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


Employment law is per state
Contracts, Statutes, Public Policy, state and federal rights, and remedies
· Important b/c the presumption is that the employment is at will
· THUS the P has the burden to establish by preponderance
o If you can't establish, then you lose on summary judgment
o IF YOU DO ESTABLISH- then burden shifts to the employer who can show just cause

Employment at will – evidentiary presumption in favor of @ will
Rebuttable presumption to be at will
EE can show that the parties did not intend to be employment-at-will but something else
Can be modified
Public policy
Factual presumption
· Employment terms (period of time)
· Just cause requirement
· Written contracts usually overcome employment at will (unless it stipulates employment at will)

Written K can trump employment-at-will
Elements of an employment K
Identify the parties
What’s the consideration (I will pay X for you rendering services)
Duties (general way)
Terms (how long) and under what circumstance
Specify compensation
Breach Terms


Legal Intervention

Bammert v. Don’s Super Valu (Wis. 2002): Bammert worked at Don’s Super Valu. Her husband assisted in the arrest of her supervisor’s wife for drunk driving. Karen was fired in retaliation.
Held that a state’s public policy does not protect an at-will employee who is fired in retaliation for the acts of his or her non-employee spouse
The court noted that her firing was “reprehensible” but did not want to extend the public policy exception to her case because of worries of a slippery slope.
Dissent/narrow view: the public policy exception should be narrowly expanded to encompass retaliatory firing in response to a police officer’s lawful actions on his job
Employment at Will Employees terminable at will can be fired for any reason

Elements/Steps for Wrongful Discharge
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 a specific agreement otherwise.
Limitations to employment-at-will are public policy exceptions
· Inflexible rule that a general or indefinite hiring is prima facie a hiring at will
Employer free to impose any conditions of employment
Employer free to discharge an employee at any time for any reason
And to effect the discharge in virtually any manner
Fortunato v. Office of Silston DDS- valid wrongful discharge suit under public policy (RARE w/o concrete statute) for freedom of association when dentist fired assistant because her adult daughter was bringing malpractice suit

SCOTUS- Aldair v. US- 1908- struck down statute as unconstitutional making it a crime for employer to fire someone b/c of labor organization – restriction on the right of contract was an impermissible invasion of constitutional liberty interest

Brockmeyer rule for public policy exception- “when the discharge is contrary to fundamental and well defined public policy as evidence by existing law”
“only when it clearly contravenes public welfare and gravely violates paramount requirements of public interest”
Several guidelines
Public policy must be evidenced by constitutional or statutory provision (i.e. failure to break the law
IF THE P can point to a constitutional provision, statute, or admin reg. that would be violated THEN THE BURDEN SHIFTS to employer to show just cause for termination
1) DUI law
2) Statute protecting institution of marriage
– Under present law- discharges for conduct outside of the employment relationship by someone OTHER THAN THE DISCHARGED EMPLOYEE are not actionable (REMEMBER- public policy + K law are state affairs so outcome varies by state)

Basically they thought extending to husband was not close enough to public policy of law enforcement and couldn't be looped in by argument that there is a liberty interest to marriage- SLIPPERY SLOPE FEAR
Plaintiff must identify a constitutional, statutory, or administrative provision that
Clearly articulates a fundamental and well-defined public policy

The Development of Employment Law -master-servant
Independent Contractor (versus EE)

Letterman v. A.T. Williams Oil: injured child employee
Held: the court lacks subject matter jurisdiction where a statute provides that its remedies shall be an employee’s only remedies against his employer for claims covered by the statute.
Not withholding FICA is not dispositive, paying from owners own pocket not important b/c all EE’s were paid wages from him
DISSENT- shouldn’t be able to profit from own illegal act of employing minor, didn’t show child could demand wages, wasn’t listed on workers comp roster, mother just asked if he could hang out originally
Worker’s Compensation
Precludes damage awards
Injured individuals sometimes argue that they are independent contractors who can sue in tort rather than employees
Statute making the employer strictly liable to an employee for injuries sustained by the employee in the course of employment
Operates independently
Manages the business
Subject to firm’s control
Services not integral to day-to-day operations
Work ends with the job ends
Straight-commission/lump sum
Not provided supplies and materials, generally use their own
In determining whether a worker is an employee or an independent contractor, is the Economic Realities Test (DialAmerica) secondary to applying the Darden Factors?

Response:  They are separate and overlapping tests.  For FLSA situations the courts have developed the Economic Realities test or an analog of it and do not refer to the Darden Factors test which was announced by the SC in Darden, an ERISA case.  However, in Title VII and other employment discrimination cases the Courts have explicitly adopted the Darden factors analysis.  In a real sense the tests are overlapping and analytically the same, just different ways of parsing the factual situation.  Even when applying Darden factors the Courts do not always apply each factor but rather pick out the ones they deem important.
May be liable for breach of K for leaving work unfinished
COURTS SPLIT ON whether being a minor prohibits from being an employee (DEBATE IS ON UBER)

NLRB v. HEARST- 1944

· NLRB ordered hearst to bargain collectively with its newsboys  based on a finding that they were employees as the term was used in the NLRA
· Hearst argued that the statute should be interpreted to incorporate the common law distinction between employee and independent contractor, and under that test, the newsboys were contractors
· NLRB argued for interpretation tailored to acts distinctive purposes of protecting workers in subordinate bargaining positions

· Supreme court agreed with NLRB – the newsboys are employees  
· Congress did not intent the act to import common law standards
o The Court does not claim to have relied on NLRB opinion but rather the legislative history of the bill in congress
· Chevron-type deference to the agency that has to define and administer the statute
o Everyday experience in administration of the statute gives it familiarity with the circumstances and backgrounds of employment relationships in various industries and with the abilities and needs of workers for self organizations
· Questions of statutory interpretation especially when arising for the first instance in judicial proceedings are for the courts to resolve GIVING appropriate weight to the judgment of those whose special duty is to administer the questioned statute

Clackamas Gastroenterology Associates v. Wells- 2003- PA

ary strike is legal/secondary isn’t (against customers and suppliers)

FOX news guy Hypo: N-word anchor (employer’s policy to not promote negative publicity so he would lose breach of K suit )

Guy went for tortious wrongful discharge based on  constitution- case for reverse discrimination b/c other employees were saying it
· SO instead of breach of contract for firing him early- the anchor goes for a constitutional Title VII Civil Rights Act
o P or D entitled to Jury trial

secondary liability for supervisors- cats paw doctrine (the cat taking the nuts off the fire for the monkey)
· When a former supervisor interferes with a current EE (b/c of the formers bias) by telling the new leader bad things
o Supreme court held that this could be discrimination in 2013- BUT specified that it had to be another supervisor
o In FOX NEWS case- they let the jury decide the question of whether bias was to be taken into account from a co workers recommendation

Falsification of records
Fighting on company premises
Possession or use of alcohol or drugs while on duty
Use of profane or abusive language to a supervisor
Dangerous horseplay
Sleeping on the job
Excessive absenteeism
Refusal to accept work assignment

In practice it is usually easier for a company to replace EEs than for an EE to find a new job.
Government EEà right to a hearing
Private EEà no right unless handbook or union K(EE has right to have case heard in arbitration but that is by K)

Statutory Protection of Employees
Whistleblower Laws

Whistleblower Protection Act of 1989—expanded protection for federal employees (most STATES have one too- i.e. Bath) who expose violations of law, gross mismanagement or waste of funds, abuse of authority, or substantial and specific danger to public health or safety in government agencies.

Bard v. Bath Iron Works: a quality assurance inspector w/ strong performance history told his supervisor and the Navy he believed (no evidence presented) processes employed by the employer were in breach of its K
He was fired and brought retaliation. Court found in favor of Bath Iron Works.

Held: to establish a claim of retaliation for whistleblowing, the EE must show that he had reasonable cause to believe that his employer violated any law (including regulations, case law, FAR, BUT NOT A K PROVISION)

Rule: Whistleblower Protection Act prohibits employer from adverse action on EE for reporting illegal activities
“no employer may discharge, threaten, or otherwise discriminate against an EE regarding the employee's compensation, terms, conditions, location or privileges of employment B/C
The employee- acting in good faith- OR a person acting on behalf of the EE, reports
Prima facie case of retaliation (reprisal)
EE engaged in activity protected by statute
2. EE subject of adverse employment action
There was a causal link between protected activity and the adverse employment action
orally / in writing to the employer OR a public body what the EE has reasonable cause to believe is a violation of a law or rule adopted under law of STATE, POLITICAL SUBDIVISION OF STATE OR US