Legal Approaches to the Legal Approaches to the Employment RelationEmployment Relation
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
OverviewOverviewOverviewOverview
Employee Employee SafetySafety
UnionizationUnionization
Direct Control Direct Control of Wages and of Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Employment Law
Employment Discrimination
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
OverviewOverview
Employment DiscriminationEmployment Discrimination Statutorily DefinedStatutorily Defined
Immutable CharacteristicsImmutable Characteristics Race, Gender, Age, or National Race, Gender, Age, or National
OriginOrigin Subject to ChangeSubject to Change
Religion, Alienage, or Marital StatusReligion, Alienage, or Marital Status Sometimes BothSometimes Both
Disability DiscriminationDisability Discrimination
OverviewOverview Employee Employee
SafetySafety
UnionizationUnionization
Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
OverviewOverview
Why Employers DifferentiateWhy Employers Differentiate Rational ReasonsRational Reasons Questionable ReasonsQuestionable Reasons Eccentric but Not Illegal ReasonsEccentric but Not Illegal Reasons Socially/Morally Unacceptable Socially/Morally Unacceptable
ReasonsReasons Limiting Power of EmployerLimiting Power of Employer
OverviewOverview Employee Employee
SafetySafety
UnionizationUnionization
Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
OverviewOverview
Long history of Long history of “employment” and “employment” and regulationregulation Feudal systemsFeudal systems Indentured ServitudeIndentured Servitude ApprenticeshipsApprenticeships SlaverySlavery Modern Contract Modern Contract
TheoriesTheories
OverviewOverview Employee Employee
SafetySafety
UnionizationUnionization
Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
OverviewOverview
Post-slavery legal treatment Post-slavery legal treatment of employment relations:of employment relations:
Contract LawContract Law Tort LawTort Law
OverviewOverview Employee Employee
SafetySafety
UnionizationUnionization
Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
OverviewOverview
Contract RootsContract Roots Freedom of Contract meant less Freedom of Contract meant less
judicial policingjudicial policing ““At Will” Employment PresumedAt Will” Employment Presumed
Absent an express written contract for a Absent an express written contract for a term of years, the relationship between term of years, the relationship between an employer and its employees was “at an employer and its employees was “at will.”will.”
Why presume “at will”?Why presume “at will”? Forrer v. Sears, Roebuck & Co.Forrer v. Sears, Roebuck & Co. (Wis. (Wis.
1967)1967) Permanent = temporaryPermanent = temporary Terminate for good, bad, or no Terminate for good, bad, or no
reasonreason
OverviewOverview Employee Employee
SafetySafety
UnionizationUnionization
Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
OverviewOverview
Tort RootsTort Roots Employer/Master liability for torts of Employer/Master liability for torts of
Employees/ServantEmployees/Servant Agency LawAgency Law
OverviewOverview Employee Employee
SafetySafety
UnionizationUnionization
Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Low “Control”
=
Independent Contractor
High “Control”
=
Servant/Employee
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
OverviewOverview
Tort Roots (…Tort Roots (…ContinuedContinued)) EmployerEmployer liability for Employee liability for Employee
injuryinjury Theory: Normal tort law appliesTheory: Normal tort law applies Fact: Laws tended to favor Fact: Laws tended to favor
employersemployers Privileges (i.e. Defamation)Privileges (i.e. Defamation) Employer immune:Employer immune:
Fellow servant ruleFellow servant rule Assumption of riskAssumption of risk Contributory NegligenceContributory Negligence
OverviewOverview Employee Employee
SafetySafety
UnionizationUnionization
Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Employee SafetyEmployee Safety
Workers’ Compensation LawsWorkers’ Compensation Laws Trade offTrade off
More Likely RecoveryMore Likely Recovery Limited CompensationLimited Compensation
ExclusivityExclusivity
OverviewOverview
Employee Employee SafetySafety
UnionizationUnionization
Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Employee SafetyEmployee Safety
Worker’s Compensation RecoveryWorker’s Compensation Recovery Medical Expenses: CoveredMedical Expenses: Covered Lost Wages: ½ - Lost Wages: ½ - 22//33 Covered Covered Pain & Suffering: Not CoveredPain & Suffering: Not Covered
HistoricallyHistorically Employees favored WCEmployees favored WC Employers favored tort systemEmployers favored tort system
TodayToday Employees often prefer the tort Employees often prefer the tort
systemsystem Employers usually prefer WCEmployers usually prefer WC
OverviewOverview
Employee Employee SafetySafety
UnionizationUnionization
Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Employee SafetyEmployee Safety
Cost of Workers’ CompensationCost of Workers’ Compensation WC Costs BIG $$$WC Costs BIG $$$ Potential Compensation CrisisPotential Compensation Crisis But probably lower $$$ than a tort But probably lower $$$ than a tort
systemsystem Benefit to high cost: Benefit to high cost:
Reduction of hazardsReduction of hazards BUT, not as expensive as tort systemBUT, not as expensive as tort system
Hazards are less likely to be eliminatedHazards are less likely to be eliminated
OverviewOverview
Employee Employee SafetySafety
UnionizationUnionization
Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Employee SafetyEmployee SafetyOverviewOverview
Employee Employee SafetySafety
UnionizationUnionization
Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Occupational Safety and Health Occupational Safety and Health Act (OSHA), 29 U.S.C.S. Act (OSHA), 29 U.S.C.S. §§ 651 et §§ 651 et seq. seq. Why compensate when you can Why compensate when you can
prevent?prevent? Government enforcementGovernment enforcement
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
UnionizationUnionizationOverviewOverview
Employee Employee SafetySafety
UnionizationUnionization Direct Control of Direct Control of
Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
CircumstanceCircumstance Employer Employer ReactionReaction
Industrial Industrial RevolutionRevolution
Criminalize Criminalize Unions!Unions!
Sherman Sherman Antitrust ActAntitrust Act Enjoin Strikes!Enjoin Strikes!
Communist/ Communist/ Socialist Socialist
sentimentsentimentMaybe Unions OKMaybe Unions OK
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
UnionizationUnionizationOverviewOverview
Employee Employee SafetySafety
UnionizationUnionization Direct Control of Direct Control of
Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
National Labor Relations Act, 29 National Labor Relations Act, 29 U.S.C.S §§ 151 et seq.U.S.C.S §§ 151 et seq. NLRB created to:NLRB created to:
Protect workers’ “concerted activity for Protect workers’ “concerted activity for the purpose of mutual aid or protection”the purpose of mutual aid or protection”
Recognition of UnionsRecognition of Unions Good faith bargaining requiredGood faith bargaining required Economic Warfare regulatedEconomic Warfare regulated
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
UnionizationUnionizationOverviewOverview
Employee Employee SafetySafety
UnionizationUnionization Direct Control of Direct Control of
Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Collective BargainingCollective Bargaining For wages, hours, other terms and For wages, hours, other terms and
conditionsconditions Especially job securityEspecially job security
Layoffs by seniorityLayoffs by seniority ““Just cause” restrictions on discharge or Just cause” restrictions on discharge or
discipline of individual workersdiscipline of individual workers Procedural protectionsProcedural protections
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
UnionizationUnionizationOverviewOverview
Employee Employee SafetySafety
UnionizationUnionization Direct Control of Direct Control of
Wages and Wages and Other Other CompensationCompensation
Protection for Protection for Special Groups Special Groups of Employeesof Employees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Union “Density”Union “Density” Lower % organized in 2005 than Lower % organized in 2005 than
19351935 Employer ResistanceEmployer Resistance GlobalizationGlobalization Restrictions on union arsenalRestrictions on union arsenal Union overreaching resulting in bad PRUnion overreaching resulting in bad PR
Big Exception: the public sectorBig Exception: the public sector
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Direct Control of WagesDirect Control of Wages
OverviewOverview
Employee SafetyEmployee Safety
UnionizationUnionization
Direct Direct Control of Control of Wages and Wages and Other Other CompensatioCompensationn
Protection for Protection for Special Groups of Special Groups of EmployeesEmployees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Early ControlsEarly Controls Child labor – some restrictionsChild labor – some restrictions LochnerismLochnerism
Adult regulations usually struck downAdult regulations usually struck down But see But see Muller v. OregonMuller v. Oregon (1908) (1908)
Death of Substantive Due ProcessDeath of Substantive Due Process Fair Labor Standards Act Fair Labor Standards Act
Pros: Minimum wage & maximum hour Pros: Minimum wage & maximum hour lawslaws
Cons: Artificially reduces labor demandCons: Artificially reduces labor demand Retirement Income Security ActRetirement Income Security Act
You can catch more flies with tax You can catch more flies with tax incentives…incentives…Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Protection for Subgroups of EmployeesProtection for Subgroups of Employees
OverviewOverview
Employee SafetyEmployee Safety
UnionizationUnionization
Direct Control of Direct Control of Wages and Other Wages and Other CompensationCompensation
Protection Protection for Special for Special Groups of Groups of EmployeesEmployees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Civil Service SystemsCivil Service Systems Probationary: few protectionsProbationary: few protections ““Permanent”: Employed during Permanent”: Employed during
“good behavior”“good behavior” Academic TenureAcademic Tenure
Features:Features: Procedural Protections for “just cause”Procedural Protections for “just cause” Layoffs only for Financial ExigencyLayoffs only for Financial Exigency
Application:Application: By statute in PUBLIC education By statute in PUBLIC education
institutionsinstitutions By contract in PRIVATE institutionsBy contract in PRIVATE institutions
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Public SectorPublic Sector Requisite: Property interest in jobRequisite: Property interest in job
Created by Created by statutory statutory right or by contractright or by contract
Due Process: Due Process: Procedural and SubstantiveProcedural and Substantive
1st Amendment: 1st Amendment: Speech must be of “public concern”Speech must be of “public concern” Speech must Speech must notnot be in the course of be in the course of
employment dutiesemployment duties Employer may still discharge if acting Employer may still discharge if acting
reasonably to further its legitimate reasonably to further its legitimate interestsinterests
Constitutional ProtectionsConstitutional Protections
OverviewOverview
Employee SafetyEmployee Safety
UnionizationUnionization
Direct Control of Direct Control of Wages and Other Wages and Other CompensationCompensation
Protection for Protection for Special Groups of Special Groups of EmployeesEmployees
ConstitutionConstitutional al ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Social SecuritySocial Security Broad safety netBroad safety net
Financed by employers & employeesFinanced by employers & employees
Unemployment InsuranceUnemployment Insurance Both employers and employees Both employers and employees
contributecontribute
Limited benefits and dependent on Limited benefits and dependent on not being discharged for misconductnot being discharged for misconduct
Social Security and InsuranceSocial Security and Insurance
OverviewOverview
Employee SafetyEmployee Safety
UnionizationUnionization
Direct Control of Direct Control of Wages and Other Wages and Other CompensationCompensation
Protection for Protection for Special Groups of Special Groups of EmployeesEmployees
Constitutional Constitutional ProtectionsProtections
Social Social Security and Security and InsuranceInsurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
ConstitutionConstitution Protects only public sector workersProtects only public sector workers
Statutes, common Law, contract Statutes, common Law, contract law, and tort lawlaw, and tort law Apply to both public and private Apply to both public and private
sectorssectors
But not comprehensiveBut not comprehensive PolygraphsPolygraphs Wire tappingWire tapping Tort claimsTort claims
PrivacyPrivacy
OverviewOverview
Employee SafetyEmployee Safety
UnionizationUnionization
Direct Control of Direct Control of Wages and Other Wages and Other CompensationCompensation
Protection for Protection for Special Groups of Special Groups of EmployeesEmployees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy Common Law Common Law
ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Workplace issuesWorkplace issues IncludeInclude
Drug testingDrug testing Audio/video monitoringAudio/video monitoring Email & other electronic monitoringEmail & other electronic monitoring Handbags and briefcasesHandbags and briefcases PolygraphsPolygraphs
Government Searches: Is there an Government Searches: Is there an Expectation of PrivacyExpectation of Privacy
If not, no protectionIf not, no protection If so, some limits on searchesIf so, some limits on searches
PrivacyPrivacy
OverviewOverview
Employee SafetyEmployee Safety
UnionizationUnionization
Direct Control of Direct Control of Wages and Other Wages and Other CompensationCompensation
Protection for Protection for Special Groups of Special Groups of EmployeesEmployees
Constitutional Constitutional ProtectionsProtections
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy Common Law Common Law
ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
““At Will” MetamorphosisAt Will” Metamorphosis Horace Gay Wood:Horace Gay Wood:
““At will” an aid to statutory constructionAt will” an aid to statutory construction Post-1877 Courts:Post-1877 Courts:
Applied “at will” doctrine as substantive Applied “at will” doctrine as substantive lawlaw
Fisher v. JacksonFisher v. Jackson (Conn. 1955) (Conn. 1955) Promised employment for life = “at Promised employment for life = “at
will”?will”? Clear proof required to rebut the Clear proof required to rebut the
“presumption” (e.g., formal contract)“presumption” (e.g., formal contract)
Reassessing Contract LawReassessing Contract Law The The
Reassessment of Reassessment of Contract LawContract Law
Oral ContractsOral Contracts
Employer PoliciesEmployer Policies
Promissory Promissory EstoppelEstoppel
Good FaithGood Faith
Varieties of Job Varieties of Job SecuritySecurity
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Problems of early application:Problems of early application:
Reassessing Contract LawReassessing Contract Law The The
Reassessment of Reassessment of Contract LawContract Law
Oral ContractsOral Contracts
Employer PoliciesEmployer Policies
Promissory Promissory EstoppelEstoppel
Good FaithGood Faith
Varieties of Job Varieties of Job SecuritySecurity
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
promise permanent
f employmen
t?
I sure do!
DEAL!!!
The court is glad
you agree, but it’s “at will” anyway
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
““At Will” Metamorphosis At Will” Metamorphosis (Continued)(Continued)
““At will” building blocks:At will” building blocks: Presumption of “at will”Presumption of “at will”
Court now considers ACTUAL intent of Court now considers ACTUAL intent of partiesparties
““Mutuality of Obligation”Mutuality of Obligation” Modern contract law – any Modern contract law – any
“consideration” suffices; “adequacy” “consideration” suffices; “adequacy” not relevantnot relevant
““Additional” consideration Additional” consideration requiredrequired
Inconsistent with modern view of Inconsistent with modern view of considerationconsideration
Reassessing Contract LawReassessing Contract Law The The
Reassessment of Reassessment of Contract LawContract Law
Oral ContractsOral Contracts
Employer PoliciesEmployer Policies
Promissory Promissory EstoppelEstoppel
Good FaithGood Faith
Varieties of Job Varieties of Job SecuritySecurity
Social Security Social Security and Insuranceand Insurance
PrivacyPrivacy
Common Law Common Law ProtectionProtection
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Modern treatments:Modern treatments: Oral contracts may provide some Oral contracts may provide some
rightsrights Degree of security?Degree of security? Factual Issues?Factual Issues? Statute of frauds still a limitationStatute of frauds still a limitation
Employer policy manuals may be Employer policy manuals may be bindingbinding
A fair reading, creating a reasonable A fair reading, creating a reasonable expectationexpectation
Promissory estoppel may be Promissory estoppel may be availableavailable
E.g., Leaving one job on a promise of anotherE.g., Leaving one job on a promise of another
““Good faith” implicit in all contracts?Good faith” implicit in all contracts? But good faith ≠ good causeBut good faith ≠ good cause May be viewed as excluding certain reasons May be viewed as excluding certain reasons
from good cause (e.g., opportunism, personal from good cause (e.g., opportunism, personal animosity)animosity)
Reassessing Contract LawReassessing Contract Law The Reassessment of The Reassessment of
Contract LawContract Law
Oral Oral ContractsContracts
Employer Employer PoliciesPolicies
Promissory Promissory EstoppelEstoppel
Good FaithGood Faith Varieties of Job Varieties of Job
SecuritySecurity
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Varieties of job securityVarieties of job security Just CauseJust Cause
Individual reasonsIndividual reasons E.g.,E.g., Inadequate performance, Inadequate performance,
misconduct, etcmisconduct, etc Systemic reasonsSystemic reasons
E.g.,E.g., Layoffs, reorganization, etc…Layoffs, reorganization, etc… SatisfactionSatisfaction
SatisfactionSatisfaction SubjectiveSubjective
Honest satisfactionHonest satisfaction Satisfaction pertaining to performance Satisfaction pertaining to performance
onlyonly Reasonable satisfactionReasonable satisfaction
ObjectiveObjective
Reassessing Contract LawReassessing Contract Law The Reassessment of The Reassessment of
Contract LawContract Law
Oral ContractsOral Contracts
Employer PoliciesEmployer Policies
Promissory Promissory EstoppelEstoppel
Good FaithGood Faith
Varieties of Varieties of Job SecurityJob Security
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Exclusivity of Workers’ Exclusivity of Workers’ CompensationCompensation Accidental InjuriesAccidental Injuries
Intentional torts still usually Intentional torts still usually actionableactionable Intentional infliction of emotional Intentional infliction of emotional
distressdistress FraudFraud DefamationDefamation Intentional interference with contractIntentional interference with contract Invasion of privacyInvasion of privacy
Grey AreaGrey Area Sexual harassmentSexual harassment
Reassessing Tort LawReassessing Tort LawThe The
Reassessment of Reassessment of Tort LawTort Law
Intentional Intentional Infliction of Infliction of Emotional Emotional DistressDistress
FraudFraud
DefamationDefamation
Intentional Intentional Interference with Interference with ContractContract
PrivacyPrivacy
The Public Policy The Public Policy ExceptionException
PrivacyPrivacy
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Intentional Infliction of Emotional Intentional Infliction of Emotional Distress (Outrage)Distress (Outrage) Abusing position of powerAbusing position of power Liable for asserting a legal right Liable for asserting a legal right
impermissiblyimpermissibly Agis v. Howard Johnson Co.Agis v. Howard Johnson Co. (Mass. 1976) (Mass. 1976)
Reassessing Tort LawReassessing Tort LawThe Reassessment of The Reassessment of
Tort LawTort Law
Intentional Intentional Infliction of Infliction of Emotional Emotional DistressDistress
FraudFraud
DefamationDefamation
Intentional Intentional Interference with Interference with ContractContract
PrivacyPrivacy
The Public Policy The Public Policy ExceptionException
PrivacyPrivacy
Get out! Starting
with Abby, Betty, Carol…
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
FraudFraud Misstatement of material factMisstatement of material fact Promise = fact if promisor intends Promise = fact if promisor intends
not to honor bargain at the time she not to honor bargain at the time she promisespromises
Reasonable detrimental relianceReasonable detrimental reliance
Reassessing Tort LawReassessing Tort LawThe Reassessment of The Reassessment of
Tort LawTort Law
Intentional Intentional Infliction of Infliction of Emotional Emotional DistressDistress
FraudFraud DefamationDefamation
Intentional Intentional Interference with Interference with ContractContract
PrivacyPrivacy
The Public Policy The Public Policy ExceptionException
PrivacyPrivacy
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Defamation (Libel and Slander)Defamation (Libel and Slander) Elements:Elements:
A defamatory statement,A defamatory statement, made about the plaintiff,made about the plaintiff, published to a third party;published to a third party;
TruthTruth Absolute DefenseAbsolute Defense PrivilegePrivilege
AbsoluteAbsolute QualifiedQualified
Reassessing Tort LawReassessing Tort LawThe Reassessment of The Reassessment of
Tort LawTort Law
Intentional Intentional Infliction of Infliction of Emotional Emotional DistressDistress
FraudFraud
DefamationDefamation Intentional Intentional
Interference with Interference with ContractContract
PrivacyPrivacy
The Public Policy The Public Policy ExceptionException
PrivacyPrivacy
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Elements of Intentional Elements of Intentional Interference:Interference: Existence of a contractExistence of a contract Knowledge of K by a 3rd partyKnowledge of K by a 3rd party InterferenceInterference Lack of justificationLack of justification Proximately caused damageProximately caused damage
3rd parties3rd parties Managers qualifyManagers qualify Co-workers qualifyCo-workers qualify
Reassessing Tort LawReassessing Tort LawThe Reassessment of The Reassessment of
Tort LawTort Law
Intentional Intentional Infliction of Infliction of Emotional Emotional DistressDistress
FraudFraud
DefamationDefamation
Intentional Intentional Interference Interference with Contractwith Contract
PrivacyPrivacy
The Public Policy The Public Policy ExceptionException
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Four distinct privacy torts:Four distinct privacy torts: Intrusion on seclusionIntrusion on seclusion Appropriation of a name or likenessAppropriation of a name or likeness Publicity given to private lifePublicity given to private life Publicity placing a person in false Publicity placing a person in false
lightlight
Reassessing Tort LawReassessing Tort LawThe Reassessment of The Reassessment of
Tort LawTort Law
Intentional Intentional Infliction of Infliction of Emotional Emotional DistressDistress
FraudFraud
DefamationDefamation
Intentional Intentional Interference with Interference with ContractContract
PrivacyPrivacy The Public Policy The Public Policy
ExceptionException
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)
Monge v. Beebe RubberMonge v. Beebe Rubber (N.H. (N.H. 1974)1974) Public policy tort has extended to Public policy tort has extended to
protection from termination for:protection from termination for: Refusal to accept supervisor’s sexual Refusal to accept supervisor’s sexual
advancesadvances Refusal to violate public health lawsRefusal to violate public health laws Complying with subpoenaComplying with subpoena Serving on a juryServing on a jury Violating a lawViolating a law WhistleblowingWhistleblowing Exercising a public rightExercising a public right
Reassessing Tort LawReassessing Tort LawThe Reassessment of The Reassessment of
Tort LawTort Law
Intentional Intentional Infliction of Infliction of Emotional Emotional DistressDistress
FraudFraud
DefamationDefamation
Intentional Intentional Interference with Interference with ContractContract
PrivacyPrivacy
The Public The Public Policy Policy ExceptionException
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)