At-WIll-Employment
An employment, having no specified term, may be terminated at the will of either party
Specified term: employment for a \n period greater than one month
ON notice of either party
How does the at-will-employment rule work in favor of the employer?
Can terminate for any legal reason, including good & random
( “good” reasons: theft, violation of rules, layoffs, etc.
random reasons - coin flips, etc.)
What are exceptions to the At-Will-Employment Rule?
Contract
Public Policy
What is meant by the contract exception (to the at-will-employment rule?)
an employee may have an expectation of a fixed term or even indefinite employment based on something the supervisor has done
What is meant by the public policy exception (to the at-will-employment rule?)
protects employees from being fired for reasons that violate public policy
being fired for refusing to do something illegal
indefinite employment based on something the supervisor has done
An employment contract can be:
A. Written
B. Oral
C. Implied from industry standards
E. Any of the above choices OR a combination
Any of the above choices OR a combination
What does “good cause” mean?
Shown by employee’s actual misconduct
OR “mistaken belief” of misconduct
More difficult, requires more effort
Likely to be found in executives / high ranking employees
What is meant by breach of the implied covenant of good faith and fair dealing?
each party will not do anything to unfairly interfere with the right of any other party to receive the benefits of the contract
cannot create obligations that are inconsistent with the terms of the contract
Ex. employer starts scheduling \n employee during inconvenient hours or reduces employee’s hours
Actual Termination of Employment
No precise words or methods are required
One or both parties need to show clear relationship just need to show clear intention to end the employment
no due process or other rights unless required by required by contract
Constructive Termination of Employment
Occurs when employer’s conduct forces employee to resign
employment relationship is actually severed by the employer’s acts, against employee’s will
The Turner case lists several elements for constructive case lists several elements for constructive \n termination (4):
Intolerable working conditions which are unusually \n aggravated or amount to a continuous pattern
must be sufficiently extraordinary and egregious for \n the normal employee to remain on the job and serve the employer
Employer must intentionally create or knowingly \n permit the intolerable working conditions
Employer’s breach of employment contract or \n violation of public policy.violation of public policy. \n
determination of whether working conditions were \n intolerable
Longer time on the job can show working \n conditions were not intolerable after all
^ in favor of the employer/company
What is a tort?
generally defined as a wrong not based on a \n contract
Examples of torts covered in MGMT 445 (4):
Defamation.
Intentional infliction of emotional distress.
Retaliatory demotion.
Misappropriation of trade secrets
Defamation
False statement of fact
Published to a third party, causes FINANCIAL LOSS
Libel
Written defamation
“… exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or … injure him in his occupation”
Can appear in newspapers or online publications (like blogs)
Slander
spoken defamation
more limited
Libel per se
Not libel unless plantiff alledges & proves he has suffered special damages
Slander includes (5):
Charging a person with a crime
Alleging that someone has an infectious disease
Injures someone in their trade/profession OR affecting their profits
Exposing someone to chastity
Causes actual (financial) damage
What are the 2 defenses to defamation
Absolute privilege
Qualified privilege
For ____, the publication cannot be the basis for defamation
Absolute privilege
____ is an absolute defense
Truth
Opinion
Protected by constitutional free speech rights
Qualified privilege
Protects defamatory statement under Section 47(c) if it is:
without malice to a person interested therein:
someone who is also interested
stands in relation to person interested, or
job reference is requested by the person interested to give the info
Intentional Infliction of Emotional Distress (IIED)
Arises from defendant’s “outrageous conduct” → causes plantiff to suffer severe emotional distress
insults/indignities do not count
Retaliatory Demotion
Employee claiming employer retaliated by demotion (instead of termination) due to employee’s protected activity
(like whistleblowers, refusal to do illegal act)
Trade Secrets
Information (formulas, techniques, programs, etc.) that:
Derive actual or potential economic value
from not being known to public / others that can gain profits from use
Can be something that is patentable, but company chooses not to register w/ federal govt.
Ex. Coa Cola
When do Trade Secret cases usually occur?
Employee leaves company to work for competitior
employer accuses former employee of theft (usually customer list or secret formula)
Employer must act promptly to protect its rights
What are the remedies to Trade Secrets?
Injunction
Motion for predudgement injunction
Injunction (TRO, preliminary, permanent)
Stopping the defendant
For actual or threated misappropriation
What is meant by Section 3426.2?
Injunction terminated when trade secret no longer exists
Can continue to eliminate commercial advantages
Motion for prejudgment injunction
Often the employer’s first attempt at a remedy
What is a TRO?
temporary restraining order
What are Trade Secrets’ damages based on? (3)
Actual (financial) loss
Unjust enrichment
Reasonable royalties (if the other 2 are provable)
The right to privacy is?
Fundamental right
“the right to be left alone”
What does the 4th amendment entail?
Prohibits unreasonable search & seizure
Who does the 4th amendment protect?
Public sector employees NOT PRIVATE
What does California Constitution, Article I, Section 1 State?
Right to privacy
Applicable to everyone in the state (both public & private sector)
What is meant by Evidence Code section 954?
Lawyer-client privilege
Attorney can’t disclose any confidential communications
What is Evidence Code 994 / CA Civil Code section 56?
Physician-patient privilege
A person may not claim privilege if person is instructed to permit disclosure
What does Evidence Code Section 1119 entail?
Meditation confidentiality
“anything said” during meditation cannot be used as evidence in court
EXCEPT for final written agreement (that both parties sign)
Encourages open communication between parties & mediator
What were the findings in Cassel v. Superior Court, 51 Cal. 4th 113 (2011)
evidence of misconduct during mediation cannot be used in court because
go against the goal of open communication in mediation
so, mediation communications are confidential and generally can't be used as evidence in court
except for a few specific exceptions that are listed in the Evidence Code
What are the 3 main common law theories?
Use of a person’s name, picture or \n likeness for commercial purposes \n without permission (business tort)
In California is a statute
Intrusion into a person’s private life (intentional, offensive, causes financial loss)
Public disclosure of private facts
Fact is private
Fact would be offensive & objectionable
was not of legitimate public concern
What does “The Working Law – Rights and Responsibilities of Users of the Rider University Computer Network (page 60)” state?
Users must only use it for academic or administrative purposes and follow rules for security, privacy, copyright, and network resources.
University may monitor network activity and violations can result in consequences.
The document emphasizes using the network responsibly and ethically.
\n Why should an employer have broad power to \n monitor an employee’s on-the-job behavior? To monitor:
Productivity and customer service concerns.
Protection against claims such as \n discrimination or sexual harassment.
True of False: A third party seeing/hearing sexual content can be grounds for sexual harassment or a hostile work environment?
True
What are examples of employers' rights to limit off-duty conduct? (3)
Limits on marriage/fraternalization
Limiting co-workers dating
Limits on supervisor + employee dating
What is the definition of an employee?
Work for an employer and are controlled by them
Receive benefits from the employer
Taxes (federal & state) are withheld by the employer
Provided with resources by the employer
Covered by workers' compensation and unemployment insurance
What is the definition of an independent contractor?
Work independently for employer
Don't receive benefits from employer
Must pay their own taxes
Provide their own resources
Responsible for their own insurance, including liability and workers' compensation
What does California Code of Civil Procedure Section \n 706.011(e) cover?
Definition of employee: \n - a public officer and any individual who performs \n services.
“continue indefinitely”
subject to the right of the employer, employer can control:
what shall be done
how it shall be done
Describe the work of an independent contractor.
Results-based, usually fixed period
Control over how the job is done
Hired for expertise
ex. plumbers
According to IRS Publication 15A, what is Behavioral Control?
Includes: instructions, training, integration, evaluation, & control over financial aspects
Instruction -
when & where to do work
what workers to hire to assist with work
order/sequence to follow
Training
the extent which employer directs & controls how worker does their job
According to IRS Publication 15A, what are factors that contribute to Financial Control?
Extent of unreimbursed business expenses
IC’s more likely to be unreimbursed
Extent of worker’s investment in job
Extent to which worker makes their services available to rest of market
Ex. Some employees may have signed a contract stating they can only work at their company
How business pays the worker (timing & method of pay)
Employees - have standard wages
IC - have more flexibility (can be on a commission basis, flat fee, on a time/material basis, etc.)
Extent to which worker can make a profit/loss
IC - has opportunity to operate at a loss
Definition of "Type of Relationship” according to IRS Publication 15A?
Written contract describing intended relationship
Benefits (or lack thereof)
Permanency of relationship
If the work is a key aspect of the employer’s business
if key = usually employee
IRS help
What is the “ABC test” in Dynamex Operations West, Inc. v. Superior Court?
Worker can be considered an independent contractor if:
A - the worker is free from control & direction of employer, so long as performance is good
B - Worker performs duties outside of the usual course of business
i.e. is the work different than the business as a whole
C - If the worker has an independently established trade/occupation/business SEPARATE & DISTINCT from employer
According to CACI 3720, an employee is in the scope of employment if:
A. The task is reasonably related to the kinds of tasks that the employee was supposed to perform OR
B. Reasonably foreseeable in light of employer’s business/ employee’s job responsibilities
What does the Unauthorized Acts in CACI 3722 state?
employee’s acts may be within the scope if:
conduct committed in series of acts AUTHORIZED BY EMPLOYER OR
conduct arose from a risk in / created by business
True or False: An employee’s wrongful or criminal conduct may be within the scope of employment even if it breaks a company rule or does not benefit the employer
True
why:
Depends on
if conduct was within work hours (or time/space of employer) AND was INTENDED to serve employer
Basically - not necessarily “within scope” but the employer IS responsible
True or False: If an employee combines their personal business with the employer’s, then their conduct is within the scope of employment UNLESS the employee substantially deviates.
True*
(depends on time, distance, and employee focus)
What are deviations that don’t count as abandoning an employer’s business, according to CACI 3723? (4)
Acts necessary for employee’s comfort, health, and convenience
Deviations from the most direct route
Incidental personal acts
Minor delays
According to CACI 3724, what are the terms (2) that determine if a social/recreational activity is within the scope of employment?
If it is carried out with the employer’s stated or implied permission
Provide a benefit to the employer or have become customary
True or False: In CACI 3725 (Going-and-Coming, Vehicle-Use Exception) , an employee is within the scope of employment while traveling to and from the workplace
False*
( if an employer requires the employee’s vehicle to be available for / to the business, then it is true)
When is driving to and from work within the scope of employment? (3)
Employee has agreed to make vehicle available as an accommodation to the employer
Employer reasonably relies on vehicle use, and expects employee to make it available regularly
Can be expressed or implied
According to CACI 3726, the Business-Erand Exception, what factors should be considered :
Intent of Employee
Nature, time, place of conduct
Task of employee
Incidental acts employer should have reasonably expected the employee to do
Amount of freedom allowed to the employee
Time consumed in personal activity
Ex. fast food vs a sit-down
Ex. getting a birthday card vs going to a baseball game
Arbitration
private (out of court) dispute resolution procedure
Final & binding decision
Very limited review by courts
When is arbitration commonly used?
Labor-management disputes
How are arbitrators and mediators different?
Arbitrators:
Make a final decision that is binding
Mediators:
Help parties reach a mutually acceptable solution
DO NOT impose a decision
What is “arbitration” according to Cheng-Canindin v. Renaissance Hotel Associates? (5)
(1) a third party decisionmaker
(2) a mechanism for \n ensuring neutrality with respect to the rendering of the \n decision
(3) a decision maker who is chosen by the \n parties
(4) an opportunity for both parties to be heard, \n (5) a binding decision \n
True or False: due process and other judicial procedural protections are required for arbitration agreements/awards
False
What is required for arbitration? (2)
“Fundamentally fair” process
Parties have discretion to craft their arbitration agreement to fit their needs/preferences
Procedural unconscionability
“Take it or leave it”
presented by stronger party to weaker party
Substantive unconscionability
Harsh, one-sided arbitration agreements, favoring stronger party
SUBSTANCE of clause is flawed
True or False: both procedural & substantive unconscionability must be present for arbitration agreement to be invalidated.
True