EMPLOYMENT LAW ATTACK OUTLINE

Employees vs. Independent Contractors

DialAmerica Factors:
o (1) Employers right to control the manner of work.
o (2) Employees opportunity for profit/loss depending on managerial skill.
o (3) Employees investment in equipment/materials/support staff.
o (4) Whether the service requires a special skill.
o (5) Permanence of work relationship.
o (6) Whether the service is an integral part of the employers business.
o (7) Economic reality test would the employee have source of income without the employer.
Immigration Reform and Control Act (IRCA)
An employer must have positive knowledge to terminate an employee for being illegal. (Aramark)
Undocumented aliens are foreclosed from receiving backpay. (Hoffman Plastic Compounds)
Residency Requirements
Continuing residency requirements rational basis test. (Wardwell)
Durational requirements compelling state interest test. (Wardwell)
Interviews and References
Employers may not discharge employees due to false responses to unlawful inquiries; but they may
discharge employees based on unsolicited misrepresentations. (Lysak)
While there is no duty to disclose, there is a duty not to make affirmative misrepresentations. (Kadlec)
Duty to deny entrustment of a vehicle to an unfit driver depends on questions of foreseeability,
negligence, due care, and proximate cause. (Malorney)
Defamation
Factors:
o (1) Statement must be communicated to someone other than the Plaintiff;
Exception: doctrine of compelled self-publication (Lewis v. Equitable minority rule)
o (2) Statement must be false; and
o (3) Statement must tend to harm the Plaintiffs reputation.
Qualified privilege
o An employer is not obligated to hide the reasons for discharge as long as they are (1) accurate
and (2) not motivated by malice.

Drug Testing
4th Amendment Special Need Search:
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o (1) Is there a substantial government interest?

Is this interest based on a real or merely hypothetical problem? (Chandler v. Miller)
Is the job for which employees are testing unique in its nature? (Von Raab)
o (2) Is the testing program reasonably likely to address the problem?
o (3) Balance the employees expectation of privacy against the government interest is it
impractical to require a warrant or individualized suspicion?
Testing company may be liable (in some jurisdictions) if it was foreseeable that the companys failure to
inform the employer about proper interpretation of results might injure an employee. (Duncan v. Afton)
o Also look to: (1) connection between conduct and injury; (2) certainty that injury was suffered;
(3) morale blame; (4) preventing future harm; (5) burden; (6) consequences to community/court
system; (7) capability of insuring against the risk.

Privacy
Public Employers
o Quon A government employers warrantless search is reasonable if it is:
(1) justified at its inception; and
(2) narrowly and reasonably tailored to the objectives of the search.
o Is there a reasonable expectation of privacy? 4 factors (Vega-Rodriguez):
(1) Whether work area was given for employees exclusive use.
(2) Extent to which others had access to the space.
(3) Nature of the employment.
(4) Whether employees were on notice that the area was subject to surveillance.
o To what extent did the employee consent to monitoring? (Watkins)
Private Employers
o Tort of intrusion 2 elements (Hernandez):
(1) Intentional intrusion into an area where Plaintiff had a reasonable expectation of
privacy; and
Look to: identity of intruder, extent to which others had access to the area, and the
means of the intrusion.
(2) Intrusion would be highly offensive to a reasonable person.
Look to: the degree, settings, and motives of the intrusion.
o No reasonable expectation of privacy in emails voluntarily sent to a co-worker over a company
server. (Smyth v. Pillsbury)
Freedom of Expression
Whether one can be discharged based on a romantic relationship often hinges on the existence and
content of a company policy on the matter (Rulon-Miller policy; McCavitt no policy)
Where a government employee is speaking on a matter of public concern, the interests of the employee,
as a citizen, are balanced against the governments interest, as an employer, in promoting efficiency.
(San Diego v. Roe; Rankin v. McPherson)
Where a government employee is speaking pursuant to his official duties, he is not speaking as a citizen
for 1st Amendment purposes, and thus his statements are not insulated from employer discipline.
(Garcetti)
Employment at Will Rule
An employment relationship is presumed to be terminable at will, absent contrary evidence.

Public Policy Exception

Cases in which violations of public policy are generally found fall into 4 categories (Gantt):
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o (1) Refusal to violate a statute.

o (2) Performance of a statutory obligation.
o (3) Exercise of a statutory right or privilege.
o (4) Report of an alleged violation of a statute of public importance.
Discharge based upon employees reporting of a statutory violation only violate public policy if the
employee is right, regardless of whether his belief was reasonable. (Clark)

Breach of Contract Terms

Acceptable/satisfactory performance good cause. (Gordon v. Matthew Bender)
Employment at will is a presumption subject to contrary evidence. (Pugh v. Sees Candies)
o Look to: (1) duration of employment; (2) commendations/promotions; (3) criticism of work; (4)
assurances of continued employment; (5) existence of a good cause policy.
Employee Handbooks
Woolley an employee handbook may create a binding contract (typically requiring cause for
termination) if the context could reasonable give one the impression that the company intended the
manual to be binding.
In order to modify a contract created by an employee handbook, some jurisdictions require some
consideration beyond continued employment. (Kerr-McGee)
Woolley an employee manual may not be considered binding if it contains a disclaimer that:
o (1) Uses straightforward terms; and
i.e., no legal jargon.
o (2) Is prominent.
Nicosia in order to ensure that an employment relationship is terminable at will, the employers
disclaimer should clearly state the following elements:
o (1) Terminable at will by either party;
o (2) With or without cause; and
o (3) Without prior notice.
Covenant of Good Faith and Fair Dealing
Read into contracts by courts to redress wrongful discharge in the absence of express individual contract
rights. (Fortune)
In a minority of jurisdictions, one can only recover for contract claims under the covenant of GFFD, not
for tort claims. (Foley)
o Exception: insurance contracts allow for recovery for tort claims under the covenant of GFFD.
Some jurisdictions reject the covenant altogether as being contrary to the idea of at-will employment.
Intentional Infliction of Emotional Distress
Plaintiff must prove 4 elements:
o (1) Defendant acted intentionally or recklessly.
o (2) The conduct was extreme or outrageous.
o (3) Defendants actions caused the emotional distress.
o (4) The emotional distress suffered by Defendant was severe.
Wilson the degrading and humiliating way that the employee was stripped of duties and demoted,
combined with his clinical depression that required hospitalization grounded the IIED claim.
McGanty In the context of an employment relationship, reckless conduct is sufficient to establish
intent.
Whistleblower Protections
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Whistleblowers Protection Act Employers cannot discharge/threaten/discriminate against employees

who report violations or suspected violations of law.
WPA protection is not limited to employee reports of employer violations it applies to reports of
violations by fellow employees as well. (Dudewicz)
WPA protection is exclusive; one cannot also bring a public policy claim on the same facts. (Dudewicz)
Sarbanes-Oxley imposes whistleblower-like obligations on highly-placed corporate actors who work
for public companies.
Elements of a retaliatory discharge claim:
o (1) Employee must be discharged;
o (2) The discharge must be in retaliation for her activities;
o (3) The discharge must violate a clear mandate of public policy.

After-Acquired Evidence
An employer can only rely on after-acquired evidence if the wrongdoing was of such severity that the
employee would have been terminated on that ground at the time of discharge had the employer known
about it. (McKennon)
Breach of contract claims after-acquired evidence can be used to complete bar employer liability if the
wrongdoing was such that it undermined the very basis upon which the employee was hired. (McDill)
o Tort claims after-acquired evidence may only be used to limit liability.
Arbitration Agreements
Unless Congress or the state legislature has evinced an intention to preclude a waiver of a judicial forum
for a particular claim, arbitration agreements are always enforceableassuming that the forum
established by the arbitration agreement is fair. (Gilmer)
Breach of Implied Terms
Generally, employees are required to refrain from:
o (1) Competing with the employer during the period of employment.
o (2) Appropriating the employers trade secrets or other confidential information
o (3) Otherwise using the employers resources in such a way as to further potentially competing
ends.
An employee may not solicit his employers customers for his new business while still employed by the
company. (Lamorte Burns)
o Duty of loyalty employee must not take actions contrary to the employers interest.
An employee with managerial discretion has an additional duty to further the employers interests.
(Arrowood v. Lyon)

Restrictive Covenants
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Mercer; Estee Lauder for an employment agreement/restrictive covenant to be enforceable:

o (1) The employer must have an interest that is viable and worthy of protection;
o (2) The period of restraint must be reasonable;
Rarely will any duration greater than 1 year be acceptable.
o (3) The geographical restraint must also be reasonable; and
This requirement is weaker when dealing with online business.
o (4) The scope of the activity restrained cannot be overbroad.
It must be as narrowly tailored as possible while still protecting the employers interests,
and the public may not be injured by the restrictions.
A preliminary injunction to enforce a restrictive covenant requires a showing of irreparable harm.
(Estee Lauder)
Springfield Rare Coin A reasonable restrictive covenant will be enforced either:
o (1) Where the former employee acquired confidential information through his employment and
subsequently attempted to use it for his own benefit; or
o (2) Where, by the nature of the business, the customer relationship is near permanent and, but for
his association with plaintiff, defendant would not have had contact with the customers in
question.
Where the employer is engaged in the provision of professional services and employs the
employee to assist in the provision of these services, and the the employee would not
have had contact with the clients but for the association with the employer, the nearpermanency test is satisfied.

Trade Secrets
Springfield Rare Coin information is not protectable where:
o (1) It has not been treated as confidential and secret by the employer.
o (2) It was generally available to other employees and known by persons in the trade.
o (3) It could easily be duplicated by reference to telephone directories or industry publications.
o (4) Where the customers on such lists did business with more than one company or otherwise
changed businesses frequently so that their identities were known to the employers competitors.
The Uniform Trade Secrets Act:
o Trade secret means information, including a formula, pattern, compilation, program, device,
method, technique, or process, that:
Derives independent economic value, actual or potential, from not being generally known
to, and not being readily ascertainably by proper means by, other persons who can obtain
economic value from its disclosure or use.
Is the subject of efforts that are reasonable under the circumstances to maintain its
secrecy.

OSHA - Duties
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Employer Duties - 5(a)

o General Duty Clause
Employer must furnish to each of his employees employment and a place of employment
which are free from recognized hazards that are causing or are likely to cause death or
serious physical harm.
o Specific Standards
Employer must comply with all standards promulgated under the Act.
Employee Duties - 5(b)
o Each employee shall comply with occupational safety and health standards and all rules,
regulations, and orders issued pursuant to this Act that are applicable to his own actions and
conduct.

OSHA Employer Defenses

Assumption of the Risk
Contributory Negligence
Fellow Servant Rule
o Employees assume the risk that fellow employees may be negligent and cause injury.
OSHA - Jurisdiction
Frank Diehl whether OSHA can regulate an area is determined by the condition-of-employment test:
o (1) The conditions to be regulated must be fairly be considered working conditions;
o (2) The safety and health standards to be remedied must fairly be considered occupational; and
o (3) The injuries to be avoided must fairly be considered work-related.
OSHA Standards
Any change in standards requires adherence to the formalized notice-and-comment procedure. (Usery)
Before the Secretary can promulgate any permanent health and safety standard under 6(b)(5) (toxic
materials and harmful substances), he must determine that it is reasonably necessary and appropriate to
remedy a significant risk of material health impairment. (Benzene)
o Significant risk does not need to approach scientific certainty; Secretary can be conservative.
o Secretary must also prove that the risk can be addressed by a change in practices.
The benefit of worker health always outweighs any cost this might have to employers, unless the cost is
so prohibitively high that it makes the benefit unachievable. (Cottondust)
For a 5(a)(2) (Specific Standard) violation, the Secretary must show that:
o (1) The cited standard is applicable.
o (2) The employer failed to comply with the cited standard.
o (3) The employees were exposed.
o (4) The employer had knowledge of the hazard.
Constructive knowledge counts.
o (5) The date of abatement, the proposed penalty and degree of violation are all reasonable.
OSHA Employer Compliance
Labels of hazardous chemicals and corresponding MSDSs must list all potential health risks associated
with their contents, regardless of anticipated exposure to those chemicals by their users. (Durez)
Employers instructions are adequate if they are specific enough to advise employees of the hazards
associated with their work and the ways to avoid them, and are modeled on the applicable standards.
o Rules cannot give employees too much discretion.
OSHA General Duty Clause
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Pepperidge Farm to find a 5(a)(1) (General Duty Clause) violation, the Secretary must show:
o (1) Actual or potential physical harm.
o (2) Sufficient causal connection between the injury and the workplace condition.
o (3) That the employer was aware of the workplace hazard.
Constructive knowledge can be imputed onto the employer based on industry norms.
o (4) That the hazards were likely to cause death or serious bodily harm.
o (5) That alternative means existed to eliminate or reduce the hazard.
The GDC creates a duty for the employer to create a work environment free of hazards; it does not
create individual duties to each employee. (Reich v. Arcadian)

OSHA Refusal of Hazardous Work

Whirlpool an employee has the right to choose, without being subject to discharge or discrimination,
not to perform his assigned task if he can show:
o (1) A reasonable apprehension of death or serious injury; and
o (2) A reasonable belief that no less drastic alternative is available.
OSHA - Enforcement
An OSHA inspector must have a warrant to enter an employers place of business. (Barlows)
Workers Compensation Generally
Workers compensation provides no-fault coverage for employees.
Tort remedies are preempted by workers compensation.
Types of benefits:
o Permanent Total
Paid where an injury prevents a worker from working at all for an indefinite period.
o Permanent Partial
Paid where an injury caused permanent but partial loss of wages or wage-earning
capacity.
o Temporary Total
Paid where an injury prevents a worker from working at all until fully recovered.
o Temporary Partial
Paid during a period of reduced earnings and ceased when the worker returns to full
wages or is found eligible for permanent total or permanent partial benefits.
o Death Benefits
To be compensable, the injury must occur in the course of and arise out of the workers
employment.
o Occupational Risks universally compensable.
o Personal Risks Universally non-compensable.
o Neutral Risks e.g., a convenience store clerk is injured during a robbery.

Workers Compensation 3 Approaches to Neutral Risks

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Increased Risk Analysis (majority view)

o Compensable if the job puts you at a greater risk for the given injury than the general public.
Actual Risk Analysis (Hanson v. Reichelt)
o Compensable regardless of the risk to the general public if the job exposes the employee to the
risk, he is covered.
Positional Risk Analysis (small minority view)
o Compensable if the injury would not have occurred but for the fact that the employees
conditions or obligations of employment placed him at the site of the injury.
Workers Compensation Is the Employer Liable?
Classifications of employees excluded in at least some jurisdictions:
o Domestic servants
o Casual employees
o Real estate licensees
o Farmworkers
o Newspaper vendors
o Employees of public charities
o Professional athletes
o Clergy
Who is liable the temporary employment agency or the employer?
o Right to Control Test
Which employer is controlling the details of the work?
o Relative Nature of Work Test
How much/to what extent is the Plaintiffs work a part of the Employers regular
operations?
o Dual Employer Doctrine
When a lending employer is lending employees to a borrowing Employer, the borrowing
employer is deemed liable for workers compensation if several conditions are met:
(1) The employee has made an implied or an express contract with borrowing
employer.
(2) The work being done is essentially that of the borrowing employer.
(3) The borrowing employer has control over the details of the work.\
If these elements are met, the workers are deemed employees of both the lending and
borrowing employers for workers compensation purposes.

The requirement that employers protect all employees against hazardous workplace conditions extends
to independent contractors. (Teal v. E.I. DuPont)

Workers Compensation Scope of Coverage

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The right to compensation is not limited to those cases where the injury occurs while the employee is
performing the classical duties for which he/she was originally hired. Far less than a direct request by
the employer operates to bring an injury-causing activity within the provisions of workers
compensation. (Eckis v. Sea World)
Perry [MINORITY EXCEPTION TO NO-FAULT SYSTEM] an employee can be found to have acted
outside of the scope of employment by violating a work restriction if the following elements are shown:
o (1) Employer expressly and carefully informed the employee that he must not perform the
specific task;
o (2) Employee knew and understood the specific restriction;
o (3) Employer did not knowingly continue to accept the benefit of the violation of the restriction;
and
o (4) The injury for which benefits are claimed arose out of conduct that clearly violates the
specific restriction.
Most jurisdictions allow recovery of benefits so long as the employee was making a good
faith effort to advance his employers interests.
A home does not become a second jobsite simply because ones employment requires long working
hours and the employer knows that the employee frequently brings work home the employee has to be
required (explicitly or implicitly) to bring work home. (Santa Rosa)

Workers Compensation Occupational Disease

Guess for a mental injury to be compensable, it must have resulted from an identifiable, stressful,
work-related event that produced a sudden mental stimulus such as fright, shock, or excessive
unexpected anxiety.
o Objectivity is dispositive the employee has to be right.
In some jurisdictions, the mental stimulus and/or triggering event can be gradual.
Workers Compensation Benefit Levels
The Odd-Lot Doctrine (Turner)
o An injured employee is entitled to total permanent disability compensation if he can perform no
services other than those that are so limited in quality, dependability, or quantity that a
reasonably stable market for them does not exist.
Consider physical impairment as well as mental capacity, education, and training.
Workers Compensation Tort Actions and Exclusivity
Wendys Employees suing employers for intentional torts are not barred by workers compensation.
o Elements to establish an intentional tort:
(1) Employers knowledge of the existence of dangerous process, procedure,
instrumentality or condition within its business operation;
(2) Employers knowledge that if the employee is subjected by his employment to such
dangerous process, procedure, instrumentality or condition, then harm to the employee
will be a substantial certainty; and
(3) Employers requirement the employee to continue to perform the dangerous task.
Deliberate intention in a tort action can be found on the basis of chemical exposure. (Boeing)
As long as the injury is not the result of a defect in the product itself, a manufacturer does not have a
duty to warn downstream employees of the dangers using its product. (Union Carbide)
Unlike workers compensation, OSHA does not preempt state tort law. (Union Carbide)

Remedies
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No reinstatement.
o After-acquired evidence.
o Undocumented workers.
o Person will not fit with company; frontpay awarded instead (Parr v. Triplett)
Backpay/frontpay
Fines (OSHA/IRCA)
o If an OSHA violation results in an injury not barred by workers compensation, the employee
may have a per se negligence tort claim.
Tort damages
Non-Compete Agreements
o Acceptance (preliminary injunction)
o Rejection
o Blue penciling (modifying the agreement rare)

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