FINAL Flashcards
When does Parole Evidence Rule apply?
In employment contracts to determine if there is additional consideration
Burden of Proof in at Will
Employee–To prove there was additional consideration
Employer–To prove termination was rightfully terminated
Rate of Pay Rule
In Texas, any contract with a fixed price for a week, month, or year is considered an employment contract and may not be terminated without cause
Inflexible Rule
Default at-will employment unless employee proves otherwise.
Quantum Merit
If you do not work the entirety of the fixed term of employment, you don’t get paid anything.
Defenses to an Arbitrary Clause
1) Duress 2) Fraud 3) Unconscionability
Contract or tort claim?
Tort because of compensatory damages
Typology of wrongful discharge cases
- Refusing to commit unlawful acts
- Exercising statutory right–>Filing workers comp claim
- Fulfilling public obligation–>Jury Duty
- Whistleblowing
When may an employer require a polygraph?
During an investigation of economic loss–theft, fraid, embezzlement, etc.
Who is exempt from a polygraph?
National security, pharmaceutical manufacturers and distributor, security guard firms, public employees
What is an employer checking an employee’s email on the company computer a question of?
Authorized Access
Test for Negligent Hiring
- Does P have propensity for violence?
- Did employer know or should have known about the propensity for violence?
- In disregard for right of those persons with whom P could reasonably be expected
Elements of Defamation
A) False or defamatory statement concerning another
B) Unprivileged publication to a third party
C) Fault amounting to at least negligence
D) Actionability of the statement
Slander v. Libel
Slander–Oral defamation
Libel–Written defamation
On what element of defamation will employers giving a reference most likely defeat the claim?
Privilege. When two parties have a common interest, it constitutes as partial privilege and defeats a claim of defamation.
Exclusive Remedy Exception under Worker’s Comp
- Injuries that do not arise out of employment
- Substantial evidence exists that the employer intended to hurt the employee–>Actionable under criminal charges
- Injuries that are not compensable under the act
Third Parties and Worker’s Comp.
Third parties are not covered by exclusive remedies and may be sued under Tort law. Employers may also seek indeminfication or compensation for worker’s comp. money already paid.
Reasonableness to determine if an action was a condition of one’s employment
1) Subjectively believed her job expected or required the activity
2) Objectively, this belief is reasonable
Street Risk Exception
If you are injured during your job by something that does not specifically arise out of employment such as slipping on a patch of ice, then it is not covered under worker’s comp. Getting stabbed while chaufering for your employer on the route he directed you take does arise out of employment and is therefore barred by the exclusive remedies provision of Worker’s Comp.
Factors to determine if conduct may be considered in the “Course of Employment?”
Time–>During working hours?
Place–>At work or where work told you to be?
Circumstances–>Were you doing a task specific to your job or horsing around with your coworkers?
How to determine if conduct “Arose out of Employment”
Must have a CAUSAL relation to the employment. Factors considered include:
a) a but for test
b) A risk that is specifically connected to ones employment
c) Must originate at the place of employment
d) The employment must be the proximate cause of the accident
Why do employers need to know Worker’s Comp
To know what injuries they are responsible for, what injuries bar a tort claim under the exclusive remedies act, and which injuries they are not required to pay for.
Reasonableness Test for Non-Compete Covenants
No greater than necessary to protect legitimate business interest against a restraint on trade. Factors considered include:
a) Time–>Generally no longer than 2-5 years
b) Geography–>Sufficient enough not to put the two in direct competition
c) Nature and type of activity–>Cannot be too overinclusive so as to put one party out of an opportunity to earn a living.
Standard for On-Call Employment in terms of overtime compensation
On-Site: time and a half
Off-Site: No overtime for hours unworked. Time and a half only applies when you are called in
What is a Fringe Benefit and what may it not be substituted for?
A fringe benefit may also be referred to as a “perk of the job” and include driving demo cars as their personal cars, paid vacations, annual bonuses, etc.
They may NOT be substituted for weekly/monthly earnings.
Court demands cash in hand–>No substitutions in order to meet minimum wage requirement.
Minimum Wage Exceptions
- Executive
- Administrative
- Professional
What are the requirements for an Exec. under the minimum wage exception?
- In charge of two or more people
- Authority to hire and fire
- Freedom from direct supervision
- Primary duty is MGMT–>Family dollar case
What is the requirement for administrative exemption?
Must be nonmanual labor, and their work must be directly related to the management or general business operations
Proving a person is a professional and therefore exempt may be done with
A proof of the degree obtained from the professional school. Ex. Board of Law Examiners Certificate that you passed the board, diploma from law school, etc.
What is ADA and what does it require?
American Disability Act and it requires employers to give reasonable accomodations for legitimate disabilities unless doing so would create an undue burden. Disability may not be emotional and MUST be physical or mental.
What is the FMLA and what does it allow?
Family medical leave act requires employers to provide at least 12 weeks a year of covered time off to care for their own personal health or that of an immediate family member. Adult child only in the presence of mental retardation.
Employee must provide notice if possible–Constructive has been deemed sufficient
REGARDLESS OF THE EFFECT ON THE EMPLOYER!!!
Who does USSERA Cover?
USSERA covers service men and women who are called to war and required to leave their job. This act ensures they will have their job when they return and do not have to fear retaliation.
What is the Escalator Principal?
Embodies the idea that when a service man/woman returns to their employment following their deployment in the armed forces they will return to their job and “step off the escalator” of seniority, privilege, and duties that he would have had he never gone to war. This is the MOST protective act for job security.
What does ERISA stand for?
Employee Retirement Income Security Act
UNLESS Covered by ERISA, what is a pension plan?
A gratuitous gift from an employer revocable at will
Who is NOT covered under ERISA
Government, state, and local employees
IF covered by ERISA what must a pension do?
- MUST vest within a reasonably short time (either 5 or 7 years)
- Makes it unlawful to suspend, discharge, fine, expel, discipline, or discriminate against employee for using their plan or it is considered a §510 ERISA Discrimination claim that is satisfied by proving the specific intent to discriminate
What are the two types of Pension Plans under ERISA
- Defined Benefit Plan–>Formula based on salary
2. Defined Contribution Plan–>Based on employer contributions. More individualized.
Two type of claims under ERISA
- Discrimination–>§ 510
2. Breach of Fiduciary Duty–>Must be a fiduciary
What can you do if you do not receive all of your benefits under ERISA?
- Exhaust all of the remedies under The Policy
2. Go to the court for a Breach of Discretion claim–>Deferential standard is given to the agency–CHEVRON
Describe ERISA preemption
ERISA is an administrative agency that has been delegated powers by Congress to regulate pension plans and ERISA preempts ANY state laws that interfere with ERISA’S primary goal, which is to provide uniform regulation nation-wide. Insurance companies are exempt
What is the Deemer Clause?
An Employee-Benefit plan shall not be deemed an insurance company for the purposes of regulation by the State. AKA cannot try to get around preemption by disguising an employee benefit plan as an insurance plan
What is the duty of an Employer under OSHA
A general duty to furnish each employee with employment and place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical injury.
What are the three types of OSHA standards
- Interim–standard established to last two years before an enduring standard is set in place–No Notice and Comment
- Emergency-Temporary–Derived from temporary/emergency–No Notice and Comment–Immediately effective
- Permanent–Notice and Comment making required. May file challenges
What is the Substantive Standard Criteria for new OSHA standards?
- Technological feasibility
- Economic feasibility–>Put employees out of business in the industry as a whole.
- Benefit to health and safety: the proposed standard must alleviate the significant risk
- Cost-Benefit Analysis: Permissible to do so, but not required to choose the least expensive means
What is the Significant Risk Test under OSHA
- Must show that the current exposure level represents a specific risk to workers
- Substantial evidence that the new standard would eliminate or reduce the risk
What are the elements of a General Duty Violation?
- Employer failed to keep workplace free of hazard
- Hazard was recognized
- Hazard was likely to cause death or serious bodily injury
- There existed a feasible method to correct the hazard
Does Employer’s knowledge of the violation weigh in violation determination?
No. Objective Common Knowledge determination is used. SHOULD employer have known
Two types of OSHA inspections
- Scheduled Inspection–>odds are 1 every 10 years, employer may require a warrant for employees only areas
- Due to report by an employee–No warrant is required here.
What MAY result in criminal penalties under OSHA?
- Willful violation resulting in death
- Giving advance notice of an inspection
- Knowingly making a false statement
What are two types of arbitration?
- Interest Arbitration–Arbitrator is establishing the rights between the parties
- Grievance–Involves a previously established right that was violated or infringed by one of the parties
What is required to defeat an at-will determination
Additional consideration that provides substantial benefit to the employer OR substantial hardship to employee
How is IIED determined in instances of termination
Not the fact that it was terminated, but the MANNER in which the termination was carried out. Must be outrageous behavior
What is an example of breaching a covenant of good faith and fair dealing?
Opportunistic behavior to deprive employee of entitlement
What is significant about concerted activity?
It is protected by the NLRA and an employee cannot be fired for it because employees have the right to organize for mutual aide and protection
What is the concerted activity test?
- Does it benefit the group?
- Related to wage, hours, or other terms of employment
- Were the means permissible–nonviolent, lawful, and defensible
What is the test for a reasonable expectation of privacy in an employment setting?
- Intentional intrusion upon the solitude or seclusion of another
- Was the intrusion highly offensive?
No reasonable expectation of privacy on company email/ company computer–Administrative authority
Elements to allege a violation of privacy claim
- Legally protected privacy interest–[House or belongings]
- Reasonable expectation of privacy?
- Serious Invasion–>To the degree of the Kmart case
What entities are exempt from polygraph testing?
- Public employees
- National defense and security contractors
- Security Guard Firms
- Drug manufacturers and distributors
Elements of Negligent Hiring
- Employee had propensity for violence
- Company knew or should have known about such propensity
- Completely disregarded the rights of the employees that would come in contact with him and hired him callous for those rights
4 Part Test to determined deviation
- Seriousness of deviation
- Completeness of deviation
- Accepted part of employment?
- Does job expect horseplay?
What is the Duty of Loyalty
A duty of the employee to act SOLELY for the benefit of the company in ALL matters
Factors to determine impermissible solicitation
- Nature of employment
- Relationship
- Impact of employee actions
- Inducements made
What is the balancing test for a trade secret?
Protectable interest vs. Public policy interest against an unreasonable restraint on trade
Under the FLSA what are the factors for functional control?
- Premises and Equip. Used
- Contractor shifted from one joint employer to another
- Integral to employer
- Responsibility passes from one sub contractor to another without material change
- Extent employees supervised
- Exclusively or predominantly worked for
What are the 3 functions of the FLSA
- Establish minimum wage
- Require Premium Pay for Overtime
- Restrict Child Labor
What are the 3 exempt classes under the FLSA?
- Executive
- Administrative
- Professional
What is required for an executive exemption under the FLSA?
a) Primary duty is Management–family dollar case
b) customarily and regularly directs two or more employees
c) Has authority to hire or fire or have input on hiring and firing
* Also applies to 20% owners who are engaged in MGMT
What is required for an administrative exemption under the FLSA?
a) Primary duty is performance of NONmanual labor
b) Directly related to the mgmt or general business operation of employer or customers
c) Primary duty includes an exercise of discretion and independent judgment with respect to matters of significance
What is required for a professional exemption under the FLSA?
a) Specialized academy training
b) Evidence of the training–aka a degree or certificate, LICENSE
Is Pregnancy a serious health condition covered under the FMLA?
NO. But complications arising FROM pregnancy CAN be
What is required under the FMLA
For an employer to allow up to 12 weeks a year of sick leave in order to attend to their own serious illness or that of an immediate family member.
Not adult child unless mentally handicapped
What is the standard of review for Breach of Fiduciary Duties?
- Guided by principles of trust law
- De Novo Standard
- Deferential Standard
- Fiduciary operating under a conflict of interest–conflict is weighted.
Shop-Right Rule
If an employee invents something whilst employed for the employer has an irrevocable license to use the invention. This license cannot be sold or transferred, but moves with the business.
Blue Pencil Rule
If a court is determining whether a covenant not to compete is unreasonable–court may strike and sub in standard aspects of the covenant so as not to strike down the whole thing if the condition is over inclusive, under inclusive, or puts an unreasonable restraint on trade
