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Employment Law Outline

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					Employment Law Outline 1. Work and Law a. Work and Society i. Work gives people self identity/worth; $$; socialization; fringe benefits b. Legal Intervention i. Bammert v. Don’s Super Valu – (Bammert was at will employee, husband was cop. Williams owns store. William’s wife arrested by Bammert’s husband for DUI. Fired from store in retaliation for DUI) 1. Issue- Whether the public policy exception ot the employment-at-will doctrine can be extended to a retaliatory discharge based upon the conduct of a non-employee spouse? 2. Rule- NO. Can be discharged without cause w/ no remedy. 3. To qualify for exception- P must ID a constitutional, statutory, or administrative provision that clearly articulates fundamental, welldefined pub policy. Employee refuses to violate it. a. Discharges for conduct outside of the employment relationship by someone other than discharged employee not actionable b. There is no well-defined statute or C provision here that’s relevant 2. Development of Employment Law a. Master Servant i. Ordinance of Labourers – everyone under 60 had to work, or else get put in jail (plague happening). Took away any collective bargaining, and people were forced to work for set wage. Wages set to before-plague-set wage ii. Master/Servant – master is liable for the actions that servant is commanded to do b. Employer-Employee i. Lemmerman v. AT Williams Oil Co – (8yr old slips/falls at sore. Employer says he was employee and should be under Workmen’s Comp b/c doesn’t want to pay damages. Act talks about illegal minors. Fed and State labor laws also apply. Mother/cashier says boy not employee) 1. Issue- Whether an illegally working child can be considered an employee under the Worker’s Comp Act when he initially offered to only help, not on list for taxes, no paid in conventional manner, receives comp from manager, and Act provides for illegally working minors to have subject matter in Worker’s Comp court? 2. Rule – Yes, child employee b/c he received compensation and Ct. said this b/c he could demand wages. a. P’s argue that procedural formalities weren’t followed. Ct. held that formalities weren’t controlling. 3. Note: Ruling doesn’t further the purpose of the Child Labor laws, and protects wrongly acting employer from tort liability a. Ct. Split on when minors are injured or killed, they qualify under worker’s comp. Others say unjust public policy.

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b. Independent contractors can sue in tort, so argue to get that sometimes. Employers don’t have to pay them min. wage, so shift definitions of workers depending on circumstances c. Agricultural workers are NOT independent K’ers d. Clackamas – who’s a business partner/employee is whether partner operates indepen and manages business or is subject to control (non-equity can be fired at will and is employee) c. Development/Sources of Employment At Will i. Wood stated that employment is “indefinite hiring and is determinable at the will of either party.” Adopted this standard, but retained notice requirement for leaving. ii. Job as property – private sector doesn’t recognize. Public jobs sometimes recognize can’t be deprives of property (job) w/o due process iii. Hiring process 1. hiring  job  firing. Most protection is in firing, and usually by seniority, b/c this is where there’s the most to lose. Hiring process not strictly monitored a. Adair v. US – court struck down federal statute making it a crime to fire someone for being in union based on principles of freedom to K of employer/employee b. Coppage v. KS- struck down statute making it unlawful to require non-membership in union before hired. 2. Different Sources of Law – History a. National Labor Relations Act – collective bargaining b. 1960s civil rights – age, race, religion, etc. c. 1970s – at will gets resurgence w/ some tort and K exceptions d. Federal/State C’s, statutory, regulatory, common law d. Civil Service/Public Employment i. McAuliffe v. Mayor & City of New Bedford- (mayor found that M violated police regulation that no member shall solicit $ or aid for political purpose. Also evidence he was part of political committee, also prohibited) 1. Statutory Rule: Police hold office during good behavior and until Mayor removes for cause w/ due hearing 2. Rules At Issue: Police Regulation statute; 2) Const. and 1st amend freedom of association; 3) Act allowing mayor to fire under state statute for just cause. a. Issue: Can a police officer be removed for cause & due hearing if he violates a police regulation stating that he may not solicit $ or aid for political purpose or hold political office? b. Rule: YES. Can’t hold office in politics if job description says you can’t. City may impose reasonable conditions upon holding offices within their control c. Pl has Const. right to talk politics, but no Const right to be a policeman (political rights limited)

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3. Good policy b/c makes sure police don’t ask for $ in exchange for protection e. Civil Service Laws i. Government jobs initially ran by patronage system, and who you knew. Civil service laws came at end of 19th cent and started governing and used merit instead of blood, and political affiliation 1. Hatch Act – due to corruptions & inefficiency of gov’t, reform initiated. Covered whole exec branch, but not some high policy makers. Tightened prohibitions on political activity of federal employees, state and local gov’t employees too. ii. Merit Systems Protection Board - allowed political activities for state and local gov’t employees are: 1. May be candidate for public office in nonpartisan election; 2. may campaign for and hold elective office in political clubs and organizations; 3. may actively campaign for candidates for public office in partisan and nonpartisan elections; 4. contribute money to political organizations or attend political fundraising functions; 5. participate in any activity not specifically prohibited iii. State and local gov’t employees may NOT: 1. use official authority to interfere w/ election or nomination 2. directly or indirectly coerce, command, or advise state or local officer or employee to pay, lend, contribute, to political party or anything else for political purpose 3. be candidate for elective public office in partisan election iv. Rutan v. Republican Party – (IL govnr put hiring free for every agency and permission to hire was to go thru him. Applies to new hires, promotions, transfers, and recalls after layoff. Gov was looking at who voted for Republicans, donated, worked for, etc.) 1. Issue- Do hiring practices related to political leanings violate the 1st amend freedom of association and belief? 2. Rule- Patronage practices must be narrowly tailored to further vital gov’t interest. Otherwise they encroach on 1st amend rights. a. Gov’t interest was to hire loyal and effective employees – Ct. held there was a better way to do this. b. We need people in essential positions, and can’t screen them out b/c of political leanings. 3. Dissent – thought patronage was a political norm and overcame barriers to racial minorities, since all that mattered was party loyalty 4. Elrod Case – SC case that said couldn’t fire for political opinions at lower levels. Suggests that some employees who make policy could be removed for political affiliations. Must show party affiliation is appropriate req for position. Also pertains to promotions, hiring, as well as firings. v. Plunkitt of Tammany Hall

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1. He was head of Tammany Hall – his political appointments worked hard to get him elected, b/c they wanted to make sure they had jobs 2. Honest v. Dishonest graf – bought up real estate that city/state wanted to use and build park. Then would sell back at his own price. He says this is honest a. Dishonest would be stealing from treasure and getting kickbacks from businesses. 3. His Thoughts on Civil Service Reform – Says it ruins patriotism of young men b/c they lose their appointments. a. Privatization – taking jobs traditionally handled by gov. employees and giving to private companies i. For – get competition which might decrease price for doing it. Get to reduce benefits and wages of employees. ii. Against – private company is probably non-union. Gov’t jobs usually less hrs, harder to get fired. Easier to discriminate in private sector. COLLECTIVE BARGAINING Pullman Strike 1894 – No real Bargaining 1932 Congress enacts National Labor Relations Act, declared collective bargaining policy, SC said constitutional. NLRA 8(a)(1) – unfair labor practice to coerce or interfere w/ employees in trying to selforganize & collective bargaining. Employer can’t discharge, but can hire temp employment. vi. Excludes gov’t employees, supervisory emplys, agricultural, railroad, & airline. 1947 Labor Management Relations Act passed after WWII b/c unions much more powerful, so gave right to employees to refrain from union activity. Union Security  Employees are not required to join unions  Closed Shop – obligates an employer to only hire union members, and fire any nonmembers.  Union Shop – required to become union member in order to retain job. Legalized by NLRA (8)(a)(3). Membership defined as financial.  Agency Shop – not required to join union, but must pay initiation fees and dues.  Taft-Hartley Act – allows ppl to refrain from union. Can’t terminate them for any reason besides not paying dues.  Can’t collect dues for anything political. Fees only required for reasonable costs of contract negotiation and administration.  Right to work laws – ban union membership as condition of employment. Exist in half of the states.  Currently on downhill slide b/c employers are voluntarily giving what early unions were needed to get. Also b/c of workforce shift from blue collar to white collar, striving to be management. Government Regulation

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New Deal employment gave job security and $ to ppl Gave protections of minimal employment standards and discrimination laws to women, blacks, migrant workers through minimum wage and unemployment compensation. Non-Discrimination  1964 Civil Rights Act Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. Must be member of protected class. Outsourcing and the Global Economy  Jobs overseas will create new jobs here.  Fall in manufacturing jobs is due to technology, not outsourcing.  Delta, Dell outsourced call centers which freed up $ to make new, different positions here  Outsourcing lets businesses make more $$. Mixed data on if displaced workers actually make more $ when jobs outsourced, most studies say they lose $.  Big Picture i. Employer dominance trend – with at will employment. Courts cutting back atwill exceptions. ii. Collective bargaining injured by at-will employment explosion  Changing Economic and Social Setting i. Workforce is growing less. Might need to look to immigration. 1. higher skilled from Europe, lower skilled from Americas ii. Social security problem b/c less workers and more retirees. iii. Skill level and higher education % will go down, no incentive to upgrade skills. iv. Technology is taking away benefits, b/c ppl working from home are being labeled independent K’ers or part time so no packages. v. Trend away from 40 hr work week, with flex schedules/hours, and many people taking numerous temporary assignments rather than being “lifers” DISCHARGE (Employment at Will) At Will – both the employer and the employee are free to terminate their relationship at any time, without reason and without notice. Discharge is considered capital punishment of the work place.

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Statutory Protections of Employees Whistle Blower Protections  Whistleblower Protection Act 1989 – protection for federal employees who expose violations of law, gross mismanagement or waste of funds, abuse of authority, or substantial and specific danger to public health or safety in gov’t agencies  Statutes work differently in places: o Protection if reasonably thought something was wrong; OR o Must whistleblower be right that something was happening? o Who is initial burden on? Employer or Employee? o Do you get other remedies or only WB statute remedies?  Some state have WB remedies preempt common law claims (ex. tort if fired b/c of WB)

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Constitutional Protection of Jobs  Goetz v. Windsor Central Sch. Dist. (Cleaner at school, was fired when thefts occurred, he was arrested & charged. Received letter asking for explanation, he never responded. He requested opportunity to be heard, was then fired, kept confidential. he alleged deprivation of property (job) and liberty interest w/o due process.) o Property interest in job comes from State or Civil Service Law – not Const.  Can be created by local ordinance or Implied K. Civil service laws here said after 5 yrs, employee can only be fired for incompetency or misconduct, and hearing must happen. PL is unskilled laborer and worked less than 5 yrs = at will employment  At will have no property interest in job.  Can have prop interest in public employment if K or statutory provision say only “for cause” termination  Liberty Claim – he should get DP hearing to clear name  Liberty interest implicated where employer creates and disseminates a false and defamatory impression about the employee in connection w/ termination  Property Interests in Job o Gov. employees get DP claims and prop interest in their jobs o Tenures positions have prop interest. Statutory Contracts – The Montana Exception  Wrongfully discharged employees may be awarded up to 4 yrs lost wages & benefits, and punitive damages in some cases. Public employers can only fire for good cause, and can’t violate public policy or provisions of own personnel policy.  Marcy v. Delta Airlines ( woman fired from Delta b/c her timesheets inaccurately gave her $250 in unearned wages. She alleged honest mistake, and the process was complicated regarding vacation day hours) Statutory K o Employer liable for wrongful discharge under WDEA when makes decision in good faith, but based on mistake of facts. Here, mistake of fact that she intentionally falsified records. o In MT, must be discharged for legit business reason which is a reason that’s not false, whimsical, arbitrary, or capricious and must have logical relation to needs of business. o Prove violation of MT statute: 1) firing reason is invalid under WDEA as matter of law. 2) rests on mistake of facts, or 3)not real reason for discharge, but rather a pretext. Contractual Exception to At Will Employment  Gordon v. Matthew Bender & Co – Written Contracts – (Pl. was sales rep of books, no definite employment period stated, territory was narrowed but still has same sales quota, didn’t meet quota and was fired. Letter said if he met goals, would be restored, says this created a K for continuous employment conditioned on acceptable sales performance) o Ct. finds that K is terminable at will. “Acceptable, Satisfactory” (subjective) terminology is still at will. Job performance as condition to remain employed does not transform a K w/ no def. period (at will) into a K that can’t be

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terminated. Too subjective, not like case that uses “good cause” language, which is objective. o If employee shows just cause on termination, burden shifts to employer to prove just cause was present. o At will overcomes “annual salary” language K’s Implied From Conduct  Pugh’s v. See’s Candies – CONDUCT – (Pl. worked for 32 yrs as VP of production. Began at the very bottom. After vacation w/ pres, fired next day, no reason given. Told by old owners would always have a job, new owners subject to these promises. Pl thinks he was fired b/c he openly opposed union deal, and wasn’t supporting management, where seasonal workers get lower pay for same job) o Dismissal when violates public policy is not ok, or when contrary to IMPLIED or express terms of agreement. o K for permanent employment – relationship continues until some event occurs where employer dissatisfied that is constitutes “cause”, he was given assurances about cont’d employment, also employment practices of company, and longevity of the job. o Ct discusses consideration problem, no independent consideration for promises, but Ct won’t look at adequacy of consideration. To decide if implied K - Look at personnel policies or employer practices to see if implied K, verbal assurances, etc exist. Court uses TOTALITY OF CIRCUMSTANCES test. o Burden – pl to establish prima facie case, employer provides reason, then employee can rebut by preponderance of the evidence to show pretext. Pl bears ultimate burden of proving he was terminated wrongfully. Employee Handbooks – modification of contracts  Woolley v. Hoffmann-La Roche, Inc. (Pl is head of Engineering Section, no written employment K, but there was EMPLOYMENT MANUAL w/ assurances, policies for firing. There were express and implied things in emp. Manual that said could not be fired w/o cause & after certain procedures.) o The termination clauses of manual is enforceable K. When circulate manual and have substantial # of employees and where manual is fairly read, will be enforceable, have to look at reasonable expectations of employees. Manual is promise, and is widely distributed. o Even if there was good cause here, employer bypassed procedures  Courts divided on whether or not manuals are Contracts. Some have problems w/ issue of consideration.  If oversell job security, may have claim that there is implied K. Be careful what you advertise, if you say “permanent employee” than you must back it up. Covenant of Good Faith  Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement. Implicit in every contract. o Man problems with defining and limiting this covenant.

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TORT EXCEPTIONS TO AT WILL EMPLOYMENT Implied covenant of Good Faith and Fair dealing  Foley v. Interactive Data – (pl. seeking tort damages for wrongful discharge. Former employee of Chase Manhattan, promoted, signed confidentiality and non-compete for 1yr. Brought up that new hire was convicted of embezzlement) o Alleges breach of implied covenant of good faith and fair dealing. o Usually tort damages in insurance cases b/c of public policy, but most juris. Reject torts in employment arena. o Covenant only read into K to enforce promises, not protect public policy o Insurance relationship is adversarial, emplr-emplyee relationship is aligned (not really), and not the same economic dilemma. So not similar enough to expand torts. o Cts split on expansion of torts b/c some think employment is vital, and should get tort damages.  Lazar v. Superior Court- (Lured Pl away from company he was president of for many year, made false promises to get him to take the job. Lied to him about terms and job security. o Can give false reason for firing him. Ct. said can do this b/c employer can just terminate anyway. Cts. Don’t want to start looking at lies when firing ppl to preserve feelings o Fraud – 1) misrep, 2)knowledge of falsity, 3)intent to defraud/induced reliance, 4) justifiable reliance, 5) resulting damage. Here fraudulently induced him to enter K, intentionally said he could work so long as he works well. o Tort Damages – limited to reliance damages, house payments (had to sell house, moving costs, might get punitive for emotional distress, kids uprooted and trauma of picking up and moving, losing business and personal relations, and then gets fired. o Traditional K Damages – for dismissal, these will be calculated by loss of income, can’t find another job b/c disconnected from contacts, didn’t help him find another, ruined rep by telling everyone he was getting fired. Public Policy  Legislatures never really passed laws in this area  Courts made rules, and discharge under public policy came under Tort Legal Duty  Peterman v. Teamsters – (fired for refusing to perjure himself, was instructed by employer and refused to do so) o Public policy says can’t fire him b/c it is a crime to perjure self. MOST states acknowledge that inducing to break law, get tort damages. o Several jurisdictions refuse to recognize public policy b/c slippery slope  Worker’s Compensation – if get fired for filing a claim, if employees keep making claims, rates keep going up for company. Public policy exception extending to civil realm. o Frampton v. Central Indiana Gas  Most worker’s right statutes have non-retaliation clauses built in  Some states give relief under statutes so no other remedies

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In this case, court gave tort damages b/c statute wasn’t penal and the company was bad and deserved punishment.  Gantt v. Sentry Insurance – (Gantt is employee, Joyce Bruno was being sexually harassed by another supervisor, she told Gantt, he reported it and supported her, he got transferred and later what amounted to constructive discharge) o A few courts found public policy claim absent statute or C provision  1) Refuse to violate statute, 2) performing statutory obligation, 3)exercising statutory right or privilege, 4) reporting alleged violation of statute o NJ (liberal) – sources for public policy exceptions are legislation, administrative rules, professional code of ethics, judicial decisions o Here, CA const and legislation protect against sex harassment (penal section) and acknowledge public policy claim for firing him against public policy Statutory or Constitutional Rights  Hanson v. America Online – (AOL has call center and they have policy that no guns in workplace or on property, including parking lot. Some employees wanted to go to a range, met up in parking lot, cameras caught them having guns in cars, they get fired) o Right or privacy to do something (carry gun) not as protected o Public policy claim to protect right to bear arms. Right to property is also in Const. o Ct. says must balance right of employer to regulate environment and employees rights to maximize Const. rights. Here employer outweighed right to bear arms.  Wagenseller Case – woman didn’t participate in “Moonriver” song and moon at end, she got fired. Ct said firing violated penal statute for “indecent exposure” and that bodily privacy right outweighed employer interest. Public Health and Safety Public Health and safety has been recognized by courts as an important non-statutory source for public policy exceptions.  Employee has right to self defense at workplace. But employer may rebut prima facie case of discharge against public policy by demonstrating a plausible and legit business reason, such as protection of customers/co-workers  Must have direct nexus to workplace, otherwise general public policy in favor of safety and health are usually rejected. Standards of Professional Conduct  Accountants – he refused to violate accounting rules, Court ruled that rules of conduct for accountants have important public purpose and discharge for refusing to violate them is against public policy  Attorneys – associate reports regarding another associate’s failure to handle divorce well. He tells boss, and court allows him protection under code of Ethics. LAWYERS GET OWN EXCEPTION  Doctors – same court rejects Dr. code of ethics Common Law Claims Intentional Infliction of Emotional Distress

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Wilson v. Monarch Paper Co – (he was high up employee, new management comes in and wants to get rid of him b/c old & have to pay him more, demotes him to warehouse janitor. Being harassed b/c of his age. Ends up in mental institution, sues for intentional infliction of emotional distress, gets big award) o Emotional distress – conduct has to be extreme and outrageous, whether the def’s conduct was extreme and outrageous was the only issue. o To find outrageous, they focused on being demoted so far down o Objective standard – ordinary member of community, reasonable person that would say outrageous o Modern rule for defining outrageous conduct is that def 1) abuses relation or position which gives him power to damage P’s interest, 2) knows the plaintiff is susceptible to injuries through mental distress, 3) acts intentionally or unreasonably w/ the recognition that the acts are likely to result in illness through mental distress

Overlapping and Conflicting Remedies  Common law remedies are coming where there are already federal/state statutes to protect employees o Have to decide how many remedies can be pursued in a case  National Labor Relations Act preempts state regulation of behavior protected by it, unless that activity is only of peripheral concern of the Act  Title VII supplements existing laws, doesn’t preempt. Can have Title VII claim and concurrent other claim. RETHINKING EMPLOYMENT AT-WILL  Employees systematically overestimate legal protection in certain employment circumstances LEAVING A JOB Breach of a Contract By An Employee Breach of Express Terms  Handicapped Children v. Lukaszewski – (Hired as teach at Pl’s, get better offer from daycare, wants to take it, Board says no b/c she signed K, she becomes physically ill heightened blood pressure, Dr. says quit and stop commuting b/c endangering health, she gets sued for breach of K, they could only find 1 qualified replacement at higher cost) o Health danger will not be justifiable reason for non-performance if created by non-performing party. Danger to her was self-induced, she stressed b/c she wanted to repudiate contract. o Employers may recover damages where employee breaches. Nonbreaching party entitled to full benefit of bargain. Here HAD to pay sub teacher more as only viable candidate. o Ct. says they attempted to mitigate damages, and wouldn’t have had costs if K not breached.  Employers can get back training expenses if employee breaches K  Same for tuition if K breached

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Can get the costs associated with obtaining as equivalent of services as possible

Breach of Implied Terms  Mercer Mgmt Consulting v. Wilde – (3 emps. Of mercer leave and start new business, sued for breach by Mercer, Wilde, Silver & Dewhurst signed non-competes for rendering competitive services for 1 yr to any client and wouldn’t solicit other employees of Mercer. Evidence that they prepared to set up new biz, but didn’t start working for any clients ro soliciting emps until they left) o Implied fiduciary duty, and duty of loyalty to employer in K o May not solicit, can’t compete. Can’t use fraud or wrongful acts like using confidential info, or get employees to all leave o Emps didn’t breach fiduciary duty by performing their work well and building relations with clients. No breach of Fid. Duty o Non-Compete agreements - ct. says they are valid b/c employer had valid legit interest and covenant was of reasonable scope. Agmt doesn’t expressly state that can’t solicity clients, but not render compt services. Ct. implies that this means to clients. Defs breached here b/c they solicited. Pay replacement costs for stolen clients o Tortious Interference w/ K relations – 1) existence of business relation, 2) defs knowledge of relation, 3) intentional interference, 4) damages. Competitive activity doesn’t meet this level unless some wrongful act or fraud o Here Defs never interefed. Silver and Wilde violated terms of agmts signed but not wrongful enough to warrant tort claim Post Employment Restrictions To safeguard investments made in employees, employers restrict future employment. These restrictions impose another important practical limitation on the employee’s freedom to quit Future Employment  Estee Lauder v. Shashi Batra – (Estee Lauder in CA and NY. Hired Batra to be brand manager. Involved in research, marketing, etc. Signed agmt which had confidentiality, non-solicit, non-compete, choice of law NY. Got paid for time period not working, 12 month period of non-compete. Went to Perricone, started doing work for them, asking help and soliciting help from subordinate. Resigns, becomes pres of Perricone, they sure for injunction) o Choice of Law – CA or NY law – NY acknowledges choice of law provisions. Estee lauder mostly in NY. But, CA law prohibit all restraints on employment. CA’s interest not materially greater than NY’s here, so NY law. Also conflict of law provision. o Majority Rule – covenant not to compete is enforceable if limitations as to time, geo area, and scope of activity to be restrained are reasonable, and do not impose greater restraint than necessary to protect business. o Damages of injunction – Pl showed irreparable injury b/c def could misappropriate trade secrets.  CA rejects restrictive covenants on jobs at all

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No specific performance in employment K’s. Don’t want to force people to work. Also could be involuntary servitude (13th amend)  Lumley – case where no specific performance of singer, but not allow her to perform anywhere else during duration of K  Non-competes are completely unenforceable as to lawyers. Physicians are void too unless by statute. KGB v. Giannoulas – (whether employer radio station may prevent ex-employee from wearing chicken suit, restraint basically prevents him from ever performing in chicken suit. K says can’t wear a “substantially similar suit”, sue him for breach of K) o Tension between right to work and K restrictive covenant rights of employer  Won’t issue restraints unless show irreparable harm, CA also doesn’t acknowledge restraints, void. o Have to look at reasonableness of employer’s restraint before preventing employee from continuing to work. There’s no evidence here of irreparable harm. Can restrict using specific chicken costume, but not any chick costume  Usually reasonableness of restraint doesn’t depend on whether terminated or resigned, some courts say will terminate covenant if terminated  Burden of proving reasonableness – usually on party seeking to enforce it, sometimes just on employers  Sometimes have to show services were “unique and extraordinary” in order to have injunctive relief as appropriate remedy THE HIRING PROCESS Kotch v. Board of River Port Pilot – (LA statute, vessels in New Orleans must be driven by pilots certified by State officers. TO become, have to be appointed by gov, 6 month apprenticeship w/ incumbent pilots, P’s have 15 yrs experience and are passed over for younger friends/family of incumbent pilots) o Pl. alleges nepotism violates EP clause of 14th amend. LA hasn’t adopted statute that says no nepotism. # of pilots limited, ppl will be left out. Practice doesn’t violated equal protection. Ct. says to go to legislature.  Nepotism itself doesn’t violate Equal Protection, but couple w/ gender or race and you have problem. EEOC v. Consolidated Serv Sys- EEOC brings suit for non-Koren refused work at small janitorial business in violation of Title VII. No direct evidence of discrimination. He doesn’t advertise for employees, Did buy one or 2 ads, on in all Korean, the other normal) o No inference of discrimination can be drawn from a lot of Koreans. Disparaity in #’s not itself inference of discrim, must have intended it. o There is no evidence he meant it here. Word of mouth deemed ok employment prac. Subject to review for disparate impact. o No duty of employer to use more expensive ads to get more ethnically diverse employees o Policy – don’t want to kick recent immigrants off corporate ladder by using discim laws against them when they use community ties to get employees

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Benefits of Word of Mouth Hiring: more relevant picture of job for person applying; helps screen applicants b/c don’t want to recommend someone bad

Labor Pool Want Ads  Can’t do discriminatory want ads on race, religion, gender, religion, national origin. Title VII. EXCEPT – religion (ministerial exception), gender or national origin in cases like when hiring priest, or model to sell female products. BFOQ o Race and Color can NEVER be BFOQ  Can’t run ads in limited publication, like only Chinese ads, undergrad circulation, etc.  Employment agencies – can’t discrim referrals or refuse to rep based on Title VII categories  Labor Unions – unions refer jobs out. Can refer based on seniority. Undocumented Aliens  Undocumented Aliens – IRCA fines employers for having undoc immigrants, and fines immigrants for using fake docs. Must ask for docs, but if they give false, not employer’s fault. Most jobs are unskilled labor jobs.  Hoffman Plastic Compounds v. NLRB – (National Labor Relations Board awards backpay to Castro, illegal immigrant, after Hoffman fired him for supporting union, made Hoffman pay backpay and reinstatement, came out in testimony he is illegal and gave fake docs. Ct. denies him backpay b/c federal legislation (IRCA) against this policy. Conflict btwn NLRA and IRCA o Where remedy goes against federal statute, remedy is quashed. IRCA is comprehensive scheme immigration law. Awarding backpay to illegal aliens runs counter to underlying policies of IRCA (immigration reform and control act), policies the Board has no right or power to enforce or administer. Residency Requirements  Wardwell v. Board of Education – (Constitutionality of rule adopted requiring teachers in Cincinnati hired after certain date to be resident in that school district. Wardell hired to teach, he lived outside the district, but failed to change his residence, challenges on EP grounds) o Durational – claims infringes constitutional protection of right to travel, cases cited by P pertain to durational residency requirements when recent travelers of interstate commerce were penalized. Durational requirements were Unconstitutional absent compelling state interest. (Durational = have to live in state for X time before you can get benefits) Strict Scrutiny. o Continuing- an employee residency retirement is continuing, and thus only need RATIONAL BASIS. School says 1) hiring of committed teacher to urban place, etc. Board establishes RB for having residency requirement (Must remain in area to keep the job) Applications, Interviews, and References Applications

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Sullivan v. US Postal Service – (He was employee of Gen. Tires, applies for spot with Postal Service, gave name of current employer and Brown who administered hiring, called Gen. Tires even though Pl checked boxing saying not to, he was fired and didn’t get position w/ Post Office. Alleges USPS and Brown violated Privacy Act by contacting employer.) o Privacy Act – no agency shall disclose any record to any agency or person, except by written request, or w/ prior consent of indiv. o Def. argues that 1) Brown didn’t disclose record, 2) not proximate cause of firing, 3) not intentional or willful o Disclosure – record is any item that groups info regarding individual. Pl’s name was part of application, and Brown disclosed that. Thus disclosure o Proximate Cause – he had good work evals, this is issue of fact o Intentional/Willful – Def argues was just a mistake, Brown admitted he knew about Privacy Act, willful and intentional is jury question.  Can’t ask certain questions on applications – Constitutes evidence of discrimination for Title VII – sex, religion (unless BFOQ), race, no min height/weight standards, national origin unless BFOQ, prior arrest record. Interviews Can be fired if you lied on applications when 1) they find it, 2) when looking to fire you, or 3) when you sue  Lysak v. Seiler Corp – (Pl. claims def terminated her b/c she is pregnant, which is sex discrim. She interviewed, never told pregn, but said no plans on getting preg, told him 1 month later she was preg, he was upset b/c she lied) o Employer never asked her for the info, she offered up the false statements. She can be fired b/c unsolicited. o Ct. says that def. can base employment decision on an unsolicited misrep  Kraft – employee can’t be discharged for giving a false response to a question that employer could not legally ask. Different from Lysak – she volunteered the info. o Interviewer can bind company if they maker representations during the interview. TRAIN YOUR INTERVIEWERS. References  Singer v. Beach Trading – (Pl. left Beach Trading to work for HRK, and then she was fired from HRK b/c Beach gave misleading info. to HRK regarding her employment at Beach. She was VP of Dailiy Operations, but ppl at Beach said she was customer service rep. There is conflict in record that performance was satisfactory or not, she brings claim of negligent misrepresentation against past employer.) o Negligent Misrepresentation – she says there is genuine issue as to whether she was terminated b/c they thought she lied on application or based on bad performance. A cause of action for negligent misrep lies where party negligently provides false info. o Any incorrect statement made and relied on get damages. 1) inquiring part clearly id’s nature of inquiry, 2) employer voluntarily responds to inquiry, 3) person providing info is acting w/in scope of employment, 4) recipient of info relies on it, 5) damages

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o Factual dispute whether he was authorized to give info on former employees. Also, there is factual dispute regarding reason she was terminated from HRK, facts here are sufficient to bring COA for neg. misrepresentation. o Conditional privilege to communicate w/ future employers, condition ends if abused, false information spread with malic.  Communications to prospective employers are subject to qualified or conditional privilege  Former employer has qualified/conditional privilege to make otherwise defamatory statements to present or prospective employers.  Conditional – if just done negligently and not with malice, then no real suit. ***Lewis v. Equitable Life*** – (Pl’s were fired for gross insubordination, they claim defamation to prospective employers b/c employer knew would have to give reason for termination. Employees sent to Pitt, told to keep receipts, etc. Keep changing rules about filling out expense forms, finally employees stopped complying) o Defamation- Publication + Damage to reputation + What is said must be false= DEFAMATION (unless true or conditional privilege)  Here question is whether a def. can ever be guilty of defamation where employee actually transmits the defamatory statement (selfpublication) o Foreseeable that prospective employer would ask why terminated. Factual issue for jury as to whether it was insubordination o Conditional Priv – past employer can tell bad things to future employer if they are true. Privilege is lost if it is abused. Malice overcomes conditional priv.  *** Lewis is minority rule, lots of jurisdictions prohibit making a defamation claim based on self publication. Becoming more popular though***

TRUTH DETECTING DEVICES AND PSYCH AND PERSONALITY TESTING Polygraphs  Polygraph – usually better in specific incident situations and not in employment setting, bad at predicting future behavior.  Employee Polygraph Protection Act – most private employees are protected from taking them (NOT PUBLIC EMPLOYEES), penalty up to 10k o 5 exceptions:  1) fed, state, local gov employers – including all police depts  2) fed employees dealing w/ national security  3) testing of employees reasonably suspected of being involved in workplace incident that results in $$ loss or injury  4) testing prospective employees who will guard armored car, private security  5) some businesses dealing w/ controlled substances  May NOT ask questions regarding religious, racial beliefs

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Reid Reports – psychological tests that purport to test honestly but they are flawed b/c they operate on premise that people who don’t steal would punish, doesn’t take into account charity. Myers-Briggs claims to match personality traits w/ jobs, but no evidence it works, developed by woman in her home. Used by 89% of Fortune 100 companies Minnesota Multiphase Personality Inventory (MMPI) tests mental illness and asks extremely personal questions, becomes part of personnel file. Handwriting analysis used too, usually no formal training. But decently accurate.

Medical Screening/Examinations  Griffin v. Steeltek – (whether non-disabled person has cause of action under American’s w/ Disabilities Act (ADA), job applicant was asked 2 questions regarding whether the applicant had disability and severity of same, and whether have physical defects that would prevent from doing job, he wasn’t hired b/c answered he had been burned before, but did not answer 2nd question) o ADA says – cannot inquire as to disability or do medical exam regarding same. Can make inquiry pre-employment as to whether can complete jobrelated functions. ADA explicitly prohibits disability-related inquiries, unless inquiry is job related or consistent w/ business necc. o Don’t have to be disabled to invoke protection. – don’t want to limit the amount of ppl who could make claim. Want to enforce.  Smokers – ½ states have said can’t allow employers to prohibit legal activities when at home. Have been upheld in firemen cases where presumption that injuries relating to breathing are caused by job.  **Green v. Walker**- MINORITY RULE - (checkups for continuing employment. But Dr. never told him of signs that indicated illness. Issue is whether there is duty of care for Dr. who is hired by employer) o There is a duty btwn a Dr. and an employee regardless of fact that Dr was hired for the primary benefit of the employer  Majority Rule – no duty b/c there is lack of contractual relationship o If indiv is req’d as condition of future or continued employment, to submit to medical examination, the examination creates a relationship at least to the extent of the tests conducted. Level of reasonable care.  Usually employees have no right to look at records regarding mental/physical exams in personnel file, and employers have no duty of confidentiality  Bratt v. IBM – Employer can disclose medical info to another employer if serves substantial business interest  Some states have laws giving employees right to see personnel files, some have procedures to ensure confidence. Can’t disclose w/o authorization. Drug Testing, Genetic Discrimination  National Treasury Employees v. Von Raab –( Whether 4th amend violated by requiring US Customs employees to submit to urine testing for drugs when seeking transfer or promotion to certain positions. Many agents carry firearms, and have confidential info.)

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o Upholds drug screening as to employees w/ access to drugs and w/ guns, but not sure how broad the US Customs designation of ppl w/ classified info o 4th amend intrusion to drug test but there is special gov’t need, beyond normal need for law enforcement. Necessary to balance individual privacy expectations against gov’t interests.  Very few instances where indiv is going to win out o Ct. says can’t assess reasonableness of testing as to employees w/ classified materials, may be too broad b/c pertains to everyone down to messengers. Remand for classified classification  Skinner Case – upheld federal railroad regulations where conduct investigation after every accident as to drug tests.  No individualized suspicion, no probable cause necc.  Drug Free Workplace Act – employers w/ federal K’s must publish policy and distribute regarding drugs, provide penalties, give counseling, etc.  Dept of Transportation – require drug testing of employees in transportation industry  States limit drug-testing – most ok to pre-employment test, some continuous testing, exception as to public safety officer. Sample collected in private, confirm tests, records confidential.  ADA – drug test is not medical exam, so can be given at any time including preemployment  Chandler v. Miller –(GA statute requires candidates for governore, asst gov, sentate, etc. to certify that they have taken drug test) o Drug-testing is a search under 4th amend. To be reasonable must be based on individualized suspicion of wrongdoing or where state has special needs. o Special Need – argue that drug use in high state officer is incompatible with enforcing the laws. Here there is not even suspicion of drug use o Can monitor day to day activities, the need here is more symbolic as to not be drug user rather than real threat. Not good enough to pass. Genetic Discrimination  Genetic Info NonDiscrim Act 2005 – prohibits genetic discrim in federal employment  States – as of 2006 most states have statutes prohibiting genetic discrim. Laws prohibit 1) requiring or requesting to undergo genetic testing as condition of employment, and 2) discrim as to wages, hr, terms, and conditions of employment  Don’t want employers to use as way of saying pre-disposition  Discrimination – element of irrationality or social unacceptability when making distinction of certain groups. Negligent Hiring  Malorney v. B&L Motor Freight – (whether def. had duty to investigate employee’s nonvehicular criminal record and verify negative response on application prior to giving him job driving truck w/ sleeping accommodations. He was a rapist, ended up raping and viciously assaulting 17 yr old hitchhiker) o Rule is that employer must have duty of reasonable care commensurate w/ perios and hazards likely to encounter in performance of duty. B&L had duty to entrust

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truck w/ competent employee and was ignorant as to his record, truckers are prone to pick up hitchhikers, and he is rapis o Def argues that cost of checking info would be high. Ct. says doesn’t matter, DID HAVE DUTY (this is an outlier case)  2 types of negligent hiring cases: 1) employee harms 3rd party, 2) employee injures co-worker  Negligent – you should have known the danger, but you didn’t see it  Patriot Act – requires background checks for drivers of hazardous substance, child care workers  Kelly v. Koca – Girl assaulted by employee dry cleaner after hours by manager, he had been accused of sex harass before but no duty of dry cleaner to protect girl after hours at business. Richland School v. Mabton School District – (Caballero is janitor, had 3 letters of rec, that say nothing about weird comments he made to students, sex abuse claim pending against him, Richland terminated him after found out and gave $100K, they sue Mabton for negligence based on misrepresentations) o Neg Misrep – only applies to business transactions, duty to disclose only in fiduciary relationship. No fiduciary duty here. No duty of employers to tell about allegations in letters of rec. o Ct. says won’t adopt neg misrep on these facts. Richland can’t show that relied on recommendations or that alleged misreps created foreseeable risk of physical injury to kids. o Common Interest Privilege – protects the person speaking from a defamation lawsuit where they are communicating info to someone else regarding a conditional privilege  No absolute priv to give false info  No conditional priv to give defamatory info

DISCRIMINATION Discrimination on Basis of Race and Sex  Title VII – protects 1) race, 2) color, 3) religion, 4) sex, 5) national origin. Later, age and disabilities protected.  2 types of discrim: 1) practices which constitute disparate treatment, 2) practices which are neutral on face, but have adverse impact.  ***Title VII covers discrim in 1) failure to hire or discharge, or otherwise discriminate in compensation, terms, conditions, or privileges. 2) limit segregate in way that deprives of employment opps. Applies to employment agencies and unions. *** o Exceptions – 1) where religion, sex, or national origin is bona fide occupational qualification reasonably necc to normal operation of business, 2) bona fide seniority or merit system, 3) professional ability test that is not designed to discriminate, 4) some diff in pay b/c of sex ok.  Applies to private employers w/ 15 or more employees and federal, state and local govs. o Exclusions – 1) educational institutions of religious nature, 2) business operations on or near Indian reservation, 3) members of communist party.

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Preg Discrim Act – covers pregnancy, childbirth, and related medical conditions.. State law – permits parallel legislation, can be more restrictive, some states make applicable to even smaller business, and add sexual orientation and marital status. As long as doesn’t conflict with Title VII.  14th amend – equal rights under the law regardless of race or gender  Executive Order – issued by President. Binds any contractors dealing with fed gov’t to not discriminate on basis of race, creed, color, or national origin. Discrimination in Hiring Process  Available applicant pool – people applying for that job  How to distinguish among applicants o Qualifications – degree, skills, etc  Could be discriminatory unintentionally o This leads to disparate impact Unlawful Discrimination DISPARATE TREATMENT – Intentional Discrimination  1) plaintiff shows by preponderance 1) belongs to protected class, 2) applied for and qualified, 3) rejected, 4) position remains open = Violation, unless  2) Employer articulates some legitimate nondiscriminatory reason.  3) Plaintiff must show reason is just pretext.  McDonnell Douglass v. Green – Prima Face & Burdens/pretext- (Pl was laid off in general reduction, plaintiff participated in civil rights protest, stalled cars illegally to block ppl from work. He reapplies for job, doesn’t get it, sues b/c 1) racial discrim, 2) discrim against ppl who protested to correct discrim conditions) o Def. claims he was denied re-employment b/c of his activity in unlawful protest practice  Ct. says that Pl msut first show prima facie case of discrim: 1) he belongs to racial minority, 2) was qualified to do seeking applicants for, 3) despite qualifications was rejected and 4) after rejection def still taking applicants. Here pl. proved prima facie case.  Burden then shifts to def. to prove a legitimate reason for rejecting that is not discriminatory. Unlawful conduct here is enough. But then burden shifts back to pl to show that the articulated reason is merely a pretext. o Could show by looking whether whites engaged in unlawful protest got rehired, where blacks didn’t. Remand to determine this.  Pl terminated by HR person not knowing pl was black, but went on recommendations of supervisor who was racist. Good to prove discrim.  Pl just has to prove by preponderance  St. Mary’s vs. Hicks o Prima facie case doesn’t get you a directed verdict, BUT o Jury can believe prima facie case and rule in pl’s favor. o Prima Facie case is enough to show intentional discrimination, b/c jury can just believe that def is lying. o DISPARATE TREATMENT

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Pl shows by preponderance 1) intentional discrimination, and 2) discriminatory act = Violation, unless  Employer gives valid reason.  Pl can then Disprove that reason + all others Gender Stereotyping/Mixed Motive  Price Waterhouse v. Hopkins – (Hopkins was female accountant. She was not put up for partnership nomination even though she got best K that year, comments made to her that she was too aggressive, and should dress more like a female and would have better chances) o Mixed Motives – if considered gender plus bad w/ staff, still violates Title VII. Gender just has to be a motivating part of the decision to come under Title VII. o Def should now have opp. To show by preponderance of evidence that decision was on basis of legitimate reason. Burden to def. Here, the comments of partners regarding sex-stereotypes are sufficient to find discrim. o On remand, def couldn’t establish by preponderance that it would have refused partnership notwithstanding gender.  After Hopkins, Civil Rights Act – writes in that can make claim where mixed motive case. Employer has to then show would have taken same action absent the impermissible factor.  Direct evidence not necc. for pl to show discrim in mixed motive, just show preponderance of evidence based on circumstantial  May provide declaratory relief, injunctive relief, or attorney’s fees, but will not award damages for mixed motive cases. o DISPARATE TREATMENT – MIXED MOTIVE  1) Pl. shows by preponderance: intentional discrim is a “motivating factor” (plurality), “substantial factor” (concurrence) = VIOLATION, unless  2) Employer shows by preponderance, would have taken same action if not discriminated  Pl show that it is pretext.  1991 Amendments by Congress o Disparate Treatment (Direct Proof) or Mixed Motive Cases  Pls show different treatment by preponderance on basis of race, color, religion, sex, national origin as one motivating factor = Violation, UNLESS  2) Employer shows by preponderance that would have taken same action in absence of impermissible motivating factor. Then ct. can grant declaratory, injunctive, and atty’s fees and costs but NO damages or reinstatement, hiring, or promotion, or payment. Gender Stereotyping/Transexual  Barnes v. City of Cincinnati- (he is male transsexual cop, makes claim regarding sex stereotyping, they cite lack of command presence and not masculine enough as some reasons. Surveillance probation is new, no sergeant ever failed probationary period)

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Ct. says must show 1) belongs to protected class, 2) applied for and qualified, 3) rejected, 4) other members of protected class received promotion.  He alleges failure to conform to gender stereotypes. Ct. says can be based on transsexual status. Gender non-conformity is basis, not sex discrimination o Geduldig – excluded medical coverage for pregnancy, no sex discrimination o In reaction, Congress passes Preg Discrim Act 1978 - can’t discrim on basis of pregnancy, childbirth as to medical coverage. o Woman denied discrim claim when fired b/c 4 months pregnant. And would interfere w/ training program to do job. o Woman truck driver fired b/c couldn’t engage in heavy lifting, ct. said permissible as restriction of ability to do work o Private religious school allowed to fire woman b/c preg b/c policy against premarital sex o Pl was on probation for 90 days, had unexpected 2 week absence for miscarriage, ct. said ok to subject everyone equally to attendance policies. Fisher v. Vassar (Took time off to have kids and her application for tenure was denied b/c her absence from academia was held as an insurmountable barrier) o Title VII includes pregnancy and related conditions under definition of sex o Denial based on absence isn’t inherently sex specific and didn’t give rise to claim under Title VII.

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Disparate Impact/Adverse Impact – Unrelated Tests to Discrim  ***Griggs v. Duke Power Co.*** - (power company makes everyone who wants to be part of better jobs have high school diploma and pass test that have no correlation to successful job performance, both requirements disqualify blacks) o Jobs can have tests to get better employees but must have some relationship to job performance. Here, neither requirements bear on job performance. o No need to show discriminatory intent by employer, the Act clearly states that even neutral practices, on face, are not permissible if they freeze out minorities, even if neutral intent. o Employer has burden of showing that the requirement has relationship to job performance where there is disparate impact o Requirement must fulfill a genuine business need  Must demonstrate qualifications are reasonable measure of job performance, by a preponderance of the evidence  This changes in later decisions.  Sometimes educational requirements are obvious, law school teachrs, drs, law enforcement  Upheld running mile in certain time even though adverse impact on women b/c were transit police officers  Ok to have basic skills test for CA teachers in public schools regardless of adverse impact.

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EEOC 4/5 rule – if stats show that more than 4/5 of minority excluded presumption of adverse impact, or where 4/5 of minority included presumption against adverse impact. Teamsters v. US - all blacks in bad position at motor freight towaing company, all white drivers. Comp says can’t depend on stats alone. Can use stats to show adverse impact, but they aren’t irrefutable evidence of anything, must usually have stats that are comparable b/c they are from relevant labor market. Like all blacks in medicine, not all blacks in world. Pool of certified ones. Case doesn’t rely on stats alone.

Disparate Impact/Proper Comparisons of Stats  DISPARATE IMPACT o 1) Pl’s show preponderance statistical underrepresentation in jobs at issue compared w/ relevant applicant pool, and show specific employment practice w/ disparate impact = VIOLATION, unless o 2) employer shows any business justification which serves legitimate goal of employer o 3) Pl disproves business justification as pretext, or Shows alternative: 1) equally effective other way to get legit goal, 2) doesn’t cost more, 3) that employer refuses to adopt it  1991 Amendments by Congress o Disparate Impact  1) Plaintiffs show by preponderance statistical underrepresentation, look at EACH employment practice individually causing disparate impact = VIOLATION, unless  2) employer shows by preponderance that job related for position + business necessity  3) Show alternative employment practice and employer refuses to adopt same o Title III – Applying protection to government employees as well  ***Ward’s Cove Packaging v. Atonio*** - (Salmon packagers, most canning workers are Philipino or Alaskan Natives, and managerial positions are mostly white. Try to bring disparate impact claim solely based on stats) o Proper comparison is between racial comparison of jobs at issue and the qualified population of the relevant labor market. Here, they are comparing racial composition of skilled jobs. vs. unskilled jobs. Not correct comparison. Thus no prima facie evidence of disparate impact o Also, no specific hiring practices described here that affect employment of minorities. o On remand, pl’s can show disparate impact on correct comparison of stats of qualified relevant labor market vs. % employed here. o Then, if business shows legit business reason, then pls. can argue for an alternative practice that achieves same business purpose with less of racial impact. But what is relevant labor market? They are getting skilled job ppl from local market, and unskilled jobs go all the way to Phillipines.

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When looking if alternatives are equally effective, can look at costs of tests. 1) Plaintiffs specify selection process that impacts statistical rersults, 2) employer must show business justification 3) pl. can show alternative selection practice that has less disparate impact CIVIL RIGHTS ACT OF 1991 – ADOPTS WARDS COVE STANDARD FOR DISPARATE IMPACT CASES Amendments to Title VII 1991 – NEED TO KNOW STATUTE o Codifies Ward’s Cove, including burden on employer to show business necc of employment practice. o Capped award of damages o Allows voluntary agreements between employer/employee for other mediation/arbitration o Can get punitive and compensatory for private actors. Punitive has to show malice or reckless indifference present. No punitive for public actors b/c don’t want citizens to pay punitive. Can get compensatory but doesn’t include backpay. This is good though b/c doesn’t’ go towards the cap on compensatory damages. o Caps – include future earning losses, emotional pain, suffering, and punitive, Caps differ depending on size of employer. o In mixed motive cases where employer also gives good reasons to fire, you can get declaratory, injunctive, atty fees, etc. But, not getting damages or reinstatement. So basically no one brings these cases.

o o o o o

Bona Fide Occupational Qualification Defense  1) national origin, 2) religion, 3) sex can be used where it is considered “bona fide occupational qualification reasonably necessary to normal operation of particular business or enterprise  Can’t use sex where 1) based on assumptions of female characteristics, 2) based on sex stereotypes, 3) can’t be based on co-workers, clients, employers, etc. preference 4) may have to provide separate facilities  Dothard v. Rawlinson – (female correctional officer challenged height/weight req’ts at Alabama prison, and that females can’t take contact jobs w/ max security prisoners) o Can’t impose height and weight restriction on women correctional officers, but can limit ability to give “contact positions” b/c fear they will be sexually assaulted. o Height/weight requirements = disparate impact; exclusion from contact = direct impact  **Note: AL prisons aren’t normal operating conditions, so this case applies only to them, not max security prisons operating normally. No Consumer Preference  Wilson v. Southwest – (males bring suit against Southwest b/c would not hire men for flight attendants b/c sexy image. Argue consumer preferences for females as defense) o To prove sex is ok BFOQ: 1) does particular job require worker to be one sex only, 2) requirement is reasonably necessary to essence of employer’s business o Can’t characterize role of flight attendants as attracting male customers, job is to safely transport customers.

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Ok to transfer woman security guards who had to give pat downs to mostly men Healy- ok to have woman and man counselor at sex abuse clinic Fernandez – overturned decision that could hire man for marketing internationally b/c ppl from diff cultures wouldn’t respond to women Violated Title VII for airline to ground female employees who had children based on being distracted, but not fathers. Title VII doesn’t bar different hair lengths for men and women based on grooming standards. Not immutable or protected characteristic. Devnie – it’s ok to make men wear ties in court, but not women NO violation in making bartender woman wear makeup  Gender classifications only get intermediate scrutiny

PROCEDURE  EEOC claim must be filed within 180 days after incident giving rise to violation.  Can file w/ state or local agency or EEOC, if local than can take 300 days to file w/ EEOC. If file with EEOC must defer proceedings for 60 days before they do own investigation.  Give notice to defs w/in 10 days once determined that reasonable cause to believe discrimination. Then attempt to reconcile, if not possible, EEOC brings civil action, give “Right to Sue” letter. o Complex system of medication, doesn’t cost either party any costs. o To use this you need a lawyer, and can go straight to court w/ claim. Court proceedings are de novo  Hostile Work Environment – if act providing grounds for hostility claim arises during Statute of Limitation period, the SOL starts over every time something happens  Woman time-barred b/c couldn’t prove pay discrepancy within SOL b/c annual pay  Have to be paid or get benefits to be covered under Title VII, can’t be working for free  Threshold of at least 15 employees and operating at least 20 weeks per year  Biggest defense is plaintiff’s duty to mitigate  Compensatory damages are limited to intentional acts, thus don’t get for disparate impact cases. Damages are calculated on sliding scale of defs. Company size, up to 300K. Back pay is NOT capped  Punitive damages – must show malice or reckless indifference  If you miss filing dates: o Look for other causes of action, some federal COA’s have longer SOL’s o Look at possibility of damages – possible state tort claim Filing a Charge – Pleading Standards  Swierkiewica v. Sorema – (whether man who alleges firing on basis of age and national origin has to plead specific facts, or whether plain short statement of facts of claim is entitled to relief) o Proving prima facie case doesn’t require specific pleading of facts o Since employment discrim cases are not always proven thru direct proof, not reasonable to ask to plead with specificity and essentially make heightened pleading req’ts

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o No heightened pleading standard b/c FRCP says liberal requirements to put defendant on notice. Damages  Pollard v. EI Du Pont – (woman awarded front pay (time btwn firing and reinstatement, or where no reinstatement to recompense for hostile environment) she had to leave job b/c psych problems. They awarded her the 300K cap b/c she couldn’t go back to hostile environment) o Front Pay – traditionally get $ for period fired to reinstatement. But where psych injuries and can’t go back to hostile environment, damages in front pay are compensatory in nature. o Congress enacted 1991 amendments and permitted punitive and compensatory, but put 300K cap o Wouldn’t make sense to award front where reinstated, but not where hostile environment makes it impossibility. Thus front pay is additional remedy under 1991 amends. o Front pay is in addition to compensatory and other remedies. Damages/Unlawful Conduct  McKennon v. Nashville Publishing – (woman discharged from work force, admittedly b/c of her age, later took documents from office regarding confidential financial information and copied them. Question is when employer finds out later about unlawful conduct, is it still violation of employment law where fired for discriminatory reasons, and what are the damages) o The discharge violated the ADEA o Remedies – court is saying that reinstatement isn’t appropriate b/c lawful reason to fire eventually. But as to remedial damages, the proper measure is from the date of discharge to the point of where the new information for lawful firing is discovered. o But the wrongdoing discovered of employee must be so severe that employee would be terminated on those grounds legally. Compulsory Arbitration  Circuit City v. Adams – (Federal Arbitration Act (FAA) excludes K’s for employment of seaman, railroad, or any other class of workers engaged in foreign or interstate commerce. Ct. is deciding whether the statute is an exemption applying to transportation workers, or to all employment K’s. He signed employment application stating that would EXCLUSIVELY arbitrate any claims under federal or state law including ADEA.) o Ct. says that the types of workers listed are transportation workers. Also, rejects construction that would exclude all employment K’s. o Thus, compulsory arbitration is okay, and serves financial interest of parties  Reinstatement with no backpay is a common remedy.  Collective bargaining agreements on behalf of employees are enforceable as to arbitration clauses even though no individual bargaining between employee and employer.  Downside for employee b/c maybe can’t afford lawyer, and don’t know which arbitrator to pick

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A contract waiving rights to sue for sex harassment is against public policy

Retaliation  Title VII protects employees from retaliation by employers as punishment for exercising rights and seeking protection under statute. Applies to both current and former employees.  Burlington No. & Sante Fe Ry. Co. v. White – (Woman hired as track laborer, and supervisor made insulting and inappropriate comments to her in male dominated job, she reported this. She was then reassigned to a different job, and claimed it was b/c retaliation for reporting, filed EEOC claim. Was then suspended for being supposedly “insubordinate”, later found untrue and was reinstated w/ backpay) o Ct. found that anti-retaliation provision protects from all retaliation that produces injury or harm. o Plaintiff has burden to show:  Reasonable employee would have found the challenged action materially adverse, which means it would have dissuaded a reasonably worker from making or supporting a charge of discrimination.  Use reasonable b/c objective standard; case by case basis o The standard if tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint o Firing was retaliatory, despite reinstatement, b/c she didn’t know how long or if she was going to get job back. No paycheck = serious hardship, which many reasonable employees would be dissuaded to make a discrim charge by.  Law does not protect husband discharged b/c wife sued employer for sex discrim. Affirmative Action/Reverse Discrimination  No problem with recruiting practices, but there is a problem if you use quotas with affirmative action.  Lomack v. City of Newark – (Mayor James mandated that firefighter companies integrate by consent order, firefighters sue on basis of mandatory transfers based on race. They did study on #’s and forced integration) o Ct. holds that race-based transfer policy is not compelled by past intentional discrim. Since policy is race-based policy must pass Strict Scrutiny test to narrowly tailored to achieve compelling state interest o Defs give 3 compelling interests: 1) eliminating de facto segregation, 2) securing educational benefits w/ diverse firefighters, 3) compliance w/ 1980 Consent Decree of Mayor. Here no compelling interest, not narrowly tailored, thus cannot do it o Ct. says 1) compelling interest in remedying past intentional discrim, but no intentional discrim in firehouses. 2) Grutter case – narrowly held that law school can do race-based admissions for educational benefits. But firefighter purpose is to fight fire, not to educate ppl. 3) compliance with the court not the consent decree of mayor. o Public employer, that’s why case is decided this way

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Cases hold that Congress did not intend to limit private actors. Private employers do NOT have to show past discrim to implement race based policy regarding hiring, etc.  Taxman – School couldn’t use race to determine which teacher stays and goes where they had exact same starting date and quality ratings. This is a state actor, so they are limited. Second Generation Employment Discrim – Article o First generation discrim- of overt exclusion, segregation of job opps, and conscious stereotyping. Deliberate exclusion or subordination based on race or gender. Easy to detect  Remedies: Rules, backpay, give same opportunities, goals  No fixing of organizational culture/processes that entrenched bias, stereotyping, etc o Second Generation Discrim – Now based on informal social groups or gender stereotypes, networking, informal training, structural bias. Subtle.  Ex. golf outings at firms, lunch outings which some are excluded from. These are missed networking opportunities.  In a sense we still aren’t past first generation discrim in some big corporations – all boys clubs  Violates norm of equal access Ward’s Cove Problem – since this case says you have to show specific employment discrim practice, it will be difficult to prove organizational, pervasive discrimination cases

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Discrimination based on other factors Religion  Reed v. Great Lakes – (religious discrimination suit where he was hired to be housekeeper at hotel, went to meet w/ Gideons and they did spontaneous prayer session that the walked out of, employer angry b/c embarrassing that he left meeting. He says can’t compel him to stay, manager fired him for insubordination). o Religious freedom also includes freedom from being subjected to religion. There is no evidence that he was fired b/c of his religious views though. o Title VII does require employers to accommodate religious needs of employee provided not undue hardship to employer. “De minimus” standard used. o There is a reciprocal duty of employee to give employer notice regarding what practices will interfere with religion he wants accommodated. Here, he never made religion known, so no discrimination in this case. o You have to declare religious preference in order to survive SJ in case like this  Reed – lawful for employer to require managers to go to training session for interpersonal skills that were based on scripture - **this is early, state case. MINORITY RULE  Unlawful to make employee answer phone “Merry Christmas” b/c easy to accommodate

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Evangelical Christian said part of religion to share faith at work (at public place), ct said he could discuss religion in different places, at appropriate times. Employer not wrong b/c there were places he could have done this without interrupting the setting. Turic – can’t discharge b/c stated wanted to have an abortion, even if against beliefs of other employees Wilson – can fire for graphic anti-abortion pin b/c disturbing, disruptive and offensive to other employees Section 701(j) protects “all aspects of religious observance and practice, as well as belief.” Thus protects really idiosyncratic beliefs, could fall under umbrella of protection. But, courts probably won’t recognize unless tied to religious sect. Unconstituional to require someone to teach evolution Courts have to decide if religious freedom can trump rule not to discrim based on gender. Transworld Airlines v. Hardison – Schedules – a lot of cases are when schedules violate religious belief, violations are usually only when employer refuses to do “de minimus” to accommodate. In this case, he couldn’t work Saturdays. They say if you don’t show up fired, SC said no discrim b/c only person to work Fridays would be higher-ups which would mean overtime, and “de minimus” doesn’t include having to pay 1.5 times wages. Goldman – orthodox jew in airforce, wanted to wear yamaka, SC said no duty to accommodate, AF justified rule by uniformity of appearance. NO violation of religion where drug and alcohol counselor was Native American and used peyote sometimes. Ministerial Exception – Title VII exempts religious institutions from ban on discrim based on religion Weber – don’t have to accommodate Jehovah Witness who didn’t want overnight long haul w/ women. Here gender is more important, can’t exclude them from job, lead to less job access for women.

National Origin  Fragante v. City of Honolulu – (applied for clerk job w/ City of Honolulu, took civil service test that tested language, but didn’t get job b/c heavy Filipino accent. He scored highest on the test, rule that city can choose any of the top 5 regardless of rank) o Oral ability is a BFOQ. This is a disparate treatment theory, not disparate impact. Assume prima facie. o Obviously accent and national origin are linked. Accent also linked to class. o Fragante can’t point to any reason that he did not get job except inability to speak clearly. Valid ground. Next, ask whether it’s a pretext. No hint of mixed motive here. Defendants were exclusively motivated out of business necessity. o Critiques – there was not training of interviewers, no standard questions, no specific instances of misunderstanding. Interview results completely subjective.  Compare Xieng – bank committed national origin discrim by failing to promote employee b/c of accent, took English classes and was told he didn’t speak American

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Title VII protects – 1) marriage or association w/ someone of national origin, 2) membership in association promoting interests of national groups, 3) attendance at schools or churches used by one national origin group, 4) use of you or your spouse’s name which sounds affiliated with national origin BFOQ is defense. Title VII applies to US run foreign companies Immigration and Reform Control Act (IRCA) - it’s unfair immigration – related employment practice to discriminate in hiring recruiting or discharge against a lawfully admitted alien b/c of national origin  Exceptions – 1) not lawful to prefer national origin if 2 ppl equally qualified, 2) ok if gov’t K requires to hire US citizen Speaking own language in workplace . If work w/ public probably can make them stop talking in another language, but most likely not if not dealing with customers.

Age Discrimination  Smith v. City of Jackson – (police say that salary increased violated ADEA b/c went to younger officers. Raise brought the starting salary back up to regional average. Brought disparate impact claim under ADEA) o ADEA does authorize recovery in disparate impact cases, but pl’s here did not prove disparate impact o It is unlawful for employer to “limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee” o However, ADEA narrowed b/c otherwise prohbited action if differentiation is based on “other reasonable factors other than age” ADEA not violated if use seniority instead of age. Thus disparate impact under ADEA is very narrow o But, Pl’s must still isolate one employment practice that has disparate impact. In this case, did NOT isolate relevant practice  Prohibits all mandatory retirement. Applies to 40-65  Exception for senior execs and judges – can be forced to retire at 70  ADEA applies to 20 or more employees, operating for 20 or more weeks. Applies to employment agencies, unions, and federal gov’t  McDonnell Douglas test for age discrim disparate treatment cases. Pl’s prove, then def must show lawful, nondiscrim reason for conduct.  Affirmative Defenses – 1) BFOQ reason necessary to normal operation of particular business. 2) based on reasonable factors other than age, 3) seniority system, 4) any bona fide benefit plan, 5) discharge for good cause  To prove BFOQ: 1) age limit is reasonably necessary to essence of business AND 2) all or substantially all individuals excluded from job are disqualified, 3) some of the individuals excluded possess a disqualifying trait that can’t be asserted without reference to age

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If the BFOQ relates to public safety, employer must prove that practice does achieve goal, and that there is no acceptable alternative that would better advance goal without discriminatory impact  Older man denied job for lack of aggressivenss, it’s ok to desire certain traits regardless of whether linked to age stereotype  Employers can refuse to hirer b/c age for public safety, like driving intercity buses.  Customer preference is not a legitimate defense as far as age discrim Age – judgment of matter of law in ADEA  Reeves v. Sanderson – (pl. brings age discrimination case, allegedly fired for falsifying payroll records, there was evidence that he was fired, was part of protected class under ADEA, he was qualified, respondent hired 3 persons in 30s to fill position) o Whether is defendant is entitled to JMOL when PL shows prima facie case of discrim and sufficient evidence to trier of fact to disbelieve def’s legit non-discrim reasons for actions? o McDonnell Douglas says – Pl establishes prima facie, then burden of production shifts to defendant to show Pl. terminated for legit reason, showed here that Pl failed to maintiain records. Petitioner then made substantial showing that proffered legit reason was false o Pl’s prima facie case, combined w/ sufficient evidence to find that the employer justification is false, may permit trier of fact to conclude that employer intentionally discriminated. o JMOL depends on: strength of prima facie case, proof that employer’s reason was false, any other evidence supporting employer’s case o Must look at all evidence in light most favorable to non-moving party. Ct. can’t make credibility determinations regarding evidence. That’s for jury. Here, def not entitled to judgment as matter of law b/c prima facie then showed w/ additional evidence that reason given was false. Disability Discrimination – Different aspects of it Corrected v. Uncorrected  Sutton v. United Airlines – (Americans w/ Disabilities Act 1990 prohibits employers from discrim on basis of disability. They are twin sisters who have severe myopia which makes their vision horrible. They were given interviews but each was cut short b/c neither met min standard for vision req’t when uncorrected, but could be corrected to better than 20/20) o Disability is: 1) physical or mental impairment that substantially limits one or more major life activities, 2) a record of impairment, 3) being regarded as having impairment o Reasonable Accomodation – employers do “de minimus” o Argument is whether should look at corrective measures in determining whether disabled. Ct. says that must look at whether have disability in corrected state not in hypothetical, uncorrected state. o Not going to exclude those w/ prosthetics or those taking medicine b/c the use of these does not by itself lift disability, but MUST SHOW THAT LIFE IS STILL SUBSTANTIALLY LIMITED

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o Pl’s here have failed to show that eyesight is regarded as impairment substantially limiting life activities. This is one job and they can fly for other non-global flights or be instructors. o The section of statute is in present tense, and sisters aren’t currently limited under this b/c wearing glasses so not disabled. o Congress amended statute after this case, in direct response to SC’s wrong interp of statute.  They expanded the definition of “disabled” so more people can bring claims under Act. Want more people to at least get in the door.  Included Work as a major life activity  When employer refuses to employ someone b/c of any prosthesis and the prosthesis in no way affects how they do their job, there is discrim.  ADA doesn’t apply to minor/temporary impairments of 6 months or loss.  Even if serious, if goes away in 6 months you aren’t disabled. o Not Disabilities: anything like homosexuality, transsexualism, pedophilia, or behavior issues like compulsive gambling, kleptomania, pyromania o ADA does NOT preempt state or local law, but state has to be more stringent if anything, so look at whether state law is more strict o ADA applies to employers w/ 15 or more employees Substantially Limiting Life Activities Disabilities  Toyota v. Williams – (woman has carpal tunnel syndrome, employer puts restrictions on her work , other people doing this job had to do other things as well though, that she was not permitted to do b/c of carpal tunnel) o Claiming disabled. It has to affect major life activities: She claims 1) manual tasks, 2) housework, 3) gardening, 4) playing with children, 5) lifting things, 6) working. Looking at whether major life activities are SUBSTANTIALLY limited o Ct. says that to be substantially limited in performing manual tasks, individual must have impairment that presents or severely restricts individual from doing activies that are major life activities of central importance to daily life. Ex. Walking, seeing, hearing.  Elements considered: 1) nature and severity of impairment, 2) duration or expected duration of impairment, 3) permanent or longterm impact resulting from impairment o Must look at if individuals can perform other jobs too. Not whether person can do his/her job. She could have done another job.  HIV is substantial limitation on major life activity of reproduction. Therefore disability even if asymptomatic.  Reasonable Accomodation – can’t pose any undue hardship or expense on employer. Unpaid leave of absence is usually reasonable.  No duty to reassign to another position if non vacant  Burden on individual to prove accommodation exists that will permit him to perform essential function of job – by preponderance of evidence.

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Defenses – 1) employee misconduct, 2) customer, co-worker pref (facial disfigurement) or where indiv having seizures all the time Doesn’t fundamentally change activity – Public Accommodation  PGA v. Martin – (golfer is disabled, can’t walk the course for tourneys, needs to use golf cart, and carts aren’t traditionally allowed) o Ct. says this does NOT fundamentally change the essence of the game. There is no cost to course in this case. o This case is really narrow, so holding is really not important. Compare this with previous carpal tunnel case. Sexual Orientation Discrimination  Shahar v. Bowers – (woman brings suit against Atty General b/c she was fired after publically telling about her same sex marriage plans) o She has a Constitutional right to free association, but that can be overcome by employer’s interest in maintaining an effectively functioning office o Courts says her rights are substantial and then gives her Rational Basis scrutiny (when usually get SS)  Defer to Atty Gen judgment about what Georgians might perceive, unless his views are outside broad range of reasonble o Atty. Gen argues that her special interest in this topic might impact public’s view of Atty’ Gen’s office and associate her political views with the Atty. Gen on the statute (no longer valid with Lawrence). Here, her acts were likely to confuse the public regarding the opinions of the Atty Gen on the topic.  Pickering – says must balance between employees right to comment on matters of public concern and employer’s right to promote efficiency of the public services it performs through its employees  Shahar was public employee, and therefore had Constitutional protection. Private sector employees don’t have C protection. Title VII term “sex” does not cover for discrim based on sexual orientation  1/2 states have offered protection to sex orientation  Transgendered individuals court split whether under state sex discrim laws they are protected.  Padula – FBI can refuse to hire gays b/c they may be subjected to blackmail b/c have access to classified info. This is applied to those who are not “out”. Those who are “out” are looked at as embarrassment to agency.

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WAGES AND HOURS State and Federal Wage and Hour Regulation  Federal Labor Standards Act o Mandatory Overtime Pay – no maximum amount of hours that can be worked  Exceptions: agriculture, babysitting, parents’ biz, actors, performers, domestic caretakers 32

o Minimum Wage – federal minimum set, but states can set higher. o Child Labor – no one under 14, agriculture jobs are ok, newspaper boy ok, some exceptions. o Coverage: must be an “enterprise” which means 1)perform related activities, 2) under unified operation or common control, 3) for a common business purpose. Employees v. Independent Contractors  Donovan v. DialAmerica – (They give cards w/ names and address of subscribers and researchers work from home to find #’s to call. Distributors would drive cards to and from business. Issue is whether they are employees under FLSA) o Use Rutherford factors to determine if employees: 1) employer’s degree of control regarding how the work is done, 2) employee’s opportunity for profit or loss, 3) employees investment in equipment or materials, 4) skill required, 5) permanence of working relationship, 6) whether service is integral part of business. Look at all of these circumstances as a whole. o Sureway Cleaners – look at circumstances as a whole, whether people are dependent economically upon the business of which they render services o In this case, look at the circumstances of whole activity and economic reality of researcher positions – few skills required, not a lot of profit/loss, investment is low. Activity was integral to part of business. Employees were dependent upon business for pay. Thus, researchers were employees. o Distributors, however, there is no control over them, big profit/loss opportunity. They make investment. All support that they are independent contractors. They were not employees. Their work wasn’t integral part of business.  Prison laborers don’t come under the FLSA. Unless they are farmed out to private employers – then qualify under FLSA  Undocumented workers get protection under Title VII definition of employee  FLSA Exemptions: 1) executives who manage and have authority to fire/hire, 2) administrative executive – office worker, 3) professional – lawyer, dr, etc., 4) Computer employees – anyone who is computer programmer, 5) outside sales – always away from business place. NO MIN WAGE, NO OVERTIME.  Those who do domestic care work are exempt from overtime/min wage pay  On call employees – cops, dr’s. Cops have to leave meals if get call but they aren’t compensated b/c breaks not spent predominantly for city. Oncall dr’s rule is that they can negotiate for rate, usually get lesser amount like 1.5 of min wage.  Hours – anything over 40 hours get time and half. Get paid while engaged in principal job activities, or incidental activities to the job.  17 hazardous jobs that kill children: mining, roofing, excavation.  Not allowed to use meat slicers, grinders, power saws.  Exemptions: kids employed by parents; newspaper kids; children of migrant workers

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 Not very good enforcement of these rules regarding kids  FLSA – no consent or notification needed of parent if child is to work. 1416 yr olds can be employed if not during school hours. During school, no more than 18 hours per week, 3 hrs per day.  Secretary of Labor – has power to provide waiver so that children can work, like where hand picking crops, but conditions must be safe and no pesticides present. Miscellaneous Federal Statutes  Welsh-Healy and Davis-Bacon Acts – US government contracts in excess of 10,000, all ppl engaged are covered, except those in exec, admin, professional positions, or performing office, custodial or maintenance work. Must pay prevailing local wage, usually whatever union rates are if the area contract is taking place in is unionized  Service Contract Act 1965 – establishes labor standards for federal contracts in excess of 2,500.  These are to prevent gov’t from abusing it’s economic power What’s a Job Worth? The Economics of Job Determination  2 ways to calculate it: o 1) Look externally at the market rate for similar work at other enterprises o 2) Industrial engineers can conduct internal job evals, which give relative value to the employer of different jobs within the same enterprise.  Also, look at Supply, demand, equilibrium. Employers try to maximize profit and will only hire as many workers as is profitable.  Workers demand different wages b/c of non-monetary working conditions and advantages (good or bad) o Examples: social environment; teachers either college or elementary what they deal with; getting summers off  Equilibrium – factors working against each other, and that will be the measure of the job value.  Tradition – ex. women have traditionally been paid lower, so not in employer’s interest to suddenly raise those wages.  Comparable Worth Theory – not legally mandated, but idea is that jobs will be worth amount due to evaluation of job, and not by market forces. Expectation is that wealth gap will become less b/c women would be paid more under this theory, if paid what they were worth instead of what employers CAN pay women. What skills, conditions, etc. and how many of them do you look at to establish worth? This seems like a highly subjective determination that advocates will use to decrease the gap. Wage Comparability for Individuals  Number of factors are used to justify wage differentials: seniority, qualifications, education, bargaining power, etc. Women who work full-time earn 70% fo what males earn. Continue to be concentrated disproportionately in the lowest paying occupations. Sex based wage gap has resulted in substantial litigation, as women have started to seek redress. Equal Pay Act

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Can’t discrim based on sex in paying less wages except: 1) seniority system, 2) merit system, 3) system which measures earnings by quantity or quality of production, 4) differential based on any other factor other than sex. Can’t bring men’s salary down to equalize the pay, idea is to get women’s up to men’s Only applies where work between men and women is “SUBSTANTIALLY EQUAL” as per Corning, not just SIMILAR work in “skill, effort, and responsibility” o Determining skill, effort responsibility required – Look at consequnces of not being responsible; for effort look at physical, mental difficulty and under what conditions must perform; skill – need special degree/license, knowledge Corning Glass Works – (men given nite shift for inspecting glass, women given day shifts, nite shift paid more, women bring suit under Equal Pay Act passed, not given backpay) o To violate Act employer must pay different wages to opposite sexes for “equal work on jobs, the performance of which reques equal skill, effort, and responsibility, and which are performed under similar working conditions.” o Four exceptions where: 1) seniority system, 2) merit system, 3) system which measures earning by quantity or quality of production, 4) differential based on any other factor other than sex. o Burdens of proof – Pl carried burden of showing that one sex makes more. Then burden is on employer to show differential justified in one of 4 exceptions. o Corning actually was represented at Congressional hearing and said that the working conditions included 1) surroudnigns such as exposure to chems and 2) physical hazards – such as frequency and potential for injury. o Here, day and nite are same, and nothing in Corning report said that time of day was considered in working conditions. [Here the higher pay rate was product of men demanding more to do menial tasks, and reflected a job market where could pay women less]. No other nite employees made more than day workers. Illegal to take advantage of this situation. o Can’t reduce men’s salary to equalize with women’s  EEOC v. Madison – Female coach of girls team paid less than men’s. Similar working conditions doesn’t mean identical. Violation of Equal Pay Act b/c working conditions are substantially similar and not completely equal, okay that one coaches boys/girls  Different w/ colleges – team bringing in big revenue creates different working conditions than less revenue team. But is this customer preference? Is this really not a factor based on sex?  Job Channeling – male clerks got more $ than females b/c department was more profitable, court said Ok. Any factor other than sex was profit of departments. Should have sued under Title VII access to jobs in male department.  Prior salary alone (which incorporates previous discrim) does not justify differential in pay. But if you group it with education, experience, then claimant can’t win this under Title VII (Ward’s Cove b/c the past discrim was not by employer, but by society.)

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What if men demand more at hiring than women. As time goes on, % will increase and wage gap will grow, but not a violation.

Title VII of Civil Rights Act 1964  Unlawful for any employer to discriminate against individual with respect to COMPENSATION b/c of race, color, religion, sex, or national origin.  Discriminatory Ways: 1) job segregation, 2) wage discrimination  Job Channeling – sending men to certain jobs vs. women. This can give rise to cause of action under Title VII. Discriminatory job assignment.  Gunther – women guards paid less than male guards b/c male guards guarded more inmates, and women did more clerical work. Females bring suit under Title VII for sexbased wage discrimination. Jobs were different enough that could not win under Equal Pay Act. But, can win under Title VII b/c this is job channeling. The scope of Title VII is different than and broader than Equal Pay Act.  AFSCME v. Washington – (Union of public employees brings suit on behalf of workers against state, there was study that state did that proved wage differential at least 20%) o Intentional discrimination in predominant female job classifications. o State had knowledge of sex discrimination. It was pervasive and intentional and still being practiced by state, and violation of Title VII, totally indifferent to effects on women. o Like Corning where employer was not allowed to take advantage of fact that females will work for less, Here, District Court says same as Corning, can’t take advantage that women will work for less. DC says bad faith of state.  AFSCME v. Washington II – APPEAL – Rejection of Comparable Worth Theory o State that here, the salary differentials reflect prevailing market rates. o There isn’t one factor that can pin down, can’t fault employer for past discrimination even though aware of impact of wages of women. o Court says disparate impact, don’t need to show an intention to discriminate. State followed prevailing market rates, this is not an employment practice that can be cited for DI, b/c DI requires one factor that employer relies on.  Empr argues ads stopped in 1972, so they did all they could. o Disparate treatment – must show intent to discriminate – there is no intent here. State didn’t create the market disparity o No obligation for state to adopt the comparable worth theory o Note: Comparable Worth Theory has not got a lot of cases through. Market rate defense is big hurdle.    CA Case – memo saying as you know it’s our policy to pay position filled by women, less. Since grad student wrote it, no violation b/c no authority to implement pay policies, even though signed by authorities Some states have implemented statutes to balance out pay differentials Canada has adopted comparable worth for mandatory equal pay between men and women.

HEALTH INSURANCE AND OTHER BENEFITS

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Employee Retirement Income Security Act (ERISA) – divides state and federal authority. As to healthcare regulation. Mostly applies to private sector pension plans, preempts a lot of state legislation regarding health plans. Basically, exempts self-insured employers and all gov’t entities from states taxes on premiums, mandates that certain services be provided, limitations on K arrangemnts, prefunding req’ts, claims settlement procedures, mandatory participation in state risk pools. BUT does require: reporting and disclosures, fiduciary responsibility, limits ability to terminate or reduce benefits unless widely known to employees. Diminished influence of states in this area. COBRA – employers w/ 20 or more employees must give health benefits to former employees, dependants for 18-36 months or until another plan begins. Conventional Plans – very few limits on who you can choose as Dr. Network Plans – restrict coverage to certain network of Drs. Not good. Problem w/ Dr. competency and with continuity if Drs. Change. HIPAA – applies to group health plans and curtails use of preexisting conditions, can’t refuse to cover pregnancy, newborns, adopted children. If leaving job, must get COBRA to get continued coverage, but no limitation on premiums that can be charged. People can’t be charged higher premiums for similar situated ppl, or it’s discrimination. Insurer must accept all small employers and eligible employees. Can restrict nature of benefits. Can’t use individuals health history as a reason to not give coverage or to set individual premiums. HIPAA Privacy Rule – must protect employee’s information in employment file Mental Health Parity Act – more than 50 employees must provide health benefits comparable to benefits offered for physical coverage. Newborns and Mother’s Protection Act – may not restrict benefits for the mother or newborn to less than 48 hrs for vag delivery and 96 for cesarian.

Family and Medical Leave  Family and Medical Leave Act (FMLA) – employers must provide leaves of absence when pregnancy, care of children, or other family members. Have to have 50 or more employees. Employees receive up to 12 weeks unpaid leave during 12 month period. For childbirth, adoption of child, care of child, spouse, parent w/ serious health condition, or worker’s own condition. Must be employed for at least 12 months. o Serious Health Condition – injury, impairment, physical or mental problem that is inpatient care, continuing treatment. Employer may require medical certification of problem. Can ask for 2nd or 3rd opinion if leave is for sick relative. Must be more than 3 days, no short term conditions qualify. List of conditions that are usually not covered, but not per se. o Employer may require employee to substitute accrued paid vacation, personal or family leave for medical or sick leave to 12 week leave. o When childbirth, give 30 days notice. If know of sickness, try to give 30 day notice. o Husband and wife might have to share 12 weeks if employed at same place. Employer must continue to provide healthcare, but if employee fails to return for reason other than illness, can recoup o Must restore to position usually, if it still exists, unless necessary to prevent substantial grievous economic injury, or if top 10% of workforce, can just refuse.

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o Remedies – for violation, get lost wages, benefits, any actual monetary losses. Pl may be able to get atty fees, but not Defs. o States vary for childbirth from 6 weeks to 2 yrs. CA gives 6 weeks PAID family leave. NJ recently gives same. o Can discharge employee before the 12 weeks is up, if they aren’t going to return  Pregnancy  Pregnancy – can’t discrim w/ respect to terms of conditions of employment, including benefits. Used to be that pregnancy benefits could be denied.  Pregnancy Discrim Act of 1978 – discrim on basis of sex, means also with regard to pregnancy, childbirth, including receipt of benefits. Employer must treat pregnancy same unless BFOQ defense. If violate, you violate Title VII. Sexual Orientation  Alaska Civil Liberties Union v. State –(Don’t offer unmarried same-sex domestic couples benefits, they bring Equal Protection claim under AK Constition, which says all person treated equal and have equal rights, opportunities, and protection under the law. Const. also says that marriage is btwn man and woman.) o State says had legit interest in promoting marriage, but rule must bear a rational relationship to that interest. Court is applying lowest level of scrutiny. o Ct. says that marriage amendment prohibits same-sex marriage. Opposite sex couples can get married and get benefits. Same sex can never have this benefit. o Since same sex can never get married, so this does not affect marriage interest. Making benefits available to spouses encourages marriage. Denying benefits to same sex couples who can never marry has no relationship to promoting marriage.  Compare CO courts – same sex not eligible for sick leave benefits to take care of injured same sex partner. Denied b/c not member of her immediate family. (This is other way courts go)  NJ – denial of benefits to same sex doesn’t violate Equal Protection  VT – Const common benefits clause says provide benefits to same-sex couples. VT has civil unions to get benefits.  Over 50% of Fortune 500 companies are applying fringe benefits to same-sex couples. FREEDOM IN THE WORKPLACE Grooming and Dress  Kelley v. Johnson – (cops keep hair to style and length they require. 14th amend liberty interest in personal appearance and 1st amend freedom of speech in workplace) o Ct. says must wear uniform, also police can’t be engaged in politics (remember previous case where no gov b/c state employee). Lots of limits on 1st amend for this job. State does have to provide a “genuine public need” o Applied Rational Basis. Held state interests were good enough. o State cites 1) spirit of employees and 2) uniformity to ID policemen o Dissent: Rationales of the state are not sufficient to overcome the Const to contol physical appearance.

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o Should have brought this under Title VII sex stereotyping  Kelley could have been brought under Title VII sex discrim. Rule applies to men and not women having long hair. This is generally unsuccessful b/c Title VII geared towards immutable characterstics.  Beards for muslim police officers get violation of 1st amend. free exercise clause  Guy get to not shave b/c of skin disorder (affects more black males) from ingrown hair. Have to accommodate.  No violation of Title VII where woman’s hair was not kept, and personal hygiene problems, she wasn’t permitted to interact w/ public  Some states passed laws prohibiting height/weight discrim Equal burden Test for Men/Women  Jesperson v. Harrah’s –(bartender at Harrah’s, female, worked there for years. Harrah’s passed new rules that required uniforms (same for men and women) and specific sexdifferentiated req’ts like hair, nails, makeup, etc. She objects to having to wear makeup, says it offends her.) o She does not submit affidavit that complying w/ standards creates more burden on women than men, and there was no suggestion here that standards were meant to stereotype. o Unequal Burden – Continential Air – violation of Title VII to impose weight req’ts on women, but not men. Employers can differentiate btwn men and women as to grooming, personal appearance standards, BUT can’t place an “unequal burden” on one gender. o Sex Stereotyping – Price Waterhouse – denied partnership b/c not aggressive enough even though top earner. This was mixed motive case where gender stereotyping played role. Here, the regulations apply to male and female bartenders, and no evidence that trying to get bartenders to wear sex-stereotypical uniform. (But if you have 2 sets of different norms for males and females, then how could you argue not sex-stereotyping). Lots of cases in Entertainment field claim BFOQ for sex discrim. o Sexually provocative appearance doesn’t violate Title VII for exotic dancers. o But, settlement were Sands made cocktail waitresses wear provocative uniforms while males wore tuxedos. o Can you have sexual harassment in sex industry? YES o Violated title VII where made female sales clerks wear aprons and men could wear shirt and tie b/c of sex stereotype. Harassment  EEOC – Sex Harassment o Violation of Title VII, sexual advances, sexual favors, verbal or physical conduct when made explicitly or implicitly as term of employment, or when acceptance or rejection affects employment, or to make hostile atmostphere. If conduct has purpose of interfering w/ work performance or intimidating, being hostile or creating offensive work environment. o Quid Pro quo sex harassment – agreement to engage in sex activity as condition of employment. Sex or you’re fired.

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o Hostile environment – statements or conduct create atmosphere of initimidation, insult, or ridicule. Look at intent of actor, and effect it has on Pl. o Unwelcomeness, and NOT consent is standard for determining whether occurred. o Employer responsible for its agents and supervisory employees regardless of whether authorized/forbidden or know of/should have known of. o Co-Workers – employer liable where employer known or should know of conduct, unless made immediate and appropriate corrective measures. o Non-employees – if employer knew or should have known and fails to take immediate corrective measures. Matters how much control employer has over person. Sue person responsible, but can sue individual for defamation, assault/battery, tort Cause of action o Employer should take preventative measure by telling employees, providing sanctions, etc. o Where employment opportunities are given to person b/c of submission to sexual favors, other employees who were qualified and denied opportunities can sue for sex discrim, if discrim is rampant and not isolated. Meritor Bank v. Vinson (teller claims sex harassment against supervisor, fondled her, demanded sex, never reported it, Bank had no notice of harassment b/c of no complaint) o UNWELCOME sexual advances that create hostile or offensive working environment are violation of Title VII  Standard by which we judge is “REASONABLE” o Can be violation if there is an adverse employment action of “tangible” discrimination. Hostile work environment, it can be that the conduct has purpose or effect of interfering w/ employee’s ability to perform work or create intimidating, hostile, or offensive working environment. o Must be sufficient, severe, or pervasive enough to alter the conditions of victim’s employment and creates an abusive working environment. o Here, claims are sufficient to establish claim for hostile work environment. o Has to be UNWELCOME, not consensual. Largely a credibility determination. But Pl’s sexually provocative speech and dress is relevant to whether he/she found sex advances unwelcome. Not about voluntariness. o Employer Liability – where supervisor is exercising authority actually delegated to him by making or threatening to make decisions affecting employment status of employees, actions are imputed to employer who delegated the authority. Doesn’t matter whether employer knew or should have known about conduct.  If employer has policy against sex harass, and procedure to handle, if victime doesn’t take advantage of procedure, employer should be shielded from liability, unless has actual knowledge of harassment  But if no reasonably available avenue, then liable, or if had actual knowledge.  Not strict liability if co-employees. o Here, had to complain to supervisor/harasser first, so not a sufficient reporting procedure, so employer may be liable. o Mere utterance of epithet doesn’t’ affect employment conditions sufficient, but some cases are saying it does.

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EEOC in this case, argued different than what in guidelines. This is because of change of administration, trying to set new standards for each admin.  CONCURRING: would go with strict liability with employer issue o Queensland Sex Statute – takes focus off victim. Moves to whether reasonable person would think the victim would be offended. Hard when actors are all Neanderthals. Defenses to Sexual Harassment  Faragher v. City of Boca – (lifeguard resigned b/c sex harassment by immediate superiors) o Employer is liable for hostile work environment created by supervisor w/ immediate authority over employee. Where no tangible employment action (hostile work enviro), employer may raise affirmative defense to liability  Affirmative Defenses:  A) employer exercised reasonable care to prevent and correct promptly any sex harassment behavior (harassment policy)  B) Pl unreasonably failed to take advantage of any preventative or corrective opportunities. Provided by employer or to avoid harm otherwise (look at formal complaint process)  But CANNOT raise affirmative defenses where there is tangible adverse action. Here, constructive discharge is tangible adverse action.  This is hard burden for employee who has been harassed, and policy is in place but never enforced.  Does the claim include an allegation of tangible adverse employment action? o If YES – STRICT LIABILITY – is action sufficiently severe? Some courts constructive discharge is tangible adverse action. Causal connection between harassment and tangible adverse actions o If NO – Ask  1) is the employer’s harassment policy sufficient and is employer’s remediation prompt and efficient?  Then go to 2) did the employee unreasonably fail to complain? Did plaintiff not complain timely? Did not complain to proper persons?  3) if yes to these, employer prevails.  PA State Police v. Suders (supervisors were grabbing their crotches, etc. she resigns, finds out they never submitted tests she had to take, set her up to catch her, interrogated her) o Hostile work environment must be sufficiently sever or pervasive to alter conditions of employment. o Constructive Discharge – abusive environment was so intolerable that resignation was fitting response  This case makes it so that CD can be caused by someone other than supervisors.  Deciding if abusive environment is objective inquiry.

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Defenses: employer can defend against supervisor action by showing 1) had installed readily accessible and effective policy for resolving and reporting complaints, and 2) pl. unreasonably failed to avail herself of remedial measures CAN’T use this affirmative defense if Pl quits and it’s a reasonable response to employer sanctioned adverse action officially changing employment status or situation (ex. humiliating demotion, extreme pay cut, transfer to bad conditions) where there is evidence that employer knew or should have known, like an official act in company records.  Pl has to prove resignation was fitting response for constructive discharge. Bigger burden of proof Tangible employment action – constitutes significant change in employment status such as hiring, firing, failing ot to promote, reassignment, or significant changes in benefits. But in constructive discharge cases, where supervisor actions, employer NEVER will be able to use affirmative defenses b/c essentially hostile work environment. Here, can assert b/c there was no tangible employment action.  Vicarious liability – employer Strictly Liable when there is tangible employment action. Where not tangible, employer can assert affirmative defenses.  State courts can be more strict – Alaska has SL regardless if employer knew of harassment or whether acting within scope of employment  Writer for Friends – there were vulgar statements made during writing for show, court said not aimed at Pl so ok. The context is specific, and she was told it would be  Female brings hostile work enviro claim – ct found that posing in nude for mag doesn’t make unwelcome advances at work welcome  Opinion evidence, reputation, evidence of specific instances of Pl’s sex conduct NOT admissible to prove consent of Pl. Except can intro sex conduct w/ alleged perpetrator.  Rape Shield Law – many states have this, it’s starting to slip into federal courts.  If relationship is consensual, an action for hostil work enviro is not sustainable  Others can’t sue for sex harassment if someone got ahead by doing sex acts, unless maybe widespread then maybe

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Psych Effects – Hostile Environment  Harris v. Forklift – (derogatory statements about being woman, made to pick objects up, said joking, but would start again. She quit) o Whether the employee has to prove psychological effects to show hostile work environment. A mere utterance of offensive comment, not enough to get Title VII hostile work enviro. But Title VII kicks in before nervous breakdown. o Factors for hostile, look at: frequency of conduct, severity, whether physically threatening or humiliating, mere offensive utterance, whether it unreasonably

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interferes w/ employees work performance. Effect on psychological well-being is relevant. Same Sex Harassment  Oncale v. Sundowner (guy works on oil rig, he claims same sex harassment by his fellow co-workers who were male, physically assaulted, threatened w/ rape, complained to supervisor who told him to just deal w/ it) o No statutory language to say that same sex harassment claims are excluded from Title VII. Same sex harassment is actionable. Don’t have to show that person is gay b/c not all harassment is motivated by sexual desire. o Sex harassment is judged as reasonable person in Pl’s position considering all the circumstances. Must be sensitive to social context. If same sex in football locker room, different than this situation  No sex harassment based on sex orientation. Onacle was based on sex, not sexual orientation  Bisexual harassment – since harassed both men and women, harassment is not based on sex. o Just show that there are disadvantageous terms of employment.  Ellison v. Brady (IRS guy keeps writing weird notes and won’t leave woman alone. He is transferred to different location, requests to be sent back to same office w/ her.) o Conduct must be severe or pervasive. This case sets up a “reasonable woman” standard for whether the conduct is offensive b/c men might not be as sensitive to conduct. Not going to cater to hyper-sensitive person, but will be sensitive to differing standards of appropriate conduct btwn sexes. o Remedial Actions – reactions should be reasonably calculated to end harassment. After prompt investigation, she was transferred temporarily. Ct. says that victim shouldn’t have to transfer.  Should persuade individuals to discontinue unlawful conduct o Did not discipline guy. He wasn’t reprimanded, no strong disapproval, no suspension, etc. Title VII requires more. Decision to transfer him back to her location renders any remedy about transferring him void o Remand to find out how much contact they will be allowed to have  Note: Most courts still follow REASONABLE PERSON standards as to reaction in SIMILAR ENVIRONMENT UNDER SAME CIRCUMSTANCES. Don’t base it on gender.  Aguilar v. Avis (Constitutional argument about injunction on supervisor that was using racial epithets against employees. Injunction.) o There is argument that these comments should receive 1st amend protection. o Ct analogy to case where zoning ordinance on where adult move theatres were to prevent urban blight, which is a secondary effect. This is not a content-based regulation b/c there is a “secondary effect” which alters the work environment into an abusive one. Thus, not C protected. o Avis argues injunction is vague and ambiguous, Ct. says there is no confusion, lists specific comments he made Privacy

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13 states have provided breast feeding laws in workplace. Reasonable efforts made as to unpaid breaks and private locations to feed. Strip searches require fairly high level of reasonable suspicion. Usually in correctional officers and Border Patrol agents Vega-Rodriguez v. Puerto Rico Tel Co –(they monitor open workplace stations w/ video surveillance. Bring suit for violation of 4th amend as unreasonable search and violates C right to privacy under 1st) o Quasi-public corp – gov’t actor. Not unreasonable search unless crosses line of expectation of privacy which society reasonably recognizes. o Subjective and objective expectation of privacy. There is some subjective expectation of priv. but businesses are less private than homes.  O’Connor – invasion when employers went in desk to investigate him.  Factors: whether the work area was given to employees exclusive use, to what extent others had access to the space, nature of employment, whether office regulations placed employees on notice that certain areas were subject to employer intrusions. o No objective expectation of privacy here b/c space is open and common. Employer has legit interest in efficient workplace op. employees knew cameras were installed o 4th amend arg that cameras = unreas. Search and seizure. This is less intrusive than physical search, so not unreasonable. Cameras, same as eyes. Fraser v. Nationwide (indep insurance agent was fired, Nationwide had search main file server, including all stored emails, and found disloyal emails) o Elec Comm Priv Act – prohibits intercepts of electronic communications  Intercept must occur at same time as transmission (get it while in the wires)  No intercept of email in storage o ECPA Title II – civil liability for one who 1) intentionally accesses without authorization a facility thru which electronic comm. Is provided or (2 intentionally exceeds auth.  Electronic Storage – any temporary, intermediate storage AND any storage of same for purposes of backup of communication  Might be in backup but, service providers are excepted from searches done on the own system they provide. So emails ok for Nationwide to search since they provided server. Employers can monitor employee emails b/c no reasonable expectation of privacy. Don’t have to give notice or consent. Can also monitor internet usage by spyware, searching harddrive for efficiency reasons GPS – work vehicles Employment records – 25% states give right to access, correct, notice prior to release, refrain from keeping records about non-employ activities OSHA – can see if exposed to toxic substances Privacy Act 1974 – fed employers only keep relevant and necc info in employment files, indivs can examine, request amend, limit disclosure w/out consent

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Fam Education Rights & Privacy Act – students getting fed aid can access education records and challenge content PRIVACY OF EXPRESSION  Regulation of employee speech, in or out of office, depends largely on whether public or private employer.  Gov emplr – due process, and 1st amend protection, protects from arbitrary state action  But individuals freedom to speak out on the job is limited  Rankin v. Mcpherson (clerical employee at county constable’s office was discharged after she made comment that “I hope they get him” about president assassination. Purely clerical)  Not a law enforcement agent, no ready access to public.  Can’t be discharged for exercising C right to freedom of expression  Pickering Test – Balance - : Look at employee’s interest as citizen in commenting upon “matters of public concern” and employer’s interest in promoting efficiency of public services.  Whether speech is a matter of public concern is determined by content, form, and context. This statement was clearly of public concern, addressing policies of administration. o Def. Rationals: statement impairs discipline and harmony, detrimental impact on working relations, impedes speakers performance of interferes w/ work, danger that statement will tarnish office, employee’s duties.  No evidence of any here, nor was statement made public. And employee her is clerical, no authority, or public accountability.  This was “Content Based Regulation” and employer’s interests do NOT overcome 1st amend protection.  DISSENT SCALIA: characterizes her as law enforcement official, says speech didn’t comment on public concern, and where does exception come for nonpolicymaking employees. Base on esprit de corps and public image. o Waters case, nurse at public hospital fired for making critical comments of hospital, plurality said could reg speech. Emplr can discharge on what they reasonably believe was said, and not ACTUALLY what was said. Must be done in interest of efficiency, and only employer’s motive is relevant  Garcetti v. Ceballos (dep District atty defense counsel comes to him about crim case. Inaccuracies in affidavit re; crime scene. Prepared memo re: dismissal of charges. He was then reassiagned, transferred, and denied promotion. Then filed grievance report which was denied. Alleges 1st amend protection and retaliation)  C protection for public employees when speaking on matter of public concern  Pickering Test – 1) is the person speaking as citizen on matter of public concern, the 2) does employer have adequate justification for treating the employee differently from any other member of general public.  When pub employee makes statement pursuant to official duties, EE is not speaking as citizen for 1st amend purposes, and C doesn’t insulate their communications from employer discipline. Not a citizen speaking on public concern matter.  NOT MUCH LEFT OF PICKERING AFTER THIS CASE. RANKIN NARROWLY SURVIVES. 45

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o Statements of public concern made to legislature may not be basis for discharge where statements don’t pertain to political party. o

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