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Chapter Seventeen | Employment Law, Regulation and Labor Law
History of Employment Law
For most of recorded history, employment law simply did not exist. There were no laws prohibiting discrimination or sexual harassment, no rules regulating the safety of the workplace, and no concept of unions. Traditionally, workers followed their parents into a profession or job, such as being merchants, tailors, bakers, farmers, and performed that job for their lifetime. Common law viewed the employment relationship as a private agreement between the employer and the employee. During the industrial revolution in the nineteenth and early twentieth centuries, workers left their agrarian lifestyle and migrated to cities to work in factories. Traditional bonds between landowner and worker broke down. Employees worked in grueling conditions in factory jobs for bosses who cared little for their workers well-being or safety. The muckraker Upton Sinclair portrayed these conditions vividly in “The Jungle.” Legislators, at the state and federal levels, responded to workplace abuses with a number of laws protecting workers rights. These acts are the foundation of current employment law, enacted to protect the physical, financial, and legal rights and expectations of workers in the United States.
The Employment Relationship
The employment relationship is a unique relationship that relies upon the skill, talents, and strengths of both the employer and the employee. The employment environment must be dynamic and responsive to changing social and legal developments. Employers and employees both need to be aware of social trends that affect the duties and obligations inherent to the employment relationship. Employees earn the necessities of life — food, clothing, and shelter — by working in productive employment and they rely upon their employers to supply a salary and contribute to work-related benefits, such as healthcare and retirement plans. Employers rely upon employees to achieve their business goals. An employee may believe that working long hours, performing well, behaving ethically, and remaining loyal to an employer will result in job security. In today’s employment environment, job security is often contingent on the type of employment. Employees are either hired by employers for a length of time as “contract employees” or are “at will” employees.
Employment contracts set forth the start and end dates and the terms and conditions of employment. These agreements are typically drafted by the employer and are usually written in the employer’s favor. Contract employees do not automatically waive their statutory employment rights and protections. However, employees who enter into employment contracts should obtain review and advice before entering into any binding agreement, as many statutory rights can be waived in an agreement.
At Will Employment
The majority of employees in the United States are “at will” employees. The doctrine of employment at will provides that an employer can fire the employee at any time, for any or no reason, with no notice; at the same time, the employee can quit at any time, for any or no reason, with no notice. Workers can be terminated (or fired, discharged, laid off or let go) for economic reasons (including reductions in force), personality conflicts, lack of “fit” in the organization, lack of work, and unsatisfactory job performance. Workers may also be terminated for a myriad of additional reasons including those provided in an employee handbook, an employee code of conduct, and for violations of local, state and federal laws. An employee who has been terminated may seek contractual and statutory damages and equitable remedies if the termination is later found to be illegal. As the following case shows, a review of policies and procedures prior to taking actions affecting the employment relationship can greatly reduce an employer’s risk of liability.
Metcalf v. Intermountain Gas Co.
778 P.2d 744 (Idaho)
Plaintiff, a former employee, filed an action against defendant corporation after the former employee’s hours were significantly reduced following her extensive use of accrued sick leave. The trial court granted summary judgment in favor of the corporation on the claims for breach of employment contract and breach of an implied covenant of good faith and fair dealing. The former employee appealed.
The former employee made extensive use of her accrued sick leave but never exhausted all of the time available to her. She was forced to quit to find better employment when her hours were reduced to two hours a day. The court found that summary judgment on the issue breach of employment contract was not appropriate because a material issue of fact existed regarding whether, by providing for accumulated sick leave benefits, the corporation impliedly agreed with the former employee that the employment relationship would not be terminated or the former employee penalized for using the sick leave benefits which had accrued. The court also found that summary judgment on the claim for breach an implied covenant of good faith and fair dealing was not appropriate. The court for the first time recognized an implied-in-law covenant of good faith and fair dealing in employment contracts. The covenant that the court adopted was grounded in contract, not tort, thus limiting recovery to contractual damages, and was violated by any action by either party that violated, nullified or significantly impaired any benefit of the employment contract.
The court reversed the trial court’s grant of summary judgment in favor of the corporation on the former employee’s claims for breach of employment contract and breach of an implied covenant of good faith and fair dealing and remanded to the trial court for further proceedings.
Exceptions to Discharge At Will
Employees who are not subject to at will termination include the following:
- Contract employees (as per the employment contract);
- Implied contract employees (usually a long-term, high level employee, wherein promises were made to the employee, or are found in an employment manual or handbook that prohibit termination without cause);
- Union employees (the terms of the collective bargaining agreement between the employer and the union will govern discharge); Public employees working for local, state and federal agencies and governments. Typically, public employees must be discharged for cause, which is defined in civil service rules and regulations.
Public policy exceptions to at will termination protect employees when society deems the action so unfair or unreasonable that statutory law or common law specifically prohibits them. Situations where employees are not subject to at will termination due to public policy considerations include:
- An employer may not terminate an employee for refusing to participate in an illegal activity, e.g., illegal dumping of hazardous material or committing perjury.
- An employer may not discharge an employee for performing an important public obligation, such as jury duty.
- An employer may not fire an employee for exercising a legal right (ex: voting) or interest (ex: legally filing a worker’s compensation claim).
- An employer may not terminate an employee if prohibited by state or federal statute from doing so (ex: discrimination) or for exposing legal wrongdoing in the employee’s company (ex: whistleblowing).
- Pursuant to an implied covenant of good faith and fair dealing, an employer may not dismiss an employee for performing an act that public policy would encourage or refusing to perform something that public policy would condemn, when the discharge is linked with a showing of bad faith, malice or retaliation.
Employers can avoid potential employee litigation and liability for wrongful termination by being aware of what has been promised to an employee during the hiring process and what may be contained in an employee handbook, or in any oral statements or promises made by an employer; educating supervisors; reviewing performance evaluations of employees; reviewing hiring and firing policies and procedures including those that relate to warnings and suspensions; and having an attorney review any terminations prior to taking effect.
Cocchiara v. Lithia Motors, Inc.
297 P.3d 1277 (Or. 2013)
Petitioner, an employee, challenged a decision from the Court of Appeals (Oregon), which affirmed the trial court’s summary judgment in favor of respondent, the employer, based on the employee’s promissory estoppel and fraudulent misrepresentation claims.
The employee, who worked as a salesperson for the employer, told his manager that he was leaving to work for another company. He alleged in his complaint that his manager told him a new position was available and, after calling the employer’s corporate offices, the manager told the employee that he definitely had been given the position. In reliance on that information, the employee turned down the job with the other company. The employer did not hire him for the new position. The court held that the at-will nature of the new position did not preclude the employee from pursuing his claims of promissory estoppel and fraudulent misrepresentation. The parties’ lengthy employment relationship might have made it reasonable for the employee to rely on the promise of employment, even though the new position was terminable at will. Moreover, the at-will nature of the new position did not create a conclusive presumption that the employee could not prove damages consisting of future lost wages. He could attempt to show the likely duration of employment. Pleading only damages associated with the loss of the new position, and not damages associated with turning down the other job, did not defeat the fraud claim. In Oregon, the general rule is that an employer may discharge an employee at any time and for any reason, absent a contractual, statutory, or constitutional requirement to the contrary. The focus of the at-will employment doctrine is on termination: Both the employer and the employee have a right to terminate the employment relationship for any reason or for no reason without liability. As a result, when employment is at will, typically, neither party can expect the employment to continue for any specified period of time. Perhaps because the at-will employment doctrine focuses on termination, courts have disagreed regarding the significance of the at-will nature of employment before employment begins. In particular, courts have disagreed whether it is reasonable to rely on an offer of at-will employment, which in turn affects whether an employer’s termination of an at-will employment agreement before the employee begins working is actionable under a theory of promissory estoppel or fraudulent misrepresentation. **** A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. The requirement that enforcement be necessary to avoid injustice may depend on the reasonableness of the promisee’s reliance, and on its definite and substantial character in relation to the remedy sought, among other things.
The at-will nature of an underlying promise of employment does not bar a claim based on promissory estoppel, even if it might limit the nature of the damages available in some cases. An employer’s legal right to fire an employee at any time and for any reason absent contrary contractual, statutory, or constitutional requirements does not carry with it a conclusive presumption that the employer will exercise that right. Absent that presumption, it may be reasonable for an employee to rely on a promise of employment, because the employee may have reason to believe that the employer’s right to terminate at will not be exercised before the employee begins work. Particularly where the employee has had a lengthy employment relationship with his employer, and the employer asserts the employee’s value to the company, it may be reasonable for the employee to rely on the promise of employment, even though the job is terminable at will. However, reasonableness is an issue for the jury, considering all the relevant circumstances.
The court reversed the lower courts’ decisions and remanded to the circuit court for further proceedings.
Employment Regulations and Protections
In addition to common law protections of their rights, employees enjoy certain statutory protections at the federal, state, and local levels regarding what have been termed “financial expectations” and “physical well-being expectations.”
Social Security Act (SSA) of 1935
The Social Security Act established retirement, disability, and survivor benefits for workers, their spouses, and their dependent children. Employers and independent contractors who do not comply with the requirements of this act face financial penalties in the form of fines and interest on unpaid taxes. The Social Security Administration administers this act.
Federal Unemployment Tax Act (FUTA) of 1935
Unemployment compensation, or unemployment insurance, is a benefit paid to private sector workers terminated without cause or through no fault of their own. Unemployment compensation is state-specific and funded by federal and state employment taxes on employers. During times of economic upheaval, the federal government has authorized extended periods of benefits. Federal, state, and railroad employees are subject to similar statues.
Fair Labor Standards Act (FLSA) of 1938
The FLSA specifies the minimum wages to be paid covered workers, when overtime payments are due, and places restrictions on child labor. Employers engaged in interstate commerce must comply with this act or face fines and penalties. The Wage and Hour division of the Department of Labor administers this act.
Equal Pay Act of 1963
The Equal Pay Act requires that men and women receive equal pay for jobs requiring equal skill, effort, responsibility, and working conditions. Under this act, an employee may not be paid a lesser rate than employees of the opposite sex for the same work. The Equal Employment Opportunity Commission (EEOC) administers the law. Unless the pay difference can be justified by such factors as merit, seniority, productivity, or some other “non-gender” factor, the employer will be held responsible if unequal pay exists between genders under an analysis called the “Kress Test.” Under the act, wages can include more than hourly or annual pay, and may involve payments for insurance, employee benefits, and other perquisites. A violation of the Equal Pay Act may also be a violation of Title VII of the Civil Rights Act of 1964.
Today, women are still not paid equal wages with men for equal work, and many maintain that the Equal Pay Act has not done enough to guard against pay inequities. Some argue that the doctrine of comparable worth should apply – equal pay for work of comparable value. However, this concept can create problems as to what to reference in order to define “worth.” Society? The employer? Some other point of reference? What happens when jobs are not equal, but have “equal” or “comparable worth” to society? Which job adds more value to society? Moreover, if the two jobs add “comparable value” to society, shouldn’t the two occupations be similarly compensated?
In Corning Glass Works v. Brennan, the U.S. Supreme Court addressed the Equal Pay Act in light of pay differentials for men and women on different work shifts.
Corning Glass Works v. Brennan
417 U.S. 188 (1974)
The Secretary of Labor instituted two actions, one in New York and one in Pennsylvania, to enjoin the employer from violating the [Equal Pay] Act by the practices stated above and to collect back wages allegedly due female employees because of past violations. The District Court rendered judgment for the Secretary and the United States Court of Appeals for the Second Circuit, modifying some provisions of the injunction not relevant in the instant review proceedings, affirmed the District Court’s judgment as modified, the District Court rendered judgment for the employer and the Court of Appeals for the Third Circuit affirmed (480 F2d 1254).
Corning Glass Works, which operates plants both in New York and in Pennsylvania, paid its night inspectors, who were all male, significantly higher wages than its day inspectors, who were all female and performed the same tasks. The employer continued this practice after the effective date (June 11, 1964) of the Equal Pay Act of 1963 (29 USCS 206(d)(1)), which prohibits sex discrimination by an employer in the payment of wages for equal work. Beginning in June 1966, the employer started to open up jobs on the night shift to women. Previously separate male and female seniority lists were consolidated and women became eligible to exercise their seniority, on the same basis as men, to bid for the higher paid night inspection jobs as vacancies occurred.
On January 20, 1969, a new collective bargaining agreement went into effect, establishing a new “job evaluation” system for setting wage rates; the agreement abolished for the future the separate base wages for day and night shift inspectors and imposed a uniform base wage for inspectors exceeding the wage rate for the night shift previously in effect. All inspectors hired after January 20, 1969 were to receive the same base wage, whatever their sex or shift. The collective bargaining agreement further provided for a higher “red circle” rate for employees hired prior to the date of the agreement, when working as inspectors on the night shift; this “red circle” rate served essentially to perpetuate the differential in base wages between day and night inspectors.
The Supreme Court held the Equal Pay Act of 1963, 29 U.S.C.S. § 206 et seq. is “…violated by an employer’s paying a lower base wage to female day inspectors than to night shift inspectors, where the female inspectors performed the same tasks as their male counterparts and the higher wage was paid in addition to a separate night shift differential paid to all employees for night work.” The Court noted, “the purpose of the Equal Pay Act of 1963 (29 USCS 206(d)(1)), requiring that equal work be rewarded by equal wages irrespective of sex, is to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry, that is, the fact that the wage structure of many segments of American industry was based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman, even though his duties are the same.”
The [Equal Pay] Act establishes four exceptions — three specific and one a general catchall provision — where different payment to employees of opposite sexes is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. Under the Equal Pay Act, once the Secretary of Labor has carried his burden of showing that the employer pays workers of one sex more than workers of the opposite sex for equal work, the burden shifts to the employer to show that the differential is justified under one of the Equal Pay Act’s four exceptions.
On writs of certiorari, the United States Supreme Court affirmed the judgment of the Second Circuit Court of Appeals and reversed the judgment of the Third Circuit Court of Appeals, remanding the case to that court.
The Court held that (1) the employer violated the Act by paying a lower base wage to female day shift inspectors than to male night shift inspectors; and (2) the employer did not cure its violations of the Act by permitting, in 1966, women to work as night shift inspectors nor by equalizing, in 1969, day and night inspector wage rates but establishing higher “red circle” rates for existing employees working on the night shift.
The Court affirmed the Second Circuit ruling and reversed the Third Circuit ruling.
Civil Rights Act of 1964
Civil Rights Acts enacted in 1866 and 1870 prohibited intentional discrimination based upon race, color, national origin, or ethnicity. However, it was not until the enactment of the Civil Rights Act of 1964 that workers received legal protection from workplace discrimination based upon race, sex, color, religion, and national origin. The Civil Rights Act of 1964 represents one of the most important developments in the twentieth century in employment law and is discussed more in-depth in the chapter on employment discrimination. It should be noted that not all forms of employment discrimination, for example, that based on an employee’s sexual orientation is address by the act, and are not illegal unless there is a special state law providing protection for a worker.
Employee Retirement Income Security Act (ERISA) of 1974
ERISA applies to private sector employers who establish a pension benefit or other employee benefit plans (health, disability, death, legal services, etc.) for their employees. The act specifies how persons become vested in pension plans, how employers fund such plans, how pension funds are to be invested, and how employees may file an appeal in a case where retirement benefits are improperly denied them.
The Department of Labor, Employee Benefits Security Administration (EBSA) (formerly the Pension and Welfare Benefits Administration – PWBA) and the Internal Revenue Service administer the act. The Pension Benefit Guaranty Corporation (PBGC), created by ERISA, also serves to protect the retirement income of American workers when companies cease to exist, and is funded by employer insurance payments. The passage of ERISA was greatly influenced by the collapse of the Studebaker Corporation in the 1960s which resulted in the loss of pension and health benefits for its employees.
Worker Adjustment and Retraining Notification (WARN) Act of 1988
The Worker Adjustment and Retraining Notification (WARN) Act requires employers of more than 100 workers to give advance notice – up to 60 calendar days – of plant closings or mass layoffs.
Occupational Safety and Health Administration Act (OSHA) of 1970
OSHA creates a general duty for employers to provide work environments that do not harm their employees. Employers must comply with minimum safety and health standards in the workplace. Employees, labor representatives, or the government itself has the authority to inspect work sites if there is a reason to believe a violation of OSHA has occurred. OSHA violations leave employers vulnerable to fines, penalties, corrective action, administrative oversight, and potential criminal sanctions. The Occupational Safety and Health Administration agency administers this federal act.
Many states have enacted their own equivalent of OSHA, so employers need to be aware of both federal and state requirements. Some states have also enacted their own “Right- to–Know” laws that guarantee individual workers and local communities the right to know what, if any, hazardous chemicals are present in the workplace. This information is also required under the federal statute.
Workers Compensation Statutes and Disability Statutes
Workers compensation statutes provide for wage replacement, medical treatment, vocational training, compensation for permanent disability from workplace injury or illness, and other benefits for employees who suffer injury or illness either at the workplace, or on a job site. The Department of Labor, Office of Workers Compensation Programs administers benefits to injured federal employees. States have created their own administrative agencies to run state programs and require employers to fund state programs by paying for workers compensation insurance. Laws vary from state to state.
An employee who is injured or suffers illness on the job or at a workplace, is not required to apply for workers compensation; but if he or she does, then the employee must comply with the state workers compensation insurance requirements for treatment. If the employee believes that he or she is receiving unfair treatment, or the employer believes there might be some type of fraud, a claim may be filed with the workers compensation court or board. An administrative law judge oversees these types of cases until the case has been closed. All expenses, including medical expenses, are a lien against any potential judgment an employee may win in a civil suit brought against the employer and/or responsible third parties.
Employee disability that occurs outside the workplace is governed by several federal and state laws, including the Social Security Act, the Americans With Disabilities Act, and state short-term or long-term disability statutes. Both employers and employees pay taxes to fund state disability programs. Statutes govern the definition and determination of various types of disabilities. Employers must be aware of the impact of these laws on employee accommodations and the workplace environment.
Consolidated Omnibus Budget Reconciliation Act (COBRA) 1985
The Consolidated Omnibus Budget Reconciliation Act (COBRA) 1985, amended ERISA to allow qualified employees to maintain group health, dental, and vision benefits upon termination. This act applies to employers with twenty or more employees that offers a group health plan. The terminated employee has sixty (60) days to elect this continuing coverage and must pay the entire premium, plus an administrative fee.
Health Insurance Portability and Accountability Act (HIPPA) of 1996
The Health Insurance Portability and Accountability Act (HIPPA) of 1996 amended ERISA to provide for improved portability and continuity of health insurance coverage for employees belonging to a group health plan at their work place. HIPPA also gives employees additional protections relating to coverage exclusions or denial of coverage due to preexisting conditions, and enrollment rights, and also prohibits discrimination based on a variety of health and non-health status-related factors. HIPPA’s extensive privacy rules protect individual employee’s expectations of privacy regarding their medical records and other information. The U.S. Department of Health and Human Services Office for Civil Rights enforces HIPPA’s privacy rule.
Amendments to ERISA that protect employee health include the Newborns’ and Mothers’ Health Protection Act of 1996, which requires employer group plans that offer maternity coverage to pay for at least a 48 hour hospital stay following childbirth (96 hours if a cesarean section), and by the Women’s Health and Cancer Rights Act of 1998, which extends protection to employee-patients who elect breast reconstruction in connection with a mastectomy. Additional protections for employee medical records is provided in the Americans With Disabilities Act and in various state statutes.
The Family Medical Leave Act (FMLA) of 1993
The Family Medical Leave Act (FMLA) was enacted in response to growing concerns about balancing work and home life in the event of family medical emergencies and conditions. This federal act applies to employers who have 50 or more full-time employees within a 75 mile range and allows eligible employees to take up to 12 work weeks unpaid, job protected leave. Eligible employees must have worked for a covered employer for at least 12 months (can be nonconsecutive months) and have at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave.
Leave may be taken for the birth, adoption, or foster care of a child; to care for a spouse, child, or parent who has a serious health condition; for an employee’s own serious health condition that makes the employee unable to perform the essential functions of his or her job; or for any qualifying exigency arising out of the fact that a spouse, child, or parent is a military member on covered active duty or called to covered active duty status. Leave may be taken for the full 12 workweeks, or any amount of that time, continuously or on an intermittent basis (up to 26 weeks when caring for a service member that is a parent, spouse, son or daughter, or the employee is the next of kin of the service member). Employers may require the employee to use paid leave time prior to or concurrent with FMLA time. Employers may request proof of the medical reason for the leave request. Employees must comply with the employer’s leave request policies whenever possible.
Protections afforded to employees under the act include restoring an employee to his or her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment; FMLA leave cannot be counted against the employee under a “no-fault” attendance policy; and continuation of group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave. Restoration of benefits other than health insurance, are determined based on the employer’s policies. Employees who may be denied restoration are those deemed to be a “key” employee – among the highest-paid 10 percent of all of the employer’s employees within 75 miles – if the employer proves substantial and grievous economic harm, gives notice to the employee, and gives the employee the opportunity to return to work. The Department of Labor, Wage and Hour Division administers this act.
Patient Protection and Affordable Care Act (PPACA) of 2010
The 2010 enactment of the Patient Protection and Affordable Care Act (PPACA), affects employers and employees across the country. Also known as the “Affordable Care Act” (ACA) or “Obamacare,” this act, together with the Health Care and Education Reconciliation Act of 2010, creates a mandate that employers with 50 or more employees who do not offer health insurance to their full-time employees must pay a tax penalty. These acts also extends coverage and privacy protections for patients. The employer mandate went into effect in 2015. The tax penalty may also apply to an individual who does not possess health insurance. This controversial law remains in the forefront of political discourse and debate.
Federal and state protections are available to employees, called “whistleblowers,” who report illegal, prohibited, or unethical actions of their employers. Often these employees are subject to retaliation from their employers, including termination, demotions, and withheld bonuses and benefits. Whistleblowing statutes are grounded in public policy initiatives that seek to protect those workers who report actions that might harm society. Deadlines for an employee to file a claim vary from thirty days to one hundred eighty days at the federal level and in some states may be filed up to one year after the retaliatory action. Employees may seek monetary damages and equitable remedies which include reinstatement, back pay, and bonuses, other fringe benefits, seniority status, and costs and attorney fees. An employee may also seek an injunction to prevent future retaliatory actions by the employer.
At the federal level, employee protections from retaliation as a result of reporting illegal or harmful employer actions may be found in several statutes. The False Claims Act (31 U.S.C. §§3729-3733, imposes liability on persons and companies contracted with the federal government who defraud governmental programs. Those who report the illegal action are entitled to a percentage of the fines and penalties. Federal employee whistleblowers are protected by the Civil Service Reform Act and the Whistleblower Protection Act of 1989 (WPA). The Whistleblower Protection Enhancement Act of 2012 protects federal employees who disclose evidence of waste, fraud, or abuse.
OSHA provides whistleblowing protections for private sector employees who report activity that is dangerous to workplace health or safety in ten different statutes related to workplace safety and over eight statutes related to transportation safety.
Employees of private sector organizations that provide consumer goods and services or investment vehicles and services receive whistleblowing protection under federal statues such as the Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the Affordable Care Act, the Consumer Financial Protection Act (CFPA), the Consumer Product Safety Improvement Act (CPSIA), and the FDA Food Safety Modernization Act (FSMA). Many of these statutes can be found at http://www.whistleblowers.gov/statutes_page.html.
Many states also offer whistleblowing protection to public and private sector employees. For example, New Jersey has the Conscientious Employee Protection Act (CEPA) (N.J.S. Stat. § 34:19-1 (2007). This law prohibits a public or private employer from taking retaliatory action against an employee who discloses or threatens to disclose to a supervisor or public body an activity, policy, or practice that the employee reasonably believes is in violation of a law or rule; or provides information or testimony to a public body investigating a violation; or objects to or refuses to participate in an activity, policy or practice that the employee reasonably believes is a violation of law, is fraudulent or criminal, or is incompatible with a clear mandate of public policy related to health, safety, welfare or protection of the environment. The protection does not apply unless the employee has given written notice of the violation to a supervisor and has given reasonable time for correction, except if the employee is reasonably certain the supervisor already knows about the violation or if the employee reasonably fears physical harm and the situation is an emergency.
Whistleblowing protection at the federal and state level upholds public policy initiatives, protects employees, encourages employers to deal fairly with their employees, and discourages illegal, prohibited and dangerous activities and practices in business.
Employee Privacy And The Workplace
The right to privacy is often thought of as the “right to be left alone” and the right to be free from intrusion from others. A full-time employee spends between thirty to sixty or more hours per week at their place of employment creating many interpersonal relationships. Employers adopt workplace manuals and codes of conduct in order to set standards of behavior, to manage employee expectations, and to protect the employer’s business interests. Even so, employee understanding and expectation of privacy in the workplace can be quite different from employer handbooks or federal and state laws.
A variety of federal and state laws relate to privacy, including federal and state constitutions, statutes, common law, as well as some administrative agency rules and regulations. The common law relating to privacy takes various forms. There are at least four separate torts related to privacy. They are: (i) unreasonable intrusion upon the seclusion of another; (ii) misappropriation of another’s name or likeness; (iii) unreasonable publicity given to another’s private life; and (iv) publicity that unreasonably places another in a false light before the public. These torts identify individual “zones of freedom,” which provide privacy expectations and protection to the individual. How these expectations and protections apply to the workplace is ongoing and evolving in response to social development and technology innovations.
The integration of a variety of new technologies into the workplace, particularly those related to social media and information technology, has created a new view of employee privacy rights wherein the employer owns the means of data collection, communication, observation or other forms of employee monitoring. Issues of employee privacy and the right of an employer to monitor the employees’ actions and use of employer owned systems have increased. The fastest growing and most pervasive of new information technologies in the workplace are “Big Data” analytic tools and social media platforms. In the age of “Big Data,” employers have access to almost unlimited information. Employer use of that data, and employer oversight of employee’s social media use, whether private or at the workplace, has provoked considerable controversy.
While federal statutory protections of employee privacy are limited, federal agencies such as the FTC, EEOC and the NLRB have stepped into the void and enacted several rules and regulations protecting employee privacy rights. States, on the other hand, have passed a variety of laws on diverse aspects of employee privacy in the workplace and have come to the forefront in identifying employer and employee rights. Privacy issues in the workplace require a balancing of employee and employer rights and prerogatives to protect their legitimate interests and to address their legitimate concerns. In order for employers to enforce company policies and avoid liability, clear communication of policies and procedures in either an employee handbook or manual must occur.
Employee Surveillance and Searches
Employers use a variety of methods to monitor employee performance for effectiveness and productivity, including “real time” monitoring; visual and audio recording; counting key strokes on computers; inspecting computer files; listening to telephone conversations and messages — both landline and mobile; monitoring instant messages (IMs), blogs, Twitter and social media platforms, such as Facebook; GPS tracking; identification card tracking; and reading emails. Employers monitor employee performance for many reasons including to show compliance with regulations, promote corporate security, protect business reputation, protect trade secrets/proprietary information, reduce product loss, increase employee productivity, and to limit legal liability for improper or illegal acts by their employees.
Electronic Communications Privacy Act (ECPA) of 1986
The FCPA amended the Federal Wiretapping Act, and permits employers to monitor work email and phone calls if (1) the employee consents in advance, (2) monitoring occurs in the ordinary course of business, or (3) in the case of email, if the employer provides the email system.
USA Patriot Act
In 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 amended the ECPA to allow the government to compel disclosure of data and information and to provide for employer voluntary disclosure. Prior to monitoring employee communications, employers should first identify the goals of the organization (quality control, training), clearly communicate any electronic monitoring policies to employees, obtain employee consent prior to instituting any monitoring programs and avoid monitoring private employee communications.
In addition to monitoring employee communications, employers may also conduct searches of the workplace. Employees have limited protections from employer searches in the workplace, including searches of offices, lockers, company issued vehicles, computers, mobile devices including tablets and telephones, electronic files and email. In O’Connor v. Ortega, 480 U.S. 709 (1987) the U.S. Supreme Court held that an employee did not have any expectation of privacy to their office where the employer retained a key to the office. The court held that in determining an employee’s privacy expectations in the workplace, the “operational realities” should be considered and courts should examine if the employee was provided an exclusive working space, the nature of the employment and whether the employee was on notice that parts of the workplace were subject to employer intrusions. The balance between the employee’s expectation of privacy and the employer’s notice to the employee of policies, practices and procedures frames the issues in the following case in which an employee claimed that employer access and review of his text messages on an employer issued mobile pager, was a violation of his right to privacy.
City of Ontario v. Quon
560 U.S. 746 (2010)
Respondents, an employee and others, filed an action against petitioners, a city and others, alleging, inter alia [among others], that petitioners violated their Fourth Amendment rights by obtaining and reviewing the transcript of the employee’s pager messages. A district court held that petitioners did not violate the Fourth Amendment. The U.S. Court of Appeals for the Ninth Circuit reversed in part. The U.S. Supreme Court granted a petition for certiorari.
The petition for certiorari challenged the court of appeals’ holding that petitioners violated the Fourth Amendment. The Supreme Court assumed that the employee had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the city. The search was justified at its inception because there were reasonable grounds for suspecting that the search was necessary for a non-investigatory work-related purpose because the search was done in order to determine whether the character limit on the city’s contract was sufficient to meet the city’s needs. Also, the city and a police department had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the city was not paying for extensive personal communications. The search was permissible in its scope because reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether the employee’s overages were the result of work-related messaging or personal use. The search was reasonable. Petitioners did not violate respondents’ Fourth Amendment rights.
The judgment of the court of appeals was reversed. The case was remanded for further proceedings.
Individual’s protected right to free speech under the First Amendment of the U.S. Constitution protects individuals from governmental action. When applied to the workplace, public sector employees are protected, but not private sector employees. However, the type of employee speech, whether political or connected to workplace terms and conditions, may be protected. In Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016) the U.S. Supreme Court held that “when an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C.S. § 1983, even if the employer makes a factual mistake about the employee’s behavior.” Some states have enacted legislation that extends protection to employee speech in connection with political activity outside of the workplace.
Private sector employees’ speech rights may be protected under state law or administrative agency rules and regulations if made in connection with terms and conditions of employment. In 2012, in Hispanics United of Buffalo, Inc. and Carlos Ortiz (Case 03–CA–027872, 2012), the NLRB held that the termination of five co-workers who posted on commentary on Facebook about the workplace and a co-worker was in violation of the National Labor Relations Act, Section 7 regarding “concerted activities.” Comments by workers discussing workplace issues such as “terms and conditions” of employment, such as workload, job performance, wages, and staffing levels are protected speech. But, no protections are afforded to employee speech that violates employers privacy policies, damages the company’s reputation, disparages the employer or other employees, or the employer’s product/service, is rude or profane, is unrelated to workplace terms and conditions, or may be seen clearly as a “rant.”
Drug and Alcohol Testing
Employee testing for drugs and alcohol began in 1986 when President Reagan approved testing of federal employees and was extended in 1988 to federal contracts requiring drug free work environments. The private sector thereafter embraced employee drug testing as a pre-condition to hiring and as an ongoing condition to maintaining employment. Employers adopt drug and alcohol testing policies to maintain a safe working environment, increase productivity, and to ensure quality control of goods and services. Courts have upheld regular and random employer drug testing as a reasonable exercise of an employer’s rights provided the employer has communicated its policy on drug testing to the employees. State statutes, which vary from state to state, govern private sector employees’ privacy rights in drug testing. Employers who choose to drug and alcohol test employees must be aware of state constraints and of protections afforded to employees from disciple or termination under the Americans with Disabilities Act. Employers must also be aware of state protections afforded to employees who use certain drugs under medical prescription.
Recent state statutes legalizing the sale and recreational use of marijuana have direct impact on the workplace. Employees must recognize that although recreational use of marijuana may be legal in some states, it is not legal in all states, and is classified as a federal Schedule I drug. Use and possession of marijuana may subject an employee to state and federal criminal charges and discipline and/or termination under employment policies adopted by employers.
The Employee Polygraph Protection Act of 1988
The Employee Polygraph Protection Act generally prohibits private sector employers engaged in interstate commerce from using or requiring lie detector tests during pre-employment screening or during employment or from using the results of any lie detector tests to discharge, discipline, discriminate against, or to deny promotion or employment to any employee or prospective employee who refuses, declines, or fails to take a lie detector test.
Exemptions include federal employees and contractors, prospective employees of private sector employers in security service businesses, employees of any employer authorized to manufacture, distribute, or dispense a controlled substance as identified in federal law. Private sector employers requesting employees to submit to a polygraph test the employer must show:
- The test was administered in connection with an ongoing investigation involving economic loss and/or injury to the employer’s business, e.g., theft, embezzlement, misappropriation, industrial espionage or sabotage;
- The employee had access to the property that is the subject of the investigation; and
- The employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation.
Additional exemptions are also provided in various state statutes.
Genetic Testing and Health Screening in the Workplace
In 2008, the Genetic Information and Nondiscrimination Act (GINA) was enacted to protect individuals from discrimination in healthcare insurance and employment. GINA specifically prohibits employers from discriminating against prospective and current employees in the hiring, firing, compensation, benefits or others terms and conditions or opportunities because of an individual’s genetic information or genetic profile. Employers are also prohibited from requesting, requiring, or purchasing genetic information of an employee or his or her family member(s) except in limited circumstances such as consent or where the information is used in connection with services offered by an employer wellness program.
Additionally, many states have passed laws prohibiting discrimination against employees on the basis of their genetic information. Employees may have a right of action against their employer for genetic discrimination under the Fourth Amendment, the Americans With Disabilities Act, common law for invasion of privacy, and Title VII of the Civil Rights Act of 1964 (discussed in the chapter on Employment Discrimination).
Employee Assistance Programs (EAPs)
Employee Assistance Programs are employer funded programs to assist employees with personal problems and issues that might affect their performance at work. These programs seek to help employees address financial, medical, emotional, family, and substance abuse issues to name a few. Inherent in many of these programs are issues relating to privacy. Employers must be aware of federal and state laws that apply to the administration of these programs, retention of information and data, and potential liability for employment actions taken, such as discipline and termination, based upon information obtained from employees participating in EAPs.
During the course of pre-hiring screening and subsequent employment, employers gather extensive private information on individuals often referred to as personnel records. The maintenance, accuracy and security of these records are privacy concerns for individuals. The federal Privacy Act of 1974 and subsequent amendments applied to personnel records of federal employees. However, there is no federal law that provides private sector employees the right to access, review, contest or correct private information contained in the personnel file maintained by their employer. Private sector employees must rely upon state law and employer policies and procedures governing access to these records. Whether a public or private sector employee, individuals must look to federal, state, and common law for remedies for wrongful disclosure or false or defamatory information.
“Off Duty” Employee Actions and Lifestyle Laws
There is a growing trend for employers to prohibit certain employee activities while not at the workplace, or “off duty,” for reasons such as protecting business reputation or company security, or for economic reasons such as to decrease losses in productivity, or to reduce costs of employer offered healthcare. Employers have attempted to prohibit activities such as certain international travel, high-risk sporting activities (motorcycle riding skydiving, helicopter skiing), gun possession, political activity, health related practices (weight maintenance, smoking, alcohol and dietary consumption), and social media communications. Many states have enacted laws that prohibit employer regulation of employee off-duty acts, while other states permit any lawful activity while off-duty. Some administrative agencies such as the NLRB and the EEOC have begun to address concerns of employees that employer control of actions and activities may violate employee’s federal and state privacy rights.
Today, there is often conflict in the workplace between an employer’s right to monitor employee performance and an employee’s expectation of privacy. Issues related to privacy rights, not just those related to the workplace, are a reflection of how society balances the need for individuals to feel secure in their persons with public access to private information. Clearly, as new methods of communication and of collecting, storing, and disseminating information become available, tensions arising from balancing the privacy expectations of employers and employees will continue to grow. Technological, mechanical, and social changes continue to create legal, social and ethical issues in the employment relationship.
Labor Law and Management Relations
Introduction To Labor Law
In order to study the development of labor unions in the United States, one must also study the development of labor legislation – the two are inextricably entwined. Judicial rulings and subsequent legislation have continually tried to strike a balance between the private property rights of employers and employee freedom to associate in organizations for their own mutual benefit.
Early Legal Developments
Early legal developments came as the result of judicial interpretations of laws (both statutory and common) that were not originally drafted to deal specifically with labor relations but were clearly designed to favor the property class. The Cordwainers Case (1806) established the “criminal conspiracy” doctrine as it applied to labor organizations. Workers seeking to better their working conditions could not do so in a concerted manner. If workers joined in collective activities, they could be considered “criminals” and jailed for such behavior. It may be surprising to note that this was not the unanimous view of the legal system—even at this early stage of the development of our capitalist market. The ruling in Commonwealth of Massachusetts v. Hunt (1842) established that labor organizations in and of themselves were not automatically criminal conspiracies. While the ruling in Commonwealth of Massachusetts was not a ruling of the United States Supreme Court, judicial rulings from Massachusetts were highly regarded in other jurisdictions for their precedential value. Thus, while unions were not automatically considered criminal conspiracies, they could nonetheless be liable for civil damages, under the “civil conspiracy” doctrine. Contract law was relied upon to enforce “yellow dog contracts” in which employers demanded assurances that job applicants were not members of unions, nor would they ever consider joining a union, if employed.
Loewe v. Lawler (Danbury Hatters case) (1908) applied the Sherman Antitrust Act of 1890 to labor organizations. Labor organizations were considered “in restraint of trade” when the Hatters union organized a nationwide boycott in conjunction with the AFL-CIO to protest Loewe’s use of nonunion labor to make hats. Clearly, with the exception of Commonwealth of Massachusetts v. Hunt, the pendulum swung in the direction of protecting managerial rights and prerogatives in the workplace.
Specific Labor Legislation
Following these early legal developments, Congress passed legislation specifically aimed at regulating labor in a more balanced fashion. The Clayton Act of 1914 removed unions from the umbrella of the Sherman Antitrust Act. The Clayton Act was initially hailed by organized labor, while in reality it had made it easier for employers to obtain an injunction against threatened or actual concerted labor activities (such as strikes, boycotts, and picketing). These injunctions were not difficult to obtain and were regularly granted by courts in the decade of the 1920’s.
As the Great Depression riddled America with massive unemployment and sometimes violent labor disputes, the Norris-LaGuardia Act (1932) was one of many pieces of progressive (later “New Deal”) legislation enacted to improve the ability of workers to engage in joint activities in support of their right to join a union. Norris-LaGuardia made the “yellow dog” contract unenforceable in courts and limited federal courts’ ability to issue injunctions in labor disputes. However, the law established no enforcement mechanism of the act’s provisions, so many of the law’s guarantees were “on paper only.”
The Wagner Act of 1935 (officially called the National Labor Relations Act), the true “Magna Carta” for the union movement in the United States, guaranteed the rights of individuals to form labor organizations and specifically outlined “unfair labor practices” of employers. The Wagner Act established an administrative agency, the National Labor Relations Board (NLRB) to enforce the act. Congress passed this legislation under its constitutional authority to regulate “interstate commerce.”
Finding that industrial strife impeded the flow of commerce, Congress gave workers the right to form and join unions in hopes that this right would minimize industrial strife. The Wagner Act was ruled constitutional in Jones and Laughlin Steel v. National Labor Relations Board, 301 U.S. 1 (1937). Unions were widely successful in organizing some of the major industries in the United States in the decade of the 1930’s but to many, unions had begun to act irresponsibly in the period immediately following the end of World War II.
Overriding President Truman’s veto, the Taft-Hartley Act of 1947 amended the National Labor Relations Act. Congress, believing that unions had gained too much power, amended the Wagner Act with more “pro-management” provisions. Individuals now not only had the right to join unions, but also to refrain from joining a union as well. Taft-Hartley specifically established unfair labor practices on the part of unions, which had been non-existent before passage of this legislation. Taft-Hartley increased the size of the NLRB from three to five members. The “closed shop”,in which an employer was restricted to hiring union members only, was ruled illegal. A “union shop,” in which an employee was required either to join a union or pay the union dues within a specified time period was still permitted. Taft-Hartley authorized states to adopt “right to work” laws, giving the employee the right to either join or not join a union.. A provision relating to disputes that involved a “national emergency” was established, giving the President the right to intervene in labor disputes that could create a national emergency or “imperil the national health and safety.” In this case, an 80 day “cooling off” period may be required during which the parties are required to return to the bargaining table. The act also established the Federal Mediation and Conciliation Service to help management and unions avoid industrial conflict.
The Landrum-Griffin Act was adopted in 1959. Officially called the Labor Management Reporting and Disclosure Act (LMRDA), the focus of Landrum-Griffin was not to regulate union-management relations but to regulate union-member relations. The act aimed to correct and prevent union corruption (mainly by the Teamsters) and abuses of the power of unions toward their members. It required the reporting of financial statements, mandated the creation of union constitutions, and required that unions meet in membership conventions minimally once every five years. While many unions felt that some abuses needed correction, they objected to Congress interfering in the internal affairs of unions. Landrum-Griffin passed despite the objections of the American union movement.
Section 7 of the NLRA recognizes the rights of employees to form a union. Management is prohibited from interfering with any employee right guaranteed by Section 7 relative to organizing and maintaining a union. Employees can petition the NLRB for the right to conduct a representational election in an appropriate “bargaining unit” of the workforce. If the union is successful, it will be the exclusive bargaining agent for the workers in the unit. The bargaining unit elects representatives who will negotiate an agreement (the collective bargaining agreement) with management. Management and labor are required by the act to bargain “in good faith” in relation to the mandatory subjects of bargaining which include “wages, hours, and working conditions.” Issues relating to pay, wages, bonuses, hours of employment, seniority, pensions, group insurance, safety practices, grievance procedures, discipline, procedures for discharge, layoff, recall, and union security are often the specific topic of these negotiations. Management is prohibited from threatening, questioning or spying on workers, threatening to close the business or stop giving wage increases, or committing any other action that would serve to threaten or undermine union organizing activities, The failure of the parties to come to an agreement on a contract through collective bargaining may result in a strike called by the union or a lockout imposed by management.
The Functions of the National Labor Relations Board (NLRB)
The NLRB is an administrative agency with two primary functions: 1) the oversight of union organizing activities and representational elections; and 2) the investigation and adjudication of unfair labor practice charge. The NLRB operates within the Executive Branch of the federal government as an independent agency.
Unions can be recognized in the workplace in three ways: voluntary recognition, election, and pursuant to a bargaining order issued by the NLRB. Voluntary recognition occurs where the union gets a majority of the individuals in a given workplace to sign an “authorization card” indicating that they want the union to represent them. In this instance, the employer concedes to the workers’ desires without conducting a representational election.
If the employer decides not to voluntarily recognize the union, the union will file a Representation Petition with the Regional Office of the NLRB. In this petition, the union will ask for an election. The NLRB will first verify that the union has a “showing of interest,” which is defined as at least 30% of the workers in a bargaining unit signing an authorization card seeking to have the union represent them. The NLRB will first verify that the workers who are seeking representation constitute an “appropriate bargaining unit.” Employers tend to seek larger, heterogeneous bargaining units; unions seek to carve out bargaining units that will most quickly result in recognition of their representation rights. The NLRB utilizes the “Globe Principle” where it will rely heavily on the “desires of the employees” as a controlling factor in determining if a unit is appropriate. The NLRB will screen for “ineligibles’ — independent contractors, supervisors, or professionals who opt not to be combined with non-professional employees in a unit. The union is entitled to the “name and address” list of those in the appropriate bargaining unit under the Excelsior Underwear rule.
The NLRA has been modified over the years to determine what is permissible and impermissible election conduct for both union and management during the course of the election campaign. The NLRB will oversee the election. A “simple majority rule” prevails which requires 50% plus 1 of those who voted in the election (not all the workers in the unit) to vote in favor of a union. If the union wins, it is certified as the exclusive bargaining agent for everyone in the appropriate bargaining unit regardless of the individual’s decision to join the union. If the union loses, another election is barred for one year. A union can also be decertified following that same rules for certification (an NLRB election — 30% showing of interest and simple majority voting in favor of decertifying a union). If the employer’s conduct has been so egregious that the NLRB feels that it would be impossible for employees to vote in an election without fear of reprisal, the NLRB will certify the union, absent an election, as the exclusive bargaining agent. This bargaining order will only occur if the union can show that it had, at one point, a simple majority showing of interest (instead of the 30%) via authorization cards.
The NLRB has jurisdiction of any act or practice that is “arguably an unfair labor practice” or ULP, under the “Garmon Rule.” Parties are forbidden to litigate such issues in any forum other than the NLRB. A ULP filed by a union includes any actions, practices, or statements made by an employer that interfere with, restrains, discriminates against, or coerces employees in their exercise of the right to organize and choose their representatives, and to engage in collective bargaining or engage in protected, concerted activities. Such interference, restraint, or coercion can arise through threats, promises, or impermissible offers to employees. An unfair labor practice also can arise when an employer contributes financial or any other support to a labor organization. (In the case where there are multiple unions competing for the right to represent workers in a representational election, an employer must remain neutral between competing unions.) It is also an unfair labor practice for an employer to dominate, create, or interfere with the formation or administration of any labor organization. Employers are also prohibited from retaliating against an employee for filing a charge with, or giving testimony to, the NLRB, or refusing to engage in good-faith collective bargaining.
A union may commit an unfair labor practice when it causes, or attempts to cause, an employer to hire, discharge, or discriminate against an employee for the purpose of encouraging or discouraging union activity. The same is true when a union restrains or coerces employees in the exercise of their rights not to join a union. The refusal of a labor organization to bargain collectively “in good faith” or to refuse to execute a collective bargaining agreement with an employer are examples of potential unfair labor practices on the part of a union.
Individuals (whether or not a member of a union), unions (acting on their own or on behalf of individuals) and employers may file unfair labor practices (ULPs) charges with the Regional Office of the NLRB, having first attempted to resolve the dispute at the workforce level. The Regional Office will investigate the allegation and may settle the case informally or file a complaint against the party alleged to have committed a violation of the NLRA. If not settled informally, a hearing before an Administrative Law Judge (ALJ) will take place. The NLRB’s remedial powers are solely confined to “restoring the status quo” by ordering back pay, the return of individuals to the payroll, and good faith bargaining. The NLRB is not permitted to assess “punitive damages” for violations of the act.
Parties can appeal the decision of the ALJ to the full NLRB. The NLRB, consisting of five members, will hear the case anew in a de novo proceeding. A party can appeal the Board’s decision to the Circuit Court of Appeals. Appeals from the Circuit Court of Appeal can be made to the United States Supreme Court.
As discussed previously in this chapter, recent NLRB decisions continue to address employee use of information technology and social media both at the workplace and outside of the workplace. Other issues with which the NLRB has recently become involved include unionization of student athletes and graduate student RAs and GAs, the future application of the “Yeshiva Principle” to church-related colleges and universities, joint-employer status, successor employer status, the effect of arbitration agreements, class action waivers, and the use of audio and video recording in the workplace. The role of the NLRB in protecting employee rights and balancing employer concerns will no doubt continue to underscore its importance in resolving issues emerging in the employment relationship.
Is it fair for an employer to monitor the social media choices of an employee or a prospective employee? Should an employer be able to base a decision to hire or fire a prospective employee or an actual employee based on the information gathered from social media?
Critique: “Since its the employer’s property, the employer should be allowed to hire or fire whomever they choose.”
Is it fair to require workers who do not wish to join a union to nevertheless pay union dues in states that are “union shop” states?
Should the government require employers to provide family leave to their employees?
- In light of company and personal pension plans, is there a need for social security retirement benefits? Explain why or why not.
- Would self-imposed, industry-wide standards protecting the safety and health of a particular industry’s employees be an improvement over OSHA? Substantiate your answer with fact-based reasons.
- How did New Deal legislation improve circumstances under which employees worked?
- What effect did the Taft-Hartley Act have on the relationship between labor and management?
- How does the National Labor Relations Board prevent unfair labor practices?
- A company required all of its employees to authorize deductions from their pay to the United Way, a community charity. The employer terminated an employee when she refused to sign the payroll authorization. Was the employee wrongfully discharged? See Ball v. United Parcel Serv., Inc., 602 A.2d 1176 (Md. 1992)
- An employer discharged an otherwise exemplary employee because the employee had a continuing relationship with a co-worker during off duty hours. The employer simply objected to the employee’s immoral lifestyle. The employee claimed discrimination. The employer claimed the defense of the employment at will doctrine. Outcome? See Patton v. J.C. Penney Co., 719 P.2d 854 (Or. 1986)
- An employee was discharged when her employer learned that she performed volunteer work at an AIDS center. The employer admitted an irrational fear that the employee’s work at the center would place himself, his family, and his employees at risk. Was this an employer’s overcautious or irrational fears a breach of the implied covenant of good faith? See Brunner v. Al Attar, 786 S.W.2d 784 (Tex. App. 1990)