Employment Agreement

Quiz Employment Agreement

Current Events Report – Oracle Anti-briberyMichelleEugeneWeek 7

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At-Will Employment: indefinite duration without an express agreement. Employees Not Subject to the “At Will” Rule:

– Public Employees.– Employees with Individual Contracts.– Union Contracts.

Wrongful Discharge.– The Public Policy Exception: refusal to commit an unlawful act.

Remedies Sources of Public Policy

– Statutory Protections. Federal Statutes. Whistleblower Statutes.

– CASE 12.1 Garcetti et al. v. Ceballos (2006). Did Garcetti have a right to free speech? Garcetti, a DA, he testified that a warrant was inadequate against the position of his department/boss.

At-Will Employment

What are exceptions to at-will employment?

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At-Will Employment – more exceptions

Implied Contracts: Parties’ conduct limits the Employer’s right to discharge the Employee even though there is no express contract.

Implied Covenant of Good Faith and Fair Dealing: not recognized in all states.

End-of-Chapter Problem 4, p.462

Non-Compete Validity Question

CA case with Arthur Anderson

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Ancillary agreements to protect a company’s or individual’s interests by limiting a former employee’s ability to work against the former employer. The agreement must be reasonable under the circumstances of the case.

CASE 12.2 Alex Sheshunoff Management Services, L.P. v. Johnson (2006). Issue: Can an employer’s promise to provide special training and confidential information create an enforceable covenant not to compete?

Facts. The promise was illusory because the employee could be fired prior to the company meeting the terms of the promise. In this case, the employee did receive the training and access to the confidential material.

Noncompete Agreements

Ethical Consideration from p. 433 – terminating an employee for refusing to sign an overbroad non-compete. Wisconsin ok, CA against public policy

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Conditional Privilege (defense) to defamation actions protects former Employers if the information given to future Employers is fair and in good faith and not published to third parties. Also, Employers may be protected if the Employee signs a waiver and release.

Lose Privilege if Published Beyond Prospective Employer.

Recommendations for Former Employees

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Part of Policy Manual. Limited usefulness and problematic for the Employer. Should be part of the company policy manual and apply to all Employees.

Challenges to testing:– Breach of contract.– No justification.– Violates privacy.– False accusation.– Emotional distress.– Racial discrimination.

Public Employees: protected by Fourth Amendment from unreasonable search and seizures and the right to privacy. – Public transportation.– Handling of firearms.– Public school teachers.

Employer Testing & Surveillance

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Employee’s Privacy Rights– Whether employee provided exclusive working area– The nature of the work– Whether the employee was on notice of the monitoring

Statistics – American Management Association– 66% of employers monitor internet use– 43% monitor emails– 58% have fired someone for inappropriate use– 45% monitor phone time– 16% record calls– 15% track company vehicles– 3% track employees location through cell phone

Employee Surveillance

CASE 12.4 United States v. Ziegler (2007). Did the warrantless seizure of Ziegler’s hard drive and access to his office violate his constitutional rights? The employer provided it willingly.

Nov 2009 WSJ Article - COVERED IN TORTS - Privacy• 38% of companies employee staff to read others’ emails• 52% of employees access personal email accounts from work

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Employee Drug Testing

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Health Screening and Genetic Testing

Pubic Employee Right of Privacy. Norman-Bloodsaw v. Lawrence Berkeley Laboratory (1998).

– Constitutionally protected right to privacy of medical information. Employer liable if employees tested without the employee’s consent

Genetic Information Nondiscrimination Act of 2008 Title VII Claim. Genetic testing may violate Title VII. ADA Claim. ADA may provide cause of action.

Michele and Angela’s paper

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The Employee Polygraph Protection Act of 1988 makes it generally unlawful for employers to use polygraph exams.– Government employers may still use test

Polygraph Testing of Employees

End-of-Chapter Problem 5, p.463

Search of employee’s cars

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OSHA: safe and healthy work environment is required for employers.– Ergonomics Regulations and Repetitive Stress

Injuries.– Criminal Prosecutions.– BP fine of $21 million for 301 willful violations of

worker safety that arose out of an explosion that killed 15 workers.

– Inspect (fines $5,000+)

Responsibility for Worker Safety (no reading assigned)

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Companies Should Bear Risk. Companies should bear the risk of Employee injuries that occurs in the workplace. WC can be provided through self-insurance, purchased from the state or a private insurance companies.

Regardless of Fault. Bars Lawsuit.

Worker’s Compensation

Davis Bacon and Fair Labor Standards Act

Exempt Employees– executives– administrative– professional– outside salesperson

Time and 1/2 for over 40 hours Minimum Wage

Time and 1/2

What about “standby” hours? CASE 12.4 IBP, Inc. v. Alvarez (2005). Employees must be compensated for time putting on protective gear required for work.

End-of-Chapter Problem 3, p.462

Exempt or non-Exempt Young hired as a software engineer Starbucks Managers

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Minimum Wage and Overtime.– Exempt Employees -for example: salespersons, and

executive, administrative, and professional employees. Child Labor.

– Children under 14, generally not employable.– Children aged 14-15 may be employed outside of school

hours subject to daily and weekly limits.– Children aged 16-18 may work in manufacturing occupations

subject to some limitations. Human Trafficking.

Minimum Wage, Overtime and Child Labor

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Other Federal Laws Affecting the Employment Relationship

COBRA (1985). Health coverage. HIPAA (1996). Health information privacy. WARN (1988). Worker retraining. Family and Medical Leave Act

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Immigration Law

Immigration and Reform Control Act 1986. Obtaining a Work Visa. Verifying Authorization.

– “I-9” (Employment Eligibility Verification form). Amnesty Proposal.

– Apply for 3 year temporary-worker permit. Immigration Reform?

Social Security, Medicare and Unemployment Insurance

OASDI (DI = Disability Insurance)– 2011 = $106,800

Unemployment Cobra.

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Ledbetter v. Goodyear, p. 459

V.

Private Pension Plans

Vesting Trustee ERISA

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