MGMT 445: Exam 1

At-WIll-Employment

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):

1. Intolerable working conditions which are unusually \n aggravated or amount to a continuous pattern

   1. must be sufficiently extraordinary and egregious for \n the normal employee to remain on the job and serve the employer

2. Employer must intentionally create or knowingly \n permit the intolerable working conditions

3. Employer’s breach of employment contract or \n violation of public policy.violation of public policy. \n

4. determination of whether working conditions were \n intolerable

   1. Longer time on the job can show working \n conditions were not intolerable after all

      1. ^ 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):

1. Defamation.

2. Intentional infliction of emotional distress.

3. Retaliatory demotion.

4. 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):

1. Charging a person with a crime

2. Alleging that someone has an infectious disease

3. Injures someone in their trade/profession OR affecting their profits

4. Exposing someone to chastity

5. 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:

• 1. someone who is also interested

  2. stands in relation to person interested, or

  3. 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:

1. Derive actual or potential economic value

   1. from not being known to public / others that can gain profits from use

2. Can be something that is patentable, but company chooses not to register w/ federal govt.

   1. 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?

1. Injunction

2. 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)

1. Actual (financial) loss

2. Unjust enrichment

3. 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)

1. Acts necessary for employee’s comfort, health, and convenience

2. Deviations from the most direct route

3. Incidental personal acts

4. Minor delays

According to CACI 3724, what are the terms (2) that determine if a social/recreational activity is within the scope of employment?

1. If it is carried out with the employer’s stated or implied permission

2. 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)

1. Employee has agreed to make vehicle available as an accommodation to the employer

2. 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)

1. “Fundamentally fair” process

2. 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