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Employment Law
St. Johns University School of Law
Gregory, David L.

Gregory – Employment Law – Spring 2013


· Ee = Employee

· Er = Employer

· EaW = doctrine of employment at will

· C/A = cause of action

· Blue = Case book

· Red = Non-Case book assigned cases

Work & Law

· Pope John Paul II on Human Work

o Work as a unique defining attribute of humanity

o But if work is demeaning or absent, it can destroy the ego

· Bammert v Don’s Super Value (Ee fired after husband arrested Er)

o Result: wife loses

o RULE: No public policy exception to at-will for

§ 1.) State law prohibiting drunk driving

§ 2.) State statues encouraging preservation of the family

o Court very concerned about slippery slope of at will exceptions

Development of Employment Law

o Master – Servant

§ Old way of thinking about master-servant was one dimensional

§ Master-servant survives only for tort vicarious liability

o Er – Ee

§ Freedom to work for wages is a mirage, as the Ee is also “free” from the capital of production

§ Employment law mostly law of K, but some vestiges of property law, with the Ee as the property of the Er

o Lemmerman v A.T. Williams (child injured while doing odd-jobs with mother at work. Child argues not an Ee, so not covered by Workers comp, even though child was paid)

§ Result: Child is an Ee

§ RULE: When Workers Comp law specially covers illegal Ee, a court lacks sbx matter jx to take on the matter.

o Development of Employment at Will

§ UK development based on justice for seasonal workers needing security, and shifted to require notice period

§ US development was confused and resulted in “employment at will”

o Civil Service / Public Employment

§ McAuliffe v Mayor & City of New Bedford (PO fired for soliciting political contributions, contrary to city regulations. Sues for job back)

· Result: PO loses job

· RULE: Nothing in Constitution or state law prevents city from making conditions of employment.

o Ee has Constitutional right to free speech, but no Constitutional right to be a cop

o Servant cannot complain, as he takes employment on terms offered

§ Rutan v Republican Party (Ee’s promotion considerations included political action and affiliation)

· Result: Ee wins

· RULE: 1st Amendment forbids promotion or hiring decisions based solely on political affiliation/action, unless party affiliation is an appropriate requirement for the position in question.

o Collective Bargaining

§ Yellow Dog contracts (promising not to unionize) prohibited by NLRA

§ Union shops allowed by NLRA to prevent “free rider” problem

o Nondiscrimination

§ Title VII of CRA designed to prevent discrimination based on race, religion, sex. Age and disability added in later laws.

o Judicial Modification of Employment at Will

§ Ee are more aware of their protections from EaW

· Unions often have “just cause” requirements

· Minorities can seek discrimination actions

§ Judges began to recognize exceptions to EaW

· “Public policy” exception” (some states additionally allowing tort action)

· Implied K exception (unfair of Er to write the rules and not be bound by them)

· Implied covenant of Good Faith (UCC law of K, recuperative damages as only remedy, not putative)

o Arbitration

§ Campbell v General Dynamics (Company announces by mass e-mail mandatory arbitration as final resolution to disputes. Ee tries to sue in court)

· Result: Ee wins; Mass e-mail insufficient to provide notice

· RULE: Thoroughness of communications of a policy change must balance the importance of the change.

o Outsourcing

§ Actually more productive and cheaper for Er

o Employee vs. Independent Contractor

§ Common law agency test (level of control)

· Factors to determine control over manner and means of work

o Skill required

o Duration of relationship

o Source of tools

o Hired parties discretion on when and how to work

o Location of work

o Method of payment

o Hired parties discretion on hiring assistants

o Provision of benefits

o Tax treatment

§ Economic realities test

· Factors to determine dependence on hiring party

o Skill required

o Duration of relationship

o Investment in tools or materials

o Nature of control

o Opportunity to share profit or loss

o How integral services are to the business

§ Hybrid test

· Combines elements of agency and economic reality

The Hiring Process

o Recruitment

§ Kotch v Board of River Pilot Commissioners (P denied appointment as river pilot, b/c incumbent pilots has unfettered selection power of apprentices)

· Result: P loses

· RULE: Nepotism in appointing pilots does not violate EP of 14th Amend. Court defers to state of LA balancing the risks of nepotism with the benefits of pilot self-selection.

· Firefighter passed over in similar facts did violate EP; distinguished firefighting from “unique character of riverboat piloting.”

o Nepotism per se not violation of VII of CRA, but is if effect is discriminatory

§ Intent to discriminate required for Constitutionally based suits (Washington v Davis)

§ EEOC v Consolidated Service Systems (Korean owned company hires through word of mouth; 81% of new


o Truth Detecting Methods

§ Polygraph

§ Personality tests

§ Psychological test

· Greenawalt v Dept of Corrections (Ee told she has to take a psychological test after 2 years with Corrections. Test is very personal. Ee sues for unreasonable search.)

o Result: Ee looses

o RULE: Mandatory psych tests are not a “search.” Even though urine testing, wiretapping and rifling papers are less invasive, to make a line of questioning a search would require warrants for XE and credit checks.

o Medical Screening

§ Harrison v Benchmark Electronics (temp Ee uses barbiturate to control epilepsy. Er decides not to permanently hire after testing positive, even after doc explains the use.)

· Result: Ee wins

· RULE: Ee have a private right of action against Er when Er violates ADA with prohibited medical screening. ADA covers all applicants, not just visible disabled, and Congress intended to prevent Er screening to identify disabilities.

o If Ee tests positive, Er can only ask if they have any Rx.

o Drug Testing

§ National Treasury Employees Union v Von Raab (Customs Director announces drug testing program for those involved in a.) Drug interdiction; b.) Firearms c.) Classified material.)

· Result: drug testing allowed

· RULE: Drug tests not a search, if gov’t shows a “compelling interest” for drug free workforce. Dissent argues to maintain “probable cause” standard.

o Genetic Discrimination

§ EEOC considers genetic predisposition to be a disability when Ee is discriminated against. Never tested in court.

§ Sickle cell screening upheld as a valid complaint

§ Er was requiring blood tests of carpal tunnel complaining Ees. EEOC filed a claim and Er settled and ceased.

§ State laws prohibiting genetic testing: typically for all Er

§ Federal Genetic Info Nondiscrimination Act (GINA): >15 Ee

· Er prohibited from requesting genetic info

o Including info of family members

· Under ADA, Er can request a post-offer examination and that Ee release of medical info. Under GINA, doctors are supposed to redact genetic info. But too interwoven, so whole record is sent.