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.
