Final Flashcards
Oddlot Doctrine
A person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.
6 factors that courts use to distinguish EEss from ICs
1) Nature and degree of contract
2) EE opportunity for profit or loss (does the EE have an opportunity to profit against their investment)
3) EE investment in equipment or materials
4) wheterh service requires special skill
5) degree of permanency/duration
6) extent service rendered required (Obviously neccesary)
What is a covered employee?
1) Must be an employee under the common Law (14 factor test in Wolf case, not dispositive) 2) they must be eligible to receive benefits under the plan
what is the default ee contract?
an offer of permanent employment is of an indefinite term and thus deemed at will. (Scagerberg v. Bladin)
two methods for filling in contractual gaps with employment agreements
A. determine how parites would have decided
B. default rule (punishment approach) if you dont put it in writing, one side is punished by favoring the other side
Tort - Employer Invasion of Privacy
- Reasonable expectation of Privacy
2. Serious Invasion of PRivacy
Reasonable Expectation of Privacy
- KMART is the default - always be reasonable
- Created by company policy
- ER can create or destroy REP (Rulon Miller) through its own policies
- IF ER fails to follow its own policy default REP is restored
- some statues require substantial compliance with policies
- extends to applicants as well, although it is reduced since they are volunteering to apply
Psychscreen tests/invasive questions for applicants
-invasive questions allowed if there is a nexus between the legitimate business purpose of the test and the questions being asked.
Serious Invasion of Privacy
Is it offensive to a reasonable person?
1) can’t be something that interferes with your job,
2) can’t disparage company’s reputation
3) can’t be a conflict of interest (Rulon-Miller)
Proving a Privacy Tort
Burden Shifting Test:
ER has opp to demonstrate a justification of the intrusion
burden shifts back to EE to show Pretext- they have to show that there was less intrusive means of sering the er’s justified purpose
Who is a covered employer?
Liberty v. Zhang
- D premises and equipment used
- di shift as unit from one ER to another ER
- extent that work they were doing was integral to Libert
- pass from contractor to contractor without material changes
- whether Ps worked exclusively or predominantly for the liberty defendants
Reliance
- A promise
- which the promisor should reasonably expect to induce action or forbeareace
- which does induce action or forbearance
- which results in injustice (Grouse)
Implied in Fact
Pugh v. Sees Candy - pugh relied on duration of employment, accomodations, lack of direct criticism and
employer’s knowledge practice of not terminating unless except for good cause - opposite result of Veno -
Pugh was an indefinite term employee
Employment Manuals
Require “clear and prominent disclaimer” otherwise ER is bound to its terms
- continue of employment alone does not constitute consideration. For acceptance to occur 1) informed of
new terms 2) aware of impact on preexisting contract 3) and affirmatively consent.
-look for parole evidence as a defense (evidence outside the 4 corners)
Tort for Wrongful Termination
Public Policy Exception to At WIll - 4 instances (must effect the community interest)
1 - Refusing to commit unlawful acts
- this has to effect the public - Franklin v. Swift (drivingt without proper license does not effect public)
- Perjury - refusing to lie - Peterson case
- You cannot contract around it
2 - Exercising a Statutory Right
- ee fired reight before his pension vested (ingersol rand)
3 - Fullfilling a public obligation
- cant fire someone for serving jury duty (Nees v. Hocks)
- Flessner v. Technical (cooperation w/law enforcement)
4 - Whistleblowing - internal whistleblowing (generally not proteceted) WRight v. SHriners - required and implicit whistleblowing generally protected.
