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Employment Law
University of Iowa School of Law
Smith, Peggie R.

Prof. Peggie Smith Fall 2009
Text: Rothstein & Liebman, Employment Law (6th ed.)
A.        Historical Foundations (29-33, 866-867, h/o Payne v. Western & Atlantic RR Co.)
B.        Statutory Protection Against Arbitrary Dismissals (867-869)
·         This is one way the EAW doctrine has been eroded – Bard uses Title VII to protect workers from firings related to whistleblowing.
o   To succeed on this kind of claim π must establish that he:
§ Engaged in activity protected by statute
§ Suffered adverse employment action
§ There was a causal connection
C.         Common Law Protection Against Arbitrary Dismissals (57-59 h/o Muhl article)
·         At it’s heart, an employment relationship is contractual
1.        Written Contracts (884-887)
·         In Gordon, the court distinguishes between K’s that continue as long as job performance is “acceptable” or “satisfactory” (SUBJECTIVE) and K’s that limits discharge to “good cause” (OBJECTIVE) like in Scaramuzzo
o   The Gordon court concluded that in the former, the employment remains at will because subjective criteria would be used in making a decision to discharge, whereas in the latter the employment is not at will because objective criteria would be used.
·         The general rule regarding written K’s is that if the K is for a definite term the EE may be discharged before the expiration date only for breach of a contractual provision or other “good cause.”
o   When the EE establishes that he or she was discharged in violation of an employment K, the burden shifts to the ER to prove the existence of good cause for the discharge.
2.        Contracts Implied From Conduct (891-898)
·         PHASE 1 – Demonstrate a prima facie case of wrongful termination by showing evidence of implied K
o   Factors the court considered in finding the implied K: oral assurances, EE’s longevity of service, EE’s history of employment, practices of the industry, personnel policies or practices of ER
o   In Pugh, the best defense offered was a showing that ER had a policy of not terminating admins except for good cause
·         ER must then come forward with evidence as to the reason for EE’s termination
·         PHASE 2 – If ER meets this burden of proof and establishes a legitimate reason for dismissal, EE can come forward and challenge this reason as PRETEXT
·         OR EE can challenge it legally (i.e. “the stated reason is NOT good cause, here is my case law defining what good cause is.”)
3.        Employee Handbooks and Manuals (898-907, h/o Doyle v. Holy Cross Hospital)
·         Can an EE handbook be construed as an offer in the contractual sense? Wooley  says maybe and lays out the factors the court will consider:
o   The promise was specific enough to constitute an offer
o   The promise was communicated to the EE in a reasonable fashion (dist. of Handbook)
o   The promise was accepted by EE when they commenced/continued work
·         Okay, so the court found this was an offer…where was the consideration?
o   Unilateral K said the court, consideration was satisfied by EE’s continued employment – EE’s don’t even have to establish that their continued employment was acceptance, the court assumes it
·         What about Reliance theory?
o   It can be used as an alternative theory to consideration in making an offer binding. EE must show:
§ An unambiguous promise made by ER to EE
§ Actual reliance by EE (definite and substantial character)
§ Reliance needs to be foreseeable to ER
§ EE must have relied on the promise to their detriment such that it would be unjust not to enforce the promise
·         How can an ER issue a HB without having it alter the status of EAW relationship?
o   Include a clause (in a pro

this right in the workplace
·         Hanson v. America Online where EE’s had guns in their cars and the court held that PP did not implicate ER’s right to restrict firearms in their own parking lot
·         CLAIM PRECLUSION – the following will prevent π from bringing a wrongful discharge action in tort:
o   EXCLUSIVITY: If a statute provides the exclusive remedy for addressing the alleged PP violation
o   ADEQUATE REMEDY EXISTS: If exclusivity is not an issue but there exists an adequate statutory remedy
o   PREEMPTION: if Federal law preempts π’s claim
6.        Intentional Infliction of Emotional Distress (965-974) (see also Privacy Related Concerns pg. 9 below)
·         Factors often include:
1.      ER acted intentionally or recklessly
2.      Conduct was extreme and outrageous
3.      Actions of the ER caused the EE emotional distress
4.      Emotional distress suffered by EE was severe
·         This action in tort is all about the fulfillment of the “EXTREME AND OUTRAGEOUS” requirement – most claims fail in this regard
o   The courts will ask whether a reasonable person find such conduct atrocious and utterly intolerable to such an extent that they would exclaim “outrageous!”
o   This does NOT include:
§ “[I]nsults, indignities, threats, annoyances, petty oppressions or other trivialities.”
o   In Wilson v. Monarch Paper Co., EE satisfies this standard by the way in which he was stripped of his title and demoted (high level manager reduced to sweeping floors in his old age)