Employment Laws

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A.     Employees versus Independent Contractors (ICs)
[Secretary of Labor v. Lauritzen (CB 13-29); EEOC v Sidley Austin (CI)]

Sometimes “employees” get the most leverage (see Sidley); other times ICs get more leverage
         Emplees: emplr subj to min wage and child labor laws
         ICs: not subj to WC – can sue in tort
Crit of the leading test below is it’s too flexible and vague
Easterbrook says shouldn’t have a universal emplee test for all fed stats
         Should look to indiv stat’s LH and the harm it seeks to remedy to determ “emplee”
                 Is this the maj approach??
         FLSA meant to prot workers with low human capital who make lowest wages

Employees versus ICs per Secy Labor v Lauritzen – 7th cir
1. Court looks at economic realities to determine status, not just the job title
2. To determine econ reality:
         a. Control
                  Nature and degree of control of manner of work
                  More control over time and manner of work → more like emplees
         b. Profit and loss depending on managerial skills
                  How much say the worker has in managing work on a day to day basis
                  Whether they stand to gain and lose money
                  More the person has at stake → more like IC
                  Reduc in money earned due to ineffic work is not “loss”
         c. Capital investment
                  Investment in equipment and material
                  More you have invested → more like IC
         d. Skills
                  Special skills  IC
                  Need training  emplee
         e. Degree of permanency
                  Less permanent the relationship is → more like IC
                  Migrant workers can be pmt – is pmt and exclusive for purps of harvest season
         f. Integral part of business
                  Greater the integralness → more like emplee
         g. Economic dependence of workers on D’s business
                  More economically dependent → more like an employee
                  *Most important factor; the other ones are secondary
3. Don’t need to be exclusively employed to be an emplee
4. Alt test for emplee (Easterbrook conc): Costliness of pursuing other options
B.     Covered Employees
[Vizcaino v. Microsoft Corp (CB 29-40)]

Just cuz a worker is emplee doesn’t meant they get full emplee bens
        Part-time, home workers, leased workers, and other “contingent” workers sometimes exempt
Emplrs not reqd to treat all emplees the same
        Ks may be explicit on emplee’s exact status and on what bens they can/can’t get
Common theme: Should emp relationships be treated like any other K
        Or more strict scrutiny for exploitation fear?
        Question of whether to be more deferential to the relationship, or to the K provisions

Covered Emplees per Vizcaino v Microsoft – 9th cir
1. Largely K law
        a. If offer, acceptance, etc. → valid K
                 If state allows enf of K even with mistake → enf the K
        b. Mutual mistake
        c. Ct can ignore conflicting provisions declaring IC status and read rest of K as emplee relatnshp
                 Meeting of the minds thy of K law
2. Alt Approach: Enf the written K over practice of the parties


A.     Historical Foundations of Employment at Will
Introductory Concepts
Emp relationship can only last as long as both parties want to and can be severed by either party
Default doctrine of U.S. emp law

B.     Tort Erosions of Employment at Will

       1.     Wrongful Discharge in Violation of Public Policy
[Nees v. Hocks (CB 147-150); Adler v. American Standard Corp.; Notes (CB 156-163)]

WDVPP grew out of concern for 3d parties
       Want emplees to be able to say no if emplr asks them to do sth that will harm 3d pty
Some cts inconsistently allow emplees who committed the bad act asked of them to still have CoA
Jury duty can be sufic pubpol
Source of the pubpol is key – cts cautious to infer new pubpol where not clear in legis
Sometimes requiring specif stat violation makes absurd result
Cts can allow or prohib looking to fed law as evid of pubpol

NY looks for specif type of 3d pty harm
More prot of pub emplee whistleblowers
Some whistleblowing stats prot any reported viol of law
       Others only prot illegal acts threatening pub health and safety

1. 4 general categories of wrongful discharge claims (what states tend to recognize):
        a. Employee is fired for refusing to commit an unlawful act (e.g., perjury)
        b. Employee is fired for exercising statutory right (e.g., filing worker’s comp claim)
        c. Employee is fire for fulfilling a public obligation (e.g., jury duty), Nees case
        d. Employee is fired for whistle-blowing (disclosing illegal company acts), Adler case
2. To recog a new WD CoA, need to find that emplr had fired for very socially undesirable motive
        a. Undesirable to extent that emplr must respond for injury done (to 3d pty)
                i. “Community interest that rises to level of public interest”
        b. Some states require pubpol harm to be very specific – look to stats for specific protected pubpol

Whistleblowing rules perAdler v American Standard Corp – MD app ct:
1. Emplee must allege a specific stat violation – same as recog new pubpol
       a. Disclosure may have to be external (cops) as well as internal to company to show clear pubpol
       b. Cf. some cts req internal reporting to avoid unnecessary lawsuits – will prot internal whistleblowing
2. Need 3d pty harms as well as harm to indiv emplee
3. Most whistleblower stats prot if reas or GF belief that conduct illegal
4. Mere warning insufic

        2.    Intentional Infliction of Emotional Distress
[Agis v. Howard Johnson Co.; Notes (CB 181-184); Bodewig v. K-Mart, Inc.; Notes (CB 184-191)]

Ps have tried to use IIED as backdoor for WD claim
        But it’s not a backdoor when P args that the manner of dismissal is what’s wrongful
        Also to comp IIED is to remedy private harm, not pub harm
Cts wary of IIED
        More difficult to prove severe emot distress → std of proof relatively high
        More decisions deny IIED than grant them
Policy behind lower intent req for special relationship:
        Greater power/control over emplee
        Emplr in better position to do more harm than stranger
Underlying reason for the supposed outrageous conduct may affect how eval outrageousness
Prof. Regina Austin says IIED should first ask if any emotional mistreatment was justified

Intentional Infliction of Emotional Distress (IIED) per Restat II Torts
1. Intent: D either meant to or knew or should have known that emot distress was a likely result
2. Conduct: extreme and outrageous, “utterly intolerable in a civilized community”
3. Causation: action of D had to have caused P’s emotional distress
4. Injury: emotional distress has to be severe so that “no reas man could be expected to endure it”

IIED w/ special relationship – per Bodewig v K-mart – OR app ct – non-Restat
1. Higher duty created by relationship btw emplr and emplee
2. Allows conduct in “reckless disregard” to be sufic intent for IIED – does not require purposeful
3. Still requires conduct to “exceed bounds of social toleration” – same as regular IIED
         [Still need to show other two reqs? Causation and injury?]

Examples of extreme/outrageous conduct
1. Interrogation of emplee in small windowless room for 3 hrs cuz suspected of stealing
2. Store security guards grab emplee and interrogate him for 35 mins in glass-enclosed room
         5,000 emplees going in and out see him
3. Not sufic: 2 FedEx emplees interrogated about missing watch; security guard flashes gun

Restat Test Involving Special Relationship – adopted by many states
1. No special relationship
        Must show extreme / outrageous conduct
        Must show intent to harm or reck intent
2. Special relationship
        Must show gross insults but don’t need show extreme and outrageous behavior
        Must show intent to harm or reck intent

C.     Good Faith Limitations on Employment at Will
[Fortune v. National Cash Register Co.; Notes (CB 193-199)]

This is first of K-based incursion into EAW in the outline
Based on implicit covt of GF and FD
         About 11 states extend GF/FD covt to emp Ks → restrics circs under which emplrs can fire emplees
Is state mod to EAW – emplr and emplee don’t have to explicitly agree on it
GF/FD looks like tort CoA – redresses emplr misconduct
         Also looks like K CoA – ct is implying K term that it presumes parties would have wanted explicitly

1. GF/FD cov reqs absence of bad faith in emp decisions
2. Two key versions of GF/FD in emp Ks:
        a. GF/FD in all EAW Ks
                  To balance emplr’s intrst in effic/profitable mgmt of business vs emplees’ intrst in stable emp
                  No BF or malice allowed in emp decision
        b. GF/FD only in Ks where emplr fired emplee to deprive of benefit of the bargain
                  e.g. Emp Ks that involve commission
                  Timing of the firing may be material – i.e. if P was fired on eve of vesting benefit to bargain
                  This rule sometimes may actually cover circs missed by other (seemingly broader) rule
3. P suing in tort vs K is material to the remedy – gen GF/FD treated as K claim
        Only if sue in tort can get compensatory dmgs and punitive dmgs
                  Compens dmgs: emotional distress
                  Punitive dmgs: if conduct sufic extreme/outrageous
4. Reinstatement as remedy may be possible
        Ct reluctant to order reinstatement – cf. Title VII, other discrim, and NLRA
        Is this true for all forms of EAW limitations / WD remedies?? Or does it stem from K law inj reluctance
D.      Statutory Changes to the At-Will Doctrine
1. Stats can:
        a. Define good cause
        b. Impose reasonability requirement on emplr
        c. Specify remedies
        d. Stipulate arbitration

E.     Contract Erosions of Employment at Will
Three types mods to EAW Ks:
       1. Express mods
               a. Agreem to emp for def term – DT Ks
               b. Agreem to fire only for just cause – JC Ks
       2. Implied mods
               a. Promissory Estoppel
               b. Implied-in-fact K modifications
       3. Handbk mods
               a. Granting further prot
               b. Rescinding prot
               c. Effect of express disclaimers on handbook enforceability

       1.      Express Modification of At-Will Contracts
[Chiodo v. General Waterworks Corp.; Notes (CB 96-101);
Hetes v. Schefman & Miller Law Office; Notes (CB 101-104)]

Most obvious way to overcome presump EAW is to have express K term modification
Cts will read JC provision into DT K because at the very least parties expected JC, if not outright non-firability
        Also to prevent moral hazard of emplee shirking cuz of guaranteed emp
DT may make emplee liable for dmgs if quits before te term is over
Casual words of encouragement may rise to level of K mod for JC or satisfaction
Mods here occurred before job began
        For mods once work began, see Implied in fact Ks below

DT w/ implied JC vs IT JC Ks
1. DT Ks bind emplees as well as emplrs
       a. IT JC only binds emplr
       b. Some cts suggest that JC in DT K runs both ways – emplee can quit, but only if JC
2. DT Ks give empees greater prot from termination
       a. Std IT JC K allows more reasons as JC
       b. With DT, can fire for misconduct, incomp, or fault only
               Not for gen econ downturn that makes empee’s work no longer neces
       c. Std IT JC K – empee can be fired for misconduct, incomp, fault, or econ downturn
3. B of pf
       a. DT Ks – b of pf on empr to show JC in firing empee
                When empee sues for firing w/in DT, JC is aff dfns that empr has b of pf to show
         b. JC Ks – b of pf on empee to show no JC
                JC presumed

When Cts Will Find DT Ks
1. Clarity of terminability provision may win over a sloppy DT provision
        Even if DT is “year to year”
2. “Statement of expectations” is not binding, doesn’t rise to level of creating DT K
        Even if statement says “for period of 28 mo.”

Oral Mods Writing in JC Provision into Emp Ks per Hetes v Schefman – MI app ct
1. Can occur as result of policy statements inducing expectations
       In addition to express agreem
       Must be pretty clear statement of JC limitation though
2. Must occur before job begins – not after emp relationship starts

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

       2.     Reliance and Implied-in-Fact Contracts
[Grouse v. Group Health Plan, Inc.; (CB 113-115);
Veno v. Meredith; Notes (CB 115-120);
Pugh v. See’s Candies, Inc.; Notes (CB 120-128)]

PE allows relief where anticipatory repudiation or insufic evid to show actual mod to EAW creating JC K
Life cycle of emplee concept here
Position in exec management may be key – exec mgmt may have rt to JC
When cts read implied JC provisions into emp Ks, think about:
         1. Whether emp provisions really look like trad K rts
                  To what extent to they fit trad K reqs – offer, acceptance, consid, etc.
                  Or is ct just fudging it to provide the protection
         2. Are there good pubpol reasons why cts want to find these K protections
         3. Whether there are better ways to do this – better ways to find these prots rather than thru K law

1. PE allows possible claim where unmodified EAW K exists
2. PE can give emplee rt to assume GF opportunity to perf job to emplr’s satisfaction
3. CoA for PE exists for some time even after emp has begun
       How long CoA lasts probly depends on amt of detriment suffered by emplee
4. Dmgs for PE more limited to reliance dmgs – not expectation dmgs as in BoK cases
       a. Expectation dmgs: [Where would have been] – [Where is]
       b. Reliance damgs: [What was given up] – [Where is]

Promissory Estoppel
1. Promise (from D to P)
2. Reas expected to induce action/forbearance
3. P does actually rely
4. Reliance is to P’s detriment

Implied-in-fact K Mod to JC
1. JC reqs sufic add’l consid
        Ct may say giving up other job opp insufic consid cuz all emplees do it
2. Emp K can be mod’d to JC after emp begins
        Reqs add’l consid
        Ct may be lax: continued emp is sufic add’l consid as long as other evid of implied mod

Cts differ on level of evid reqd to support a JC emp decision
1. Subj GF req – no investigation needd to check accuracy of belief
        Empr has JC as long as believes has JC
2. Reasonable GF req – investigation reqd
        Empr can term for JC as long as believes in GF that has JC and does some reas investig
                Reas efforts to determ wheter belief is right
3. Obj GF req – dismissable offense must have occurred
        Emp’s reason for firing must actually be right

       3.     Employment Manuals
[Woolley v. Hoffmann-La Roche, Inc.; Notes (CB 128-138)
       No written K; emplee reads emp manual to say JC emp and estab’d procs reqd before termination
       → Emp manual binding unless clear and prominent disclaimer

Demasse v. ITT Corp.; Notes (CB 138-145)]
      On rescinding job prots

Most juris hold that emp manuals can K bind emplrs and can mod EAW Ks
        Thus obj thy of K – doesn’t focus on emplr’s intent w/r/t K
Burden can be on the more sophisticated party – the emplr
        Cts fuzzier w/ K reqs when want to find emplee protection
If continued empmt were sufic consid for revoking job prots, then emplees must quit to object to changed terms
        1. When does lang in emp manual estab K rt
        2. When and how can empr change terms/provs of its empmt manuals
        3. How can an empr prot itself from having its manual read as estabing K rts (mod-ing K rts?)
Cts harsher on emp manual provisions that will take away existing emplee prots

1. Continued work for emplr can be sufic consid for emp manual to be binding K mod
        If ct wants to find prot for e.g. a vulnerable worker
2. Cts can presume that emplee relied on handbook in continuing work
3. Lang must create reasonable expectations in emplees that they are given K prots:
        a. Explicit provisions outlining procs reqd before firing – sufic to create reas expectations
        b. “Fair play, just and equitable dealings” – probly too general to create JC K mod
4. Emplr disclaimer of K rts in handbook should be prominent
Rescinding Promises of Job Protection – Three Approaches
1. Handbk estabs K rts that can’t be diminished w/o clear meaningful acceptance and indep consid
       Emplees must be informed that continued emp would manif acceptance of mods
       Continued emp is insufic consid – cf. mods in emplees’ favor
                Strict application of need for additional consid
       Meeting of the minds must be clear – mutual assent
2. Each new bk is unilat offer of emp – promise in exchange for action
       a. Offer is accepted by continued work
                Continued work is sufic acceptance of K mods
3. Handbks can diminish K rts if:
       a. In effect for reas time
       b. Reas notice given
       c. Vested bens not affected by the change
4. Emplr has to have disclaimer again – disclaiming what??

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

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

1. Express, very clear, signed K disclaiming EAW mod can overcome lang in emp manual
       Balancing test between strength of the original K provision barring mods and emp manual language
       Look to reas expectations – did provision set up specif enough expectations
2. When K mod occurs even before offer of emp made, ct can still say it’s part of the emp K
       Infer that emplr trying to be very clear – make emplee know that job is EAW up front
3. Gen cts look at phys size, placemnt, wording of disclaimers
       Also look to see if Ps should have known of disclaimer

Disclaimer Examples
1. Lang stating IT EAW K only → cts split on whether can be mod’d by emp manual
2. “This manual solely for guidance and not intended to create any K right” can still be insufic

F.     The Future of Wrongful Discharge Law
Args for EAW as Best Default Rule
1. Good for emplees – free to leave at any time
2. Good for emplrs – econ efficiency; emplrs can easily get rid of ineffic emplees

Limitations of EAW
Performance on both sides must be simultaneous
EAW doesn’t handle well – delayed payment situations, on the job injuries, torts

1. Pvt citizens entitled to most FS and privacy prots
        Then pub emplees
                 Cuz only pub sector gets 1st Amd prots
        Pvt emplees entitled to least FS and privacy prots
2. Pub sector workers rt to speech and priv comes direct from Const
        SC has outlined tests for viols
        a. Rankin – pub concern (2 thys of defn of pub concern Roe, Rankin)
                 Bal test – speech interests of emplee vs govt in maintaing efective perf of pub service
        b. Pub emplees prvcy rts – NTEU
                 Effective perf of pub sevc vs emplee priv
3. Pvt sector workers don’t use fed Const – uses broader array of sources
        State Const, state stats, state common law
        Unless direct state const rt or state stat rt, have to look for gen pubpol interest or CL
        Prots tend to be lower than those pub sector emplees get

A.      Free Speech and Privacy Protections of Government Workers

       1.       Public Employees’ Free Speech
[Rutan v. Republican Party; Notes (CB 236-243);
Rankin v. McPherson; Notes (CB 243-249);
Roe v. City of San Diego (CI)]

Indiv is entitled to diff elevels of spech and privcy prot in cap as citizen than as pub emplee
                 Ctzn entitled to higher levels than pub emplees
Logic to disting btw firing and other emp decisions: firing is a touchier thing, special case
        But idea is that don’t want to infringe 1st amd rts – logically this extends to hiring, transfers, etc.
FS prots extend to probationary emplees
Roe defn of pub concern makes pub emplees very high protectn w/r/t pvt emplees

Party Patronage per Rutan v Republican Party – US SC
1. Viol 1st Amd to make promotion, transfer, recall, hiring decisions on basis of party affil/support
2. Also viol to fire on basis of party affil/support
3. Unless party affil is approp req for effective perf of pub office involved
        I.e. policymaking positions or other politically oriented jobs

Infringement of Free Speech per Rankin v McPherson – US SC
0. Applies to speech on and off the job – the content of speech matters, not the location of speech
1. Was speech on matter of public concern?
        Govt can act freely w/r/t private speech
2. Pickering balancing test
        Balance emplees’ speech interest vs state interest as emplr to promote effic and effective perf of pub svc
        How destructive is the speech for the office – incl prestige of emplee’s position
        Degree to which speech will undermine emplee’s ability to do her job
       Extent to which speech impairs discipline and harmony/emplee morale
       Was speech in public or meant to be a private conversation

Examples of “Public Concern”
1. That relating to matter of political, social or other concern to the community
        a. E.g.:
                 Comment made in context of discussion of policies
                 Emplee in DA’s office fired for asking if pressured to work in polit campaigns
                 Emplee saying overheard supervisors say would not keep an intern who filed discrim claim
2. Examples of not pub concern:
        a. Making antisemitic comment to get under someone’s skin not pub concern
        b. Unauthorized intraoffice survey on office morale is not pub concern

Expansion of Public Concern per Roe v City of San Diego – 9th cir
1. Reps at least 3 circuits jurisprud – 9th, 4th, 10th
2. Pub concern is that which is not on matrer of personal interest
        Directed at gen public or segment of it
        Not relevant solely to his emp
        Occurs outside the workplace
3. Personal interest defined as matters only internal to the workplace – narrow defn
        Everything else is pub concern

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

Drug use is off-duty activity
Compare with pvt emplees drug testing below

Privacy Rt w/r/t Mandatory Drug Testing per NTEU v von Raab – US SC
1. Balancing test
       a. Govt interest must be compelling – is this always true?? Always SS for 4th amd? P. 294 says usu RB
       b. Emplee interest in privacy may be diminished – safety- or security-sensitive positions
               Ct particularly concerned about type of job involved
               Upper level Navy officers ok
               All postal workers not ok w/o individualized reason for testing
       c. Relationship must be close or substantial

B.     Free Speech and Privacy Protections in the Private Sector

       1.      Protections While on the Job

              a.     Private Employees’ Free Speech
[Novosel v. Nationwide Insurance Co.; Notes (CB 249-256);
Timekeeping Systems, Inc.; Notes (CB 256-262)]
Pvt emplee FS privacy w/r/t polit activity sim to pub emplee
Ct has to use WDVPP for pvt emplees → has to find a pubpol
Shld cts use “pubpol” to extend pub emplee rts to pvt emplees?
Arguable limitation for emplees involved in policymaking, same as pub emplees
Use same logic as pub emp cases – who is the 3d pty harmed
NLRA §7/§8 give more prot to organizing activity than pub emplees have

FS Protection for Pvt Emplees per Novosel v Nationwide Insurance Co – 3d cir
1. Ct can “pull out from general common law” a pubpol against infringing on polit speech to cover pvt empelees
        Fed and state Consts don’t directly provt pvt emplees – only pub
2. Once ct finds prot for pvt emplees, orders bal test
        a. 3d cir uses Connick/Pickering test of pub emplees

NLRA Protection of Pvt Emplees Organizing per Timekeeping Systems – NLRB
1. NLRA is a specif stat that prots some pvt emplee activities
       a. §7 allows concerted activities for purp of mutual aid or prot
               Prots activity that might turn into union activity – don’t need conscious goal of union forming
               More and more cts use where emplees had no intent to organize union at all
       b. §8a1 says unfair labor practice to interf, restrain, coerce emplees from §7 prots
       c. To what kinds of emplrs does NLRA apply??
2. NLRA prots diff kinds of activities than pub emplees have under Const FS doctrine
3. To be protd under §7 of NLRA:
       a. Activity has to be concerted
       b. Work-related object
               Activity must be for mutual aid or prot reas related to wages, hrs, other terms/conditns of emp
       c. Prot’d activity
               Conduct must not be unlawful, violent, in breach of K, or indefensible

              b.     Private Employees’ Privacy
[K-Mart Corp. Store No. 7441 v. Trotti; Notes (CB 263-268)]

Reas expectation req prevents invasion of privacy from being a strict liability tort
[Many forks in possible outcomes – go thru each scenario on exam]

Common law invasion of privacy CoA variations:
0. Almost every state has some form of CL invasn of priv claim
1. Intentional intrusion in the seclusion or pvt affiars of another – i.e. where emplee has reas expectatn of pvcy
        If that intrustion would be highly offensive to reas person
        Reqs balancing test btw emplee’s expectation of privacy and emplr’s business interest in monitoring
2. Publicizing the pvt affairs of another
        If the publication involves no legit pub concern and would be highly ofensive to a reas person
3. Appropriating the name or likeness of another for one’s own benefit
4. Publicizing another in a way that puts her/him befor the public in a false light

Examples of invasions of privacy
1. If emplee consents, some juris say no invasion of privacy as matter of law
        Other juris say depends on whether the consent was illusory – if illusory, no consent
2. If emplee refuses to submit to search and is fired, some juris say no invasion of privacy
        Other juris say possible WDVPP
                Emplee would have to show search would have invaded privacy – complete analysis as above
3. Conditions of employment can avoid invasions of privacy
        i.e. Requiring see-thru purses of all female emplees
4. Sufic notice kills reas expectation of privacy

       2.      Protections for Activities While Away from the Job
[Brunner v. Al Attar; Notes (CB 268-272);
       → No WDVPP where asserted pubpol is to volunteer at an AIDS clinic
Luedtke v. Nabors Alaska Drilling, Inc.; Notes (CB 287-299);
       → Privacy interest loses to emplr interest in drug testing on an oil rig but wins on GF/FD CL claim
Rulon-Miller v. International Business Machine Corp.; Notes (CB 272-279)]
       → GF/FD viol of express policy of proting privacy when no conflict of interest

Most juris very permissive w/r/t allowing pvt emplrs to fire emplees for off duty activities
Few states have stats prohibiting firing for off-duty activities
Even when stats or Consts don’t give CoA for WD explicitly, cts may look to them for evid of pubpol
Drug testing fairly routine – but many states have stats regulating conditions permissible
In most cases, no successful claim for dating other people
       Autonomy concern
       No gen pubpol to date particular person or have extramarital affairs

1. Off-duty activities may sue on WDVPP – weak claim
        a. Construing interest narrowly or broadly can determine whether sufic pubpol found
                 Broadest would be privacy in off-the-job activities – most likely to find WDVPP
        b. If off-duty activity involves volunterring, performing public duty can be asserted pubpol if state recogs
        c. After pubpol found, must do appropriate test if pubpol involved had add’l test
                 i. Free speech: can follow 1st amd jurisprud – pub concern, Pickering
                          Why would you need to go into a FS balancing test once a sufic pubpol is found??
                                  Because cts are reluctant to keep finding new pubpol??
                 ii. Privacy: balancing test for emplr’s interest vs emplee’s privacy interest
        d. State or fed Consts and stats may be source of pubpol
                 Even without giving express CoA
2. Where emplr has express policy proting privacy of emplees can sue that firing was GF/FD violation
        Per Rulon-Miller
        Can arg that express policy is K term governed by implied GF/FD oblig
                 And that policy was inconsistently applied
        Is K claim – strength depends on clarity of the provisions proting privacy
        Can also arg implicit policy if not express
3. Tort claims may be open too – e.g. IIED

GF/FD-imposed reqs w/r/t drug testing – unusual
1. Must be conducted at time which is reas contemporaneous w/ work time
       Has to be aimed at discovering whether people on drugs at time that they will be dangerous on the job
2. Emplee has to rcv notice of adoption of drug testing pgm
3. GF claim can only relate to the manner of testing itself
       Claims based on termination for refusal to undergo testing will fail if reas notice given – always??

Variations on stats regulating drug testing:
1. Reas suspicion reqd before testing allowed
2. Confirmatory tests only
3. Confid of results??
4. Estab of emplee rebuttal of test results??

       3.      Polygraphs and Honesty Testing
[Saroka v. Dayton Hudson Corp.; Notes (CB 308-322)]
       Extended strict scrutiny analysis to job applicants – probly no longer good law
       Possible viol of FEHA by inquiring into rel background as matter of law
       Asking about sex orientation is viol of stat prot for gay political activity

Emplee Polygraph Prot Act (EPPA) prohibs emplrs from requiring/requesting lie detector test
       Exempts pub emplees and certain pvt emplees
       Doesn’t cover paper-and-pencil honesty tests
Polygraph tests scarier than paper-and-pencil tests
RB/SS scrutinies below apply only when a state const prots privacy against pvt non-state actors

1. Most states give RB analysis for job applicants and SS for emplees w/r/t infringing privacy rts – incl under fed
        Some states have SS for both – e.g. Saroka v Dayton Hudson Corp – probly no longer good law
        Is this the same analysis as for invasions of privacy – i.e. drug tests, searches, etc.?
2. RB or SS reqs nexus between invasion of privacy and purp of the invasion – state const only??
        a. RB – invasion must be rationally related to legitimate purpose
        b. SS – invasion must be narrowly tailored to compelling purpose
3. Fed law says pre-offer to emplee can’t do any med or honesty tests
        a. Pre-emplmt but post-offer can do more invasive testing
                 Doesn’t even have to be job-related testing
        b. Post-emplmt fed law also gives more invasion rts – is infringing privacy the same as invasion pvcy?
4. When there are restrics on honesty or med tests, only partial restrics
        Paper-and-pencil honesty tests and med tests widely used

        4.    Employer References--Defamation and Other Torts
[Sigal Construction Corp. v. Stanbury; Notes (CB 338-346)]

Opinion is unactionable – still true?
Balance wanting candid/sincere rec and positive rec
It’s doubly hard for lawyers – ethical dilemma
Most companies more reluctant to give any subst reference for fear of defamation actions

General Requirements for Defamation
1. A defamatory statement
        Must harm rep, lower standing in cmty, or deter 3d pties from dealing with her
2. Publication to a third party
3. Defamatory statement must be false
        Truth is absolute defense in defamation aciton
4. Some degree of fault by the publisher
        SC hasn’t said whether Const reqs pvt P has to show certain level of fault
        Restat says negligence is sufic fault
5. D can defend by invoking a privilege
6. Std of pf is clear and convincing evid – always??

Absolute Privilege
1. Exists when pub interest in the communication occuring is extraordinarily strong
        e.g. Statements re: discharge made in depositions, statements to many state unemp bureaus
2. Allows complete bar to defamation action
3. Common mens rea req is negligence

Qualified Privilege
1. Exists when need to protect communication outweighs individual interest in reputation
        e.g. Employer references
2. Once established, burden shifts to P to show abuse of privilege
3. P must also show more than negligence mens rea – often reck / gross indifference / wanton disregard
4. Often reqs clear / convincing evid of abuse

Emplrs Also Liable for Misleading Positive Recs
1. Emplrs can be liable in fraud or negligent misrep if there is foreseeable and subst risk of harm to 3d pties
        Resulting from rec
2. Liable only where offers positive info w/o giving fully accurate pic of the emplee
        Not liable for being silent

1. Constant tension btw emplee rts to chng jobs freely, reap benefits from inventions
        Vs emplr rts to get return on capital investments
2. Interest in promoting competetive mktplace and encouraging new inventions also
3. No hard and fast rules for when emplee breaches DoL, CNCs are valid, or assnmt clauses will be enf’d
        All equitable decisions

A.     Trade Secrets and Duty of Loyalty
[Jet Courier Service v. Mulei; Notes (CB 359-366);
Mai Systems Corp. v. Peck Computer Inc.; Notes (CB 366-371)]

Emplr breach doesn’t diminish emplee’s oblig to emplr – emplee free to act as if material breach

Duty of Loyalty – DoL – per Jet Courier Service v Mulei – CO SC
1. Duty of loyalty exists “unless otherwise agreed” on by emplr and emplee for duration of emp relationship
        Does not require express agreement
2. Reqs emplee to act solely for ben of emplr in matters concerned w/ emplmt
        Includes duty not to compete directly
                Privilege allows emplees to prepare or make arrangements to compete though
3. Solicitation of prev emplr’s customers and co-workers prior to termination is beyond prep, is dir competitn
        a. W/r/t customers-
                i. Emplee can advise that he’s leaving current job
                ii. Inviting them to move their business to his new work is solicitation
        b. W/r/t co-workers–
                i. Doesn’t matter if emp K is EAW or modified
                          Emplee can breach loyalty duty w/o being subj to tortious interf w/ K claim
                ii. Ct should consider:
                          Nature of emp relationship
                          Impact or potential impact of emplee’s actions on emplr’s ops
                          Extent of any bens promised or inducements made to co-workers
                                  To obtain their services for new competing company
                          Solicitation doesn’t need to be successful to breach duty

Remedies for DoL Violation
1. Emplr gets the emplee’s salary back for the period during which emplee was viol DoL
2. Emplee not entitled to any compensation for period of breach of DoL
3. Look to payment schedule – does that mean if emplee is paid on yearly salary, may lose whole year’s comp?

Misappropriation of Trade Secrets – MTS – per Mai Systems v Peck Computer – 9th cir
1. MTS covers acts after emp relationship ends
2. PF reqs:
        a. Has value to emplr and to othersin the indus
                Part of value comes from fact that it’s not generally known
        b. Emplr must have taken steps to keep it secret
        c. Info must have been secret in fact
3. Two step analysis:
        a. Figure out if actual TS are involved
        b. Was the info misappropriated
4. Examples of TS:
        a. Covts not to compete can be steps to keep info secret
        b. W/r/t software, specific parts of the software must be alleged to be trade secrets
        c. Generally, more difficult info is to obtain and more resources used to gather it → more likely TS
        d. Sliding scale – more difficult to obtain, less effort needs be shown to keep it secret
5. Examples of MTS:
       a. Using info you simply remember from emplr can be MTS
               i. Older memory rule – emplees can take anything memorized w/o misapprop liability
               ii. Newer rule – focus on expense and value of TS involved
                       Greater the expense of developing the TS → more likely can’t take even by memory
       b. Taking blueprints
       c. Reverse engineering is not misapprop

B.    Enforcement of Noncompetition Clauses – CNCs
[REM Metals Corp. v. Logan; Notes (CB 389-393)
Karpinski v. Ingrasci; Notes (CB 393-399)]

Some emplrs K expressly as alternative to relying on CL DoL and MTS doctrines – add’l deterrence factor

0. Cts generally scrut CNCs closely because they are anti-competitive
1. PF reqs:
        a. Serve protectible emplr interest
                 What’s at stake for the emplr
                 Core protible interest is TS; question is how much state expands beyond that
                 Most states recog emplr may have protible interest even if not rise to TS
                 Some states allow emplr’s relationship w/ customers and resulting goodwill as interests
                          Also sometimes signif training
        b. Must be supported by consid
                 i. If executed at start of emp, then exchange of CNC for emplmt is sufic consid
                 ii. Juris split on whther continued emp is sufic alone if emplee has already started emplmt
        c. Must be reasonable in time, geog area, and scope
                 Forever is usually an unreas time restraint but not always – Karpinski
        d. Must not unduly harm the public – pubpol limitation
                 Patients ability to see the Dr of their choice
                 3d party harm
2. Examples of protable emplr interest:
        a. Skills particular to emplr’s business itself – specialized technique
                 Beyond special trade skill
        b. Extent of investment is material too – how long did it take emplee to be trained
        c. Special relationships between Dr and patient are protable emplr interest
3. Solutions in case of overbreadth:
        a. Blue pencil rule – strike out the invalid portion, leave rest intact if can avoid grammatical problems
        b. Reformation rule – cts rewrite the covt to prot both parties’ interests
        c. Invalidation of entire CNC – prots from emplr overbearing and unfair bargaining power

C.     Employee Inventions
[Francklyn v. Guilford Packing Co. (CB 409-413)
       Clam harvester → shop rt exists and was violated
Ingersoll-Rand Co. v. Ciavatta; Notes (CB 413-425)]
       Holdover clause → n/a, and unreasonable if it did apply
Common Law Employee Inventions
1. CL distings between:
       a. Inventive employees – hired to invent
                i. CL reqd assignment of the patent to the emplr
       b. Non-inventive emplee – invention was coincidental and not part of the job
                i. CL gave invention to the emplee
                         Even if related to and competitive with emplr’s product
                ii. But if invention developed during working time or using emplr’s resources → shop right
                         Working time may not neces mean working hours, but while in perf of job duties
                iii. Shop rt can also be created by acquiescence (without use of emplr resources??)
2. Boundaries of the shop right
       a. Can use the invention, reproduce it
       b. Cannot assign patent to another party
       c. Probably cannot use sale and leaseback backdoor to distribute the invention
       d. Probly can sell equipment that already happens to have the invention

K-Based Employee Inventions
1. As condition to empmt, many emplees must assn inventions
        Whether emplee is inventive or not
2. Look to specif provisions in the K
3. Usu upheld if valid consideration
4. If unrelated to business / emplr’s work, assnmt K may be found unreasonable since assigns whole patent
5. Holdover clauses:
        a. Req former emplee to assign inventions created w/in 1 yr after termination
        b. Analysis:
                 i. Does holdover clause cover the activity in question
                          Did inventor use TS, info unique to this emplr, have access to emplr’s R&D
                 ii. Is holdover clause unreasonable even if it applies to case in question
                          Apply CNC analysis by analogy
                                  Legit interests of emplr, no undue hardship on emplee, not against pubpol
                                  Or analysis in CNC above
        c. Gen unreasonable if:
                 i. Extends beyond appareny prot emplr reas reqs
                 ii. Prevents inventor from seeking other emp
                 iii. Adversely impacts on the public
        d. Sliding scale of factors

Title VII prohibs discrim on basis of race, color, religion, sex, or national origin
Applies to emplrs of 15 or more emplees – smaller emplees often covered by state stats
Two thys of applicability:
        a. Disparate treatment – DT – intentional discrimination
        b. Disparate impact – DI – doesn’t req showing of intent
A.     Disparate Treatment Discrimination

       1.     Individual Disparate Treatment
[TVII §703(a)-(d) (SS 35-36)
McDonnell Douglas Corp. v. Green; Note (CB 455-459)
St. Mary’s Honor Center v. Hicks; Note (CB 459-470)
Price Waterhouse v. Hopkins; Notes (CB 470-482)
Desert Palace v. Costa (CI)]

TVII supposed to end workplace discrim and guarantee merit-based emp decisions
       US SC decisions don’t help in second aim
Mixed motive analysis allows that once P shows PF case, D is never entirely off the hook
Costa has created problems for all other fed antidiscrim schemes as well as TVII – ADA, ADEA

Burden Shifting TVII Scheme per McDonnell Douglas – US SC
1. PF TVII claim
        a. Belong to protected class – is this because of [sex/race]?
        b. Qual’d and applied for the job, or was holding the job
        c. Didn’t get the job or adverse emp action despite qualifications – hiring, promotion, or termination
        d. Co continued to look for people with similar qualifications
                 “Under conditions that suggest discrim” – cts vary on interp
2. PF claim creates rebuttable presump of discrim
3. Emplr must produce evid of legit nondiscrim reason – burden of prod only
        a. Doesn’t have to convince jury/judge that it’s true reason – just has to prod evid
4. P has opportunity to prove D’s stated reason was just pretext for discrim reason
        Ultim burden of persuasion always with P
        a. E.g.:
                 i. Rehiring white co-workers
                 ii. Disparate treatment of similarly situated people
                 iii. Evid of way he was treated while he was emplee
                 iv. Evid of gen treatmt of racial minorities
5. Burdine pro-P modification:
        a. Ult burden of P can be satis by:
                 i. Present direct evid that unlawful discrim motiv’d emplr’s decision
                 ii. Proving that D’s stated reason was false – don’t need to actually prove discrim motive
                          Just disprove D’s stated reason
6. Hicks pro-D re-adjustment:
        a. P’s ult burden of persuasion strictly required
                 i. Once D gives a legit reason for action, P is back to square 1
        b. P can win simply by disproving D’s stated reason as pretextual – but is not entitled to

Mixed Motive Test per Price Waterhouse v Hopkins – US SC
1. Applies where evid suggests both legit and illegit reasons for emp action
2. Brennan plu approach:
        a. Impermissible criteria must be motivating factor
        b. D has to show would have made same decision even without impermissible consid
                 If D shows this, no liability at all
3. O’Connor approach:
        a. P must show direct evid that illegit motive was a substantial factor
        b. D must show sufic business reasons would have incuded to make same decision w/o illegit consid
                 If D shows, then no liability at all
4. Kennedy dissent approach:
        a. P retains ult b of pf
                 P must show the discrim factor was the but for cause of the emp decision
                 Maintains the MDD/Burdine std
        b. B of pf doesn’t switch to D – what about bprod??
5. Civ Rts Act 1991:
        a. P has to show illegit criteria was motivating factor
        b. D has to show by prepond evid that would have taken same action in absence of illeglit criteria
        c. If D shows, then reduced liability – only equitable relief available to P
                 E.g. declaratory relief, inj, atty’s fees – no indiv relief, backpay, reinstatement
                 Overrules unanimous part of Hopkins w/r/t complete defense
        d. So once the P shows PF case, D is never off the hook anymore? That’s it, D’s screwed??
6. Cts split on whether direct evid reqd, and what constitutes direct evid:
        a. Explicit statement showing discrim
        b. Evid proving particularly strong case of discrim even if it requires an inference
        c. Evid proving animus specifically against P’s group
7. Costa says don’t need direct evid to show impermissible criteria used – std evid rules apply, incl circum evid

Current state of the law – McDonnell Douglas vs Mixed Motive
1. Costa elim’d benchmark cts had used to decide when in MM vs MDD land
        Dir evid was neces to get to MM instruction
2. Several approaches:
        a. Costa abolishes MDD – after Costa, no reason for MDD burden shifting framework
                 All cases should be tried under MM framework
        b. Cts try to combine the two – Costa adds on to MDD
                 i. P should still be reqd to make PF case
                 ii. Bprod switches to D emplr
                 iii. Then Costa changes third step: once emplr stated nondiscrim legit reason, then P can do:
                         1. Show stated reason was pretext for discrim and discrim was BF cause (MDD)
                         2. Show that sex/race was motivating factor but not BF cause (MM)
                                   If motiv factor, the bpers to D to show would make decision anyway to limit dmgs
        c. Try maintain distinc btw MDD and MM
                 Will only apply MM in case where evid shows both legit and illegit reasons for decision
                 This approach most likely to deprecate

        2.      BFOQ Defense
[Title VII §703(e) (SS 36)
Wilson v. Southwest Airlines Co. (CI)
        → No BFOQ
St. Cross v. Playboy Club (CI)
       → Yes BFOQ
Backus v. Baptist Medical Center (CI)
       → Yes BFOQ based on privacy
Olsen v. Marriott Int’l (CI)
       → No BFOQ
“Hooters Air, With Hot Pants, Takes Off” (CI)]

Appearance discrimination is ok as long as it’s sex-neutral
Possible higher scrutiny when business created after Civ Rts Act – allows grandfathering though
Cts seem to be driven more by desired outcome than consistent legal analysis

1. BFOQ applies in disparate treatment cases
       Go thru entire dispar treatment analysis before coming to BFOQ defense
2. Permits emplr to discrim on sex, rel, natl origin, if such charact is BFOQ for emp
       a. If reasonably necessary to normal operation of the particular business
       b. No BFOQ for race
3. Most often used for alleged sex discrim – two variations:
       a. Sex is BFOQ to protect privacy of customers
       b. Sex is BFOQ in order to provide customers with sexual titillation
4. Southwest Airlines Analysis:
       a. Does job req that emplee be of one sex only
       b. Is qual for which sex reqd reasonably necessary to the essence of emplr’s business
                Mostly condensed to essence of the business test
                Test turns on definition of the essence of the business
5. Examples of essence of the business:
       a. Market niche – employer-defined conception
                Most likely to find BFOQ - Playboy
       b. Shared conception – socially agreed on conception of the essence of the business
                Harder to find – Southwest Airlines
       c. Customer-defined conception
                i. Particularly impo in privacy cases and cts will allow it
                         i. Privacy is protd but not when it extends to “mere” customer preference
                                 Privacy doesn’t allow discrim of male OB/GYN Drs though
                                 Privacy in massage context is “mere” customer preference
                         ii. Same-sex vs opp-sex preferences are key – same-sex prefs preferred by cts

Actual Policy Concerns:
1. EE concerns – excluding either women or men from too many jobs
2. Hierarchy of preferences – cts read in a hierarchy to cust prefs and give certain ones more deference
        E.g. emplr defns of business and cust prefs related to privs vs related to sexual titillation
3. Sexualizing women
        Concern / wariness about allowing women in trad nonsexual jobs to be sexualized as part of the job
        Concern that allowing explicit sexualiztion would hinder women’s abil to do nonsex part of job
        Ct seem to be explicitly pulling out sexuality unless the job is to be sex object
       3.      Sexual and Racial Harassment
[Harris v. Forklift Systems, Inc.; Notes (CB 546-551) – US SC
       → Insufic objectively severe conduct
Mendoza v. Borden (CI) – 9th cir
       → Insufic severe/pervasive conduct
Faragher v. Boca Raton (CB 556-568) – US SC
       → City vicariously liable for supervisory discrim
Pennsylvania State Police v. Suders (CI) – US SC]
       → Constructive discharge is tangible emp action

1. Two kinds harassmt:
        a. Quid pro quo – QPQ – P claims refusal of sexual advance is basis for adverse emp aciton – PF case:
                 i. Unwelcome sex advance was made
                 ii. Causal nexus btw rejection and adverse emp action
        b. Hostile work environment – HWE – PF case:
                 i. Unwelcome conduct
                 ii. Because of sex – see below
                 iii. Sufic severe to alter the conditions of P’s work env and create hostile and abusive env
2. Cts moving away from distringuishing between the two types – mostly semantic change
        Cts more use lang of tangible vs nontangible emp action
3. Sufficiently severe to alter the conditions of P’s work env:
        a. Subj test –
                 i. Emplee has to actually be offended
                 ii. Look to effect on emplee’s psych well-being – emplee distress
                          Doesn’t req serious effect/psych trauma
                          Only has to show perceived to be hostile and abusive
        b. Obj test – factors:
                 i. Pervasiveness/frequency of conduct
                 ii. Severity of conduct
                 iii. Phys threatening/humiliating or just mere offensive utterance
                          Reas person would perceive to be hostile and abusive sufic
                 iv. Unreas interference w/ work performance
                          Made it more difficult to do the job sufic
                 Std is severe or pervasive conduct for sex discrim
                 But hostile and abusive??
                 Reas woman std or reas person std?
                          Harris on remand used reas woman std
4. Severe vs pervasive conduct
        a. Criteria unclear on what is sufic severe or pervasive
        b. Sliding scale suggested
                 i. Single instance has to be really severe
                 ii. Pervasive conduct doesn’t have to be as severe

Employer Liability for Harassmt per Faragher v Boca Raton – US SC
                            Supervisor Harasser         Co-worker Harasser
Tangible Harrassmt /        Strict vicarious liability, No liability – because it’s
Tang emplmt action            no aff dfns available         impossible?
Nontangible Harrassmt         SL but Aff dfns available     Std neg requirement
                              to emplr – show reas care

1. Aff dfns available to emplrs to avoid vicarious liability where no tangible emp action:
         a. Emplr exercised reas care to prevent and correct promptly any sex harassing behavior
                 Reqs sufic distrib of emplr policy, if any
                 Policy, if present, should be sufic clear that you can go above heads of supers and report them
         b. Emplr has to show that P failed to take adv of any preventive or corrective opps
                 Either provided by emplr or otherwise to avoid harm
                 Most often emplrs offer evid of policies and procs for sex harassmt claims
2. Critical question in this framework is what constits tangible emplmt action
         a. E.g. Constructive discharge – PF case:
                 i. P suffered discrim so intolerable that reas person would have felt compelled to resign
                 ii. P’s decision to resign was reas given totality of circs
         b. Construc discharge is tangible emp action when precipitated by official act
                 Supervisor gives emplee too much work, transfers her to a worse position
         c. Construc discharge is not tangible emp action when not precipitated by official act
                 E.g. repeated comments and sex assault only
3. Hardest instances are single incident harassmt cases
4. Analysis:
         a. Was it a co-worker or supervisor
         b. Was there a tangible emplmt action – i.e. is aff dfns available
         c. Aff dfns analysis

        4.     “Because of” Sex Requirement - BoS
[Price Waterhouse v. Hopkins, (revisited, CI) – US SC
        → Formalistic sex stereotyping is BoS
Oncale v. Sundowner Offshore Services, Inc. (CB 551-556) – US SC
        → Same sex harassmt under TVII cognizable
Heller v. Columbia Edgewater Country Club (CI) – OR dist ct
        → Sexual orientation harassment under Price Waterhouse sex stereotyping
Nichols v. Azteca Restaurant Enterprises, Inc. (CI) – 9th cir
        → Same as Heller
Oiler v. Winn Dixie Louisiana, Inc., (CI) – LA dist ct]
        → Refusal to extend sex stereotyping to gender identity disorder

TVII and first decades of jurisprud assumes sex discrim is motivated by sex desire
Same sex cases and sex orientation cases though defeat that presump – and cts struggle to deal with it
         Hetero male harasser harassing gay or straight man hard to get to
         Homosexual man easier
         Bisexual harasser hard to get to also if harass both men and women
Can sex stereotyping prot against appearance discrim – which is normally held valid
Catch 22 problem of discouraging behavior that is needed to succeed in the job
Indirect sex discrim encouragement – by encouraging hyper-macho attitudes that will be chauvinist
Is the line drawn by cts to exclude sex orientation and crossdressing a principled one
1. P has to prove disparate treatment or sex harassmt was because of sex
2. Cts rely more on Price Waterhouse than Oncale
        Oncale didn’t mention Price Waterhouse and cts don’t know why

Sex Stereotyping as BoS per Price Waterhouse
1. E.g. making emp decisions based on assumps of what emplee would behave like
2. Or traits that emplee actually possesses are deemed inapprop for her sex – though approp for opp sex
3. Two meanings of sex stereotyping:
        a. Formalistic version: If sex were switched, traits wouldn’t be a problem
        b. Substantive version: Discouraging aggressive (male) behavior won’t make emplee productive
                 Emplr can’t encourage gender norms that force women not to have traits neces for job
4. Favorable to sexual orientation harassmt claims under formalistic version
        Most cts will not extend sex stereotyping to cover sexual orientation harassmt though

Same Sex Harassment as BoS per Oncale
1. Before Oncale:
        a. Same sex harassmt can never be discrim BoS
                i. Could never be about the person’s sex
                ii. Person of same sex couldn’t be subj to discrete power imbalanve in specif work place
        b. Same sex harassmt only when harasser is homosexual and motivated by sexual attraction
        c. All harassmt that is sexual in nature is actionable under TVII BoS
2. After Oncale, several ways to show same sex harassmt was BoS:
        a. P can show different treatment from opp sex
                Std dispar treatment evid – other sex would not have been treated badly
                Reqs comparative evid of disparity in treatment of men and women
        b. P can show D was motivated by sexual desire for P such that P wouldn’t be harassed if opp sex
                i. Typically reqs showing harasser was homosexual
        c. P can show harassmt evinces general hostility to people of that sex
                Sex-specif and derogatory to people of partic sex
                P would need to show hostility to others of same sex

Emplee can now show sex discrim as BoS (3 Oncale, 1 Price):
1. Motivated by sex harassmt – wouldn’t have occurred if of opp sex
2. Result of gen hostility to people of that sex
3. Emplr gen treated men and women diffrently
4. (Price) Sex stereotyping – P shows that was penlized for engagin in conduct approp for other sex but inapprop for
        a. Increasing use of sex stereotyping doctrine to prot aggressive women and effem men
                i. But refusal to extend to sexual orientation or male crossdressing

       5.     “Because of” Race/National Origin Requirement
[Rogers v. American Airlines, Inc. (CI) – NY dist ct
       → Discrim against cornrows cannot proxy for race discrim
Garcia v. Gloor (CI) – 5th cir
       → Lang discrim not allowed to proxy for national origin discrim w/r/t bilingual
Fragante v. City of Honolulu (CI) – 9th cir
       → Accent gets higher scrutiny – only permissible when material interf w/ job perf
Foster v. Dalton, (CI) – 1st cir
       → Cronyism/good old boy network is not discrim BoR

Nowadays emplrs will hire some members of a race but not others – tougher question
When a trait is deemed to proxy for impermissible discrim, emplr can still claim BFOQ defense

1. Applies to both disparate treatment and dispar impact
2. Cts will not treat traits assoc’d w/ race as proxy for race – e.g. cornrows per Rogers
3. Lang as national origin discrim:
        a. When P is bilngual, no valid discrim claim even if Eng-only policy is arbitrary
                  Cts tend not to allow lang as national origin even for nonbilinguals though
        b. If Eng-only rule in job where Eng not reqd, may arg pretextual
        c. Possible dispar impact claim – see below
4. Accent as national origin discrim gets more scrutiny:
        a. More like an immutable characteristic
        b. Easy excuse for pretextual discrim
        c. If allow GF accent discrim, will effectively gut any kind of effective natl origin prot in TVII
                  Even apart from pretext concerns
        d. But where nature of the job particularly requires clear communication cts hold no natl origin discrim
                  i. “Cts should do searching look at the claim that the accent resulted in poor oral comm skills”
                  ii. Accent can be basis for failure to hire only when interfs materially w/ job perf
5. Cronyism / old boys’ network may be discrim, but not neces – std dispar treatment claim
        a. Not itself an impermissible ground for dispar treatment
        b. Even where job description manipulated to give a job to a crony
        c. Sim concern as accent discrimination – allowing cronyism guts TVII

       6.    Systemic Disparate Treatment – SD
[Hazelwood School District v. United States; Notes (CB 482-494) – US SC]

Brought by the EEOC or class of Ps
Usu reqs stat evid – which is circumstantial – from which jury infers discrim intent
Diff btw system dispar treatment and regular is just burdens of proof
        Recovery easier once you prove the system dispar treatment

1. Claim that as matter of pattern or practice emplr discrims against indivs of partic grp
2. Is a type of disparate treatment claim – emplee must ult show intentional discrim
3. In practice, reqs at least anecdotal evid in addition to statistics – but much less than reg dispar treatment
4. PF case of systematic discrim:
         a. % of prot’d grp in the actual labor pool (Actual treatment)
                 Can allow some leeway for TVII enactmt by looking at actual # hired post-1972
                 If not giving leeway should just look to # in the workplace, not # hired
        b. % of prot’d grp in the relevant labor pool (Expected treatment)
                 To get sense of what the expected % should be
                 If using # hired to give leeway above then use # hired in relevant labor pool
        c. Compare the two numbers and see if statistical balance – see handout for std dev formula
                 If difference btw actual and expected is greater than 2-3 std devs → presumed discrim
                 Std dev greater than 2 means stat likelihood of that random outcome is less than 5%
5. D’s rebuttal of PF case:
        a. Criticize actual treatment numbers as wrong
        b. Reframe the relevant labor pool to be narrower
6. Stage two – evalution of individual discrim
        a. Any indiv can come forward and try to show they’re member of class that has been discrim’d against
                 Ps who come forward are presumptively entitled to indiv relief
        b. Emplr has to present evid that it wouldn’t have hired the P on legit grounds
                 Burden on emplr to sho no discrim w/r/t each indiv class member
7. Relevant labor pool is key
        a. Narrow definition is to limit to the # of applicants – few cts use this
        b. Broader defn is those ready/willing/able to do the job in geographic area from which emplr hires
        c. Cts more and more restrictive of use of simple gen pop data
                 Not everyone is qual’d nor interested in the job at issue
8. This claim takes qualifications stated by the employer as a given – does not question their validity
        System dispar treatment only analyzes whether quals applied equally to all applicants
9. Question whether to use labor pool or applicant pool
        a. Applicant pool is more precise indicator esp of interested population
        b. Applicants exclude those discouraged to apply on the threshold already
        c. Cts gen reluctant to use app pool – want to look more broadly

B.      Disparate Impact Discrimination – DI
Title VII §703(k)(1)(A) (SS 37-38)
Griggs v. Duke Power Co.; Notes (CB 501-507) – US SC
        → Creation of DI doctrine and PF claim incl burden shifting scheme
Garcia v. Spun Steak Co. (CI) – 9th cir
        → Bilinguals can’t claim DI from Eng-only policy AML

No need to show intentional discrim – only discrim effect
May serve to help dispar treatment cases where insufic evid of intent
       Many cts as practical matter treat dispar impact as alt to dispar treatment when can’t show intent
Can sue under both dispar treatment and impact – but criteria at issue likely can’t be same
Open question if claims of discrim on cult assoc’d traits can win under DI – e.g. cornrows, accent, language

1. PF claim:
        a. Stat disparity btw % of blks in relevant labor pool and % blks hired by emplr
                 i. Relevant labor pool: in DI case, is those qual’d for position w/o neutral criteria in question
                         Cf. SD – trust the emplr’s criteria
                 ii. Minimum DI reqd not specific – rule of thumb only
                           Success rate of P’s grp < 4/5 that of most successful grp is actionable
        b. ID the facially neutral factor used in making of emplr decisoins
                 i. Functionally integrated criteria – e.g. height and weight – practically can’t be separated
                 ii. Trait has to be immutable or at least of nature that emplee can’t control it
                 iii. Irrationality of the criteria doesn’t matter – only its immutability
        c. Causal nexus – Show that factor has dispar impact on the prot’d class
2. Burden of prod and persuasion to emplr:
        a. Cf all of dispar treatment cases
        b. Emplr has burden to prove neutral criteria is job related for the position in question
                 And consistent w/ business necessity
3. P must show another less burdensome criteria that achieves same qualitative results w/o DI problem
4. Seniority Exception
        a. When practice or policy is bonafide seniority system, P can’t state DI claim
5. No dispar impact on bilinguals to speak Eng as mstter of law
        Adverse impact of Eng-only policies not cognizable at law for bilinguals
        Cognizable w/r/t nonbilinguals though

C.      Pregnancy Discrimination
Title VII §701(k) (SS 34)
General Electric Co. v. Gilbert (CI) – US SC
        → Emplr w/ comprehensive health bens but not pregnancy bens not discrim BoS
California Federal Savings & Loan Assoc. v. Guerra; Notes (CB 539-46) – US SC
        → PDA doesn’t preempt state stats that give more prot to preg women

1. Two thy approaches:
        a. Sameness/difference approach – paradigm of antidiscrim law
                 Men and women should be treated same only when they are same in relevant respects
                 When they are different should be treated different
        b. Inequality/disadvantage approach
                 Focus shouldn’t be on whether men and women are same
                 Shld focus on whether women are being treated in ways that increase their social subordination
2. Pregnancy Discrim Act of 1978 – PDA
        a. Overruled GE v. Gilbert
        b. Discrim on pregnancy is discrim BoS – childbirth, related issues also
        c. Must treat women affected by preg, childbirth, related med conds “same” for all emp-related pups
                 Shall be treated sim as others sim in abil or inabil to work
                 Cf Gilbert said women being treated same as all others sim affected/situated
                 This can still result in discrim on pregnancy
                          E.g. preg wmn can’t get new job that reqs them to work continuously for first year
        d. Cts treat part c more impo than part b
                 When conflict btw the two, part c wins
        e. Preempts state laws that require or permit emplr to do sth that is prohib’d by TVII
                 i. Ct says PDA is a floor– state stats that require more prot e.g. paid preg leave aren’t preempted
                 ii. State stats that promote equal opportunity have same purp as PDA
                 iii. Cts won’t interp PDA as requiring preg women to be treated exatly the same as all others
                       Opp arg is that PDA didn’t req preg women to be treated better than everyone else
                               Paid preg leave treats them better than everyone else
       f. Doesn’t prot breastfeeding
               Only a few states actually accomod breastfeeding

D.     Age Discrimination in Employment Act – ADEA
ADEA §2 & §4(a)-(f) (SS 75-77)
ADEA §12(a) (SS 87)
Hazen v. Biggins; Notes (CB 569-574)
Solon v. Gary Community School Corp.; Notes (CB 574-584)
General Dynamics Land Systems, Inc. v. Cline (CI)
Western Airlines Inc. v. Criswell (CB 494-499)

Prots life cycle of emp model
Compare strength of age vs race/sex as basis for antidiscrim legis
TVII always available even to white hetero men
         Cf. ADEA, is one-way door for older people even w/in the class
Race and sex subj to SS in Const review – age only subject to RB review

1. Prohibs discrim against people 40 y/o and older
2. Covers employers with 20 or more employees
3. Sim to race and sex under TVII:
        a. Choice of dispar treatment, SD also available
                 i. But cts split on DI under ADEA – most say no DI
        b. BFOQ also available under ADEA
        c. PF claim – same as TVII under MDD framework:
                 i. Emplee is 40 or over
                 ii. Applied and was qual’d for a job
                 iii. Wasn’t hired
                 iv. Job went to a “substantially younger person”
                          Emplee hired can still be over 40 as long as substantially younger
        d. B prod shifts to emplr to state legit nondiscrim reason for emp action at issue
        e. P must show action was really because of age (BoA) – stated reason was pretext
                 i. Burdine, Hicks, Costa likewise apply
4. Hazen – US SC:
        a. Is not viol of ADEA to terminate to avoid vesting of pension where vests on years of service – YoS
        b. Is ERISA viol though
        c. Cf pensions that vest on age
5. Solon – 7th cir:
        a. Denial of early retirement bens based only on age is ADEA viol
                 i. Can’t give worse ben to older emplees
        b. Cts say emplrs either have to provide same actual ben or can show paying same cost into bens
                 i. Even when same payment would afford older people less actual bens
6. Gen Dynamics – US SC: Age discrim is one-way door even when younger workers also over 40 y/o
7. Criswell on BFOQ – US SC:
       a. Qual for which age req is needed is central to the essence of the emplr’s business
       [Review all the wordings of the various BFOQs!!] – is there any variation??
               Sim to sex-based BFOQ cases
       b. Emplr has to show age is good proxy for a partic qual for a job - Really need to disting on age
               i. Emplr can show reas caus to believe all or subst all over the age qual
                       would be unable to perf safely the duties of the job
               ii. Impossible or highly impractical to deal w/ excluded grp on an indivized basis
                       Emplr must prove by prepond of evid
       c. Cts give more wiggle room for age discrim the closer the connection to safety

E.     Disability Discrimination and Accommodation
ADA §2 (SS 61-62)
ADA §3 (SS 63)
ADA §102(a) (SS 65)
ADA §103(a) (SS 67)
Sutton v. United Airlines Inc.; Notes (CB 508-520)
Toyota Mfg. v. Williams (CI)
Chevron USA v. Echazabal (CI)

ADA was preceded by Rehab Act – which only applied to fed emplees
ADA says even if indiv not qualified, if they would be w/ reas accomods emplr must hire them
        Enabling obligation placed on emplrs
Ps will argue to be disabled so they are entitled to accomod and getting the job
Holding in Sutton effectively limits ADA relief to those who are so disabled that they probably not able to work
with reas accomods anyway
Toyota ct’s concern was with gutting Sutton by saying that class of manual tasks that constitutes one job is sufic for
major life activity
Reasonable accomod can incl redefining the job to exclude certain tasks the emplee can’t perf
        Did we study reas accomods in depth at all?
ADA, like TVII, is most effective for emplees who are already hired and working

1. Covers all emplrs w/ 15 or more emplees
2. PF claim:
        a. P must show disability under ADA
                i. Phys or mental impairment that substantially limits one or more of the major life activities
                ii. Record of such impairment
                iii. Being regarded as having such impairment
        b. P must show is a qualified individual w/ a disability
                i. P must be able to perf the essential funcs of the job w/ or w/o reasonable accomodations
                ii. Acomod must be reasonable, but is bigger burden than just de minimis
                iii. If qualified, emplr can’t discrim against disability and must provide the accomodation
                          Unless provision of accomodation will cause undue hardship
3. Undue hardship is context and emplr dependent:
        a. Creates or causes signif difficulty or expense
        b. Eval’d w/r/t particular emplr
4. Sutton – US SC:
        a. Disability is eval’d in corrected state
                i. Dis: Should be uncorrected state – otherwise guts ADA
                          Floodgates concern is red herring
        b. Major life activity, as far as emp is concerned, must at least be “broad class of jobs”
                Work as major life activity per se not yet decided
5. Toyota – US SC:
        a. For “performing manual tasks” to be major life activity, the manual tasks must be central to daily life
                i. Must prevent or severely restrict
                ii. Impact must be permanent or long term
        b. “Performing manual tasks” is not just tasks reqd for job
        c. Disabilities are not to be parsed on a class-based framework
                i. Only exception is “broad class of jobs”
6. Chevron v Echazabal – US SC:
        a. BFOQ available under ADA
        b. Also aff dfns not to hire if person may pose direct threat to h/s of others in workplace
        c. Also aff dfns not to hire if person may pose direct threat to h/s of self
                i. Reas med judgmt relying on most current med knowledge
                ii. And/or best available obj evid
                iii. Expressly indivized assessmt of indiv’s abil to safely perf funcs of the job
                ii. If reas accomods would elim the threat to self, no aff dfns
7. Drug addicts:
        a. Current drug addicts explicitly excluded from ADA
        b. Must be recovering/rehab’d to receive ADA protection
        c. Must meet the time requirement – must have been rehab’d for some min amt of time – what is it?
        d. Emplrs cannot defend refusal to hire based on illegal activity of the emplee/applicant
8. Alcoholism:
        a. Alcoholics are covered by ADA but emplrs don’t have to provide reas accomods to alcoholics

F.    Affirmative Action
Johnson v. Transportation Agency; Notes (CB 584-595)
Taxman v. Board of Education; Notes (CB 595-607)
Adarand Constructors, Inc. v. Pena (CI)

Challenges to AA plans are brought under TVII and the fed Const.
Cts are much more willing to uphold AA plans that benefit rather than deprive emplees
Const EPC jurisprud applies outside of emplmt context – TVII applies only to emplmt

1. To challenge AA as TVII violation, first step is MDD analysis
2. Remember: for EPC challenge to an AA plan, the emplr must be public/govt emplr

To Show Valid AA Plan Under TVII per Johnson v. Transportation Agency – US SC:
1. Two factors to eval validity of an AA plan:
       a. Is AA plan designed to remedy manifest imbal in a trad segregated job category – aka remedial purp?
               i. Don’t need evid of emplr’s own discrim practices
                 ii. Compare % of e.g. women in particular job w/ particular emplr
                 iii. Vs % of e.g. women in relevant qualified labor market
                 iv. Manif imbal doesn’t need to rise to level where would support TVII DI discrim claim
        b. Plan must not unnecessarily trammel interests of non-minority grp members
                 i. Refused promotion is not unnecessary trammeling
                 ii. Plans to attain a balanced workforce are not trammeling
                          Cf. maintaining a permanent balance – more suspect
2. P carries ultimate burden of showing invalid AA plan
3. Doesn’t matter what the criteria involved is – sex, race, etc. – all the same level of scrutiny

Diversity Per Se as Basis for an AA Plan per Taxman v Board of Ed – 3d cir
1. Diversity per se is not valid AA goal if there is no manif imbalance
2. Laying off based on AA plan unnecessarily trammels interests of non-minority grp members
3. Dissent:
        a. So a coin toss would be better? Emplr’s is basing decision on experience
        b. Racial diversity in workplace is itself a good reason to justify AA plan

Constitutional Challenges to AA Plans Under 14th or 5th per Adarand Constructors v Pena Etc. – US SC
1. All race-based policies benign and malignant are subject to strict scrutiny
        a. Plan must remedy past discrim by this particular emplr
        b. Diversity as goal per se is insufic state interest
2. State and fed race-based policies get the same review – SS
3. But Grutter v Bollinger said diverse student body is compelling state interest
        a. So similar diversity goal may be treated as sufic compelling for certain pub interest jobs
4. Scrutiny depends on what the discrim criteria is – race, sex, etc.
        a. Sex gets intermediate scrutiny
Review wording of both SS and IS tests from Con law notes!
5. MDD doesn’t apply – govt carries the burden to pass SS/IS/RB once P alleges discrim treatment
        Isn’t this ripe for abuse by Ps? Or does it require that an explicit policy be in place?

FMLA §2 (SS133-134)
FMLA §101(1), (4), (5), (11) (SS134-136)
FMLA §102(a)&(e) (SS 136-138)
Reich v. Midwest Plastic Engineering; Notes (CB 669-680)

FMLA intended to prot workers who need to take off extended periods of time from work
       Not meant to cover short term absences like colds – std sick leave already covers
Dept of labor, not EEOC, administers FMLA – can bring suits on its own or emplees can sue
No req to exhaust admin remedies
       Cf. TVII – verify and insert into TVII section above
CA has implemented partial paid leave stat – 27 other states considering same scheme
       Prots poorer workers who can’t afford to take unpaid leave

Per Stat
1. Applies to emplrs w/ 50 or more emplees
2. To be eligible, emplee must have:
        a. Worked at least 12 months for the emplr
        b. Worked at least 1,250 hours in the 12 months period preceding the leave
3. Emplrs must give 12 weeks of unpaid leave because of:
        a. Birth or adoption of a child
        b. Need to care for a spouse, child, or parent w/ serious health condition – SHC
        c. Need to care for emplee’s own serious health condition
4. After returning from leave, emplee must be reinstated to prior position or equivalent position

FMLA Per Reich v Midwest Plastic Engineering – MI Dist Ct
1. Emplr incl anyone who acts directly or indirectly in interests of the emplr – incl ctrl over day-to-day ops
        a. But cts are divided on whether FMLA creates indiv liability
        b. TVII doesn’t allow suits against indiv Ds as emplrs
2. Material facts for determining adeq notice to trigger FMLA leave:
        a. Emplee must give at least 30 days notice where FMLA leave is foreseeable
        b. If less than 30 days, notice as soon as practicable
                 i. Emplee must provide at least verbal notice sufic to make emplr aware
                 ii. Emplee doesn’t need expressly assert FMLA rts or that has a qualifying condition
                 iii. Burden then to emplr to ask any further info to see if this quals for FMLA
                 iv. In case of med condition, burden on emplr to determ serious health cond or ask for certificatn
        c. Emplrs don’t need to post notices of FMLA rts and information in emplr handbooks
                 i. Might be relevant in situ where emplee has to provide advance notice though
3. Serious Health Condition:
        a. Continuing treatment by health care provider
        b. Hospitalization – inpatient treatment – even if just for one day
        c. Per DoL regulations:
                 i. Period of incapacity of more than 3 days
                 ii. Repeated treatment by a health care provider
4. Certification – Dr’s note reqs:
        a. Once emplee notifies of need for leave, emplr may request cert from provider
        b. Request for cert has to be in writing
        c. Emplee must be given at least 15 days to respond
        d. Has to be made soon after leave starts
        e. Emplee has to know the conseqs of her failure to provide adeq cert


A.     The Unemployment Insurance Program – UI
Knox v. Unemployment Compensation Board of Review; Notes (CB 702-705)

1. Is an insurance not welfare program
         a. Designed to replace what the emplee lost when termd thru no fault of own
         b. Not designed to help those in most need
         c. Not means tested – so even if emplee has huge savings, is entitled to bens
         d. Not based on need – is an ins pgm – designed to comp emplee’s lost earning power
2. Is a joint fed and state pgm
         a. Fed pgm sets for basic reqs that state pgms have to meet
         b. Actual pgms admind at state level
3. Is a tax pgm – admind thru fed govt tax pgm
         a. Under fed emp tax Act, emplees get credit to fed fund for funds paid to state fund
         b. Amt emplrs have to pay in state funds is based on “experience rating”
                  i. Diff rates based on how many unemp claims filed against an emplr
                  ii. The higer claims, the higher experience rating
         c. Exp rating is based on:
                  i. General rating for emplrs in the indus
                  ii. Emplr’s own experience
4. Purp is to make emplrs take on some of the burden if they lay off a lot
5. Currently UI pgms cover virtually all emplees
6. Competing social goals:
         a. Workers shouldn’t suffer dramatic drop in std of living cuz of loss of job
         b. To get unemployed workers back into the workforce asap
         c. To maximize the value of particular workers to the mkt – getting good fit btw worker and job

1. Uniformity among states based on basic elig reqs
         a. Claimant must have had prior attachmt to the workforce
                 i. Must have had earnings that pass some min amt
                           So earnings and time dimensions
         b. Claimant must have been invol term’d
                 i. Emplee must have lost job thru no fault of own
                 ii. Emplee is gen disquald if fired for work-related misconduct or vol quit – without good cause
                 iii. Incompetence does not disqual for UI bens
         c. Claimant must satis work search reqs
                 i. Must be avail for and actively searching for work
                 ii. If not actively looking for new job, gen inelig unless laid off and have def recall date
2. Full time workers gen eligible for 26 weeks of bens
         a. Gen bens = 50% of wages up to stat max
3. Most states set stat max as .5 to .667 of avg weekly wage in the state

Work Search Reqs per Knox v Unemployment Compensation Board of Review – PA state trial ct
1. Involves UI stat that reqs searching for new work in good faith – or “failure w/o good cause”
2. Attaching conditions to acceptance of work so as to render self unavailable is not in good faith

B.     Disqualification from UI Benefits

               1.      Introduction
1. Tension btw good cause and misconduct
       a. Broad good cause provision allows e.g. emplees w/ sick kids to quit and get UI bens
               If narrow good cause provision, neet to wait till fired and claim no misconduct → UI bens
2. Tension btw aggressive enf of work search reqs and expansiveness of misconduct disqual
        a. Applicant nondisclosure of bad info during interview is not misconduct per VT SC
                In furtherance of work search interest
        b. Alcoholism out of control is not misconduct too
3. Re: misconduct– want to give emplrs incentive to respond positively to emplees who absent for good reasons
        So make sure UI bens available for those with good absences

              2.     Voluntary Quits
Wimberly v. Labor & Industrial Relations Commission; Note (CB 707-711)
MacGregor v. Unemployment Insurance Appeals Board; Notes (CB 712-717)

Voluntary Quits per Wimberly v Labor Industrial Relations Commission – US SC
1. Where state law denies bens to anyone who leaves w/o good cause
2. State can consistent w/ fed law disqual emplees from UI who leave for preg under neutral provision
        that disquals all claimants who leave for reason unattributable to work or emplr
3. Cong only intended fed UI to prohib singling out preg for unfavorable treatment
        a. UI can’t be denied under state law “solely on the basis of pregnancy”
4. No dispar impact claim cognizable because neutral application is not decision solely on pregnancy
5. FMLA now helps workers like this

Extending Defn of Family to Be Sufic Good Cause per MacGregor v Unemp Insurance Appeals Board – CA SC
1. Norman prec mentioned:
       a. If emplee quits to follow marital spouse – presumptive good cause
       b. If emplee quits to follow nonmarital partner – need add’l compelling circs to show good cause
               i. E.g. existence of child, need to care for health of immed family members
               ii. Reason for moving may also be material

             3.     Willful Misconduct
McCourtney v. Imprimis Technology, Inc.; Notes (CB 719-723)

Willful Misconduct per McCourtney v Imprimis Technology – MN app ct
1. State stat reqd very high std of misconduct to disqual from UI – willful and wanton
2. Willful regard to take care of kid is not wanton disregard for job even if severe absences

WARN Act §2101(a) (SS 182-183)
WARN Act §2102(a) & (b) (SS 183-184)
WARN Act §2103 (SS 184)
WARN Act §2104(a) & (b) (SS 185-186)
Kildea v. Electro Wire Products, Inc.; Notes (CB 729-734)

Federally regulates plant closings and mass layoffs
Std practice is to minimize the penalty by agreeing to discharge all WARN obligations before a suit comes
        Pay out all bens to all emplees right away after the violation
For a period of time is possible to get both UI bens and WARN compensation

1. Covers emplrs w/ 100 or more full time emplees
2. Reqs emplrs to give workers and local govt officials 60 days adv notice of plant closings or mass layoffs
3. Plant closing:
        a. Single site of emplmt is permanently or remporarily shut down
        b. Shutdown results in employment loss for 50 or more emplees during any 30 day period
4. Mass layoss:
        a. Reduction in force which results in an emplyment loss at a single site during any 30 day pd for:
                 i. Both at least 33% of emplees and at least 50 emplees or
                 ii. At least 500 emplees
5. Employment loss:
        a. Termination of employment (other than thru discharge for cause, voluntary resignation, retiremt)
        b. Layoff for more than 6 months
        c. Greater than 50% reduction in hours-per-month over a 6 month period
6. Exceptions to notice requirement:
        a. Faltering company exception – applies only to plant closings not to layoffs:
                 i. Allows less than 60 days notice if co seeks new $ and believes in GF
                          that notice of plant closing would jeopardize ability to get new financing
        b. Unforeseeable business circumstances exception – applies both to plan closing and mass layoffs
                 i. Allows less than 60 days notice if caused by business circs that were not reas foreseeable
                 ii. DoL regs: circs are not reas foreseeable if caused by something
                           sudden, traumatic and unexpected and outside emplr’s control
                          E.g. natural disasters, sudden loss of major client
                 iii. Even under this exception as much notice as practicable must be given
                 iv. Statement must be given on the basis of reducing the notice pd
7. Remedies:
        a. Liability for back pay and bens for each emplee for each day of violation
                 E.g. if emplr gave 45 days notice instead of 60
                          Must pay each worker salary plus bens for 15 days
        b. Atty fees for Ps bringing suit
        c. Civil penalty to local govt of $500 per day of inadeq notice given to govt unless emplr pays emplees
                 what they are due w/in 3 weeks of plant shutdown/layoff
                 May req emplr to pay in faster schedule than day-to-day – i.e. lump sum payment
8. Analysis:
        a. Is the emplr covered by WARN
        b. Are the workers in question covered
        c. Is an exception available to the situation
        d. What is the employer’s liability

Who is an Affected Emplee per Kildea v Electro Wire Products – MI fed dist ct
1. WARN:
       a. Affected emplee is emplee who may reas be expected to exp an emp loss as conseq of proposed
               plant closing or mass layoff by emplr
       b. Emplr must give notice to rep of each affected emplee or if no rep then to each affected emplee
2. Reas expectation of recall governs laid off emplees who may still be affected emplees – REoR:
       a. Past experience of the emplr
       b. Emplr’s future plans
       c. Circs of the layoff incl what the emplees were told as to the likelihood of recall
       d. Expected length of the layoff
       e. Industry practice
3. Emplees fired before 60 day notice period may have reas expectation of recall
4. Temporarily employed may not be affected employees


A.     Workers’ Compensation – WC

      1.     Basic Structure
New York Central Railroad Co. v. White; Notes (CB 895-903)

Trad way to comp for risk was wage differentials
Accidents would be dealt with in tort – but hard to prove emplr negligence
Employer liability stats – intermediate step to WC
       Eliminated fellow servant, contrib neg, and assump of risk defenses to emplr liability
       Emplee still had to show emplr neg
The tradeoff: emplees get guaranteed partial recovery without having to sue
       Emplrs get guaranteed predictable and limited liability thru exclusivity clause
WC is at bottom state run

1. Provides coverage for injuries or illnesses arising out of and in the course of employment – AOE and COE
2. All WC laws now provide some bens for some occupational diseases
        a. But WC initially designed to deal with accidents
3. Benefits:
        a. Cash benefits – comp workers for lost income and earning capacity
        b. Medical care – most states provide full medical benefits with no co-payments
        c. Rehab services – most states pay for medical and vocational rehabilitation
4. 5 types of cash benefits:
        a. Temporary total disab bens
                i. Paid to someone who is comp unable to work bu whose inj is temporary
                ii. Gen weekly ben is 2/3 worker’s preinj wage for duration of the disability
                         Subj to max and min amts presecribed by state law
        b. Temp partial disab bens
                i. Paid to someone who is recovering from workplace inj during a pd of reduced earnings
                ii. Gen weekly ben is 2/3 of diff btw wrkr’s preinj wage and the worker’s current earnings
                         Subj to a max amt prescribed by state law
        c. Pmt total disab bens
                i. Paid to someone who is completely unable to work for an indef pd
                ii. Gen weekly ben is 2/3 of the preinj wage
                         Subj to max and min amts rescribed by state law – is this the only one w/ a state min?
                         In most states bens are paid for duration of total disab or for life
        d. Pmt partial disab bens
                i. Paid to someone who has a pmt inj that’s not totally disabling
                ii. Two types PPD bens:
                         1. Scheduled bens – list how many weeks of paymt at what rate for each type of pmt inj
                                 “Meat charts”
                         2. Nonscheduled bens – injuries not incl on the schedule
                                 States have diff means for calc –
                                         Impairmt approach – how much of total body you’ve lost
                                         Lost earnings approach – how much have earnings decreased as result
        e. Death bens
                i. Paid to specified dependent survivors of a worker who was killed on the job
                ii. Bens are some portion of the deceased’s wage; often depend on # of dependent survivors
                iii. Emplr must pay burial expenses

WC and Const Due Proc per NY Central RR Co v White – US SC
1. States can change the requirements for employer liabilty to no longer require negligence
        a. As long as the replacement scheme is not arbitrary and unreasonable
        b. Is not due proc violation to make employer have strict liability
2. Is w/in state’s police power to create WC system
        a. WC does not abridge Const-protected liberty to K because it is mandatory

       2.        The Exclusivity of Workers’ Compensation
Millison v. E.I. du Pont De Nemours & Co.; Notes (CB 968-977)
Smothers v. Gresham Transfer, Inc.; Notes (CB 978-985)

ER provision is part of the fundamental deal of limited employer liability – all state WC stats have it

1. Exclusivity Provision – WC stats provide the exclusive remedy – ER – against emplr for work-related injuries
2. Intentional injury exception is generally a high std – intentional exposure to increased level of risk usu insufic
        a. Cts much more sympathetic to “stage 2” injuries where emplr intentionally concealed an existing inj
3. Most commonly ER provisions deny tort action even when WC bens denied if inj w/in scope of WC law
        a. Smothers is exception where state const provides source of relief from ER provision
4. ER provision prots emplr and other emplees from tort actions
        a. 3d parties can still be sued
5. Workers fall on both sides – sometimes they want to be covered by WC, sometimes they want to sue in tort

Exceptions to ER per Millison v E.I. du Pont De Nemours – NJ SC
1. WC doesn’t bar tort action for aggravation of injuries resulting from fraudulent misrep of med condition
       a. Must show that emplr intended an act that it believed was substantially certain to cause injury
               i. Knowledge and appreciation of the risk insufic
               ii. Strong probability of a risk insufic
               iii. Concept: must really go into realm of intentional injury
Exceptions to ER per Smothers v Gresham Transfer Inc – OR SC
1. WC bens denied because of failure to show exposure to toxins was major contributing cause per stat reqs
2. Major contrib cause:
       a. Must show accident/condition was the cause or combo of causes that contribd more to inj
                than all other causes combined – i.e. must be dominant cause
3. ER provision said exclusive remedy even where no bens permitted
4. OR const contained remedy clause – remedy must exist for injuries to common law rts recog’d at writing
5. Analysis:
       a. Would this rt be protected by common law at time of const writing
                i. Negligence action against emplr → yes
       b. Did major contrib cause std deprive emplee of the common law remedy
                i. I.e. emplee could prove contrib cause but not major contrib cause
       c. If yes to both, ER provision is unconst per state const

        3.      Which Injuries Are Compensable?
There is sliding scale between AOE and COE
        Stronger AOE, cts willing to fudge COE and vice versa

               a.      “In the Course of Employment”

1. COE gen interped to apply to:
      a. Time and place of accident
      b. As well as activity worker engaged in at time of accident

                    i.      Activity: Mixed Social and Business Activities
Ezzy v. Workers’ Compensation Appeals Board; Note (CB 909-914)

1. How to deal with activities that have both social and business components to them
2. Firms can call these expenses “business expenses” for tax purps – so why not liable in COE analysis?
3. Open questions involve company investmt – if you’re on a random train and start talking business – COE?

1. Examples of mixed activity jurisprud:
       a. Co encouraging particip by advertising space, donating uniforms, but not on co proprty, not reqd
               → Not COE
       b. Co paid nearly all of expenses, equipmt, hotel accomods, award dinners, overtime, adjusted work time
               → Yes COE
2. Depends most of all on co’s involvement in the activity
3. WC bens not discounted just cuz position was temporary
       a. If two jobs, complicated scheme to calulate loss of wage earning power

Softball/Company Social Outings per Ezzy v Workers’ Comp Appeals Board – CA app ct
1. Vol activities will not be COE unless the activity is reasonable expectation of the emp relationship
       a. Subj – did emplee actually feel they were expected to participate
       b. Obj – was this subj feeling obj reasonable
               i. Consid disparate pressure if emplee is female and activity reqs min number of females
               ii. Consid substantial benefit to the firm/company incl morale benefit
               iii. Consid emplr involvement e.g. thru financing, use of resources
               iv. Consid failure to post state-mandated waiver of liability for off-duty activities

                      ii.   Activity: Horseplay
Prows v. Industrial Commission (CB 915-920)

When is horseplay COE?

1. Examples of jurisprudence:
       a. Peeing off a moving truck’s running board is COE
               i. “Performed services incidental to employment when accidentally injured”
               ii. Stat pub indecency violation didn’t void COE

Horseplay per Prows v Industrial Commission – UT SC
1. Four-part test for horseplay:
        a. Seriousness of dev from work – Length of time spent on the horseplay – few minutes is trivial detour
        b. Completeness of deviation – Was the job completely dropped – extent of the detour from the job
        c. Extent to which horseplay is acceptaed part of emp – Goes to emplr notice of the horseplay
        d. Is the nature of this emp expected to incl some such horseplay – Goes to foreseeability
                 Is this the kind of thing that would be expected to happen at this particular workplace
                 Extent to which horseplay is tied into what the job is
                 If everything in horseplay was work materials – some expectation of horseplay

                     iii.    Time and Place: Going and Coming Rule – GAC
Santa Rosa Junior College v. Workers’ Compensation Appeals Board; Notes (CB 920-929)

As general matter, inj during commute to/from work is not COE
But various exceptions

Exceptions to GAC per Santa Rosa Junior College v Workers Comp App Bd – CA SC
1. Special mission – inj occurs while emplee is on mission/errand at explicit request of emplr
        a. Even if that errand involves emplee commuting to/from work
                 i. Bringing work home to do is not a special mission
        b. Reqs:
                 i. Emplee reqd by emplr to be away from workplace
                 ii. Emplee was actually engaged in direct perf of duties assigned/directed by the emplr
                         Driving to airport to fly to convention is sufic in direct perf of duties – Ehrgott
2. Field of risk/zone of danger – included in premises line doctrine
        a. Expands zone of WC coverage beyond actual worksite to incl places close to where work is done
       b. Only gives a little more space – e.g. the extent of the construction site
3. Wage payment or travel expense – when emplr comps an emplee for time spent commuting
       a. Implicit agreement set up that emp includes going and coming
4. Reqd transportation – emplr reqs emplee to furnish own vehicle and driving looks like part of job oblig
5. Special risk – inj is compensable if off jobsite emplee suffers inj from sth that emplr cause inc risk of injury
       a. In comparison to others in gen public
       b. Two-part test:
                i. But-for test – would P be injured but-for emp
                ii. Risk is distinctive in nature or quantitatively greater than risk to public
6. Home as second jobsite – circs of emp and not just convenience make the home a second jobsite
       a. Regular commute can be covered
       b. Working specifically at home must be at least implicitly required
                Can’t just choose home for convenience

                     iv.     Manifestation of Injury – MoI
Technical Tape Corp. v. Industrial Commission; Notes (CB 941-944)

Cts more likely to find COE when feel emplee had no choice but to do what was told
       Will stretch COE to origin of accident when emplee was ordered to work longer or do toxic duty
Origin of accident doctrine provides exception to GAC – map out all WC analysis and exceptions!

1. Broader temporal interp of MoI per Technical Tape Corp and Snow Barger – IL SC
       a. Origin of the accident is key – was the origin of the accident in COE
       b. Fact that actual accident was on way home is irrelevant
2. Normally COE req focuses on moment and locale of the injury – origin of the accident is an exception

               b.    “Arising Out of Employment”
Hanson v. Reichelt; Note (CB 934-938) – discussion of adopting actual risk rule
Nippert v. Shinn Farm Construction Co.; Notes (CB 938-941)

States may disting between legal doctrines for diff kinds of neutral risks
        But evolving towards uniform analysis
In horseplay cases, often cts do only AOE or COE – analysis is similar
        If horseplay is just too remote from COE – then also no AOE – think about it
Trend of states is to expand WC coverage
        Whether by expanding the neutral category or even calling the injury occupational

Analysis in assessing AOE
1. Determine the category of the risk
        a. If occupational, then AOE ok
                 Risk flows directly/wholly from job – e.g. machine breaks
                 Inj that is wholly foreseeable and directly flows from normal duties in job
                 Traditionally framed narrowly
        b. If personal, then AOE not met
                 If risk is totally related to this indiv – seems to be just cuz of who this person is
        c. If neutral, then go to step 2
                 Not wholly occup, not wholly personal
2. Determine the type of neutral risk
        a. Act of God/nature
        b. Assault by a stranger
        c. Street risks
        d. Unexplained death
3. Determ the legal doc used in juris:
        a. Prox cause doctrine (obsolete, none use)
                 Req harm to be foreseeable as a hazard of partic emp, and unbroken chain of causation
                 Very hard to meet
                          Coworker neg could break chain
        b. Peculiar risk doctrine
                 Also largely abandoned
                 Reqs hazarfd be peculiar to and increased by the emp
        c. Increased risk doctrine
                 Still in use by some states
                 Reqs that job increase risk to the worker even if risk not peculiar to the occupation
                 As compared to other people in the locality
                          Very flexible depending on basis of comparison
        d. Actual risk doctrine
                 Subst number of states use it
                 Allows comp even if risk common to public – inc risk not needed over others in gen location
                 As long as risk is actual or normal risk of the emp
                          E.g. job involves driving – job creates actual risk, hard to show inc risk
        e. Positional risk doctrine
                 Most liberal test
                 All injuries that wouldn’t have occurred but for conds of emp placed P in position where injured
                 If you were in the place where you got hurt because of your job → sufic AOE
                 E.g. Nippert – tornado strike is covered as AOE
                          Even an act of god/nature

        4.    Which Diseases Are Compensable?
Tisco Intermountain v. Industrial Commission; Notes (CB 950-954)

Continuing question of should there be statute of limitations
       Statute of lims goes to emplr predictability – and continued desirability of the WC scheme
Should SoL run from when injury reveals itself?

1. Many states choose arbit SoL limits

Place of Last Injurious Exposure per Tisco Intermountain v Indus Commission – UT SC
1. WC must be claimed from emplr where last injurious exposure occurred – is this universally true?
2. Stat of limitations barred suit against proper emplr
         a. Death had to occur w/in 3 yrs from last date on which emplee last worked for emplr being sued

      5.     Injuries and Diseases for Which Compensability is Problematic
Chicago Board of Education v. Industrial Commission; Notes (CB 955-965)

Illnesses with long latency periods and mental-mental injuries are problem under WC
Obj basis for comparison is commonly others in same profession
Cts wary of giving WC to people who complain of stuff that just happens every day
        Cf. phys injuries – can be ordinary and get compensated
Remember that injury has to impair job ability – is this true for both mental and phys injuries, or just mental?

1. Injuries can be divided into physical injuries and mental injuries
        a. Physical – break arm, leg, etc.
        b. Mental – stress, depression, paranoia, etc.
2. Causes of injury can be divided into phys and mental
        a. Phys – machine breaks, phys event happens
        b. Mental – sudden trauma, workplace abuse, etc.
3. Therefore four types of WC injury – in decreasing likelihood of compability:
        a. Physical cause and phys conseq
        b. Phys cause and mental conseq
        c. Mental cause and phys conseq
        d. Mental cause and mental conseq
4. WC most likely to comp inj w/ phys component – incl mental-phys
5. Eggshell emplee rule for phys injuries – take the emplee as he comes
        a. Mental injuries more held to obj reas person std
6. Four approaches to mental-mental injuries: - make a spectrum
        a. No distinc btw mental and phys inj
                i. Mental inj prod by mental stim compable even if grad and not unsual in any way
                ii. Symmetric treatment – even if normal everyday stress – as long as can show COE and AOE
                iii. May even impose eggshell emplee for mental injuries too
        b. Mental mental compable even if gradual stim but only if stress is unusual
                i. Chgo Bd of Ed imposes further reqs too
        c. Mental mental compable only if mental stim is sudden
        d. Mental mental not compable AML, ever
        e. Some states still not sure what they’re gonna do about mental mental inj
7. Recent trends in WC law:
        a. Tighten WC reqs esp for repeptivie inj – e.g. carpal tunnel syndrome
        b. Tighten rec for regular stress
        c. Tighten racial and sex harassmt as being barred from WC
                i. Depends on state stat
                ii. More liberal state stat is, more likely CoA for IIED is barred and it will be covered by WC
                        Is TVII action barred?

Mental-Mental Injuries per Chicago Board of Education v Industtrial Commission – IL app ct
1. General work-related pressures are insufic for WC comp
2. To recover for mental-cause injury:
        a. Emp stress has to be major contributing cause
                i. Cf. phys injuries – only req some cause, not major cause
                ii. Temporal causation link too – close in time reqd
        b. Stress had to be extraordinary
                i. Can’t just be normal day-to-day stress/tensions
                ii. P has to have found stress to be extraordinary resulting in mental illness
        c. Stress has to objectively be extreme and bad
                i. Reas person test
                         Med testimony, or in reality can be judge imposing own std

B.      The Occupational Safety and Health Act

       1.      Introduction
1. WC was only secondarily preventative – mostly reactive
2. OSHA aimed primarily at preventing problems of health and safety
3. OSH Act is administered by the Secy of Labor
4. OSH Act operates thru gen duty clause and §6

     2.      Basic Structure
OSHA §2 (SS 357-359)
OSHA §4 (SS 360-361)
OSHA §5 (SS 361)
OSHA §6(a)-(c) (SS 361-365)
OSHA §8(a) (SS 368)

1. OSHA applies to all emplrs in business affecting commerce
2. Gen duty clause per §5(a)(1)
        a. Only substantive health/safety std in OSHA itself
        b. Provides that each emplr shall furnish to each of emplees:
                 i. Emp
                 ii. And place of emp free from recog’d hazards that are causing or likely to cause to emplees
                         Serious physical harm
3. Specif health/safety stds per OSHA §6
        a. Interim Stds §6(a)
                 i. Secy Labor can adopt interim stds in first 2 years of OSHA w/o formal approval proc
                 ii. Secy authd to adopt existing fed safety stds or natl consensus stds
                         NCS – adopted as vol stds by orgs often volun themselves
                 iii. Majority of OSHA stds today were consensus stds promulgd under §6a as interim stds
                         So vast maj of OSHA stds wildly outdated
                 iv. Once interim std enacted, in effect until revoked or revised per procs for pmt stds
        b. Pmt stds §6(b)
                 i. Secy can promulg pmt health/safety stds but there is long proc in order to pass pmt stds
               ii. Therefore relatively few pmt stds – only about 50
        c. Emergency Temporary Stds §6(c)
               i. Secy can issue ETS by following simple procs but only if Secy determs:
                       Emplees exposed to grave danger from exposure to subst or agents determd to be toxic or
                                phys harmful or from new hazards
                       And ETS neces to prot emplees from such danger
        Not used very often – actually difficult to get ETS or rendered them invalid
               Also because expire after 6 mo. – before OSHA can enact a pmt std to replace them

      3.     Substantive Criteria for Evaluation of OSHA
AFL-CIO v. Brennan; Note (CB 1035-1039)

1. Criteria cts use for reviewing acceptability of health and safety stds promulgated by Secretary:
        a. Technological feasibility
        b. Economic feasibility
        c. Demonstrated bens to workers’ health or safety
        d. Cost/benefit analysis
2. All OSHA stds are reviewed for whether based on substantial evidence

Econ Feasibility per AFL-CIO v Brennan – 3d cir
1. Tech feasibility is legit consideration in adopting pmt stds
       a. Technology not now available nor does it “loom on today’s horizon”
       b. OSH Act doesn’t req elim of all hazards if means getting rid of whole jobs/indus completely
                i. But OSH Act should push market to create safer technology – technology-forcing
2. Economic feas is legit consideration in adopting pmt stds
       a. Secy can consid that std won’t cause massive dislocation and force large segs out of business
       b. Look at indus as a whole 0 not at particular businesses who were already behind
       c. Will std cause a massive dislocation in the industry or make indus unable to compete w/ imports
       d. Financially burdensome is ok
       e. This is not cost/ben analysis
       f. Probly forcing more than 2% of indus out of business is econ feasible
                i. Probly can’t force as much as 50% of indus out of business

       4.      Legal Challenges to Permanent Standards
Industrial Union Dept. v. American Petroleum Inst. (The Benzene Case); Notes (CB 1045-1048)
                      American Textile Manufacturers Institute v. Donovan; Notes (CB 1048-1061)

[Maybe should collapse this section into previous section if it’s all about permissibility of criteria]
Benzene case was first OSHA case US SC reviewed
       Raises issues of degree and types of evid Secy has to show to prove health and safety bens

1. DC circ on signif risk:
       a. 1/1000 chance to develop cancer during lifetime resulting from period-of-time exposure
2. Some cir cts now req cost/ben analysis for for general health/safety stds
3. Two types of cost/ben ideal points – p. 1043:
       a. Marginal cost vs marginal bens – where the apexes of the curves are
       b. Overall/total cost vs overall/total bens – where the cost and ben curves intersect

Demonstrating bens to worker health and safety per Benzene Case – US SC
1. US SC avoids saying Secy needs to show cost/ben analysis
        a. But can begin to see in ct divide on whether c/b analysis reqd
                 i. Powell says threshold test not met – but even if it had, OSHA reqd to do c/b analysis
                 ii. Marshall says no c/b analysis reqd, neither this signif risk test
                         All OSHA has to do is pass econ and tech feas test
2. Secy needs to show by subst evid:
        a. Workplace unsafe and that signif risks present
        b. And that new std will elim or lessen the risk
3. Can’t presume no safe level of e.g. a carcinogen
4. Fuzzy figures on signif risk:
        a. 1/1000 risk for period of time exposure
        b. 1 in 1 billion chance is not signif risk

Cost-benefit analysis per American Textile Manufacturers Institute v Donovan – US SC
1. Stds for toxic substances and harmful physical agents don’t req cost/ben analysis
        a. Feasibility governs toxic substances and harmful phys agents – not econ proportionality/efficiency
2. Stds not for toxic substs / harmful phys agents may req cost/ben analysis
        a. E.g. general health/safety stds
3. Wage guarantee provisions must meet same reqs as health and safety stds
        a. Secy must prove benefit to health and safety
        b. Secy maybe can say needs to prot workers who will hide injury to keep job
                 But needs to say this in enacting the std too – not just post-hoc
4. Stewart: reads feasibility analysis strictly – econ proportionality is part of econ feasibility
5. Rehnquist: “to extent feasible” is unConst vague delegation of legis authority

       5.     The General Duty Clause – GDC
National Realty & Construction Co. v. OSHRC; Notes (CB 1074-1083)
Reich v. Arcadian Corp. (CI)

There is difference btw violation of GDC and serious violation
        Serious violation reqs some mandatory fines
Did we cover PF claim for serious GDC violation?
National Realty court wrote in preventability into the stat because of concern of strict liability
Cts use all three tests in deciding whether likelihood of causing dsph has been met
OSHA still imposes fines on per-emplee basis

1. Different stat measurements on causing/likely to cause:
        a. Pe – the probability that a harmful event is going to occur per unit of exposure
        b. Pdsh – prob that if a harmful event has occurred the result will be deth / sph
        c. Pzap – the prob of deth or serious harm occurring per unit of exposure
2. Three different defns of likely to cause element:
        a. Possibility test – focuses on whether if an accident does occur, the result is likely to be deth or sph
                Not on whether an accident likely to occur
                I.e. Pe can be low, as long as Pdsh is high
        b. Reasonable foreseeability test – reqs both:
                i. Prob of a harmful event occurring is reas foreseeable
                ii. If an accident does occur the result is likely to be deth/sph
                I.e. Pe has to be fairly high and Pdsh has to be fairly high
                          No specif numer req for either one though
        c. Signif risk of harm test – reqs that the prob of death or sph occuring per unit of exposure is 1 in 1000
                I.e. Pzap has to be at least 1/1000 or .001
                          Follows from threshold test – from benzene case
3. Interaction between §5 and §6:
        a. Generally, co can’t be fined for GDC viol if is in compl w/ §6 for same hazard
                i. Except if knows that level of haz materials is causing harm to its emplees – per DC cir
                          I.e. If knew the h/s std insufic to prot workers against particular hazards
4. OSHA still imposes fines on per-emplee basis Reich nws
        a. Esp in egregious cases
        b. Mostly in cases arising under §6 – not as often under §5

GDC Violations per National Realty & Construction Co v OSHRC – DC cir app ct
1. Three elements to start with that Secy has to estab to show GDC viol:
       a. Emplr failed to render wkplc free of hazard
       b. Recog’d hazard
               i. Based on common knowl of safety experts familiar with the indus
               ii. Particular emplr doesn’t need to know about the hazard
       c. Causing or likely to cause deth or serious phys harm
               i. Ct gives considerable deference to OSHReviewCommission determ
       d. Secy carries burden to show feasible method to correct the hazard
               i. I.e. hazard must be preventable
               ii. Secy must show feasibility and utility of the proposed measure
                         Tantamount to requiring full pmt stds inquiry into possible GDC violations?
2. Actual accident is neither necessary nor sufic for GDC violation

Basis of Prosecution per Reich v Arcadian – 5th cir
1. Unit of OSHA prosecution is per-hazardous condition, not per-emplee
2. How many emplees were potentially at risk is factored into Commission’s analysis

       6.     Federal Versus State Authority for Workplace Safety and Health
OSHA §18a,b,c (SS 380)
Gade v. National Solid Wastes Management Assoc. (CB 1118-1126)

Gen, state s/h sts are preempted by OSHA stds
Where state has authorized plan, state is not governed by fed OSHA at all
Fed govt reimburses up to 50% of cost of state-run plans
1. §18(a) permits states to assert juris over health/safety issues for which no OSHA std in effect
2. §18(b) allows states to assume responsibility for wkplc h/s despite fed stds
       a. States can develop state plans
       b. Must have it approved by Secy of Labor
3. §18(c) sets stds for permissible state plans:
       a. State agency must be designated responsible for administering the plan thruout the state
       b. State agency must have sufic funds and legal authority and qual’d personnel to conduct the pgm
       c. State h/s stds must be at least as effective in health and safety as fed stds

Proper Extent of State Preemption per Gade v National Solid Wastes Mgmt Assoc – US SC
1. State laws are not preempted if they’re on an issue of s/h where no fed regulation – already settled
2. State laws are preempted if in direct conflict w/ fed s/h stds – already settled
3. State reg is preempted if there is fed std even if state std is complementary and not in conflict w/ fed std
        a. OSHA purp was to come up with one set of s/h stds that each emplr had to follow
4. State laws with purp in addition to workplace h/s also preempted
        a. AS long as state law directly, substantially, specifically regs occup h/s then is subj to preemption
5. Dissent: Preemption appropriate only when direct conflict – when impossible to comply with both
        a. Narrower preemption reading

[Create step-by-step analysis for each doctrine]
[Before emplee duties and promises I might have missed some remedies sections]
[Review, possibly reorganize notes prior to emplee duties/promises]
[Compare with outlines from Cherie Song]
[When is a company policy needed and when not?]
[When do specif K provisions matter and when not?]
[Review hypo handouts, incl esp dispar impact and systemic discrim hypos from 10/19/04 and dbl check the math]
[Can regular dispar treatment discrim claim be brought by a class of indivs? Or is that essentially system dispar
[Check questions on the syllabuses]
[Where does TVII begin and end??]

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