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Employment Law
Temple University School of Law
Hoffman, Jerome A.


Employment Law

Spring 2016

Brammert v. Don’s Super Valu (Employment at Will)

Employee of supermarket is fired after her spouse issues DWI to the supermarket owner’s wife
Employee was an at-will employee and could be fire for any reason or no reason at all

Cannot fire if contravenes public policy articulated in constitutional, statutory or administrative law

Employee argues that firing a spouse contravenes the promotion of marriage (violates public policy)
Court found that this was a slippery slope to distinguish the relationship of police officer and wifewhere does relationships end?

Must be able to identify a constitutional, statutory or administrative provision that clearly articulates a fundamental and well-defined public policy
Would shift burden back to employer to show just cause

What is employment at will?

Unless there is stated otherwise through contract, the relationship is employment at will

Puts burden on the plaintiff to establish/overcome the presumption of employment at will

Wrongful Discharge where employee can establish a well-defined public policy violation

Shift burden to employee to show just cause

Who is an Employee?

Lemmerman v. AT Williams (Who is employee)

Son of a store clerk performed odd jobs around the storecompensated some change by store owner each day
Son was injured and store tried to claim that the son was an employee (protected by Workers Comp)
What constitutes an employee

Performed tasks of an employee
Owner, who had authority to hire, actually hired
Failure to follow-technical steps does not preclude employer-employee relationship

Worker Compensation provides remedies for employees and therefore court had no subject matter jurisdiction

Statute even considered those illegally hired (minors)

At-will employment: the rule that an employment relationship is subject to termination at any time, or for any cause, by an employee or an employer in the absence of specific agreement otherwise.

Limitations to at-will include public policyexceptions
General rule is that an indefinite or general hiring is prima facie at will employment

ER free to impose any conditions of employment
ER free to discharge an employee at any time for any reason
Effect such discharge in any manner

ERISA (Darden Factors for employee v. Independent Contractor)

Workers Expectations
Workers reliance on expected payments
Lack of bargaining power to negotiate forfeiture clause

Independent Contractor Analysis

Operates independently
Manages the business
Services not integral to day-to-day operations
Work ends when job ends
Straight commission/lump sum
Not provided supplies materials
Liable for breech of K if work not finished

McAuliffe v. Mayor (1892)(Civil Service/Public Employment)

Police officer petitioned for re-instatement to his position after termination by mayor

Police officer fired for violating policy against soliciting money for political purposes

Officer alleges that this violates his constitutional right to free speech
Court finds that city may create as a rule conditions as part of the office of policeman

Individual may have a constitutional right to talk politics; no constitutional right to be a police officer

Court finds that city may impose any reasonable condition upon holding offices within its control

Hatch Act Reformations 1993

Conferred greater freedom on public employees to engage in partisan politics

Exceptions included:

NO solicitation from subordinates or persons having business pending
No engaging in activities while on duty
NO use of governmental facilities or property for political purposes
May not run for partisan political office

Embrace merit principal

Rutan v. Rupublican Party (New Civil Service/Public Sector)

Governor suspended all hiring into state positions unless approved by Governor’s special agency
Plaintiff alleges that the agency reviews applicants past voting lines, creating a patronage system for government jobs. Argue this violates first amendment rights
Court found that the 1st amendment does prohibit the government officials from promoting, transferring, hiring on the basis of their support of the party

Exception for positions that require party affiliation such as policy making positions member of the cabinet (where government has a vital interest in basing on party and it is an appropriate requirement)

Two part test for policy maker (4th Circuit)

Involves government decision making on issues with political disagreement
Responsibilities resemble a policymaker, privy to confidential information

Private employees do NOT have constitutional rights for employment

Collective Bargaining and Unions

Reach a written contract in good faith that governs
“Just Cause” means ER has given up its right to be arbitrary about employment status/termination of EEsmust be reasonable
Often use arbitrators

Resolve or settle
ERs have attorneys represent them

NRLA makes it an unfair labor practice for employer to “interfere with, restrain or coerce employees” in the exercise of their rights to organize

This has become very loose in its interpretation/application
May not discharge or otherwise discriminate against EEs for discussing Unions (non-work time and non-work areas)
Primary strike is legal (the employees themselves against); Secondary strike is not legal


Statutory Protection of Employees

Whistleblower Laws

State have implemented statutes to protect workers who report violations against employers
Federal WBL of 1989 expanded protection to federal employees

Prima Facie case:

EE engaged in activity protected by statute
EE subject to adverse employment action
There was a causal link between protected activity and the adverse employment action

Bard v. Bath (Whistle blower protection)

Inspector employee reported flaws in QA process to management that he believed conflicted with Navy contract
Over the course of two years, his evaluations worsened and his work output decreasedsubsequently fired
Filed claim against company stating he was retaliated against due to disclosing supposed violation
Standard for Whistleblower prima facie complaint:

Whistle blower engaged in protected activity
Was the subject of adverse employmen

ontract (fact intensive)

Company had broad discretion to interpret contractstill had to do so in GF
Plan suggests that with cause means some deficiency of the employee

Without Cause therefore covers all actions not related to performance or fault
Unless “K” defines “cause”, the word refers to misconduct or other malfeasance by the EE

Pugh v. See’s Candies (Implied Contract from Conduct)

Employee had worked at company for 32, rising from dishwasher up to VP
At one point was told that so long as he did a good job he had a secure future with the company (nothing formal…only verbal from senior level EE)
Company subsequently termed Pugh, with no reason provided to Pugh
Pugh sued on the basis that the verbal promise was an implied contract
Court found that there may exist an implied contract for continued employment based on variety of facts

Consideration of the personnel policies or practices of the ER
EEs longevity of service
Actions or communications by the employer reflecting assurances
Practices in the industry

Factually driven
Showing of an implied contract by the employee

Burden shift to ER for reason of the term
EE may attack on the grounds of pretext or good/just cause

Woolley v. Hoffmann-La Roach (Employee Handbook as a Contract)

Employee was terminated after failing to follow request for his resignation
Employee contends that the distribution of the employee handbook after his hiring constituted a contract that meant he may only be fired for good cause in accordance with procedures in the handbook.
Court found that a handbook, absent a clear and prominent disclaimer may constitute an offer

Review the context that it was disseminated
Environment around which it existed (the handbook and terms of upmost importance?)

Disclaimers to add both application and handbooks
PA does not recognize handbook Ks: NJ does unless in bold print
Inconspicuous changes are not effective to bind the employer

Fortune v. National Register (Good Faith and Fair Dealing)

Employee was terminated from sales job after only collecting 75% of bonus due to him
Company was attempting to save money that was owed to the employee
Employee worked under a contract that expressly stated he was at will and could be termed without cause by either party.
Court however found that the at-will employment did not allow for termination with bad cause

All contracts contain an implied standard of Good Faith/Fair Dealing

If the intent of the employer is motivated by bad faith or malice, termination constitute a breach of the employment K