Wrongful Termination/Contract (at-will)/Tort analysis

Overarching Rule is AT-WILL - “All employers may dismiss their employees at will, be they many or few,
for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal
wrong.”
 Is there a Contract?
o Express K
 Written – can write terms around at-will employment
 Basic rule is that an employment for stated term is not at will.
 Minimum Term Requirements – Cal = month (if over a month its not at
will).
 For Cause Provision? (if so, not AT WILL)
o Specified Provision – courts use this standard
o Not Specified – Courts provide default standard
 Willful breach of duty by the employee in the course of
his employment or
 Employee’s habitual neglect of duty or continued
incapacity to perform duty.
 Oral – remember to distinguish puffery from promise
o Implied K
 Employee Handbook
 In most jurisdictions, manuals may be deemed contracts if they are
sufficiently specific and if an employee would reasonably regard it as a
contract (in many jurisdictions irrespective of whether employee read or
relied on it).
 Disclaimers
o Prominent and clear disclaimer stating that manual is not
contract and does not guarantee just cause will be enforced in
most jurisdictions.
 Modification of Handbook
o Majority view is that in contract with no fixed time period,
employer can modify or terminate after reasonable time period,
if it provides employees with reasonable notice and
modification does not interfere with vested benefits.
 Implied in Fact Agreements
 Based on the entire course of dealing between the parties in order to
determine whether some sort of job security was implicitly intended
(statements in employee manuals can be part, but are not necessarily
entire story).
o Rule - To figure out the reasonable intentions of the parties,
courts should look at:
 Personnel policies or practices.
  Longevity of service.
 Actions or communications by employer reflecting
assurances of continued employment.
 Practices of industry.
 Torts – Wrongful Termination in Violation of Public Policy?
o Rule - Most jurisdictions recognize some form of the tort of wrongful discharge in
violation of public policy.
 (Policy restriction on the employee relationship, seemingly a large exception to
AT WILL)
o What’s the Public Policy?
 Actual Legal Violation –
 Varies by jurisdiction, but most courts only require a good faith belief
that there was a violation.
 Approaches to what is used as Public Policy
 Narrow - In most jurisdictions, the public policy must be articulated in
the constitution, statute, regulation or judicial holding.
o Under this approach courts vary as to whether an actual
violation is necessary:
 Some jurisdictions require the plaintiff to identify an
actual violation.
 Others simply require the plaintiff to show a violation of
some policy expressed in the law. An example is Sheets.
 Broad - Some jurisdictions require only that an employee articulate
some form of public good or civic duty. For example, in Illinois this has
been articulated as “what is right and just and what affects the citizens
of the state collectively.”
 Four Categories that these usually fall under
 Refusal to do Unlawful Act
o Fired because wouldn’t perjure self
 Vindicating Statutory Right
o Fired in retaliation for workers comp claim
 Performing a Public Duty
o Terminated for serving on jury
 Whistle blowing
o Often public employees, not for private.
o See if there are any applicable state and federal statutes -
specific or general. Talk about any applicable statutes. SOX is on
the table since we talked about it.
o If there is no statute then we look to the tort of wrongful
termination in violation of public policy.
o Must be a Public Policy – Is the interest sufficiently Public
  You can’t just point to a statute and say you are trying to prevent a violation.
Rather, you must show that the discharge is against public policy and it affects a
duty that goes to the public benefit.
 Hayes Test –
o To support a viable tort claim the public policy must be truly
public, rather than merely private or proprietary.
 Hayes was fired for reporting embezzlement by
management – court ruled this was a private
relationship and had no bearing on the public good.
 Void if Contracted For Test
o If it is something that you could bargain for without violating
the law, then it is not a violation of public policy to fire you for
it. But if it is something that you could not contract for without
violating the law, then it is in violation of public policy.
o Preclusion
 Need to determine whether specific law preempts public policy claims for
certain types of activities. Look at statute and see what the language is about
preclusion. Jurisdictions are divided on this issue:
 Also need to determine if any specific state law preempts public policy
claims for certain types of activities. (e.g., Amos rule vs. Wehr rule)
o 1. Start with the statute – does the Federal statute say it
preempts the state law cause of action? If yes, then you know
you can’t bring the state if you bring the Fed
 If silent, you need to look at the state statute to see
what it says about preemption
 State Statutes Rules
o Amos Rule - Absent the intent of the state legislature to
supplant the common law with exclusive statutory remedies,
the availability of alternative remedies does not prevent a
plaintiff from seeking tort remedies from wrongful discharge
based on the public policy exception. So you must look to the
statute to determine what the legislature meant.
o Wehr Rule - Can only bring claim for wrongful termination in
violation of public policy if you have no other remedy at law.
 The reason for this rule is that by creating a statutory
remedy, the legislature spoke on this issue.
 Torts – Intentional Infliction of Emotional Distress
o Comes up in Two Ways
 Tacked onto another claim of wrongful termination.
 Employee suffers emotional harm at the hands of employer even if the
employer has not acted wrongfully otherwise.
  Elements
 Outrageous (unnecessarily demeaning) conduct.
 Intent to cause emotional distress (or recklessness about whether
distress will be caused).
 Actual and proximate cause of emotional distress.
 Severe emotional distress.

Privacy Checklist –

 Privacy and Wrongful term in violation of public policy

o Privacy claims are inherently private, therefore a claim for termination in violation of
public policy is difficult (SEE ABOVE: PUBLIC V PRIVATE).
 Public Employee – 4th Amendment
o Elements
 Employer’s actions must “infringe an expectation of privacy that society is
prepared to consider reasonable.”
 An individual’s interest in privacy must be balanced against an employer’s
interest in conducting a search.
 If the employer has a legitimate interest, then the search must be reasonable
in both inception and scope.
 Inception - Reasonable grounds for suspecting that the search would
turn up evidence that the employee was guilty of work-related
misconduct, or that the search is necessary for a noninvestigatory work-
related purpose such as to retrieve a needed file.
 Scope - Measures adopted are related to the objectives of the search
and are not excessively intrusive in light of the nature of the
misconduct.
 Private Employees
o Intrusion Upon Seclusion (K-Mart v. Trotti)
 Elements:
 Intentional intrusion.
 Upon the solitude or seclusion of another as to which the person has a
reasonable expectation of privacy.
 The intrusion is highly offensive to a reasonable person.
 Similar to 4th Amendment - Because of the reasonableness standard.
o Public Disclosure of Private Facts
 Elements:
 Publicity to a matter concerning the private life of another.
o Publicity - Occurs when a matter is communicated to the public
at large, or to so many persons that the matter must be
regarded as substantially certain to become one of public
knowledge.
 o Special Relationship - Communication to the general public has
not been required by some courts because disclosure to those
persons with whom the plaintiff has a special relationship may
be just as devastating as disclosure to many.
 Highly offensive to a reasonable person.
 Not of legitimate concern to public.
 Privacy Away From Work
o Employees have interest in autonomy
o Categories
 Contract
 Public Policy Tort
 Right to Privacy
 Specific Statutes
 Discrimination

Testing Checklist

 Public Employees
o Taking of blood and urine is a search and therefore must be reasonable under 4 th
Amendment test from above
o Government allowed to test where the employee was involved in drug interdiction or
carried a firearm.
 Private Employees
o Drug Testing
 Contract?
 Constitution?
 California has Privacy clause
 State Statutory Scheme
 State laws regulation drug testing
 Federal statute on issue
 i.e. ADAs prohibition on testing for disabilities
 Common Law?
 Drugs testing programs must be reasonably related to legitimate
employer interest.
 Example of Employer interests: Limiting liability.
o Genetic Testing
 Issues: risk of misuse, ADA, Race, Immutable characteristic, inaccuracy
 Employer interests: sick employees are expensive
 Law:
 Half of states have laws against such testing
 GINA: Federal statute that prohibits employers from conducted genetic
testing or discriminating based on genetic information.
 o Personality Testing
 California Constitution - The constitution applied to both public and private
employers and allows individuals to directly bring a claim based on
constitutional violations. Information collected must be necessary to achieve the
purpose for which the information has been gathered. Here, looking into
sexuality and religion was unnecessary for the purpose.
 Fair Employment and Housing Act - Under this statute religion can’t be inquired
into. Here, the questions inquired into religious beliefs.
 Labor Code - Employers can’t adopt policies that influence political activity. The
plaintiff looped this into homosexual rights. Here, the court agreed that the test
constituted an attempt to prevent applicants from expressing homosexual
orientation.
o Employer Monitoring
 This is a privacy issue. Despite the impact and concerns over employee
monitoring, only a handful of states have passed laws regulating employer
monitoring or surveillance.
 Time Clock - Commoditization of time. Is it demeaning to the
workforce?

Discrimination

 Title VII - Intentional Discrimination

o Individual Disparate Treatment
 Direct Evidence
 Examples – I hate black people, policy against women holding certain
positions
 Burden Shift to defendant to establish defense
o Mixed Motive
o BFOQ
 Plaintiff need not establish anything more for this prima facie case
 Circumstantial Evidence
 Prima Facie
o He belongs to minority
o He applied and was qualified for a job for which the employer
was seeking applicants
o Despite qualifications, he was rejected
o After rejection, position remained open and employer
continued to seek applicants from person’s of complainant’s
qualifications
 Burden shift to employer to articulate legitimate non-discriminatory
reason.
o Burden of production, not persuasion
  Burden shifts back to plaintiff, burden of persuasion, to show pretext.
 Mixed Motives
o “an unlawful employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a motivating factor for
any employment practice, even though other factors also motivated the practice.”
o Same prima facie as above
 Same burden shift
 Then…
o Two Views
 Both Theories Available
 Plaintiff can chose Pretext route after burden shifting, or choose to
prove a mixed motive.
 Single Theory Only
 Plaintiff must allege at the outset that it’s a mixed motive case.
o Remedies
 If mixed motive case, and defendant meets affirmative defense (showing that it
would have taken the same action in the absence of impermissible motivating
factor), remedies are limited to declaratory relief, certain injunctive relief, and
attorneys’ fees/costs
 Retaliation
o A separate section of Title VII forbids an employer from “discriminating against” an
employee or job applicant because that individual “opposed any practice” made
unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title VII
proceeding or investigation.
o Retaliatory act must be materially adverse to reasonable employee. Material adverse
means that it might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.
o Prima Facie Case
 He or she engaged in protected opposition to discrimination
 Employee suffered materially adverse employment action;
 Causal connection exists between protected activity and materially adverse
action (some courts infer from short period of time).
 Class Claims
o Pattern or Practice – Title VII permits claims that are designed to demonstrate that
employer has engaged in a pattern or practice of discrimination. The Supreme Court has
defined this claim as one where discrimination is demonstrated to be “the standard
operating procedure – the regular rather than the unusual practice.”
 Prima Facie Case – Plaintiff has to show that the employer’s practices result in a
statistically significant disparity in its workforce. The common measure of
statistical significance is 2 standard deviations.
  Rebut – Then burden shifts to employer to rebut the prima facie case. The
employer can do this by challenging the statistics or show that the group
challenging the practice is not qualified or interested in the job.
o Facially Discriminatory Policy – Can be individual or class case. In these cases the
employer has a policy that is facially discriminatory.
 Defenses
 Bona Fide Occupational Qualification (“BFOQ”) – Employer can defend
a classification based on sex, national origin, religion, or age (not race)
by demonstrating that the classification is reasonably necessary for the
efficient operation of the business so that group would be unable to
perform the job properly.
o Narrowly interoperated
o Class Action Procedure
 four requirements are needed: numerosity, commonality, typicality, and
adequacy of representation. The plaintiff presented statistics and antidotes.
 Title VII – Disparate Impact Discrimination
o Plaintiff has to Prove IMPACT – Plaintiff must identify specific practice and prove
(through statistical evidence) that the practice causes a disparate impact
 Stats
 Specific Practice
o Rebuttal or Affirmative Defense
 Rebut = challenging stats or causation
 Affirmative Defense = Business Necessity
o Shift back to Plaintiff to Show – Less Discriminatory Alternative
 Even if the employer is able to demonstrate that its test or employment practice
is job related and consistent with business necessity, the plaintiff can still prevail
by showing that there are alternative employment practices that would serve
the employer’s needs with a less adverse impact and the defendant refuses to
adopt the practice.
 Title VII – Harassment
o Sexual Harassment
 Quid Pro Quo
 Elements
o Request for unwelcome sexual favors by supervisor (someone
with at least apparent authority to take employment action);
o Request refused;
o Adverse employment decision or loss of tangible job benefit;
o Causal relationship between refusal and adverse decision.
 Hostile Work Environment
 Elements
 o Sexual advances, verbal or physical conduct of a sexual nature,
or harassing conduct done on the basis of sex
o Unwelcome
o Unreasonably interferes or creates an intimidating, hostile, or
offensive work environment
 Employer liability
 Harassment by Supervisor
o Quid Pro Quo – Vicarious Liability
o Hostile – Presumption of liability subject to affirmative defense
 Employer has reasonable policy prohibiting harassment
and procedure for reporting complaints
 Plaintiff unreasonably failed to avail herself of policy
 Harassment by Co-Workers – Negligence Standard
o Employer knew/should have known about harassment and
didn’t stop it
 Harassment by 3rd Parties
o Negligence Standard
o Remedies

ADA Checklist –

 Disability Defined
o A physical or mental impairment that substantially limits one or more major life
activities;
o A record of such an impairment; or
o Being regarded as having such an impairment
 Reasonable Accommodation
o The ADA prohibits an employer from discriminating against an individual with a disability
who, with reasonable accommodation, can perform the essential functions of the job.
o Rule
 Plaintiff has to show requested accommodation is reasonable in the general
sense.
 Then the burden shifts to employer to show undue hardship (price, extent of
renovation, cost-benefit…), given individual circumstances.
 Plaintiff can still show that given individualized circumstances, accommodation
is reasonable
 Direct Threat Defense
o Employer defense that applies to threat to others or individual.

Wage Hour and Leave Checklist

 Does FLSA Apply?
o Is there FLSA Coverage?
 Individual Coverage Test - An employee is covered under FLSA if he or she is
“engaged in commerce or in the production of goods for commerce.”
 Enterprise Coverage Test - In order for an enterprise to be covered, it must have
employees engaged in commerce and have an annual gross volume of sales made or
business done that is at least $500,000.
o Is there an Employment Relationship?
 Tests – Courts have developed various versions of the “economic reality” test
in order to distinguish between independent contractors and employees:
 Heath Test
 Or he is going to give one
o Exemptions?
 Types of employees on full outline
 Compensable Time Claim
o all of the time during which an employee is on duty on the employer’s premises or at a
prescribed workplace, as well as all of the other time during which the employee is suffered
or permitted to work for the employer.”
o Off the Clock Work
 Employer needs to have actual or constructive knowledge that the employee
worked off the clock.
 To meet showing, employee needs to show a pattern or practice of employer
acquiescence, so that it is reasonable to infer that employer allowed the employee
to work off the clock.
o On Call Time
 Test: Time spent “waiting to be engaged” is not compensable under the FLSA, but if
employees are “engaged to wait” the time is compensable
 Rest and Meals
o FLSA does not require that employer’s provide rest or meal periods.
o Many states do (including California - employers must provide rest breaks at the rate of not
less than 10 consecutive minutes for each four hours (or major portion thereof) worked,
occurring as near as possible to the middle of the work period. Can’t be combined or added
to meal breaks. Has to be paid.).
 Training Time
o In general, time spent attending employer-sponsored lectures, meetings, and training
programs is compensable unless (1) occurs outside of employee’s regular working hours; (2)
attendance is voluntary; (3) the course is not directly related to the EE’s job; and (4) the EE
performs no productive work during the training. Must meet all four to not be
compensable.
 Travel Time or Other Preliminary and Postliminary Activities
 o Travel – Commuting time generally not compensable unless incurred in connection with out
of town work or in traveling between locations on the job
o Donning and Doffing
 Washing up time, time necessary to change in and out of uniforms, time waiting in
line
 Compensable if integral
 FLSA Enforcement
o Claims
 Department of Labor
 Private
 Department of Labor (criminal)
o Anti-Retaliation Provision
 FLSA contains an anti-retaliatory provision that prohibits employers from
discriminating against or discharging an employee in retaliation for filing a complaint
under FLSA or testifying in a proceeding.
 Filing
o Filing a formal complaint or
o Complaining to Someone less formally in-house (split between jdxs)
 If win, attorneys fees/costs awarded
o Relationship with Wrongful Term in violation of PP
 Use FLSA as the statute for public policy
 Defenses and Limitations to liability
o Reliance – in good faith in conformity with and in reliance on any written administrative
regulation, order, etc.”
o Good Faith – Or damages can be reduced or eliminated if finds that employer acted in good
faith or had reasonable grounds to believe it acted properly.
o SOL – 2 years, 3 for willful violations
 FLSA Overtime Provisions (premium of 1.5 x (wage)/hr for work over 40 hours in work week)
o High End Exemptions – White Collar Employees
 Executive Employees (salary)
 Administrative Employees (salary)
 Professional Employees (salary)
 Computer Programmers (27/hr)
o Regulations (2004) – Are they salaried (not salaried, no exemption analysis).
 Salaried employees paid less than 23k/year – Get OT
 Between 23k-100k – Standard Duties Test
 Standard duties Test – Professionals – No OT
o Learned – Primary duty is performance of work requiring knowledge
of an advanced type in science or learning – specialized intellectual
instruction or creative
 o Creative – Primary duty is performance of work requiring invention,
imagination, talent, or originality)
 Standard Duties Test – Administrators – NO OT
o “exercise of discretion and independent judgment with respect to
matters of significance.”
 Standard Duties Test – Executives – NO OT
o Responsible for management of the business or a division of it and
directs the work of 2 or more employees, and who have the
authority to hire or fire other employees or whose suggestions as to
such matters carry weight.
 Standard Duties Test – Computer Professionals – NO OT
o Primary duties have to consist of performance of work that requires
theoretical and practical application of highly specialized knowledge
in computer systems analysis, programming, and software
engineering, and that EE’s primary duty include work requiring the
consistent exercise of discretion and judgment.
 Over 100k – Highly Compensated Duties Test
 An employee is exempt from the FLSA minimum wage and overtime
provisions only if the employee “customarily and regularly performs any one
or more of the exempt duties or responsibilities of an executive,
administrative or professional employee.”
 Teacher, Law, Medicine – exempt regardless of salary

FMLA Checklist

 Coverage
o ER with more than 50
o EE must work more than 1250, - must have worked for a year
 Unpaid leave
o 12 weeks unpaid leave in a 12 month period
o Employer can require you to take sick or vacation days (paid) as part of FMLA leave.
 Restatement Rights
o Employee entitled to same or equivalent position
 Exception – Key employees can be denied reinstatement if necessary to prevent
“substantial and grievous economic injury” to employer.
 Key Employee:
o Salaried exempt under FLSA; and
o Among highest paid 10% of all of employer’s employees within
75 miles.
 Substantial and Grievous Economic Injury – Reinstatement would
threaten economic viability of firm or would impose long-term
substantial economic injury.
 Reasons for taking leave
o Serious health condition of self or family
o Birth, adoption or foster care of child
 EE Notice
o Advance (30 days notice) when leave is foreseeable. Notice not required if not
foreseeable.
o Notice must include reason leave is needed, planned time and duration; employee must
give updates of condition.
o Employer can request certification of existence of serious health condition.
 ER Notice
o Must notify all employees of rights under FMLA.
o Must notify employee requesting leave of FMLA requirements.
o Must notify employee that leave is being designated as FMLA leave and will be counted
against the 12 weeks
 Remedies
o Wages, salary, benefits
o Liquidated damages if willful violation
o Attorneys fees for prevailing plaintiff