Employment Law
Professor Hawkins
Fall 2013
I. Private employment and employment at will
a. Theme
i. To balance the economic interests f the employer against the individual interest of workers while also protecting societal interests
b. FoundationàEmployment At-Will Doctrine
i. Employers can create, modify, or terminate an employee at will for any legal reason
ii. Freedom of contract between parties of equal bargaining power to:
1. Hire or be hired
2. Fire or quit employment
3. At anytime without notice or reason
4. With limited exception (in exercising police power)
a. Contract
b. Statute
c. Public policy
iii. Presumption of all employment relationships
1. Dates back to 1908àAdair v. U.S.
a. Don’t want to force any side into involuntary servitude
c. Modifications to at will employment
i. To modify parties must satisfy elements of creating contract
1. Acceptance can be constructiveà continuing to work shows acceptance of new terms
d. Exceptions to at will
i. All states except Montanaà statutory standard of cause termination
e. Two At will presumptions
i. Premised on
1. Equal bargaining power
2. Freedom of contract between private parties
ii. Presumption: at will employment is a private contract between two equal parties
f. BammertàOpinionàEe’s claim identifies a public policy completely unrelated to her employment being enforced by someone else who is employed elsewhereàThus the person who acted out public policy must be the ee to recover
i. DissentàThis type of retaliatory firing is a loophole
g. Lemmermanà Issue: is the kid an ee or gratuitous volunteer
i. Rulingàkid is an ee
1. Reasoningà court looked to jobs performed and pay receivedàPay was consistent with how other ees were paidàPerformance: kid was injured during the course of performing his usual dutiesàThe duties benefit the business and not the d personally
a. Court does not care that kid was employed illegallyàBecause of child labor laws Kids status could not legally be one of ee
i. Reasoningàthat issue is not dispositive on the claim because d had the authority to hire and fire as he pleasedàDoes consider it as a factor but is not enough to show kid was not ee
ii. DissentàEr should not benefit from their illegal activity
II. Public Employment & Civil Service
i. Rutan àIssueàGovernor only approves hiring/promoting/transferring of republican supportersàCalled political patronageàNot always problematic
ii. PrecedentsàHoldingàThe hiring practices infringed on political belief and association constitute the core of those activities protected by the First AmendmentàInfringement must take place to have a constitutional law claimàInfringement is the coercion of conditioning employment on ees beliefs
iii. Current holdingàBalance the state’s interest for the practice against the fundamental right and that the state action is the least restrictive means
1. State’s interest: the need for politically loyal ees
2. Least restrictive means: state action is not least restrictiveàloyalty is only relevant for policy making ee
3. Two part test to determine whether the position involved is “policymaking”
a. (1) whether the position involves government decision-making on issues where there is room for political disagreement on goals or their implementation
b. (2) whether the responsibility f the position resembles a policymaker, someone privy to confidential information, a communicator or some other office holder whose function is such that party affiliation is an appropriate requirement
III. Exceptions to At-will, Pt. 1
a. Is the at will doctrine still viable
i. Presumption of equal bargaining power
1. Bargaining power changes with job market
ii. Changes to the Demographics of labor force
1. Not all demographics have equal bargaining power
iii. Small number of union workers
1. No third party to secure workers rights
iv. Working from home
1. Less control over workers
v. Technology
1. By always working, does an er have control over all aspects of ee’s life
vi. Global economy
b. At will doctrine
i. Why should the government interveneàStrike a balance between three competing interests
1. Employee
2. Employer
3. Public
ii. Exception
1. At will does not apply to public entitiesàApplies only to contracts between private entities
c. At will exceptions
i. Constitutional exceptions
ii. Whistle-blower exceptions
1. Title 7
2. NLRA
3. Sarbanes Oxley
iii. Public policy exceptions
iv. Montana Statute
d. Exceptions to at-will
i. Public policy
ii. Statutory
1. Whistle blower
2. this also protects the ERs against an ee’s breach
a. example: uniformed trade secrets act
3. Trade secrets
a. Uniform Trade Secrets Act (UTSA)
i. Has not been adopted by all states (NJ and NY included)
ii. Stealing trade secrets can also result in criminal theft charges
iii. Contract
1. Implied-in-fact
a. this also protects the ERs against an ee’s breach
i. good faith and fair dealing
1. example: won’t quit in the middle of a project
2. Expressed
a. this also protects the ers against an ee’s breach
b. Mutual obligations
i. Example: Contract for years
ii. Measure of damages
1. Benefit of the bargainàreasonable expectations under the kàless mitigation
c.
iv. Constitutional
v. Convenient of Good Faith and Fair Contract (CGFFC)
1. Fiduciary duty
a. Duty of loyalty or care
vi.
e. Goetzàee, janitor, fired from school for stealingà
i. Claimà P claims he was not given a hearing and thus denied due process
1. He
type of advertising is not the primary way the er solicits ee
i. Er usually only needs word of mouthàthus er can reduce cost of doing business if they don’t have to spend money on looking for ees
ii. List of 99 non Koreans that applied but were not hired
1. Court says
a. Does not support discrimination claim
b. Facts show that the witness called out of the 99 were shitty
i. They did not prove that any of the witness actually wanted to work for d and was then denied
d. Aramark Facility Services v. Service Employees International Union
i. Can ers act under their obligation for immigration enforcement
ii. Er claims the letter and the ee’s inability to comply was constructive knowledge that the ee’s are illegal immigrants
iii. DC
1. Vacates Arbitrator ruling for ee and says it violates public policy to force er’s to employ illegal ees
a. In order to fulfill the public policy (curbing illegal immigration) it is necessary to discourage the employment of unauthorized workers
iv. Circuit court
1. To vacate an arbitration award because of public policy the policy must be
a. An explicit public policy
b. That is well defined
i. Is a similar standard the at will public policy exception
2. Court says immigration public policy is explicit and well defined as attempting to control national immigration
v. Court looks to constructive knowledge
1. Must figure out whether the letter provide constructive knowledge that the er was employing unauthorized workersàthereby violating the public policy
2. Constructive knowledge must be construed narrowly
3. Er says constructive knowledge was gained when
a. The letters were sent saying ees papers were wrong
i. Court says this was not constructive knowledge because the letters have no relation to immigration
1. Letters were to ensure social security was in order
a. Letters not sent in attempt to enforce immigration laws
b. Ees failure to respond to ers request to get proper documents
i. Courts this is not constructive notice but is a closer call then above
1. The arbitrator’s ruling
a. Courts differ factual evidence unless a clear error exists
b. The short turnaround time
