Employment Law Final

What is the old trinity of defense for a defendant employer

-Contributory negligence

-Assumption of risk

-Fellow servant doctrine

What was the compromise for giving up common law and negligence claims

-Claimants can recover 2/3 lost wages and medical bills

-Elements for workers compensation claims: Must be an employee; injured in the course of employment; accident must have been the cause of the injury; employer was notified of the accident/condition

New York Central Railroad Case Takeaway

-State compensation laws are constitutional because the state had a rational basis

-Workers compensation is an exclusive remedy, can’t sue employer under tort

Workers compensation as an exclusive remedy

-Employees are entitled to damages under WC for injury/death that occurred within the scope of employment

-Under WC, “injury” is defined as harm/pain to any bodily activity/capability

-IIED/NIED are covered under WC (can’t sue employer for that)

Dollar Bank Case Takeaway

-The exclusivity of workers compensation is NOT a bar to defamation

-Employees are allowed to sue because defamation is not a physical injury or occupational disease

Factors to determine whether you are an employee or independent contractor

-Right/exercise of control

-Furnishing of equipment

-Right to fire

-Method of payment

Considerations for employee v. independent contractor

-No one factor is dispositive of the relationship

-Evidence that weighs in favor of employee: employer dictates when/where the claimant drives/works; employer controls the methods/means of completing work; employer has the right to terminate claimant for multiple/no reasons; W2

-Evidence that weighs in favor of independent contractor: filing as self-employed on taxes; provide own equipment/tools;

Employee’s commute

-General rule: Employer isn’t liable to the employee for compensation for injuries received off the employer’s premises while the employee is traveling to/from work

-4 Exceptions: Claimant’s employment contract includes transportation to/from work; claimant has no fixed place of work; claimant is on a special mission for employer; special circumstances are such that claimant was furthering the business

Traveling employees

-Traveling employee’s actions must be so foreign as to constitute abandonment of employment in order to NOT be considered in the scope of employment

-Personal comfort doctrine: Brief temporary departures to administer to personal needs do not take the employee out of the course of employment

When is an employee in the course of employment

-When furthering the employer’s business OR

- (1)The injury occurs on the premises occupied or under the control of the employer; (2) The employee’s presence on the employer’s premises is required by the nature of the employment; and (3) The employee’s injury was caused by a condition of the premises or by the operation of the employer’s business there on

Things that take an employee out of course of employment

-Abandonment of employment, purely personal activities

-Violation of a positive work order

-Personal animus: Acts of another intended to injure employee unrelated to work

-Intoxication: Must be the cause in fact of the injury (proximate cause)

Violation of a positive work order

-Burden of proving that the claimant violated a positive work order is on the employer

-Employer must establish that the injury was, in fact, caused by the claimant’s violation of the order/rule, that the claimant actually knew of the order/rule, and that the order/rule implicated an activity not connected with the claimant’s work duties

-Employer must prove: (1) employee violated a positive work order; (2) employee was engaged at the time of the injury in an activity so disconnected with his regular duties to be considered nothing more than a stranger/trespasser; (3) the injury arose out of the employee’s engagement with instrumentalities/places/things about or on which he had no duty to perform; and (4) the injury arose out of matters with which the employee’s employment did not connect him

-Not favored by courts because it injects contributive negligence into workers compensation

Types of workers compensation

-Injuries

-Occupational disease: Disease so closely related to injury, presume causation, burden shifts to employer, can seek to get disease classified

-Specific loss: Only disability is related to loss of body part; employer may assert specific loss in order to cap the amount of compensation and get credit for what they already paid

-Disfigurement/scars

-Mental disability:

• Physical - Mental: Physical injury causes mental (ex. no leg causes depression)

• Mental - Physical: ex. stress causes heart attack

• Mental - Mental: ex. PTSD; not favored due to concerns about subjective reaction to workplace (need to prove habit)

Tools of employer

-Termination

-Suspension: Claimant still injured but can work

-Partial disability: Do job within restrictions; get 2/3 difference between old and new job income; 500 week limit

-Independent medical exam

-Impairment rating expert

-Earning power assessment: Review claimant and opine to earning power (only pay in line with potential)

-Settle: Compensate and release (can settle for lost wages and/or medical bills)

Supercedes

-Stay of pain benefits during litigation/before appeal

Subrogation

-Claimant recovers from tortfeasor and must compensate money (reduced by share of attorney’s fees)

Unemployment compensation

-For those unemployed through no fault of their own

-Need willful misconduct to be barred from unemployment compensation

-Limited

-If you quite you are not eligible unless necessitas/compelling reason

OSHA

-Occupational safety health act

-General duty clause: employers must make it safe

-Can’t exceed congressional authority

Fair labor standards act

-Time plus ½ if working over 40hrs

-Exemptions for certain employees (depends on daily tasks/bonafide admin or managerial work)

FMLA

-12 weeks of leave in a 12 month period to take care of yourself/family

Termination at will

-Can be terminated for any reason or no reason

-No common law cause of action

Noncompete restrictive covenants

-Con relate to employment on sale of business

-Must be supported by consideration (ex. job acceptance)

-Limited in time/territory

-If there is a restriction on confidential information, the standard isn’t “reasonable” what matters is whether the info is actually confidential

Injunction

-No equitable remedy if legal remedy exists

Internship

-Internship must be for the benefit of the intern MORE than the employer (bonafide educational experience)

-Intern cannot be displacing paid staff

-Interns can impede employer’s activities