Chapters 1-3

Question 0

Traditional view of employment law…

Answer 0

Traditionally, the law considered employment to be a matter of private contract between the employer and employee.

Question 1

Bammert v. Don’s Super Valu, Inc. (2002)

Answer 1

Holding: “We decline to recognize a cause of action for wrongful discharge under public policy exception to the at-will employment doctrine for terminations in retaliation for the conduct of a non-employee spouce,” (p.12).
Significance: No expansion of public policy to include police officers.

Question 2

View of employment law in the US…

Answer 2

In the US, the employment relationship was one which pertained between equals: the employee was free to quit to seek alternative employment whenever he or she wanted, and the employer was free to fire the employee at any time.

Question 3

Fair Labor Standards Act (FLSA)

Answer 3

In 1938, Congress enacted the Fair Labor Standards Act, which provides minimum wage protection and premium pay for overtime.

Question 4

The first efforts to regulate the employment relationship appeared at the end of the nineteenth century due to…

Answer 4

Growing awareness of the hazards associated with certain occupations and industries and the inherent inequality of bargaining power between employer and employee. Most were struck down as unconstitutional infringements on the freedom of contract.

Question 5

Title VII of the Civil Rights Act of 1964

Answer 5

Prohibited all discrimination in employment on the basis of race, color, religion, sex or national origin.

Question 6

Age Discrimination in Employment Act (ADEA)

Answer 6

In 1967, the Age Discrimination in Employment Act prohibited discrimination on the basis of age.

Question 7

At-Will Employees are…

Answer 7

…terminable at will for any reason, without cause and with no judicial remedy.

Question 8

Wrongful Discharge/Bammert/Brockmeyer/Exception to rule

Answer 8

Rule: To state a claim of wrongful discharge under Brockmeyer, a plaintiff must identify a constitutional, statutory, or administrative provision that clearly articulates a fundamental and well defined public policy.
Exception to rule: “…public policy exception to the long standing employment at-will doctrine which allows an at will employee to sue for wrongful discharge ‘when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law.’ Brockmeyer noted that ordinarily an employer may discharge an employee ‘for good cause, for no cause, or even for cause morally wrong, without thereby guilty of legal wrong.’”

Question 9

Richard Wolfe Article: it is the end of the notion that a better future is the reward for hard work for the following reasons… (4)

Answer 9

4 developments since the 1970s are the cause:
(1) Increasing use of computers which made it possible for employers to reduce their number of workers.
(2) Employers moved production to other parts of the world where wages were lower.
(3) Women joined the paid workforce in large numbers and stayed.
(4) Large wave of immigrants entered the workforce
= no labor shortage anymore

Question 10

Richard Wolfe Article: our current crisis started because…

Answer 10

No shortage of labor –> employers stopped giving out raises to attract and retain employees –> employees are working longer hours today to deliver a better life for their families –> public encouraged to keep consumption rising by advertisements (media are cheerleaders of captialism) that reflect a materialistic culture that embodies what it means to be “successful” –> American working class takes on more debt by buying on credit –> 1970s wages flattened out and profits soared while Americans accumulated debt –> effects of debt were postponed by buying on credit until 2007 when level of debt became unstable (people couldn’t make payments) = capitalism is unstable.

Question 11

Letterman v. A.T. Williams Oil Co. (1986)

Answer 11

Holding: Shane was an employee of A.T. Williams Oil Co.
Rule: Workmen’s Compensation Act - Superior Court has no jurisdiction regarding these cases. Includes illegally employed minors. Affords remedies to employees who sue their employers.
Reasoning: Shane performed odd jobs around the compnay. Store manager, Schneiderman paid Shane $1 regularly for his work out of his own pocket. Shane & mother expected Shane to be paid. Payment was voluntary; not required. Schneiderman hired Shane and Shane was injured while performing his given duties. Schneiderman had the authority to hire employees. = Shane was an employee of A.T. Williams Oil Co.
Schneiderman argued that he did not follow required procedures for hiring employees (e.g. not reporting Shane to Worker’s Comp, etc.). He failed to complete administrative formalities.

Question 12

Campbell v. General Dynamics Government Systems Corp. (2005)

Answer 12

Arbitration issue
Holding: General Dynamics did not give sufficient notice of the policy (emailed to employees) that forced all employee-related claims to go to arbitration. Campbell’s case will not have to go to arbitration.
Reasoning: No record kept by General Dynamics of employees viewing the policy and opening the two links containing details about the policy, e-mail was not a traditional method of communicating new policies, contractually binding terms, nor employee’s legal rights, e-mail did not raise enough notice to employees = no minimally sufficient notice.

Question 13

Americans with Disabilities Act

Answer 13

No discrimination in employment on the basis of someone’s disability.

Question 14

Arbitration

Answer 14

An alternative dispute resolution.
Increasing in use
Arbitrator makes a decision for two conflicting parties. The arbitrator has a bar license and is usually an expert in the field related to the case. It’s an alternative to going to court. Arbitrators act as judges. Contract disputes are common.
Stages: (1) Resolution –> No? –> (2) Mediation –> No resolution? –> (3) Arbitration –> (4) very limited right to judicial review.
History: In 2001, the USSC ruled that the Federal Arbitration Act (FAA) applies to employment.

Question 15

Arbitration advantages

Answer 15

Cheaper than going to court
Arbitrator is an expert in the field as opposed to judges who have limited knowledge about the subject related to the case.

Question 16

Arbitration disadvantages

Answer 16

Arbitrators who are hired by the company may have the company’s interest in mind. Biased. They desire continued business with the company. They might sway their decisions to benefit the company.

Question 17

Contract of adhesion

Answer 17

When one party is more powerful than the other, a fair contract cannot be made.

Question 18

Starbucks Corp. v. Superior Court (2008)

Answer 18

Holding: No standing because no injury in fact required to receive damages. Appellate court granted summary judgement. Employers are not allowed to ask you about your prior marijuana convictions over two years old.

Question 19

Summary Judgement

Answer 19

Motion for summary judgement - there is not enough triable issues of fact for the jury to decide.

Question 20

EEOC v. Consolidated Service Systems (1993)

Answer 20

Hiring of mostly Korean employees.
Issue: is it discrimination?
Holding: No; it is not discrimination.
Reasoning: There is no evidence that Hwang is biased in favor of Koreans or prejudiced against any group underrepresented in his work force. The passive stance is the cheapest method of recruitment. It may also be highly effective in producing a good work force. Word of mouth recruitment in effect enlists existing employees to help screen new applicants conscientiously and does not compel an inference of intentional discrimination. It is not discrimination, and it is certainly not active discrimination, for an employer to sit back and wait for people willing to work for low wages to apply to him. The fact that they are ethnically or racially uniform does not impose upon him a duty to spend money advertising in the help-wanted columns of the newspaper. Small businesses are, for many immigrant groups, the first rung on the latter of American success.

Question 21

Immigration Reform Control Act (1986) IRCA

Answer 21

The Immigration Reform Control Act of 1986 (IRCA) seeks to decrease illegal immigration by prohibiting employers from hiring undocumented aliens.

Question 22

Aramark Facility Services v. Service Employees International Union (2008)

Answer 22

Issue: Whether the Social Security Administration (SAA)’s no-match letter–and the fired employees’ responses–put Aramark on constructive notice that it was employing undocumented workers.
Holding: Given the extremely short time that Aramark gave its employees to return with further documents and the arbitrator’s finding that Aramark had no “convincing information” of immigration violations, the employees’ failure to meet the deadline simply is not probative enough of their immigration status to indicate that public policy would be violated if they were reinstated and given backpay.
Judgment: Therefore the district court erred and the award must be confirmed.

Question 23

Reyes & CA Labor Code Sec. 1171.5

Answer 23

Court of appeals reversed. Ruled in favor of the employer. Still have to pay for services rendered regardless of legal/illegal immigrant status.

Question 24

Veterans Employment & Reemployment (USERRA)

Answer 24

The Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA) prohibits hiring discrimination against current, past, and potential future service members when military service is a motivating factor in the adverse action. USERRA also requires employers to reinstate individuals who have left their employment to fulfill military obligations.

Question 25

Lysak v. Seiler Corp. (1993) & Kraft v. Police Comm’r of Boston (1991)

Answer 25

Pregnancy termination.
Kraft does not help the plaintiff. A rule that bars and employer from discharging an employee because of the employee’s false responses to the employer’s unlawful inquiries, does not bar the discharge due to UNSOLICITED, VOLUNTEERED false statements made by the employee.

Question 26

Kadlec Medical Center v. Lakeview Anesthesia Associates

Answer 26

Misrepresentation issue.
Holding: The defendants owed a duty to Kadlec to avoid affirmative misrepresentations in the referral letters.
Sub-Issue: Whether there is evidence that the defendants’ letters were misleading.
Sub-Holding: The letters from the LAA defendants were affirmatively misleading, but the letter from Lakeview Medical was not. Therefore, Lakeview Medical cannot be held liable based on its alleged affirmative misrepresentation.
Sub-Reasoning: Lakeview Medical did not respond in full to Kadlec’s inquiry, Kadlec did not present evidence that this could have affirmatively misled it into thinking that Dr. Berry had an uncheckered history at Lakeview Medical.
Misrepresentation (rule): Affirmatively telling someone a lie or failing to disclose. Must have a duty.

Question 27

Fair Credit Reporting Act (1980)

Answer 27

The Fair Credit Reporting Act, enacted in 1980, is the most sweeping congressional attempt to limit private sector information abuse.
Written notice of conducting credit check.
Adverse: Chance to challenge errors (“I paid that off two days ago”)

Question 28

Psychological and Personality Tests

Answer 28

Use is increasing.
Ongoing psychology research in personnel selection an productivity assists employers to pick the right person for the job.
Achievement tests measure proficiency in a specific area. Achievement tests are used in personnel selection of the specific knowledge, skill or ability relevant to that job can be identified.
Aptitude tests are used as a general measure of a person’s potential to learn a specific body of knowledge.
Personalty and psychological functioning assessments measure personality traits, temperament, personal preferences, interests and attitudes, ways of thinking about onself, styles of relating to others, and psychological symptoms and problems.

Question 29

NASA v. Nelson (2011)

Answer 29

Privacy issue.
Low-risk employees working at NASA (none were working with classified material) were being subjected to detailed background investigations.
Holding: Supreme Court held that the background investigations were reasonable in light of the government interests at stake.

Question 30

Bait & Switch

Answer 30

Employers would rather hire people who are compliant rather than people who have the skills necessary to get the job done right.

Question 31

Advantage of conditional job offers

Answer 31

Allows employer to give the potential new hire medical and psychological tests without the possibility of being held liable for discrimination for conducting the tests before being hired.

Question 32

Medical examinations can only be given

Answer 32

AFTER conditional job offer.
Must be relevant to essential functions of job.
Exception: direct threats (EMTs having HIV)

Question 33

Americans with Disabilities Act (1999) ADA

Answer 33

Regulates the way companies conduct medical examinations and inquiries of applicants and employees. Prohibits “traditional” preemployment medical examinations and questionnaires. The only permissible inquiries are about the ability of the applicant to perform job-related functions. Employee participation must be voluntary for medical examinations and wellness programs.

Question 34

National Treasury Employees Union v. Von Raab (1989)

Answer 34

Issue: Whether it violates the Fourth Amendment for then United States Customs Service to require a urinalysis test from employees who seek transfer or promotion to certain positions.
Fourth Amendment (rule) reasonableness requirement.  
Holding: We think that the Government's need to conduct the suspicion less searches required by the Customs program outweighs the privacy interests of employees engaged directly in drug interdiction, and of those who otherwise are required to carry firearms. Testing is reasonable.

Question 35

Genetic Information Nondiscrimination Act (GINA)

Answer 35

Prohibited genetic discrimination in federal government employment and health insurance.

Question 36

Malorney v. B&L Motor Freight (1986)

Answer 36

Truck driver & hitchhiker.
Issue: Did B&L have a duty to conduct an extensive background check on Harbour before they hired him and gave him a truck with a sleeping compartment?
Negligent hiring issue
Negligence elements: (1) Breach, (2) causation, (3), DUTY, (4) personal injury.
Foreseeability (public policy argument)
Holding: Given the nature of the job, B&L had a DUTY to conduct an extensive background check on Harbour before they hired him.
Judgment: Summary judgment denied.

Question 37

Lanier v. City of Woodburn

Answer 37

Holding: Drug testing was found unreasonable under the Fourth Amendment because there was not a substantial governmental interest.

Question 38

Ross v. Ragingwire Telecommunications

Answer 38

Denied a qualified medical marijuana patient any remedy for being terminated from his/her employment simply for testing positive for marijuana.