discharge and intentional infliction of emotional distress. o Holding: Even though this is employment at will, IBM had a duty of good faith and fair dealing, which applies rules regulations consistently. IBM did not have a policy against romantic relationships, but claimed they could inquire into the private lives of their employees because it could diminish moraleeven though they provided no evidence. Company had an express policy on employee privacy and a history of condoning relationships. o Rule: While acting in disregard of company policy is unfairit is extreme and outrageous to remove free choice in contradiction of earlier statement, especially if designed to humiliate the partysatisfies the extreme and outrageous conduct requirement for an IIED claim. What if there was a relationship between employees of two competing corporations who had essential information about the business and profit seeking plans? o If there is a policy to protect the privacy of the employee (such as the IBM case) the employer might win if the jury got the same jury instruction as in this case which would balance the privacy interest of the employee and the business interest of the company. Is it sufficient for a company to say that this person has a conflict of interest because they are in the position to share our company secrets with other people/ is this even in privacy interest? o at-will employment means you can be fired at any time for anything.

elements of intentional infliction of emotional distress o defendant acted intentionally or recklessly o if special relationship, no need to show intent just recklessness (Bodewig: a reasonable person would have known the conduct would have upset a reasonable person) o conduct was extreme and outrageous o while acting in disregard of company policy is unfairit is extreme and outrageous to remove free choice in contradiction of earlier statement, especially if designed to humiliate the party (Rulon-Miller) o actions caused emotional distress o emotional distress was severe McCavitt v. Swiss Reinsurance America Co. o Facts: Two employees of Swiss Co. were dating each other one of them (P), a highly regarded employee, was passed over for a promotion and then terminated. Claims he cannot
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o o

be fired for recreational off work activities. The federal court looks at the highest court in the state of New York and decides whether dating was seen as a protected recreational activity. The court decides that dating is NOT a recreational activity. Holding: In NY it is unlawful to terminate an employee for legal recreational activities outside of work hoursromantic dating is not a protected recreational activity. The coulrd would not likely find a romantic dating a recreational activity. Rule: Absent a constitutionally impermissible purpose, statutory proscription, or contractan employer can terminate at will.

**the ONLY state that does not have at-will employment is Montana you need to have an express statement of cause. Poirier v. Mass Dept. of Corrections o Facts: Prison guard trying to have a relationship with a former inmate in MA and you cant. Its not protected because the court will give deference to the state to protect stuff. o Holding: o Rule:

F. FREEDOM OF EXPRESSION ON AND AWAY FROM THE JOB

For public employee to make out First Amendment retaliation claims based on their speech, they must prove that the conduct at issue was constitutionally protected, and that it was a substantial or motivating factor in the termination. AND MUST BE A MATTER OF PUBLIC CONCERN. the government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct Considerations... do the statements in question impair the disciplinary authority of superiors the harmony among co-workers the close working relationships for which personal loyalty and confidence are necessary the performance of the employees duties the regular operation of the enterprise. Rankin v. McPherson o Facts: A Texas constable fired a data-entry employee in his office for saying to a coemployee (in reference to the Regan assassination attempt), if they go after him again, I hope they get him. o Holding: The Court applied the balancing test established in Pickering and found: the statement by employee dealt with matter of public concern (because they were about the President)even though made in a private context and was not discrediting the agency constable's interest in discharging clerical employee in constable's office for making statement did not outweigh employee's rights under First Amendment because she was not a policy maker, was not discrediting the agency, was not a threat to kill the President o Rule: Protected Work Speech Balancing Test: interests of the employee commenting on matters of public concern v. interests of the state as an employer and providing sufficient services

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Dissent: This would expand the range of protected speech and allows anyone who is not a policy maker to can say anything they want and we can take no action.

Curay-Cramer v. Ursuline Academy o Facts: Former teacher at private Catholic school sued school, individual school officials, and others, alleging that her termination after signing pro-choice advertisement in local newspaper constituted retaliation for protected speech and sex discrimination in violation of Title VII and Pregnancy Discrimination Act. She originally sues under the gender discrimination ordinance and the court determines that this has nothing to do with an illegal employment practice but rather goes to a religious tenement. o Holding: (1) teacher did not engage in protected activity when she signed newspaper advertisement, precluding retaliation claimby saying she was pro-choice, she was basically not protesting any employment practice here, and (2) sex discrimination claim was not cognizable, since it would necessitate court's assessment of relative severity of violations of church doctrine, in violation of First Amendment. o Rule: Novosel v. Nationwide Insurance Co. o Facts: Employee was fired by his employer after he refused to lobby on a political issue on the employers behalf. Sued for wrongful discharge in violation of public policy. o Holding: (1) former employee's allegations of discharge for refusal to participate in former employer's lobbying effort and his privately stated opposition to company's political stand stated claim for wrongful discharge under Pennsylvania law-- the employers termination was in violation of Pennsylvanias public policy because that policy encompassed rights of political expression and association derived from both the federal and Pennsylvania state constitutions. o Rule: Factors to be considered in discharge for refusal to participate in lobbying: whether, because of speech, employer was prevented from efficiently carrying out its responsibilities, whether speech impaired employee's ability to carry his own responsibilities, whether speech interfered with essential and close working relationships, and whether manner, time and place in which speech occurred interfered with business operations. Note: For the private workplace: Novosel has not been upheld in any other court!!! Currentlyunless private sector workers have statutory or contractual protections, such as under a state Hatch Act, individual employment contract, or company handbook, they remain without workplace protection for their political affiliations of beliefs. Jordan v. Ector County Facts: Two County Clerk employees run for County Clerk. When one wins (Morgan), the other (Jordan) stays on but is demoted. After an incident where Jordan goes into a locked judges office, Morgan fires her. It comes out that Morgan fires her because they were about to run against each other again. Holding: Court engages the Pickering test (public concern and individual interest v. efficiency of government and public services) and finds that this is a matter of public concern but her Employee engaged in protected activity involving hybrid of speech and political affiliation. Rule: For a public employee to prevail on a First Amendment retaliation claim, she must prove that: (1) she suffered an adverse employment decision; (2) she was engaged in protected activity; and (3) the requisite causal relationship between the two exists
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You have to consider how the company (agency) would treat other people in the similar situation. If other employees in the clerks office had done the same thing and werent terminated than the employer has a problem. The motivating factor in Jordans termination could have been the fact that she was a rival (court placed a lot of emphasis on this)

III. DISCHARGE AND TERMINATION OF EMPLOYMENT A. THE EMPLOYMENT AT-WILL RULE

Employment At Will Doctrine: the employer can fire you for pretty much any reason and you can leave for any reason, the employment relationship can be terminated by either party for any reason or no reason at all at any timeseems to favor employers Montana: Wrongful Discharge from Employment Act (1987) At will employment is the rule in every state but Montana, which passed the Wrongful Discharge from Employment Act in 1987. After completing the probationary period, the employer cannot fire the employee absent good cause, which the statute defines as reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employers operation, or other legitimate business reason. Buian Jacobs and Co. o Facts: P is offered a contract to work in Saudi Arabia offering a MONTHLY salary for an 18month contract--It is scheduled that your assignment in Saudi Arabia will continue for a period of 18 months. He is terminated after arriving in Saudi Arabia. He sues under breach of employment contractthe employee says that the letter was a contract. o Holding: The provision of employment contract was not sufficient to transform an at-will employment relationship to a contract of specific duration. The letter was not an intended contract and was terminable at any time (carefully chosen language). There was no mutual obligations of the parties. The employee relied on this job promise but he didnt give up his job, his travel expenses were covered. o Rule: An employment contract not specifically intended by the parties to be any certain duration creates employment relationship which is terminable at will by either party without cause and without liability. If you have at-will employment and your job is taken away, you dont really have any remedy. Even under promissory estoppel theory, the most you could probably get is something like your moving expenses.

B. EROSIN OF AT-WILL EMPLOYMENT

Contract Erosions of Employment at Will Since employment at-will rule is the default rule, the relationship can be changed by contract. Contracts can be written or oral, express or implied, definite term or satisfaction, or through a collective bargaining agreement. o written contracts: specify the length of time, or limits the circumstances under which the employer may discharge the employee no longer employment at will which standard of discharge should be implied into a employment contract that is silent on the issue? most courts would imply a just cause standard into the term of the contract what does just cause mean?
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each party will argue from their own point of view as to why their action was correct or justified what are the consequences if an employee quit during a term contract? employment contracts should be interpreted symmetricallythe employee, like the employer, may terminate the employment contract for just cause

oral contracts: problems that arise- nearly every employee has heard language from his employer assuring job securitycould be interpreted as words of encouragement that an employee could take to be a legally enforceable promise courts require the employee to show that the employer made contractual representations and that the employee furnished additional consideration, beyond continued employment, in reliance on those representations it is difficult to prove exactly what was said years afterwards statute of fraudsnullifies oral contracts which are not performable within year if an employee asserts a contract for employment until requirement most courts will refuse enforcement if the employee is young and not anywhere within retirement age

1. THE PUBLIC POLICY EXCEPTION (includes whistle blowing, exercising a rightstatutory or constitutional, etc.,) Employment tort remedies are far more generous than employment contract remedies. Wrongful discharge in violation of public policy. Public policy allows the employee to serve the public interest notwithstanding the employers displeasure (public policy tort still applies even if a contract is signed; this cannot be waived). Can be defined two ways: 1. requires that the public policy be articulated in a constitution, statute, regulation, or judicial holding 2. the employee can articulate a public good or civic duty (much broader) Gantt v. Sentry Insurance o Facts: The plaintiff was advocating on behalf of another (Bruno) who was a subject of sexual harassment at work with upper management. He cooperated with the Department of Fair Employment and Housing investigation into these claims. Ultimately he was demoted from his managerial position down to a sales positionclaimed constructive discharge and he ultimately left the job. constructive discharge: when your employer makes your work environment so horrible that you are forced to resign (finding a new job before resignation may affect your damages but you can still bring the claim) o Holding: Employee who was terminated in retaliation for supporting co-worker's claim of sexual harassment had a cause of action for tortious discharge against public policy. The public policy is found in Californias anti-discriminations statute? o Rule: When bringing a claim of wrongful discharge for violation of a public policy- the court asks would you want to public to do what the plaintiff had done without impunity? Do we want to encourage this as a public policy matter? Do we want people to report discrimination who are not victims themselves? At-will employee possesses tort action when: he or she is discharged for performing act that public policy would encourage, or for refusing to do something that public policy would condemn There has to be an adverse action as well (such as a demotion or discharge) to bring this claim.
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The court was also looking at public policy questions of (along with the discouragement of discrimination) employees feeling comfortable to cooperate or tell the truth without the fear of being fired. Arres v. IMI Cornelius Remcor, Inc. o Facts: Employee suggested to employers that they terminate people who may have fraudulent SSI cards. Employer tells her to notify the employees to correct the error. She refuses to do this because she believes it to be unlawful and is fired for poor performance. o Holding: The employers attempt to supplement the information was reasonable but this employee action into her own hands due to her own idiosyncratic view of what the law is although she believed what they were doing was illegal, she didnt go about her objection the right wayno public policy exception found. o Rule: Public Policy exception is allowed even if the employee asserting it is incorrect about the law which he or she is trying to uphold. A theory of retaliatory discharge under Illinois law requires an employee to show: (1) that she had been discharged; (2) that her discharge was in retaliation for her activities; and (3) that her discharge violated a clearly mandated public policy of the state of Illinois. In some cases it is warranted for the employee to blow the whistle but here the employer is acting in a reasonable manner. CEPA Conscientious Employee Protection Act (NJ) Serrano v. Christ Hospital o Facts: Serrano was employed at a hospital and had signed a confidentiality agreement. She had to interpret for an elderly woman who thought she had meningitis and thought grandkids may have gotten it. (Serrano saw the kid cough and she said they probably shouldnt go to school.) Serrano informed the school about the possibility the kids may have meningitis, the school pulled the kids out of class, and Serrano is subsequently fired for disclosing the information. The family sues. o Holding: The court says that even though there is not specific statute to allow this, there is a public policy interest. There are two public policy issues at playbalancing the act of conveying confidential information and protecting young childrenprotecting children wins out. There is also a public policy interest in the confidentiality of patients but there are exceptions to this interest. The interest of children here outweighs but the court will let the jury here decide which one outweighs for sure without being definitive. Public policy claims arise when there is a statutory or constitutional right at issue or if you refuse to commit an unlawful act. The means by which you try to enforce the public policy or whistle blow is important. Example: An employee was fired for throwing punches to prevent someone from drunk driving, no exception found because although the intentions were noble, the employee could have gone about accomplishing this in a better manner! 2. BREACH OF CONTRACT TERMS You need to have an offer, acceptance, and consideration. You have a unilateral or bilateral contract. Term of a contract are bargain for exchange. Gordon v. Matthew Bender & Co.
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Facts: Gordon sold overpriced law books for Matthew Bender. The company sent him a letter saying that he was on probation and must perform to satisfaction by meeting his sales goals in order to continue on with the company. There was no time period mentioned. The offer here is dependant upon the satisfactory performance of the plaintiff. Gordon gets fired right before his pension would have kicked in and he bring suit. Holding: The employer could not terminate (in bad faith) prior to the vesting of pension to avoid paying the pension. Also, satisfactory performance is a subjective standard as compared to just cause, and the company should have had employment termination based on just cause rather than satisfactory performance. Satisfactory performance is applied in every contractbut this was not a contract. Rule: 1. Employee at-will may not be deprived of commissions, in large part earned prior to separating from employer, by discharge made in bad faith and intended to deprive employee of the commissions. 2. Unless you have an express written contract its very difficult that the court will enforce a contract claim just based on oral promises or discussion.

Scribner v. Worldcom, Inc. o Facts: Employee is terminated by his employer when they are trying to sell a division of the corporation. The corporation frames the termination as for cause to avoid having to honor stock options to employee. o Holding: committee breached duty of good faith and fair dealing it owed under Washington law when it found employee's termination to be with cause for purposes of option contracts o Rule: You cannot deprive an employee of bargain-for terms (pensions, stock options) by operating in bad faith. Here we have a stock option contract. Scribner was terminated to facilitate an asset sale and he was fired without cause. This case is about what cause is or is not. The court granted summary judgment for the employee and the appellate court upheld. The court looked at the contract and it wasnt clear exactly whether there was just cause provision and exactly what just cause meant. The terms of the contract were interpreted by the stock option committee who reviewed Scribners case and they determined that he was terminated for cause. The purported cause in this case the court determined was a performance related term. Pugh v. Sees Candies, Inc. o Facts: Wayne Pugh, a 32 year employee of Sees Candies, had started as a dishwasher and worked his way up to Vice President of Production, and a member of the board of directors. Prior to his termination, Sees had a record setting year for which Pugh was largely responsible, and Sees never gave Pugh any indication that his performance was less than stellar. Nonetheless, when Pugh returned form a trip and Sees fired him without explanation. Pugh sued for breach of contract. o Holding: Conduct which created this implied in fact contract was: the duration of Pughs employment the commendations and promotions he received that apparent lack of any direct criticism of his work the assurance of job security he was given, and the employers acknowledged practice of not terminating administrative personnel except for good cause. o Rule: Employers conduct can give rise to an implied promise not to act arbitrarily creating an implied in fact contract. NOTE: A later case retreated this case by clarifying that long tenure is one factor in the determination of an implied in fact employment contract, but it cannot alone form such a contract.
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3. EMPLOYEE HANDBOOKS Handbooks fulfill the statutory notice requirement and can create a defense in other types of employment claims. An employment manual can contractually convert at-will employment into just-cause employment by implication. To avoid this, employers should add a PROMINENT, CLEAR, AND SPECIFIC disclaimer in the handbook that reminds the employee that the position is at-will. Depending on the state, the manual can create employment contracts that can be upheld even if the employee had no knowledge about it or have read it. AMENDMENTS WITH DISCLAIMER: To amend a handbook is to place a disclaimer in the front reserving the right for the employer to rescind or modify information. Employer simply needs to give employee adequate notice of the changes. AMENDMENTS WITHOUT DISCLAIMER: Any modifications made to the handbook have to be done in traditional contractual ways (offer, acceptance and consideration). other courts take the position that the promises in a manual only bind the employer as long as they wish to be bound yet other courts have held that employers can unilaterally modify the job protection promises only after a reasonable time, with reasonable notice, and without interfering with the employees vested benefits Woolley v. Hoffman-LaRoche, Inc. o Facts: P works as an engineer for D. There is no written employment contract. After writing a report about piping problems that his superiors did not like, he is asked to resign or be fired. P declines. P is fired. o Holding: Absent a clear and prominent disclaimer, an implied promise contained in an employment manual that an employee will be fired only for cause was enforceable against employer even when employment was for an indefinite term and would otherwise be terminable at will. o Rule: An employment manual can contractually obligate the employer to the terms within it (unilateral contract!) Bankey v. Storer Broadcasting Co. o Facts: NA o Holding: In Michigan, employer may unilaterally change written discharge-for-cause policy to employment-at-will policy, even though right to make such change was not expressly reserved from onset o Rule: For revocation of discharge-for-cause policy to become legally effective, reasonable notice of change must be uniformly given to affected employees. Nicosia v. Wakefern Food Corp o Facts: Low-level employee (P) is fired for mishandling merchandise. P files wrongful termination suit for not following the manuals procedures. The manual contains a disclaimer on the first paragraph of the first page of a 160-page manual but was only distributed to 300 of the 3,000 of the employees. o Holding: Employee handbook created implied contract of employment. o Rule: Disclaimer location: In determining whether handbook is enforceable contract of employment, courts look to reasonable expectation of employment. The handbook must be widely distributed
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4. PROMISSORY ESTOPPEL *usually a second best claim that is used when a straightforward breach of contract claim in untenable The contract theory of promissory estoppel enforces promises that induce reasonable reliance. A promissory estoppel claim can be divided into 4 elements: 1. a promise 2. which the promisor should reasonably expect to induce action or forbearance 3. which does induce such action or forbearance 4. resulting in injustice EXAMPLE: employer makes a job offer and the prospective employee resigns her current job and moves to the employers place of employment, and the employer rescinds the job offer at the last minute o the offer was illusory since neither party was bound to anything and the original job offer as at-will o many plaintiff who move for job offers in this scenario argue that relocation constituted additional consideration sufficient to support an implied promise by the employer to discharge only for cause Pepsi-Cola General Bottlers, Inc. v. Woods o Facts: P is orally promised a job with Pepsi provided that she quit her other jobs. She discloses that her boyfriend works for Coca Cola. Pepsi says it isnt a problem, but she is terminated before she reports to work. She subsequently finds a job at the Ramada for a few weeks until she could found a job that would pay her a comparable salary to the one offered by Pepsi. P sues on promissory estoppel theory. o Holding: P had right of action under promissory estoppel, but since defendant could discharge plaintiff after a single day's work without incurring liability and since there was insufficient proof of out-of-pocket expenses incurred in reliance on defendant's promise, plaintiff was not entitled to recovery. Court indicates she may have been able to recover moving expenses. o Rule: If tenure of service cannot be determined from terms of contract, such contract is one at will, and may be terminated at any time Promissory estoppel is a viable theory but the problem is the damages; so you want to make sure that your damages are reasonable in relation to the job offer and something moving expenses etc. You have to make sure the damages are not speculative. The damages have to be based on reasonable action someone would take in response to a job. Promissory estoppel is a contract theory but its not really a contract, it is only to get you the damages from relying on a promise but in a reasonable light. The benefit for Pepsi to appeal this judgment is so that they wouldnt have to pay salary; theyll pay the moving expenses but in any other case the salary might be much more than the one in this case. If it is an at-will situation then you will not collect your salary. It is far too speculative because you dont really know how long you would have worked there.

5. COVENANT OF GOOD FAITH AND FAIR DEALING Good faith not generally applicable to at-will employment. Murphy v. American Home Products Corp. o Facts: Accountant Joseph Murphy claimed that he was fired because he had told the board that company officers were engaging in accounting improprieties. Murphy argues that the
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covenant of good faith and fair dealing should be implied into his at-will employment contract, and that because it was part of his job to report accounting improprieties, his discharge violated the covenant. Also tried to allege a public policy/whistleblower exception. Holding: There is no implied obligation of good faith in at-will contract of employment. He was not a contract employee and you cannot have a breach of contract theory without an underlying contract. His public policy claim was dismissedthe matter was shelved for the legislature to deal with it. Rule: An obligation of good faith and fair dealing on the part of a party to a contract may be implied and, if implied will be enforced. The covenant of good faith will not, however, fetter an employers right to terminate an employee. (NY) NY court of appeals refused to imply the covenant of good faith into the at-will relationship. Any limitation to the employers right to fire should come from legislature or an express contract. NY later passed a whistle blowing statute which says that if you were trying to stop a public health and safety issue, you have to prove that there is a health or safety issue (very restrictive). One year SOL for a NY whistle blower claim. In NJ, all you need is a reasonable belief that your employer was breaking the law even if he wasnt.

Case where the court has found implied covenant of good faith in at-will employment, but good faith is defined narrowly to mean that employers cannot expropriate benefits already earned by employees: Fortune v. National Cash Registersee below. Fortune v. National Cash Register o Facts: P is employed by written contract as a salesman who receives commission for his sales. Prior to completing a big sale, the company terminates him. o Holding: Fortune fired P so avoid paying him the full commission (which would have been close to $100,000) (1) even though salesman's contract was terminable at will, there was an implied covenant of good faith in the contract, and (2) evidence sustained determination that employer had discharged the salesman in order to avoid paying certain bonuses to the salesman. o Rule: Under covenant of good faith and fair dealing, employer cannot terminate employee to avoid contract terms. Where commissions are concernedthe employers decision to terminate must be made in good faith. C. OTHER PROTECTIONS FOR EMPLOYMENT SECURITY Successful claims of wrongful discharge in violation of public policy typically fall into one of four categories: 1. refusing to commit an unlawful act a. examples: an employee refusing to testify and committing perjury, defrauding employers customers, or refusing to drive a truck which lacked a legally required inspection sticker 2. exercising a statutory right a. examples: workers compensation, minimum wage, occupational safety and health laws. (many statutes also have anti-retaliation provisions) 3. fulfilling a public obligation a. example: being fired for participating in jury duty 4. whistle-blowing a. source of legal protection: a.) wrongful discharge in violation of public policy b.) state statutory law c.) federal statutory law
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d.) constitution b. scope of legal protection a.) varies by state c. burdens of proof a.) Some states like NY require that the employee prove that the employee reported an employers actual violation of the statute whereas states like Ohio, conversely, protects an employee who blows the whistle if the employee reasonably believes a statute has been violated. 1. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, WHISTLEBLOWERS STATUTES Many employment statutes and torts permit an employee to recover damages for emotional distress the employee suffers when the employer acts wrongfully. Elements of of the IIED claim: 1. Ds conduct was extreme and outrageous 2. D intended to cause severe emotional distress to the P (high probability that conduct would inflict such harm) 3. D proximately caused emotional distress to the plaintiff and, 4. emotional distress was so severe that no reasonable person could expect to endure it Dudewicz v. Norris-Schmid Inc. Facts: P got into an altercation instigated by another employee while working at an autodealership. The P was trying to get a warranty or discount for a customer getting work done on his car. The other employee tore Ps shirt, cursed at him and left fingerprints on his shirt. P files a complaint. Upon hearing about the complaint, employer tells P to drop it if he wants to keep his job. P refuses to drop the complaint and leaves and the employer says that he quit and he says he was fired. P claims: o public policy exception: having victims of crimes reporting the crimes that are committed against them o whistle-blower claim: WPA protects employees pretty broadly from any illegal act by the employer or from another employee Holding: o public policy claim: there is no common law theory that you are protected from being charged from criminal activity by an employee or employer so your remedy is the statutory protection o whistle-blower claim: Michigan Supreme Court ruled that the WPA should be interpreted broadly and applies to the acts of employer or other employees Rule (for public policy): if you have statutory protection then there is no common law protection available to you, so if you have statutory protection then you do not have a common law claim Rule (for whistle-blower): You have to look at what is considered business hours and whether the issue of the fight matters. o Was it during work hours? On work property? Was it about work issues? o Example: What if the fight had been after work in the parking lot over baseball issues?? Dissent: This incident came out of an altercation that was not business related so the whistle blower protection would not apply but public policy might. Wilson v. Monarch Paper o Facts: Wilson worked for the Monarch Company for over 40 years and works his way up to special assistant to the president. His boss dies and the company hires an evil young man to take his position. The new president tells him that he will not make anymore money and he is given three options: take a sales job with half pay, termination in 3 months, or supervisor of
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a warehouse which was the same pay but lesser position. Wilson goes with #3 but it turns out the job is actually just to be in charge of housekeeping and janitorial work and he was subject to harassment. Wilson starts to develop respiratory problems as well as emotional problems and he starts to see a shrink. He is eventually hospitalized and he gets shock treatment, gets put away etc. While this case is pending, the company files a counterclaim against him for slander but the company withdrew it. Holding: At the trial the jury finds for Wilson. The court found that the extreme and outrageous conduct was the degrading and humiliating manner in which he was stripped of his position and given the position of working among people that used to work under him. The court did express some reservations about applying it in the employment context but Wilson was awarded the damages. Rule: The elements of the intentional infliction of emotional distress are very difficult to prove. D has emotional distress conduct must be extreme or outrageous emotional distress needs to be caused must be severe

2. WRONGFUL DISCHARGE STATUTES Montana law requires a legitimate business reason for termination (cannot be arbitrary, capricious or whimsical). NO AT-WILL DOCTRINE. MONTANA IS THE ONLY STATE IN THE USA THAT DOES NOT HAVE EMPLOYMENT AT WILL. Buck v. Billings Montana Chevrolet o Facts: The company that Buck worked for was sold to another company. The higher officials were supposed to resign but not the employees. Buck was a manager and did not have to resign but he was fired. Relied on company manual, which said that you will have a job as long as the company is producing, which Buck was, so he believed he would have a job. He sues for wrongful discharge. o Holding: Remanded because of employee manual. The court held that the new owners had a legitimate interest in discharging Buck (the values of the business would be better served managers that were part-owners)their reasoning is fine so long as it only applies to upperlevel management. o Rule: In Montana you have to have a legitimate business interest for a discharge because the state does not have employment at will. o legitimate business interest: cannot be completely arbitrary and has to have some logical relationship to the business, takes into account the employers interest to hire and fire who they want, must be good cause for termination as long as the employer has a business reason for it o Dissent: Buck was a good performer by all counts and by allowing his termination; we are basically rendering the statute meaningless since it is an arbitrary reasoning. With this type of statute, the concern is whether employers want courts to be involved in the dayto-day decision making for businesses. 3. PROPERTY AND LIBERTY INTERESTS You have to be a public employee to have a property and liberty interest. Goetz v. Windsor School District Facts: Goetz was a janitor at the Windsor school district while there were thefts going on at the school. He gets arrested and suspended by the school district. After the arrest, the school asked for a written confession from him and Goetz does not do this so he is
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terminated. His allegation is that he was fired without due process because he did not have the right to be heard and they fired him. Holding: Goetz has no property interest in his job because he was not implied for 5 years as required by law. Otherwise he would have a had a property/liberty interest in his employment. Rule: Civil service employment positions can be legitimate property interests.

A liberty interest claim arises when you are defamed in the course of a termination, for example, Goetz was being labeled a thief and there is a stigma that attaches to that. Mosrie v. Barry o Facts: Police officer criticizes his superiors and is transferred laterally (to a worse assignment, same salary but loss of ability to be promoted). He is stigmatized by talk before his transfer and claims outside business losses because he used to guest lecture places, and after his transfer he was never asked to lecture again. Asserts that he is being deprived due process because of this stigmatization. o Holding: Police officer was not deprived of any liberty interest when he was publicly criticized prior to his being transferred, and thus he was not entitled to due process protections before transfer. Stigma lone does not give you a liberty interest in your reputation. Things like job loss, demotion, procedural due process violations in addition to stigma may give rise to liberty claimdefamation alone is not enough. (STIGMA PLUS) o Rule: Deprivation of liberty must involve a removal, extinguishment, or significant alteration of an interest recognized and protected by state law.

D. PLANT CLOSINGS
1. COMMON LAW AND STATUTORY RESPONSES Local 1330, United Steel Workers v. U.S. Steel Corp. o Facts: Two steel plants were closing in Ohio that employed 3,500 people. The employees were tying to set up a deal where the community could purchase the plants and keep them running. The suit involves the congressmen, Attorney General and the union suing the Steel Company to keep these plants open. The court found for the steel companies and found that there was no law out there to get a remedy under. One remedy that they said the employees only chance was to keep these steel plants open was under promissory estoppel. The promissory estoppel claim could have at least paused the procedure to look at it because the managers had promised the employees that if the workers worked at the plant and if it was profitable then they would keep the plant open. The superintendant to the plant made this promise and this is important because US Steel itself was not a part of this promise. If someone higher up in the company had made this promise it might have been a clearer offer and more valid. Another argument that was made was the community interest: basically saying that these plants are community property and you cant shut them down because of the impact they will have on the community. WARN ACT- when a plant is completely closing they have to provide a 60-day closing notice to give the employees time to look for another job. (Worker Adjustment and Training Notification Act). You have to have at least 100 employees for the WARN act to apply and there is a layoff of 30% of the total workforce or at least 500 people. WARN act applies if you close an entire plant. (threshold is 100 employees) If you are laying off anywhere between 50-499 it has to be 33 1/3% or more of the entire workforce. If you have more than 500 total employees being layed of then the WARN act is also imposed.

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Workers Adjustment and Retraining Notification Act (WARN) Provides notice rights to workers facing the loss of jobs as part of a plant closing or mass layoff. Created to diminish harmful affects of plant closing (on workers and on the community in general), provides employees transition time to seek new jobs or retrain and obtain swift dislocated worker assistance from the state REQUIREMENT 1. covers employees with 100 or more full-time employees 2. requires 60 days notice (must be in writing) for: plant closings o single site of employment that is permanently or temporarily closed o AND the shutdown results in employment loss for 50 or more employees for more than 30 days OR Mass Layoffs o a Reduction in Force (RIF)not result of plant closing o results in employment loss at a single site during 30 day period o BOTH at least 33% of employees and more 50 workers fired o OR at least 500 workers are fired EXCEPTIONS: temporary closings do not trigger WARN or layoffs caused by the end of a specified project, or a closing caused by a strike or lockdown 1. Faltering Company Exception o only applies to plant closing o must be actively seeking capital or business o believes in good faith that giving advanced notice would prevent it from obtaining cash company must give as much good faith notice as possible, but because notice might reduce chance of getting financing there must be a realistic opportunity to obtain the capital 2. Unforeseeable Business Circumstance Exception o applies to both plant closings and mass layoffs o still must give as much notice as practical, but is not required to give 60 days if caused by business circumstances not reasonably foreseeable at time when notice would have been require reasonably foreseeable as if caused by dramatic, unexpected action outside of employers control example: a sudden or unexpected termination of a major contract, a strike or other disruption at a major supplier, an unanticipated and dramatic economic turndown, and an unexpected governmental-ordered closing of a worksite. 3. Natural Disaster o the exception applies if any form of natural disaster makes advance notice of the action impossible, however notice is still required to the extent it is practicable, even if after the fact IMPACT OF WARN 1. purpose: to permit workers transition time to adjust to prospective loss of employment and facilitate re-employment 2. advance notice of plant closings associated with lower unemployment and poverty rates three years later and lower usage of social welfare services REMEDIES Company can buy out violation from employees, so may not be issue (no standing). 1. Up to 60 days back-pay/benefits to employee 2. Attorneys Fee
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3. Civil Penalty of up to $500 a day of inadequate notice 2. WARN ACT LITIGATION Carpenter Dist. Council of New Orleans v. Dillard Dept. Stores, Inc. o Facts: A wholly owned subsidiary of Dillards merged with Holmes and they didnt give a 60day notice because they didnt count the part-time employees. They also made an erroneous assumption because Dillards tried to take the 2 weeks vacation that they owned them and use that with the 60 days. o Holding: The WARN Act didnt apply because of the faltering company exceptionthe company has to be actively seeking capital and if the employer announces that they will be laying off all these people, they will not be getting any money. o The WARN act also applies to the white-collar division as well. Pena v. American Meat Packing Corp. o Facts: American Meat closes their Chicago facility without giving notice to 350 employees. The plant had to stop production after one of the inspectors found rat droppings. There were 5 USDA inspectors in site and many unsanitary conditions. The plant had to shut down and throw away a lot of product, do renovations, and get new coolers so they can have sanitary meant produced which cost them a lot of money. The company is still getting non-complying notices and finally the rodent droppings lead to a stoppage of production. The plant had brought in expert exterminators to stop the rats and also hired an attorney in order to get the plant re-opened. o Holding: The plant has had a long history of unsanitary situations so the court says that this is not really an unforeseen issue so the plant must give its employees the required 60 days notice. Roquet v. Arthur Anderson o Facts: Arthur Andersen is a major accounting firm connected with the Enron scandal. The company was indicted and the question is whether the indictment constitutes an unforeseen business circumstance. o Holding: The court held that it was not foreseeable because indictments against companies, rather than individuals, were rare and the companys negotiations with the DOJ had not been indicted that such an indictment was likely. The unforeseeable business circumstance exception applies. The court stressed that the possibility of an occurrence is not enough. Rather the business circumstance must be probable to be considered foreseeable.

E. LEAVING A JOB
1. BREACH OF EXPRESS TERMS Handicapped Childrens Educ. Bd. v. Lukaszewski o Facts: A speech language therapist was hired by the school board and was paid a little over $10k. She had a contract for the coming school year. She gets a job offer for better pay and tells the superintendant she wants to resign and he says to submit a letter so they can consider it. She sends the letter but he declines and says that she has to finish her contract. She has a hyper-tension disorder which is being aggravated by this and she gets a doctors notice telling the board that she has to quit due to the work-environment and the fact that she doesnt want to be there any longer and it is not good for her health. So she quits and the school board finds another teacher to finish her class and the board has to pay more to the new teacher. The school then sues for breach of contract to recover the differences that they have to pay the new teacher. o Holding: The speech therapist has to pay the school what they have to pay the new teacher.
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2. BREACH OF IMPLIED TERMS Mercer Mgmt. Consulting, Inc. v. Wilde o Facts: There are three defendants who used to work for Mercer who was the manager of a consulting company. There would be no solicitation and they would not hire anyone from Mercer for 1 year (1st agreement). The second agreement was after working for Mercer for one year, they signed a non-compete clause that said they could not compete within a 50-mile radius, or solicit clients. Mercer alleged that they breached their contract and duty of loyalty and got confidential information and that is why the non-compete agreement needed to be in place. The confidential information was from the client lists. o Holding: The court finds that Mercer has a legitimate interest to protect their business. The company has to show that the defendants are using the confidential material or information to the companys detriment and also that the other people even has access to it. The court says that as long as you are still performing and being loyal to your employer, you are not in breach if you contemplate starting a new company or your own business. o The employer does not suffer any damages if the employees do not leave. o Rule: The non-solicitation and non-compete agreement for one year was reasonable in scope and protected the legitimate interest of the employer. The interest was that it wanted to protects its employees and its clients.

NON-COMPETE AGREEMENTS Non-compete agreements have to PROTECT THE LEGITIMATE INTEREST of the employer and must be REASONABLE in scope (as far as time and area). 3 part analysis: 1. have to protect the legitimate interest of the employer 2. cant impose an undue hardship on the employee 3. cant harm the public Any non-compete signed by an attorney is INVALID. Garden-Leave: You wont work at all for the employer for one year but the employer is paying you. For example if there is a non-compete for one year after you stop working, the former employer will pay you not to work for one year. Non-compete agreements are just per se invalid in California; the state does not like them. Employers seeking injunctions to prevent a former employee from working for the competitor... Must show reparable harm to the employer and likelihood of success on the merits. Non-competes are important today due to technology and the ease with which information can be taken and stolen. The employers right to enforce a non-compete are not absolute. There are elements that the employer has to establish as stated above. 1. The non-compete has to protect a legitimate interest of the employer. (not protected: potential or prospective clients because they were not clients at the time!!) 2. The legitimate interest is weighed against the undue burden or hardship on the employee. (the employee has to be able to earn a living) 3. It cannot be adverse to the public interest. 4. Must be reasonable in scope as far as time and area.

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Courts can Blue-Pencil and make it so that the agreements are reasonable. (They can change the non-compete in order to make it work and be reasonable in nature.)

Alternative Dispute Resolution

Arbitration of Employment Disputes o Arbitration is proceeding, governed by a contract, in which a dispute is resolved by an impartial adjudicator, chosen by the parties whose decision the parties have agreed to accept as final and binding. o Advantages of arbitration over litigation Faster Less expensive Less formal than litigation (no rules of evidence or procure making it easier to prepare for a case) o Disadvantages Adhesive arbitration is involuntary Controlling parties will draft a lopsided agreement o In looking at t/enforceability of an arbitration agreement remember: Purpose of t/FAA is to give arbitration agreement t/same enforceability as contracts Federal court apply contract law of particular state in enforcing an arbitration agreement Look at offer, acceptance, consideration, mutuality etc.. Class actions are not incompatible w/arbitration and compelling class arbitration in t/appropriate case does not violate t/Federal Arbitration Act Generally, when an arbitration agreement contains a single term in violation of public policy, t/term will be severed and t/rest of t/arbitration agreement enforced An arbitration agreement can be found to be procedurally unconscionable where it fails to show t/disadvantages of an agreement. o An employee is bound by a pre-dispute arbitration agreement to adjudicate unwaiveable statutory employment rights provided: 1) The arbitration agreement does not limit t/damages normally available under t/statute 2) There is discovery sufficient to adequately arbitrate their statutory claim 3) There is a written arbitration decision and judicial review sufficient to ensure t/arbitrators comply w/t/requirements of t/statute 4) T/employer pays all types of costs that are unique to arbitration o In Mitsubishi Trilogy, t/ct interpreted t/FAA as creating a presumption that statutory claims are arbitrable, and made this rebuttable only if the parties could show Congress specifically intended otherwise Such an intent must be discoverable in t/text of t/substantive statute, in its legislative history, or in an inherent conflict between the arbitration and t/statutes underlying purposes. o Under t/FAA, grounds for revocation of arbitration clause contained in a contract must relate specifically to t/arbitration clause and not just to the contract as a whole o Questions of arbitratibility must be addressed w/a/healthily regard for t/federal policy of favoring arbitration

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o In EEOC v. Waffle House, t/ct held that the EEOC has t/independent statutory authority to pursue in court a discrimination claim against an employer, even if the employee who filed the initial charge of discrimination had signed an arbitration agreement o The FAA provides that state law governs contract formation issues concerning arbitration agreements (9 U.S.C. 2) o Courts generally agree that lopsided agreements should not be enforced. Courts have applied the legal doctrine of unconscionability to regulate employment arbitration agreements. o Court vary about whether an employee has received sufficient notice of arbitration o In Circuit City Stores Inc. v. Adams held that t/FAA Chapter 1 Section 1 only excluded employment contracts whose workers engage in interstate commerce only applies to employees who actually engage in interstate commerce, such as truck drivers. Court also held an arbitration agreement can be unconscionable if it unduly limits remedies available.

Arbitration after Circuit City

o Hooters of America Inc. v. Phillips HELD: 1) Employee can agree to arbitrate Title VII claims in a pre-dispute agreement 2) Employer materially breached agreement by promulgating egregiously unfair rules o EEOC v. Waffle House HELD: An agreement b/w an employer and an employee to arbitrate employment related disputes does not bar the EEOC from pursueing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an ADA enforcement.

Rights of Employees and Arbitration

o Caley v. Gulfstream Aerospace Corp. HELD: Dispute resolution policy that provided for arbitration of any covered employees that was posted on the companys website and mailed to employees individually w/cover letter explaining t/employees continued employment would constitute their acceptance of t/policy qualified written agreement to arbitrate, w/in t/FAA -Even though t/doc was not signed by t/parties o Gentry v. Superior Court F: Retail store manager filed purpoted class action against employer seeking damages for conversion and statutory violations arising from employers alleged failure to pay its managers overtime wages to which they were entitled. Employer had arbitration agreement in employee handbook that did not describe t/disadvantages of t/agreement . HELD: 1) Class arbitration waivers in employment agreements could not be enforced if court determined that class arbitration would be significantly more effective way of vindicating rights 2) Remand was required for trial ct to determine propriety of class arbitration 3) Arbitration Agreement was not free from procedural unconscionability

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November 23, 2009 Fair Labor Standards Act (FLSA) The purpose of the act is to protect workers (ex. regulates child labor) by setting minimum wage, requiring employers pay time and a half for over time, protecting against retaliation, and requiring employers to keep records. - Statute defines employee as any individual employed by an employer. - Any arrangement where one party suffers or permits one party to work. - Does not apply to independent contractors or volunteers. Federal minimum wage: $7.25 - FLSA allows states to set their own minimum wage so long as it is higher then the federal requirement. Exempt employees are not entitled to over time; non-exempt employees are entitled to over time (time and a half for any hours worked over 40). - There are certain types of jobs that do not get over time pay. o Exemptions to FLSA: administrative exemptions professional exemptions executive exemptions certain computer employees outside sales exemptions highly compensated employee exemption

To fit into any exemption you have to make at least $450 a week. primary duty test applies when determining whether an exemption applies: what is the persons principal job (most important duty) where do they spend most of their time? - administrative: $450 per week AND... 1. performing office or non-manual work directly related to management or general business operations of the employer or the employers customers, 2. primary duty: must exercise of discretion or independent judgment over matters of significance what to consider with discretion or independent judgment... does the employee formulate policy for the company?
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can the employee bind the company through K? does the employee have the ability to deviate from established practices or procedures without getting approval? is the employee form long term business plans for the company? can the employee represent the company in complaints and grievances?

- highly compensated employee exemption: minimum of $100K and fit into one of the two criteria for the administrative exemption - executive: must make at least $450 per week, management of the enterprise, oversee 2 or more employees o primary duty: authority to hire/fire or make appropriate recommendations to hire/fire - professional exemption: minimum salary requirement AND... o learned professional exemption: primary duty in a field of science or learning customarily acquired through a prolonged course of specialized instruction, requires consistent exercise of discretion or independent judgment o creative professional exemption: primary duty involves the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor (actors, musicians) - computer employee: no salary minimum, hourly pay must be at least $27.63, no requirement of discretion or judgment o primary duty must consist of at least one of the following: application of systems analysis, techniques and procedures (high level tech skills) OR consulting with users to determine hardware, software, or other system functional specifications OR design, development, or documentation of computer systems or programs - outside sales: no minimum salary requirement because you earn on commission, primary duty is making sales and/or obtaining sales for contracts - employee cannot waive rights to overtime pay!! - an employer cannot rely on a job title to get exemption (being called an IT support specialist which is just installing software onto computers
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software you didnt make yourself, does not mean you are exempt from overtime pay) PRELIMINARY AND POSTLIMINARY TIME IDP v. Alvarez o Workers were complaining that the company was not paying the meatpackers for the time that it took them to get their work clothes on. The court said that the standard the employers would have to meet is whether what the employee is doing is indispensible or integral to the work. The court decided that this time was integral to their work and it therefore compensable. MISCLASSIFICATION Employer says the employees are exempt from overtime, but they are not? Kuzinkski v. Shering Corporation o Former sales representatives brought action against pharmaceutical company, alleging failure to pay overtime wages in violation of FLSA. Sales reps didnt make sales/obtain orders/contracts to sell pharmaceuticals, and thus outside sales exemption to employers' obligation under FLSA to pay overtime wages did not apply to sales representatives; sales representatives were not allowed to enter into sales contracts with physicians, primary responsibility of sales representatives was to develop relationships with physicians and provide information about drugs, and sales were made by company to wholesalers and other retailers, rather than physicians that sales representatives contacted. o they promote the drug, which can only be obtained by a prescription for that product, which leads to increased demands, and increased sales this is not a direct sale... Court says that they are not making any kind of sales within the meanings proscribed by the FLSA o The District Court held that sales representatives were not exempt from overtime pay under FLSA.
Claudio-Gotay v. Becton Dickonson Caribe this is a retaliation case. Claudio was hired by Becton and approved invoices for security guard hours. Rengifo v. Erevos Enterprisean employees rights under the FSA will not be affected by their legal status. The court is trying to protect undocumented workers against exploitation.
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