FINAL Flashcards
1
Q
NLRB v. Whitesell Corp
A
corporation violated various provisions of the NLRA while negotiating a new collective-bargaining agreement. NLRB determined that failed to bargain in good faith to impasse, give the required timely notice of federal mediation and conciliation service, and bargaining in good faith by failing to provide information requested by the union while negotiating the new CBA.
2
Q
State Ex Rel. Gross v. Industrial Commission of Ohio
A
injured himself and 2 others while placing water in a pressurized deep fryer. he violated a work safety rule and repeated verbal warnings. The Industrial commission terminated his TTD (temporary total disability) on the basis that he had voluntarily abandoned his employment. He is not entitled to continued temporary total disability benefits since it is his own action, rather than the industrial injury, which prevents his returning to such former position of employment.
3
Q
Rachells v, Cingular Wireless Employee Services
A
a former retail account executive was laid off, due to reduction efforts, by his employer (Cingular Wireless) after merging with AT&T. he was an excellent employee, who received numerous awards for his outstanding performance for multiple years prior to the reduction. After being terminated he sued the company for racial discrimination because his test material was different from the rest of the applicants, and he was not given sufficient time or resources to prepare. A reasonable attorney would conclude that was qualified if not, more qualified than his peers, with respect to annual review metrics. The metrics for his RIF interview was also unfair so there is evidence of a genuine dispute of material fact.
4
Q
Koeppel v. Speirs
A
In this appeal, we must decide whether surveillance equipment secretly installed in a bathroom can support a claim for invasion of privacy when the equipment could not be operated after it was discovered to produce identifiable images. The district court determined evidence of an actual, rather than attempted, intrusion was required and granted summary judgment for the defendant after concluding the evidence was insufficient to sustain the plaintiff’s claim. The court of appeals reversed, finding the evidence of intrusion was sufficient to survive summary judgment. On our review, we affirm the decision of the court of appeals, reverse the decision of the district court, and remand for further proceedings.
5
Q
Dillon v. Champion Jogbra
A
employee handbook had policy that was inconsistent with the disclaimer at the beginning of the manual, in effect sending mixed messages to the employees. claims that she was promised (promissory estoppel) to receive adequate training that would last 4-6 months. After being laid off from his position, he sued for promissory estoppel because he assumed that the statement made regarding her training was an inferred extension to his employment. The courts ruled that the statement was too vague and not sufficient to support her claim of promissory estoppel.
6
Q
Nanomech v Suresh
A
(A former engineer at Nanomech) sues Nanomech for damages after being terminated from BASF for breaching a confidentiality agreement with Nanoech. Surech quit Nanomech, which first made her sign a 3 year confidentiality agree which prevents her for working for a competitor. She quit Nanomech, claiming she was going back to school, but was really looking for work elsewhere. She then got hired on as a chemist at BASF, which violates her NDA with Nanomech.
7
Q
What Benefits Employers must provide (4)
A
- Social Security,
- Unemployment insurance,
- Workers comp,
- FMLA leave.
8
Q
covers pension plans and welfare plans.
A
ERISA
9
Q
The principal federal law regulating benefit plans. Governs all benefit plans broadly and is not concerned only with pensions.
A
Employees Retirement Income Security Act (ERISA)
10
Q
ERISA stands for?
A
Employees Retirement Income Security Act
11
Q
Employer Requirements under ERISA
A
Inform employees about their benefits, deliver on promised benefits, provide claims and appeals procedures, manage plans wisely and in employees interest, refrain from interference/retaliation.
12
Q
designed to provide retirement income to employees or to otherwise defer income until after employment ends (e.g. defined benefit plans, 401k)
A
Pension Plans
13
Q
essentially any other benefit plans covered by ERISA that are not pension plans (example: health insurance, child care subsidies, and prepaid legal services
A
Welfare plans
14
Q
Benefits are subsidized through the government and they are tax deductible!! plans receive favorable tax deductions
A
Qualified Plans
15
Q
a standard used to determine if plan administrators abused their discretion by making decisions in an arbitrary and capricious manner
A
Abuse of Discretion Standard
16
Q
is anyone who exercises discretionary authority or control over the administration of a benefit plan or its funds. have a duty and responsibility to the employees and to manage their benefits.
A
Fiduciary and Fiduciary Duties-
17
Q
discrimination on other protected class grounds is not contested where positions with spiritual functions are involved.
A
Ministerial Functions-
18
Q
after a specified number of years of service, employees covered under a pension plan acquire a non-forfeitable right to receive a pension.
A
Vesting
19
Q
That period of time is usually either 5 years in which vesting occurs all at once at the end of the fifth year of service
A
Cliff Vesting
20
Q
seven years ” in which the nonforfeitable portion increases in increments of 20% starting in the 3rd year.
A
gradual vesting
21
Q
Employers are prohibited from making changes to pension plans that reduce pension benefits already accrued by employees.
A
Anti-Cutback Rule
22
Q
A plan that promises a specific pension benefit upon retirement
you tell the employee exactly how much they will get when they retire. You reward people who have been with the company for a long time. The company takes on the risk of paying you!
A
Defined Benefit Plans
23
Q
a pension plan under which an employer credits a participant’s account with a set percentage of his or her yearly compensation plus interest charges.
A
Cash Balance Plans
24
Q
plans in which employers establish and define what their contributions if any will be but make no promises regarding the eventual payout to employees
A
Defined Contribution Plans
25
plan participants sue plan fiduciaries when company stockprices drop, often alleging that the company should have sold the stocks based on information it had about the value of the stock.
Stock-Drop Cases
26
A practice which companies that offer their own stock as an investment option when the documents of the defined contribution plan call for that will generally be deemed to have acted prudently even if there are problems with the stock
Presumption of Prudence Standard-
27
A corporation that intervenes when the employers are unable to meet its obligations to retirees
----------------
exists to deal with problems created by the termination of defined benefit pension plans and to ensure that vested employees do not lose their pensions in plan terminations.
Pension Benefit Guaranty Corporation
28
This law is intended to ensure that most Americans will have adequate health insurance coverage.
Patient Protection and Affordable Care Act (PPACA
29
requires that employers who have group health insurance plans and at least twenty employees offer continuation coverage to employees who experience qualifying events that would otherwise cause the loss of their health insurance.
Consolidated Omnibus Budget Reconciliation Act (COBRA)-
30
Keep employee info/data safe
--------------------------
An act that restricts but does not eliminate the use of preexising condition exclusions by health plans
Health Insurance Portability and Accountability Act (HIPAA
31
An act permitting employers to provide less extensive coverage for older workers as long as the amount spent to provide benefits to older workers is least equal to the amount spent providing those benefits to other workers
Older Workers Benefit Protection Act (OWBPA)-
32
refers to employee benefit plans that offer to non-married couples the same or similar benefits as those provided to married couples.
Domestic Partner Benefits
33
enacted in 1996, states that, for the purposes of federal law, the words "marriage" and "spouse" refer to legal unions between one man and one woman. Since that time, some states have authorized same-sex marriage. In other cases regarding the DOMA, federal courts have ruled it unconstitutional under the Fifth Amendment, but the courts have disagreed on the rationale.
U.S. v. Windsor-
34
any organization . . . or employee
representation committee or plan, in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of work.”
Labor Organizations
35
Organizations of employees that represent employees in their dealings with employers
Labor Unions
36
recognizes the value of employees banding together to deal with their employers and the fact that the desires of employees and employers sometimes clash.
Collective Bargaining
37
The principle federal law concerning self self organization and collective bargaining by private sector employees
National Labor Relations Act (NLRA)
38
The agency that adminsters the NLRA including holding elections to determine whether employees desire union representation and determine whether unfair labor practices have been committed.
National Labor Relations Board (NLRB)
39
is a federal labor law that governs collective bargaining in the highly unionized railroad and airline industries
Railway Labor Act
40
Agency that administers RLA
--------------------
State laws or executive orders provide for collective bargaining by state and local government employees in more than forty states.
National Mediation Board
41
The act that governs collective bargaining by federal government employees.
Civil Service Reform Act
42
The authority that oversees the collective bargaining by federal gov employees
Federal Labor Relations Authority
43
ection 7 Rights of the NLRA- Include the right to do the following:
engage in self-organization, form, join, or assist labor organizations, bargain collectively with their employer through representatives of their own choosing, go on strike, engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, refrain from such activity.
44
any effort by employees to join together for “mutual aid or protection”with or on behalf of other employees not on behalf of an individual employee only. Protected activity must be related to the employees’ concerns regarding their wages, hours, terms, and conditions of employment. Conduct that is flagrant, egregious, or abuse and speech that is malicious, defamatory, or highly profane is not protected.
Concerted Activity
45
Even when it is for mutual aid or support, concerted activity by employees is not always protected. For one thing, the activity must be related to employees’ concerns regarding their wages, hours, terms, and conditions of employment. Second, the manner in which the activity is carried out must not be extreme or abusive.
Mutual Aid or Support
46
Employer and Labor Organization- interfering with, restraining, or coercing employees in the exercise of their rights under the Act, dominating or interfering with the formation or administration of a labor organization, discriminating against employees for the purpose of encouraging or discouraging membership in any labor organization, retaliation against employees for filing charges or giving testimony under the Act, refusing to engage in collective bargaining.
Unfair Labor Practices
47
Elements of a Discrimination Claim under the NLRA-
To establish a prima facie case of discrimination, the General Counsel of NLRB must show that: The employee engaged in protected activity, the employer was aware of the protected activity, the employer demonstrated hostility toward the protected activity, there was a causal connection between this hostility and the decision to deny an employment opportunity. If a prima facie case is established, the NLRA is violated unless the employer can show that the same decision would have been made regardless of the protected activity.
48
secret ballot elections held under the supervision of the NLRB and generally in the workplace during work time. The NLRB requires that 30% of employees in the bargaining unit sign cards requesting a representation election, it conducts a hearing to resolve contested issues, after the election, the agency considers any challenges to the results, if a union was selected by a majority of the voting employees and the agency has rejected any challenges
Representation Elections
49
The evidence that an election is warranted. They serve as the decisive indicators of employee preference
Authorization Cards
50
the group of employees for which representation is being sought
Bargaining Unit
51
If there was a prior election within the past twelve months, an election will not be ordered (this is known as the election bar ).
If there was a prior election within the past twelve months, an election will not be ordered).
Election Bar
52
- if the employees are already represented by a union and covered by a collective bargaining agreement, an election to change representatives will be ordered only during a brief window period prior to contract expiration or after contract expiration
Contract bar
53
When an employer accepts to recognize a union and is then obligated to bargain with the union
Voluntary Recognition-
54
employees decide whether they want to continue to have union representation.
Decertification Elections
55
unionized employers must generally refrain from dealing with individual employees regarding their wages, hours, terms, and conditions of employment.
Exclusive Representation
56
these clauses require all employees in a bargaining unit to pay union initiation fees and dues within a specified period of time under penalty of discharge by the employer.
Union Shops and Agency Shops- Union security provisions-
57
Laws passed by the states making it illegal to incorporate union security provisions into labor agreements.
Right-to-Work Laws
58
refers to the obligation to “confer in good faith with respect to wages, hours, and other terms and conditions of employment,” the “mutual obligation of the employer and the representative of the employees to meet at reasonable times,” and the “execution of a written contract incorporating any agreement reached.
Duty to Bargain in Good Faith
59
What is the exception where Supervisors and Managers ARE covered under the NLRA?
When they refuse to commit an unfair labor practice
60
Issues that if raised by either party must be negotiated over. Disagreements over a mandatory topic is a sufficient reason for failing to reach agreement in negotiations.
-----------------------------------------
: include wages, bonuses, benefits, work schedules, safety, layoff and recall procedures, and grievance procedures.
Mandatory topics
61
those that management is not obligated to negotiate over and that the union cannot bargain to impasse over
----------------
The firm’s business strategy, CEO pay, and pricing policy are examples of permissive topics that an employer is not required to discuss.
Permissive topics
62
A bargain reached when
when negotiations over one or more mandatory topics have become deadlocked and both parties are warranted in assuming that further negotiations would be futile.
Impasse
63
neutral third parties who, by entering negotiations and exerting control over the bargaining process, help unions and employers reach their own negotiated settlements. Mediators can only facilitate negotiations they have no authority to impose agreement or any particular terms on the negotiating parties.
Mediators
64
The NLRA requires that the _________ be notified within thirty days after bargaining is requested if an agreement has not been reached in the negotiations. The agency, at its own initiative or at the request of the parties, is charged with promptly communicating with the parties and using mediation to produce agreements and avoid strikes.
Federal Mediation and Conciliation Service (FMCS)
65
are undertaken to pressure employers to meet employee negotiation demands. The issues in dispute need not be money issues.
Economic strikes
66
strikes are undertaken in response to employer ULPs (e.g., refusal to bargain in good faith) for the purpose of pressuring employers to comply with the law.
Unfair labor practice strikes
67
Which type of striker can remain employees and have the right, when the strike is over, to be placed on a recall list, notified of available job vacancies, and rehired if a job substantially equivalent to their previous position becomes available and they do not have substantial employment elsewhere.
Replacement Workers:
| Permanent
68
Which type of striker must employers reinstate ULP strikers who make unconditional requests to return to their jobs
Replacement Workers:
Temporary
Strikers in a ULP strike can be temporarily, but not permanently, replaced.
69
establish a presence near their workplace and through words or signs
make it known that they have a dispute with their employer.
Picketing
70
stops consumers from using, purchasing, and transporting a particular employer's or a specific company's products, goods, or services.
A boycott
71
What type of boycott occurs occur during labor negotiations.
Primary Boycott
72
What type of boycott attempts to influence the actions of one business by exerting pressure on another business.
secondary boycott
73
the temporary closing of a business or the refusal by an employer to allow employees to come to work until they accept the employer's terms.
Lockouts
74
Negotiations that conclude successfully, either without or after a strike, result in written signed labor agreements. Most unions require that they be approved or ratified by their members before they become final, but ratification procedures are not a legal requirement. They are the basic source of rules governing the wages, hours, terms, and conditions of employment for unionized employees.
Labor Agreements
75
Rather than require lawsuits for breach of contract every time an employee's rights have been violated, labor agreements almost universally provide for a ___ procedures, culminating with arbitration if necessary. Employees who believe that their contractual rights have been violated can file for ______
Grievance
76
Arbitration in which the arbitrator decides disputes regarding the interpretation and enforcement of an existing labor agreement
------------------------------
If the grievance cannot be resolved by conferences they can be submitted to arbitration. The arbitrator decides disputes regarding the interpretation and enforcement of an existing labor agreement.
Grievance arbitration
77
- when a practice has been clear it has been consistently engaged in over a substantial period of time and the practice existed with the knowledge and at least tacit consent of both the union and the employer.
Binding Past Practice
78
The principal federal law requiring private sector employers to keep their workplaces free from hazards that threaten the safety and health of employees.
Occupational Safety and Health Act
79
Enforces OSH Act. establishes safety standards, conducts inspections of workplaces, and provides information to employers and employees about workplace safety and health issues.
Occupational Safety and Health Administration (OSHA)-
80
OSHA Safety Standards-
At its own initiative or at the request of other parties OSHA has the authority to create safety standards. Separate standards exist for general industry, maritime, construction, and agriculture. General industry standards apply to all industries unless more specific maritime, construction, or ag standards deal with the same issues. Employers must become aware of and comply with all standards that apply to their operations.
81
risk associated with occupational exposure to a toxic substance at the current permissible exposure limit that could lead to significantly unsafe place of employment
Significant Risk
82
Elements of a Violation of an OSHA Safety Standard Claim
To establish violation of a safety standard OSHA must follow all of the following:
an applicable standard exists
The standard was not complied with, one or more employees were exposed or had access to the hazard
the employer knew or should have known of the hazard.
83
Unpreventable Employee Misconduct
to prevail in this argument:
the employer must be able to show that it established rules designed to address the hazard
the rules were communicated
to employees
efforts were made to discover violations, and people violating the rule were disciplined.
84
the maximum allowable level of exposure to a a hazard
Permissible Exposure Limit
85
Places basic responsibility for workplace safety with employers and can be invoked for enforcement purposes in the absence of specific standards.
•“Each employer . . . shall furnish to each of his employees a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
General Duty Clause-
86
Elements of a Violation of the General Duty Clause Claim-
The elements to prove a violation of the general duty clause are:
--A workplace hazard was allowed to exist
---the hazard was or should have been recognized by the employer
-- the hazard caused or was likely to cause death or serious physical injury, feasible means exist to abate the hazard and were not used
87
deals with the fit between the physical demands of jobs and the physical abilities of people.
Ergonomics
88
repetitive stress injuries or cumulative trauma disorders
Musculoskeletal Disorders (MSDs
89
issued after reviewing inspection reports for violations. They indicate the nature of the violations, the OSHA standard violated, the monetary penalties associated with the violations, and the amount of time that the employer has to correct the problems
Citations
90
- the amount of time that the employer has to correct the problems as they pertain to OSHA.
Abatement Period
91
measures that might eliminate a hazard entirely to engineering controls that do not eliminate hazards but automatically provide protections from them, to administrative measures that limit the extent of exposure to training and warnings that teach employees about how to protect themselves from hazards to personal protective equipment that is worn by employees and provides the last line of defense between the hazard and the worker.
Hierarchy of Controls
92
Provided on a no-fault basis. The exclusive remedy for injuries and illnesses that arise out of and in the course of employment. Employees who are hurt on the job generally file ______ claims and accept the meaningful, but comparatively limited remedies.
Workers’ Compensation
93
Ratings under which employers that have worse records of injuries and claims pay more, providing a financial incentive to invest in safety.
Experience Rating
94
Workers’ compensation for injuries and illnesses that arise out of and in the course of employment. Employees who are hurt on the job generally cannot sue their employers even when the employers were at fault. Instead, they are limited to filing workers comp claims.
Exclusive Remedy
95
- failure of an injured plaintiff to act prudently, considered to be a contributory factor in the injury suffered, and sometimes reducing the amount recovered from the defendant.
Contributory Negligence
96
rule insist that only those injuries resulting from some unusual set of demands over and above what the injured employees’ jobs
typically entailed are compensable.
unusual exertion rule
97
under which such injuries are compensable if the normal demands of employees’ jobs are such that they might reasonably result in injury
Usual Exertion Rule
98
At their best, performance appraisals provide welcome recognition of accomplishments and needed feedback on how to improve performance. At their worst, they are pointless exercises or shams perpetrated to justify questionable employment decisions. Discrimination is the central lead concern with respect to performance appraisals.
Performance Appraisal
99
Work quality and quantity, attendance and punctuality, judgment, ability to work with others in a team, and leadership.
Performance Criteria
100
Evaluation of the level of work quality of the employees
Standards of Performance
101
Aspects of the Performance Appraisal Process that Raise Legal Concerns:
Lack of consistency in evals (retaliation or discrimination),
Who conducts the appraisals
Content of Appraisals (discrimination)
forced distribution method (adverse impact),, feedback on performance.
102
Methods which requires that predetermined percentages of employees be placed into particular performance categories. Manipulating scores can lead to adverse impact
Forced Distribution Method
103
The performance appraisal process sometimes leads to identification of deficiencies . An employee is given outcomes (ex. A certain minimum level of sales, successful completion of a project, or absence of customer complaints) that must be attained over some definite-usually short- period of time with specified negative consequences (ex demotion, termination), feedback on performance
Performance Improvement Programs-
104
can make employees more productive and help them get ahead in their careers
Training and Development Programs
105
agreements entered into either prior to employment or before the receipt of some special training that require employees to either stay with the employer that provided training for a specified period of time following receipts of the training or be liable for repayment of training costs.
Training Contracts
106
Based on the principle "right to know"
Hazard Communication Standard
107
- employees have a right to receive information about the dangerous chemicals that they encounter on the job so that they can take steps to protect themselves
Right to Know
108
must be provided by chemical manufacturers and importers for each hazardous chemical produced or sold.
Material Safety Data Sheet (MSDS)-
109
- occurs when there is a duty to train others, when that duty is breached (no training or clearly inadequate training is provided) when there is harm to one or more parties and when breach of the duty to train is the proximate cause of harm.
Negligent Training
110
The U.S. Constitution does not explicitly provide for a _________ (some state constitutions do, such as California’s). However, constitutionally protected privacy rights have been fashioned out of the Fourth Amendment’s protection against unreasonable search or seizure.
Privacy Rights
111
key concept in workplace privacy law.
Reasonable Expectation of Privacy
112
A type of privacy tort. It occurs when the solitude or private affairs of an individual are intentionally intruded upon and the nature of the intrusion is such that it would be highly offensive to a reasonable person
---------------
Snooping, prying, or otherwise engaging in unwarranted intrusions into one’s private affairs
Intrusion Upon Seclusion
113
A type of privacy tort. It occurs when private facts about a person that are of no legitimate concern to the public are broadly disclosed to others in a manner that would be highly offensive to a reasonable person.
Public Disclosure of Private Facts-
114
occurs when characteristics, conduct, or beliefs are falsely attributed to an individual; this false information is broadly publicized; the person publicizing the information knew or should have known that it was false; and being placed in this false light would be highly offensive to a reasonable person.
Placement in a False Light
115
A type of privacy tort. It occurs when an individual’s name or likeness is used by others without consent and for their own commercial or other ends.
Appropriation of a Name or Likeness-
116
- A variety of common law tort claim that is often raised in conjunction with privacy claims. Plaintiffs must show: (i) intent to harm, (ii) behavior that is so outrageous, shocking, or atrocious as to be beyond the bounds of what is tolerable in a civilized society, and (iii) severe emotional harm or distress.
Intentional Infliction of Emotional Distress
117
The act that regulates the handling of personnel records by agencies of the federal government. The act defines record broadly to include “any item, collection, or grouping of information about an individual that is maintained by an agency.”
Privacy Act
118
- is not exclusively an employment law, but it has been used to challenge employer incursions on the privacy of electronic communications. Under the ECPA, employers (and others) are prohibited from intentionally intercepting (through the use of electronic, mechanical, or other devices) wire, oral, or electronic communications and from disclosing such information. The intentional, unauthorized accessing of stored electronic communications is also prohibited.
Electronic Communications Privacy Act (ECPA)
119
- uses that are routine, for legitimate business purposes, and about which employees are notified. In the context of telephone conversations, this means that employers can use additional extensions on business phones to monitor business calls for service quality or other business purposes but cannot listen in on personal calls. (State laws are sometimes more restrictive, including requiring notification to all parties that calls are subject to monitoring.) Personal calls can be monitored only to the degree needed to determine that they are indeed personal.
Ordinary Course of Business
120
Searches
searches of work areas, desks, files, lockers, and other venues that might yield evidence of wrongdoing. Searches, by their nature, are intrusive because they delve into the contents of things that are not in plain view. Employers are generally free to conduct workplace searches, subject to limitations imposed by the Fourth Amendment (for public employees) and privacy torts (particularly intrusion upon seclusion). Employers should establish policies notifying employees regarding the circumstances under which searches will occur, communicate these policies, and enforce them by conducting searches only under the stated circumstances. The searches themselves should be conducted in a reasonable (e.g., not overly broad, not resulting in destruction of employee property, nondiscriminatory) manner. Evidence obtained through searches, particularly if it relates to potential criminal activity (e.g., weapons, drugs), must be handled carefully and kept in a secure location.
121
Investigations of potential misconduct usually entail:
interviewing witnesses and interrogating employees accused or suspected of wrongdoing.
122
Unlawful restraint upon one's freedom of locomotion or deprivation of liberty of another without (his/her) consent
-------------
employers are not the police or the courts. Employers do not have the authority to effectively incarcerate other citizens.
False Imprisonment
123
employers must allow unionized employees who are called into interviews that they reasonably believe are likely to result in discipline or discharge to have a union representative present.
Weingarten Rights
124
occurs when criminal proceedings are initiated against an innocent party, the party initiating criminal proceedings does so without probable cause, the criminal proceedings terminate in favor of the accused party, and the accusing party was motivated by malice
Malicious Prosecution
125
occurs when an employee resigns as a result of the employer creating a hostile work environment. Since the resignation was not truly voluntary, it is, in effect, a termination
Constructive Discharge-
126
An employer cannot terminate an employee for exercising his or her rights under constitutional law, statutory law, and common law.
Impermissible Grounds for Termination-
127
Implied Contract / Breach of Implied Contract:
the right of employers to terminate at will can be limited by promises of job security. Even in the absence of an express contract of employment, written or oral statements by employers—and their entire course of conduct in dealing with employees—can give rise to enforceable contractual rights to something other than employment at will. The “something other” might be employment for a specified term, termination only for certain reasons (e.g., “for cause”), or use of specified procedures
when making termination decisions (e.g., progressive discipline). If an implied contract
exists, discharged employees can sue for wrongful termination based on breach of the implied contract.
128
are written statements incorporated into employee handbooks, employment applications, or other important documents that “disclaim” or deny that any statements in those documents create contractual rights binding on the employer.
Disclaimers
129
- A type of wrongful discharge claim
pertains to terminations that are undertaken
in bad faith and that have the effect of denying employees the benefits of their contractual
employment relationship.
applies only where there is an express or implied contract and the employer has used a termination to deprive an employee of an already-earned benefit.
For example, a wrongful discharge in violation of the covenant of good faith and fair dealing was recognized where a long-term employee was fired immediately after obtaining a large order, for the purpose of depriving him of his commission.
Covenant of Good Faith and Fair Dealing
130
A contract related claim occasionally raised in discharge cases.
Key elements are reasonable and detrimental reliance on a clear promise.
Promissory Estoppel
131
This occurs when intentional,
improper interference causes a third party to breach or not enter into a contractual relationship with the plaintiff. Cases where a former employee is blacklisted to prevent him from obtaining other employment clearly fit this requirement.
Intentional Interference with a Contractual Relationship-
132
employers are liable in tort for wrongful discharge when they terminate employees for taking actions that public policy requires or highly commends. Allowing the terminations to stand would offend and undermine important public policies.
Public Policy Exceptions to Employment at Will
133
When a particular type of employment is sensitive and calls for greater care in hiring
Public policy
134
Elements of a Public Policy Exception to Employment at Will Claim-
Plaintiffs must show:
Plaintiffs must show:
1. That a clear public policy existed relevant to their conduct (clarity element ).
2. That discouraging the conduct in which they engaged would undermine this
public policy (jeopardy element ).
3. That engaging in conduct supportive of public policy resulted in termination
(causation element ).
Plaintiffs establishing these elements will prevail unless the defendant is able to
show that there was an overriding justification for the termination (absence of
justification element ).
135
report activities engaged in by employers or their agents
| that are illegal or otherwise injurious to the public
Whistleblowing-
136
protection against retaliation
Whistleblower Protection Act-
137
An act which applies to individuals who come forth with information about a knowingly false or fraudulent claim made against the federal govmnt. The law allows the Department of Justice to join in suits to recover amounts lost through fraud or individuals to sue on behalf of the gov't
False Claims Act
138
Employers must not terminate employees because they have filed charges, given testimony, participated in the enforcement of employment laws, or opposed violations of these laws.
Antiretaliation and Noninterference Provisions
139
Laws that allow employers the right to terminate employee for their conduct off the clock.
Off-Duty Conduct Laws-
140
Disparate Treatment in Termination Claim-
| plaintiffs must show:
plaintiffs must show:
1. The protected class characteristic(s) relevant to the case;
2. Up to the point of the termination, the employee had been meeting the
employer’s
legitimate performance expectations;
3. The employee was terminated (formally or constructively);
4. The employer sought a replacement or hired one with contrasting protected
class characteristics; or
5. A similarly situated person with different protected class characteristics engaged
in similar conduct but was not terminated.
If a prima facie case is established, the case is analyzed like other pretext cases, with
the employer needing to articulate a nondiscriminatory reason for the termination
and the plaintiff having the opportunity to show that the articulated rationale is
pretext
and that the decision was more likely motivated by discrimination.
141
Evidence of disparate treatment due to two or more protected individuals with similar cases coming forward.
Similarly Situated
142
Legal provisions under which employers bear the burden of proving that termination were carried out properly and were based on good reason. The default rule is that if an employer cant adequetaly defend a challenged termination, that termination is wrongful and the employee is entitled to reinstatement back wages and other remedies.
Just Cause/Due Process
143
entails making a genuine effort to correct undesirable behavior, not just going through the motions and creating a paper trail before terminating the employee
----------------------
Subsequent offenses result in progressively more severe discipline and, if the undesirable conduct continues, discharge. The aim is to provide employees with the chance to learn what is expected of them and to alter their conduct accordingly
Progressive Discipline
144
are intended to ensure that merit, and not political patronage, guides employment decisions. Besides specifying job classification, testing, hiring, and promotion procedures for public employment, civil service laws usually incorporate processes for review of disciplinary decisions.
Civil Service Laws
145
Guarantee of a job which is typically conferred following a relatively lengthy probationary period and a formal assesmnent of past and likely future performance
Tenure
146
disciplining employees for exercising these rights is unconstitutional. But because the relationship between the government and individual citizens is different from that between government agencies and their employees, a more delicate balancing of constitutional rights and the government’s prerogatives as an employer is required in the latter situation. The government employer’s interests in efficient and effective operations provide less room for the play of constitutional rights, but do not completely override those rights.
Constitutional Protections against Termination
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The existence of employment policies, and express or implied contracts as defined by state laws.
Property Interest
148
on maintaining the
Employee’s good name. The charges that are the basis for termination must be stigmatizing
(e.g., theft, drug use), false, and made public without a meaningful opportunity for
the employee to clear his name.91
For example, a paramedic who was removed without
adequate notice or a hearing from his position because he allegedly botched an emergency
call had _________ in being able to pursue his chosen career.
Liberty Interest
149
- To be constitutionally protected, public employees’ speech must also be related to
matters of public concern.
150
is used in this chapter to refer to terminations that stem from employers’ decisions to operate with fewer or different types of staff, reduce the number of facilities used, shift production elsewhere, or cease operations entirely
Downsizing / Reduction in Force (RIF)-
151
are prohibited from ordering plant closings or mass layoffs until the end of a sixty-day period that follows the provision of written notice to affected employees (or, if the employees are unionized, to union representatives) and to state and local government officials.
Worker Adjustment and Retraining Notification Act (WARN)-
152
are those who are reasonably expected to suffer employment loss
stemming from a plant closing or mass layoff, including termination (other than a quit, discharge for cause, or retirement), a layoff lasting more than six months, or a greater than 50 percent reduction in work hours during each month of any six-month period.
Affected Employees
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entices workers to leave their jobs sooner than they otherwise might have, even though the minimum age or service requirements might exclude younger employees. However, early retirement incentives cannot be extended to one age group (e.g., employees between 52 and 56 years of age) but denied to older employees.
Early Retirement Incentives
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A situation when there is a concrete proposal under consideration, implementation of the proposal is being discussed and high-level managers are involved in reviewing and approving the proposal
Serious Consideration
155
is intended to partially replace lost earnings during periods
of unemployment for people who have demonstrated an attachment to the workforce.
Unemployment Insurance
156
Employees who are laid off or terminated based on business considerations during downsizing
Involuntary Unemployment
157
is an umbrella term that refers to a wide variety of contractual agreements that aim to protect employer interests by limiting the ability of former employees to do such things as going to work for competitors, disclosing trade secrets or other sensitive information, soliciting clients or former coworkers to do business with or join other firms, and making disparaging comments about their former employers.
Restrictive Covenants:
158
are contracts that restrict the ability of former employees
(or former owners or partners) to form or join businesses that compete with their former
employers for specified periods of time following employment.
Noncompetition Agreements
159
restrict former employees from
approaching their former employers’ customers, clients, or employees. These agreements
are more likely to be upheld where the client relationship is long-standing, the former
employee’s knowledge of the client rests solely on her work with the former employer.
Nonsolicitation Agreements-
160
refers to information (including formulas, programs, devices, methods, and
processes) that has actual or potential economic value because it is not generally known to
others, and which the owner makes reasonable efforts to keep secret.
Trade Secrets-
161
Dorhskind v. Oak Park Place of Dubuque II
A marketing employee of a nursing home observed her supervisor and another coworker forging documents to indicate that staffers of the nursing home had received dementia-specific training, which they had not. The facility was a dementia-specific facility. The employee reported the matter internally to a coworker, who reported it to HR, and both were fired.
1. What were the legal issues in this case? What did the Supreme Court decide?
The legal issue in this case was whether a termination for making an internal report of a failure to comply with nursing home training regulations falls within the public policy exception to employment at will. The Supreme Court affirmed the decision of the court of appeals finding that it did fall within that exception, so that plaintiff should not have been terminated.
162
Barnett v. PA Consulting Group
The legal issue involved a plaintiff, a 57 year old female, was terminated from her position as a management consultant during a restructuring of the firm, allegedly because her expertise was not a good “fit” for the firm’s new business focus. The plaintiff was fired for lack of “fit” or whether that was a pretext for age and sex discrimination. The appeals court noted several questions of fact on this issue, and reversed the grant of a motion for summary judgment for the employer, remanding the case for trial (Walsh, 2015).
2. The consulting firm is legally in trouble for firing Barnett even though they were entitled to restructure the Transportation Group to return it to profitability and fire people to do so. Their actions did not comport with their purported reasons for firing Barnett. A similarly-situated employee, Gao, a younger male, was retained, and arrangements made to cover his salary by sharing him with another group at the firm, but no similar arrangements were made for Barnett, though she was the higher earner (Justia, 2015).
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Helton V At&T
Issue:
AT&T unreasonably denied helton claim for pension benefits and failed to adequately notify her of the material changes made to the pension plan. The secondary issue in this case is whether there is limited evidence outside of the administrative record, however it was known to at&t when they rendered Helton's pension benefits determination which should have been admitted. Its also possible that at&t breached its statutory and fiduciary duties to the plantiff
164
Zeidner, R. (2017). Rethinking noncompete agreements. HR Magazine, 62(10), 63-67.
noncompete agreements-the legally binding documents that many businesses require employees to sign to prevent them from leaving to work with an organization's competitors, usually for a specified period and in a limited geographic area
About 1 in 5 U.S. workers-28 million people-currently function under noncompete agreements, according to a 2017 study by researchers at the University of Maryland and the University of Michigan.
nearly 40 percent have been required to sign one at some point in their careers.
Business owners have always worried about rogue employees stealing their stuff, including critical proprietary information. That's why, despite dissent from some corners, plenty of organizations defend the use of noncompetes as a lawful practice that benefits companies and workers alike.
165
Kasson, E. G. (2016). Plan your exits. HR Magazine, 61(5), 110-117.
10 STEPS TO AN EFFECTIVE TERMINATION
Be transparent about your company's termination policies.
Begin the documentation process as soon as you notice a pattern of negative performance or behavior. Encourage management to avoid charged language and to stick to what's observable.
Determine if any protected factors pose a particular risk if the employee were to be terminated.
Work with management to rapidly reach a consensus on whether and when a person should be terminated.
Create a time frame for termination that aligns with your company policy.
Schedule the last meeting and prepare any paperwork, including an explanation of benefits and the final paycheck.
Have the employee's manager lead the final conversation, which should be brief and to the point. HR should provide paperwork and logistical support.
Make sure that, before the employee walks out the door, his electronic and physical access to the workplace is disconnected.
Provide the employee with options for clearing her workspace outside of normal business hours.
Treat everyone involved with dignity and respect.
Be consistent in how each employee is treated (and how each situation is documented) when compared to others in similar positions.
When it comes time to actually terminate an employee, all relevant parties must agree that the decision is the right one.
166
Kasson, E. G. (2016). Plan your exits. HR Magazine, 61(5), 110-117.
HR professionals and line managers have been trained to document more and to communicate better
related to the ubiquity of social media and the resulting ease with which employees can air grievances online through employer rating sites such as Glassdoor.
HR professionals would do well to develop a strong partnership with an employment attorney- and to remind themselves that there is no such thing as a risk-free termination
Fear of getting sued is driving more employers to offer separation agreements, in which employees agree not to hold businesses legally accountable for issues raised during termination in exchange for a payout if they are asked to leave.
EEOC filed a lawsuit in Illinois federal court against CVS Pharmacy alleging that the chain store's separation agreements unlawfully prohibited employees from communicating with the agency or filing discrimination claims.
167
Plump, C. M., & Ketchen, D. J. (2016). New legal pitfalls surrounding wellness programs and their implications for financial risk. Business Horizons, 59(3), 267-272.
Wellness programs are employer-funded initiatives that are designed to improve employee health, which in turn is expected to enhance organizational performance.
Whirlpool for negligence Case
e Allen Huffman received his blood test results from a clinic
Conducted company nurse
Died 9 months later from cancer
Wife sued whirpool for negliegene
Disparate impact occurs when a company’s policy unintentionally has a greater adverse effect on a protected group than it does on other workers
Reward behavior, not outcomes
Voluntary programs must, in fact, be voluntary
Do not tie wellness programs to employment decisions
Beware of collecting and disclosing medical information
Avoid creating hostile work environments via wellness programs
Clearly separate work hours and wellness activities
168
Plump, C. M., & Ketchen, D. J. (2013). Paving a road to well?: How the legal pitfalls of wellness programs can harm organizational performance. Business Horizons, 56, 261-269.
Companies are offering wellness plans
Wellness porgrams must avoid from violating federal anti-discrimination and employment laws such as:
Civil Rights Act
the Age Discrimination in Employment Act
the Health Insurance Portability and Accountability Act
the Patient Protection and Affordable Care Act
the Employee Retirement Income Security Act
the Genetic Information Nondiscrimination Act
the Fair Labor Standards Act
and the Americans with Disabilities Act.
2. Pennsylvania State
In 2013, Pennsylvania State University tried to implement a health initiative that required employees to complete a questionnaire administered by an outside health management company
Employees charged monthly $100 non-complaince fee for not taking questionnaire
2.1 EEOC v. Orion Energy Systems Inc.
employees were asked to have their blood drawn and to complete a health risk assessment disclosing their medical history
Orion paid 100% of an employee’s health insurance premium if the employee participated in the wellness program but charged an employee the full amount of the health insurance premium if the employee refused to participate.
Wendy Schobert, questioned whether the assessment was voluntary and whether the information from her assessment would be confidential. Following her refusal to participate in the wellness program, Orion required Schobert to pay her entire health insurance premium and, less than two months later, fired her. Schobert was the only employee who declined to participate in the health risk assessment.
The EEOC asserts that Orion’s wellness program is unlawful under the ADA because it subjects Schobert to medical examinations and disability-related inquiries that are not part of a voluntary wellness program.
EEOC contends Orion’s action in firing Schobert is unlawful under the ADA because it retaliated against her for good-faith objections to the wellness program.
EEOC v. Flambeau Inc.
The EEOC filed its second lawsuit against Flambeau Inc. a Wisconsin—based plastics manufacturing company.
The EEOC declared that Flambeau’s wellness program violated the ADA because it imposed severe consequences on employees who did not submit to medical tests as part of its corporate wellness organizational wellness program.
required new and existing employees to submit to biometric testing and complete health risk questionnaires about their medical histories.
Refusal resulted in Flambeau not giving employees insurance or cancelling insurance
Dale Arnold was unable to complete testing; had insurance cancelled
Court rules in favor due to employees complete wellness program assessments and tests as a condition for enrollment in the company’s health benefit plan permissible under the ADA’s ‘‘safe harbor’’ provision.
EEOC v. Honeywell International Inc
As part of its 2015 health benefit plan, Honeywell asked employees and their spouses to undergo biometric screening–—including a blood draw–—to test blood pressure, cholesterol levels, and body mass index
. Non-participants would be vulnerable to financial sanctions thatincluded a $500 surcharge on their 2015 medical plan costs, loss of up to $1,500 in company contributions to health savings accounts depending on base salary and coverage type, a $1,000 tobacco surcharge, and an additional $1,000
The EEOC claimed the testing violated the ADA and the Genetic Information Nondiscrimination Act
EEOC 2015 notice of proposed rulemaking
To meet the ‘voluntary’standard, a wellness program must
(1) be reasonably designed to promote health or prevent disease;
(2) have a reasonable chance of improving the health of, or preventing disease in, participating employees;
(3) not be overly burdensome, a subterfuge for violating the ADA, or highly suspectin the method chosen to promote health or prevent disease.
wellness program is not voluntary if
(1) requires employees to participate;
(2) denies or limits coverage under any of its health plans for non-participation;
(3) takes adverse employment action, retaliates against, interferes with, or threatens employees for non-participation.
Ensure wellness programs actually promote improved health
Voluntary programs must truly be voluntary
Provide reasonable accommodations for the disabled
Privacy is paramount
The EEOC notice of proposed rulemaking requires employers to provide written notice to employees about wellness programs.
169
Trottman, M. (2016, April 20). New NLRB election rules haven’t helped unions grow as expected. Wall Street Journal.
Labor pushed for the rule arguing it would increase the odds of them winning elections by giving employers less time to unlawfully pressure workers into voting against unionization.
Unions have seen their membership rosters decline significantly over the past few decades. In 2015, just 6.7% of U.S. workers in the private sector were union members, the most recent year for which data are available.
The rule streamlines the election process by allowing election petitions and other documents to be filed electronically instead of by mail, and requires employers to provide unions with a list of employees' personal email addresses on file.
The rule also speeds the process by generally delaying employer legal challenges to elections until after workers have cast their votes.
Unions were right about at least one thing: The changed procedures are ensuring that workers are much more likely to get a vote instead of sometimes waiting many months as employer challenges drag out a process they say can discourage waiting workers.
Unions were right about at least one thing: The changed procedures are ensuring that workers are much more likely to get a vote instead of sometimes waiting many months as employer challenges drag out a process they say can discourage waiting workers.
170
Trottman, M. (2015, August 28). Ruling clears way for unions. Wall Street Journal.
Contract workers and other temporary employees will be able to more easily unionize
They want fairness in the workplace
Unions want companies to consider contract employees as their own
Union groups, meanwhile, have complained to regulators that many businesses exercise control over the pay and working conditions of certain workers but shirk their duties by refusing to claim them as employees.
CON: "It will make it much harder for self-employed subcontractors to get jobs and of course it will drive up operating expenses for the companies that hire them."
The Labor Department, for example, has been cracking down on companies it says misclassify employees as independent contractors to avoid paying taxes, overtime pay and benefits. Uber Technologies Inc. is facing such accusations by drivers in California that the company has disputed.
Companies increasingly have been turning to temporary contract workers, a business model that gives them more flexibility to add or shed workers as needed.
Industries Affected:
Fast Food
Construction
Uber
Mcdonalds
Types of Workers
Shift work
contract workers
other temporary employees
The change alters a decades-old approach that previously said one business couldn't be held liable for employment-related matters at another unless they had direct control over the employees in question. That approach has meant companies could keep at arm's length contract workers supplied by staffing firms, and has allowed franchise arrangements to flourish.
"If the employees voted yes to unionization and the local union tries to bring us into negotiations, we will appeal in order to not be forced to be drawn into collective bargaining negotiations with another employers' employees," Darcie Brossart, a spokeswoman for Republic Services Inc.,
171
Bravin, J. (2017, September 28). Supreme Court to consider public worker union dues. Wall Street Journal.
The Supreme Court deciding whether public employees can be required to pay union dues,
states may authorize contracts between public agencies and their employee unions that require represented workers to pay dues, or an equivalent fee, for collective bargaining costs.
Unions, which are required to represent all employees in a bargaining unit, argue that making dues voluntary would encourage "free riders"--workers who reap the benefits of bargaining but whose costs they shift onto colleagues willing to contribute to the union.
172
Hicken, M. (2013, October 25). Pensions ask retirees to pay back tens of thousands. CNN Money.
Some pension plans have overpaid retirees for years -- now they're demanding their money back.
Since the pension fund is forecasting that many of the retirees will die before their debts are repaid, it is asking many of them to make large upfront payments.
Carol Montague received a letter from American Water Works Co.'s pension plan saying it had overpaid her for more than five years and wanted its money back -- plus interest. Montague, now 67, was told she owed roughly $45,000
American Water said Montague signed a document verifying the correct pension amount and that they are legally allowed to collect any overpayment, with interest, to protect the viability of the pension fund.
