Chapter 12
Employment Law I: Protecting the Employee
We believe this is an inherently interesting area of law where the cases will speak well to the students. As a consequence, we have taken a very conventional approach to this material and have given somewhat less attention to the public policy issues that dominate other chapters. Rather, we see this chapter as a useful, readily digestible opportunity for students to be immersed in some of the details of the law. Likewise we give a lesser degree of attention to the free market/government intervention debate that is the central theme in the book. Perhaps more than any other in the text, this is a pragmatic chapter that provides tangible lessons in dealing with the law in day-to-day business practice. Of course, those lessons will be particularly helpful, we presume, for students whose life work will involve human resources responsibilities.
A majority of employers in one survey indicated that they had been sued by one or more employees in the previous five years. The primary areas of contention were discrimination, wrongful termination and sexual harassment. In view of these statistics, all future managers need familiarity with the employment law of today.
http://www.yahoo.com/Government/Law/Employment_Law
“’Driving While Dialing’ Crashes Put Employers at Risk,” by Joseph F. Falcone III
Job Classification/Contingent Workers. Instead of traditional, long-term full-time hires, employers are increasing the percentage of contingent workers and independent contractors in their workforce. Examples include outsourcing, employee leasing, use of freelancers, temporary agencies and professional employer organizations. These statuses may in turn affect the legal relationship between the worker and the employer. They may also further complicate issues arising in the selection process, including resume fraud, background checks, impermissible interview questions, noncompete clauses and the requirement that employment disputes be arbitrated.
References. Former employers may be wary of providing references out of concern of defamation claims. Many states recognize a qualified privilege for employers, which can be used as a defense in a defamation suit. Truth is, of course, a complete defense to a defamation suit.
The distinction between an employee and an independent contractor is important for a number of reasons and is primarily one of control. The greater the degree of control exercised over an individual, the more likely that individual is an employee and not an independent contractor. With regard to independent contractors, employers need not provide unemployment or worker’s compensation coverage, pay minimum wages, or be subject to vicarious liability for any torts of the independent contractor.
http://www.toolkit.cch.com/tools/indcon_m.asp
Classification Problems. Again the issue arises whether contingent workers are employees or independent contractors. Microsoft historically hired many contract workers, who were not entitled to participate in their pension plan or stock purchase plan. In 1990 the IRS determined these workers were employees and Microsoft started issuing W-2 forms to them, withholding income taxes, etc. The workers then brought a class action to get pension and stock option benefits. The Ninth Circuit ruled in 1997 that the workers did the same work as those Microsoft classified as employees and, therefore, were entitled to the same benefits. In response, Microsoft has instituted a new policy prohibiting temporary employees from working longer than one year before taking a hiatus of at least 100 days. Where an employer hires a worker from a temporary agency, the EEOC considers both the employer and the agency “joint employers” and subject to liability for any discrimination issues. The same may be true under the FLSA.
“Much of Europe Eases Its Rigid Labor Laws, and Temps Proliferate,” by Helene Cooper and Thomas Kamm
Liability. Ordinarily, an employer will not be liable for acts of independent contractors, but they are vicariously liable under the doctrine of respondeat superior for accidents or wrongs committed by employees. Thus, classification can be very important.
Scope of Employment. An employer will be held liable under respondeat superior if:
1. The employee was subject to the employer’s supervision.
2. The employee was motivated (at least in part) by a desire to serve the employer’s interests.
3. The problem arose substantially within normal working hours and in a work location.
4. The act in question was of the general type the employee was hired to perform.
http://www.employlaw.com
Negligence
Employers have been held liable in negligence for hiring and/or retaining an employee whom they know (or should know) is likely to commit harm to others or for careless training or supervision.
Yunker v. Honeywell, Inc. (Minn. App. 1993)
The Fair Labor Standards Act (FLSA) deals with four major areas: Minimum wage, overtime, child labor protection and equal pay for equal work regardless of gender.
http://www.dol.gov
Minimum Wage. The FLSA requires most employers to pay a minimum wage, currently at $5.15 per hour. Some argue that minimum wage increases cause job losses, although not all studies show that. In a related development, some 60 communities have passed “living wage” provisions, that establish a minimum hourly rate substantially in excess of the federal minimum wage, but it typically only applies to companies contracting to provide goods or services to the cities establishing the living wage.
http://www.dol.gov/esa/minwage/america.htm
Overtime. Many corporations have been sued over failure to pay required overtime, including Wal-Mart, Disney and Pepsi. Employer compliance with overtime rules varies by industry and may be exacerbated by the complexity of the rules. Americans now work longer hours than the Japanese, who previously had held the global record.
“Americans Work the Most Hours,” USA Today
Child Labor. There are laws at both the federal and state levels setting forth the minimum age at which persons can be employed. Generally, the youngest age at which a person can be employed is 14, although there are some exceptions, notably in agriculture. At 18, the age restrictions disappear.
http://www.dol.gov/dol/topic/youthlabor
Exploitation. Many foreign countries do not have similar restrictions on child labor. This results in a great deal of exploitation in these countries. The U.S. signed Convention 182, largely a symbolic treaty, outlawing some of the most abusive forms of child labor, such as prostitution and slavery. Further, a voluntary program, SA8000, sets criteria for determining whether a supply chain is free of child labor and other abuses. But some have pointed out that current Third World countries are just operating the way the West did when it was trying to move forward economically around the turn of the prior century.
http://www.hrw.org
http://www.globalmarch.org
“State’s Blind Eye on Sexual Slavery,” by Gary Haugen
Deaths, Illnesses and Injuries. Data on occupationally related deaths in the U.S. show a mixed picture. Overall, work-related deaths, injuries and illnesses are decreasing. However, significant numbers still occur annually.
The Occupational Safety and Health Act (OSHAct) requires employers to provide a workplace free of “recognized hazards causing or likely to cause death or serious harm to employees.” A federal agency, the Occupational Safety and Health Administration (OSHA), oversees the OSHAct and ensures compliance. As part of its duties, OSHA establishes numerous detailed and specific standards.
http://www.osha.gov
Standards
The Administration promulgates health and safety standards that identify and seek to correct specific workplace hazards. They are published in the Federal Register and generally are imposed only after a cost-benefit analysis is done.
http://www.osha.gov/comp-links.html
New Standards?
Ergonomics. At the close of 2000, OSHA issued new ergonomics standards, which would have caused some employers to alter workstations, change tools and otherwise redesign the workplace. The primary issues are repetitive stress, awkward working positions and poorly designed tools for the size and strength of workers. Congress, however, repealed the new rules, in favor of voluntary guidelines directed at specific industries.
Home Offices. In another change of course, in November 1999 OSHA issued a letter indicating employers were responsible for maintaining a safe environment for employees who worked at home. The letter was withdrawn, however, in early 2000 in the face of substantial protests.
Workplace Smoking. OSHA recently withdrew a proposed standard that would have banned smoking in most workplaces.
Variances
Employers have a right to request variances (permanent and temporary) from OSHA’s specific standards.
“Fatal Accidents: The Bright Side,” by Lawrence A. Bullis
Violence
Violence in the workplace has taken on new meaning post 9/11. At least one survey indicates management is more concerned with certain kinds of exposure than previously. In some circumstances of random violence, the employer has been sued for failing to protect workers or for negligent hiring of the violent employee.
Right to Know
OSHA has adopted an employee hazard communication standard designed to protect employees from dangers associated with chemicals and toxins.
Records
The Act requires most businesses to keep and post records relating to the safety of the work environment. Employers must inform OSHA of injuries and deaths occurring at the workplace.
Enforcement
OSHA has a number of enforcement mechanisms. Chief among them is the unannounced, on-site inspection (recall from Chapter 5 that the employer may require a search warrant before allowing the inspection to be conducted). Any violation of the Act’s standards will cause a citation to be issued.
“Improper Excavation Procedures Contribute to Death of Construction Worker,” OSHA
For many years, the only recourse for an employee who was injured on the job was to attempt to sue the employer under a negligence theory. The employer usually won by relying on certain historical defenses. Workers’ compensation laws, enacted by most states early in the 20th century, now provide an administrative remedy if an employee is injured or killed on the job. An employee who is injured merely applies for workers’ compensation benefits based on a benefits schedule that ties the amount the employee receives to his/her salary and the severity of the injury.
Benefits
Benefits are determined pursuant to a schedule. The employee usually receives between 1/2 -2/3 of his/her normal compensation, either for a set period of time or indefinitely. Death benefits are also normally tied to the wages of the deceased worker.
Coverage
Although there are some exclusions, approximately 90% of the labor force is covered by workers’ compensation.
Legal Requirements
A compensable injury (or illness or death) is one that (1) arose out of the employment and (2) arose in the course of employment. No ‘fault” needs to be proven to obtain benefits. In general, workers’ compensation is intended to be the exclusive remedy for work-related injuries.
Litigation
Workers’ compensation itself has generated extensive litigation. State workers’ compensation boards are often asked to decide whether an injury is covered by workers’ compensation.
Quaker Oats v. Ciha (Iowa 1996)
Employee privacy is one of the most explosive employment issues at present. Employers are currently using an array of tests (e.g., drug, honesty, personality, AIDs) that arguably interfere with the privacy of employees. Employers, of course, are concerned with hiring the best employees, improving productivity and protecting coworkers.
This is a major issue for employers. Most Fortune 500 companies use some type of drug testing. About 13.6% of workers tested positive in 1988, compared to 4.6% in 2001.
http://www.questdiagnostic.com [N.B.: This site was no longer operational at the writing of this manual.]
Drug-Free Workplace
The Drug-Free Workplace Act of 1988 requires certain employers contracting with the federal government to develop an antidrug policy, provide drug-free awareness programs, and warn employees of penalties for violation of the policy.
http://www.courttv.com/legalcafe/work/drug_testing
The common types of testing programs include: Pre-employment screening, routine physical exams, “reasonable suspicion” testing, post-accident testing, random testing and follow-up testing.
Drug tests have a number of perceived problems associated with them, that they: Are unreliable, invade employee privacy or do not accurately measure the extent to which an employee’s job is actually impaired. Challenges to drug tests have been based on the following legal theories:
Federal Constitution. Public sector employees may assert that drug tests violate their Fourth Amendment rights to be free from unreasonable searches and seizures. Fifth Amendment and Fourteenth Amendment arguments have generally been unsuccessful. Remember, these provisions only apply to public sector employers.
State Constitutions. Some state constitutions afford employees even greater constitutional protection than does the U.S. Constitution (e.g., in some cases extending constitutional protection to private sector employees).
Federal Statutes. Programs need to be designed to be nondiscriminatory so as to not violate Title VII or the ADA.
State and Local Laws. Several states and communities have enacted laws that limit drug testing, although in recent years some of these restraints have been relaxed.
Common Law Claims. Several common law theories have been used to challenge drug tests, such as privacy, defamation, negligence, intentional infliction of emotional distress and wrongful discharge.
Monitoring
Employers have adopted a number of techniques designed to monitor an employee’s behavior while at work.
Blakey v. Continental Airlines (N.J. 2000)
The Law. The law in this area is unsettled. The 1986 Electronic Communications Privacy Act prohibits interception of wire, oral or electronic communications, except with prior consent by one of the parties to the communication or in the case of employer monitoring if the ordinary course of business.
http://www.hrlawindex.com/email/email.html
Smyth v. Pillsbury Co. (E.D. Pa. 1996)
What were once “fringe benefits” (e.g., life insurance, health coverage, pensions) are now central issues to new employees. However, employers are constantly looking for ways to reduce their costs—costs that are rapidly increasing, particularly in the health care area. The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), which requires most employers to permit employees who terminate their employment to continue their medical coverage (at their own expense) unless they were fired for gross misconduct.
“Many Banks Boost Earnings with ‘Janitors’ Life Insurance,” by Theo Francis and Ellen E. Schultz
The 1993 Family and Medical Leave Act entitles employees to 12 weeks of unpaid leave in a 12-month period for a variety of purposes. Employee taking such leave are entitled to reinstatement to the same job (or an equivalent job). Relatively few employees, however, appear to be using this benefit, which in comparison with other industrialized countries is still quite modest.
“Maternity Benefits Lag in U.S.,” by Kirsten Grimsley
http://www.dol.gov/esa/whd/fmla
All 50 states and the federal government, in combination, provide protection for the unemployed. Unemployment insurance is financed through a payroll tax paid by employers, which varies based on the employer’s “experience rating” (which depends on the number of employees the employer has laid off in the past). Although rules vary, employees in most states qualify for unemployment benefits by reaching a certain annual wage rate and by having worked in the same job for a certain number of weeks. The range of benefits a person can receive depends on the state and the employee’s salary when working, but may be collected for up to 26 weeks in most states. A number of things will disqualify an unemployed person from receiving unemployment insurance, such as quitting work or being fired for misconduct.
The Worker Adjustment and Retraining Notification Act (WARN) requires firms to provide 60 days notice if they lay of 1/3 of their workers at a plant employing 150 or more employees, lay off 500 or more employees at any one site, or close an entire plant of at least 50 employees. However, a 1993 GAO study reports that WARN has been largely ineffectual.
The Employee Retirement Income Security Act (ERISA) regulates employer-provided pension plans. ERISA attempts to ensure that plans are not underfunded through a number of mechanisms (e.g., requiring fund administrators to keep detailed records, holding them to a fiduciary duty). It also specifies certain vesting rights, so that employees cannot lose their pensions after working a set time (typically ten years). The traditional pension plan was a defined-benefit plan, which was heavily funded by the employer in the later years of an employee’s career. The newer plans are more likely to be defined contribution plans, which are evenly funded throughout an employee’s career. The latter are more mobile plans because employees can take their accumulated accounts with them when they move to a new job..
http://www.401khelpcenter.com
http://www.ebri.org
Enron, World Com, and Pensions. Tens of thousands of employees at these and other recently collapsed corporations have lost the bulk of their retirement savings largely because their 401(k) plans were heavily invested in their companies’ stock. Law suits have been begun against corporate insiders who continued to encourage such investments, while knowing that the companies were not as healthy as the public believed. In spite of the public outcry, Congress has actually done very little to prevent similar future occurrences.
Health Benefits and Retirement. Another pressing issue for many retirees is the reduction or loss of their health care benefits, which companies are cutting back in the face of substantial increases in health care costs and the rising number of retirees who receive such benefits. For example, Bethlehem Steel employs 13,000, but has 74,000 retirees.
The vast majority of employees in America are governed by a doctrine referred to as employment-at-will. This means that an employee can be fired at any time and for any reason (as long as the discharge does not violate a specific statute). Employment-at-will was premised on freedom of contract. It was argued that since an employee could leave a job at any time and for any reason, employers should be permitted to discharge the employee at any time and for any reason. Although critics of employment-at-will note the great inequality of bargaining power between the employer and employee, employment-at-will continues to be the presumption in every state, although some statutory and judicially imposed limitations have arisen prohibiting discharge for, for example, discriminatory reasons.
Dissatisfaction with the employment-at-will doctrine has induced courts in some states to create judicial exceptions to that doctrine. Those exceptions can be grouped into four categories.
Express or Implied Employment Contracts. Some states have held that documents promulgated by the employer (e.g., handbooks, policy manuals) and/or oral assurances can create an implied contract restricting the employer’s right to discharge the employee.
Implied Covenant of Good Faith and Fair Dealing. Courts in a very small number of states (California being the most notable) have held that discharging an employee in “bad faith” deprives the employee of the benefits of the employment contract (even the at-will contract).
Public Policy. Some states have also allowed an employee to recover for “wrongful discharge” if a court determines that the discharge of the employee violates a public policy the state wishes to uphold (e.g., if an employee is discharged for exercising a statutory right or satisfying a legal obligation).
Additional Torts. Some state courts have allowed employees to maintain tort actions based on the facts associated with their discharges. In some (although rare) cases, employees have recovered for defamation, intentional infliction of emotional distress, interference with contract or invasion of privacy.
Barrera v. Con Agra, Inc. (8th Cir. 2001)
Although the U.S. is a nation founded on immigration, there are now many issues surrounding both legal and illegal immigration. For example, controversial legislation was passed in 1990 to increase the number of visas allocated to highly skilled workers (e.g., scientists, engineers).
Some Problems. Current issues include those surrounding the smuggling of illegal immigrants into the U.S. and the abuse they may be subjected to after arriving. It is also an issue that greatly impacts our relationship with Mexico.
American Law. Legal immigration often requires both the employer and the immigrant to obtain a labor certification. The Immigration Reform and Control Act (IRCA) of 1986 imposes penalties on employers who knowingly hire aliens who are unauthorized to work in the U.S.
http://www.virtualmk.com/practice/imm_handbook_part_3.html [N.B.: At the writing of this manual, this document was no longer located on this site.]
Tighter Rules? The USA Patriot Act of 2001 enhanced security over certain immigration matters and another new bill, Securing America’s Future through Enforcement Reform (SAFER), is before Congress.
http://www.cis.org/articles/2001/back1501.html
http://dir.yahoo.com/Government/Law/Immigration_and_Naturalization
Based on information at http://www.osha.gov, the following are the answers:
1. Ergonomics is the science of fitting the physical requirements of the job to the physical capacity of the worker.
2. A large number of women work in jobs associated with high levels of repetitive motions, heavy lifting, awkward postures and other physical work activities causing work-related musculoskeletal disorders.
3. Many employers have had great success with such programs. The General Accounting Office found that the programs and specific job fixes were not necessarily costly or complex. Examples of success include Red Wing Shoes, Fieldcrest-Cannon, Fresno Bee, Perdue Farms and Woodpro Cabinetry.
Find a website illustrating a topic discussed in Chapter 12. Identify the employment law to which it relates and discuss it in the context of the chapter materials.
http://workplace.samhsa.gov (Substance Abuse and Mental Health Services Administration site covering drug testing and drugs in the workplace)
1. According to published reports, the case settled for $500,000. The legal argument is that an employer is generally held accountable for the negligence of his employee committed in the course and scope of the employment relationship. See, text pp. 433-34.
1. a. Vicarious liability on the part of Gonzalez’ employer, Land Transport.
b. Dismissal of suit affirmed based on the concept that, if a employee acts in an outrageous manner out of all proportion to the necessities of the employer’s business, that itself is an indication that the employee has departed from the scope of employment.
2. a. The central issue was whether Hall’s conduct was outside the scope of his employment.
b. The court found that Hall’s acts were not a foreseeable extension of his job responsibilities. The boxes were empty, employees were told not to try to recover stolen property and were not penalized for stolen property. Thus, Hall’s conduct was contrary to his employer’s policies. Hall was acting outside the scope of his employment and the pizzeria was not held liable for his conduct.
3. The following policy justifications have been offered to support the principle of respondeat superior: To spur accident prevention, to provide accident victims with a greater possibility of receiving compensation, and to provide assurances that losses associated with accidents will be distributed among the beneficiaries of the enterprises that produce them. See Capitol City Foods, Inc. v. Superior Court of Sacramento County, 7 Cal. Rptr. 2d 418 (3d Dist. Cal. 1992).
Syllabus
Yunker, trustee for the estate of Kathleen Nesser, sued Honeywell (her employer) under the theories of negligent hiring, retention and supervision with respect to Honeywell’s employment of Randy Landin. Landin worked for Honeywell from 1977-79 and 1984-88. From 1979-84, Landin was in prison for the strangulation death of a Honeywell co-employee. Nesser met Landin in 1988 through their employment at Honeywell. After a time, Landin began threatening and harassing Nesser both at work and at home. Nesser asked for help from her supervisor and a transfer to another facility. Shortly thereafter she found a death threat scratched on her locker door. Landin never appeared back at work after that event. Within three weeks, Landin killed Nesser in her driveway with a shotgun.
Honeywell moved for summary judgment on the theory that even if it failed to exercise reasonable care in hiring and supervision of Landin, it owed no legal duty to Nesser and therefore could not be held civilly liable for her death. The trial court agreed with Honeywell and Yunker appealed.
The appellate court found that Honeywell could not be liable for negligent supervision, which is a claim that derives from the doctrine of respondeat superior (which involves vicarious liability on the part of the employer) because Landin was not acting within the scope of his employment when he shot Nesser. That is, he was not on Honeywell’s premises nor using any of Honeywell’s property.
On the other hand, negligent hiring and retention argue that the employer is directly (not vicariously) liable for its own acts in hiring or retaining an employee. With regard to negligent hiring, the appellate court found Honeywell not liable because that theory requires that, at the time of hiring, the employer place an employee with known propensities in a position which because of the circumstances of the employment posed a threat of injury to others. The court found that Landin’s custodial duties did not of themselves pose a threat to others.
Finally, with regard to the negligent retention claim, the appellate court found that Honeywell was not entitled to summary judgment and the claim should be tried before a jury. Negligent retention focuses on whether an employer takes appropriate action when put on notice that an employee poses a threat. There was evidence that Landin was becoming increasingly more violent at work at that the violence was in part directed at Nesser. To prevail at trial, Yunker will have to prove that Honeywell breached its duty and that that breach was the proximate cause of Nesser’s death.
1. Negligent hiring and retention requires assessment of actual carelessness (exposing the public to a dangerous individual) on the part of Honeywell, the employer, whereas vicarious liability would not require that showing but would require a showing that the act in question (the murder) was committed within the scope of employment.
2. Landin was neither on Honeywell's premises nor using Honeywell's chattels when he shot and killed Nesser.
3. Landin's job as a maintenance worker did not entail his exposure to the general public and required only limited contact with co-workers; it did not involve inherent dangers to others; and Nesser was not a reasonably foreseeable victim at the time Landin was hired. Further, public policy favoring a reasonable attempt to rehabilitate criminals supports Honeywell's hiring decision.
4. Sufficient evidence was presented to show that Honeywell owed a legal duty to Nesser arising out of the continued employment of Landin. That duty sprang from several episodes in Landin's post-imprisonment, Honeywell employment demonstrating a propensity for abuse and violence and demonstrating that propensity was directed toward Nesser. Thus, the violence was foreseeable and that risk outweighed policy considerations regarding rehabilitating ex-felons.
5. a. Both respondeat superior and negligent supervision.
b. The appellate court held that, generally, sexual assaults are outside the scope of employment and, therefore, insufficient to impose vicarious liability on the employer. For the employer to be liable for negligent supervision, it must have had constructive or actual notice that Pacheco was unfit to work as a pastor. The court held that there was insufficient evidence of such notice.
1. At least in Iowa, there is no law requiring an employer to be fair in how overtime hours are allocated. Courier, February 4, 2001, p. C1.
1. Discussion. Additional questions that may be used to spur student thinking on this issue are: Are Americans major customers in the sex slavery industry? If so, does that make them responsible for the enslavement? Have Americans caused or significantly contributed to the sex slavery industry by our cultural practices, our values, or our policies? Does America have a duty to help correct global problems merely because we have the resources to do so?
1. Discussion. Students should be encouraged to engage in a cost/benefit analysis. Other considerations might include personal responsibility, bureaucratic intrusion, student awareness of repetitive stress concerns, differences in computer use among universities, etc.
2. Discussion
1. Probably yes. Injuries inflicted on a worker through an assault or prank by a co-worker or third person is generally deemed to arise from employment unless the evidence shows that the harmed worker acted as an aggressor, initiator or voluntary participant. See, James J. Robertson, “Injuries from horseplay are not compensable,” Oklahoma Employment Law Letter, December 2000.
Syllabus
Ciha was employed by defendant, Quaker Oats, as an area maintenance supervisor generally working regular hours, Monday through Friday. On Memorial Day weekend, 1991, he was assigned on-call duties, with the responsibility to respond to any mechanical emergencies anywhere in the plant. He was in fact called for such an emergency on Sunday afternoon and rode his motorcycle to the plant to deal with the problem. After correcting the problem, he called his wife to put dinner on and proceeded to take an alternate route home on his motorcycle. This route was more scenic, less trafficked and approximately five to seven minutes longer. On his way home, he was involved in a serious accident and rendered a quadriplegic.
In November, 1991, Ciha filed a workers’ compensation claim against Quaker Oats. The arbitrator ruled in Ciha’s favor, as did the district court when Quaker Oats appealed. Quaker Oats appealed again to the Iowa Supreme Court.
To be compensable, a worker’s injury must both arise “out of” the employment and “in the course of” the employment. The first requirement is simply a causal relationship between the employment and the injury and is met here. The second requirement requires consideration of the time, place and circumstances of the injury.
Quaker Oats argued the “going and coming” rule applies and precludes compensation here. This general rule provides that injuries sustained by employees on their ways to or from work are generally not covered. There are several exceptions to the rule, however, one of which is the “special errand” exception. The court found Ciha was indeed on a special errand for his employer when he was injured: that Ciha was contacted to come in on Sunday was unusual, sudden and unexpected.
Another defense is that the employee loses coverage if he deviates from the course of employment. Quaker Oats argued that Ciha had deviated by taking the more scenic route home. The court rejected the claim that the altered route was significant enough to be treated as a deviation: Ciha went straight home, on a route only slightly longer than the most direct route. Further, it was not unusual for him to take the more scenic route.
1. a. An injury arises “out of” employment if there is a causal relationship between the employment and the injury. An injury arises “in the course of” employment if there is a sufficiently close connection in view of the time, place and circumstances of the injury.
b. Not if the employee is doing something he or she deems necessary for the benefit of or in the interest of the employer.
c. The court found that the fact that Ciha was contacted to come in on Sunday was unusual, sudden and unexpected. He was normally on call only four or five times a year and this was in fact the first time he was contacted about any problems while he was on weekend call.
2. The court said certain factors in making this determination should be considered, including employee’s functional disability, age, education, qualifications and experience. The focus is on his ability to be gainfully employed. And although the court commended Quaker Oats on having made substantial efforts to accommodate Ciha’s disability (which was why the court found 80% rather than 100% disability), nevertheless Ciha would be unlikely to be able to find employment elsewhere.
3. For Fernandez. "Work related intoxication is a hazard of the employment that follows an employee when he or she leaves work. When an employer encourages or condones excessive drinking on the job and in fact profits from an employee's drinking, as in this case, the employer ought to be held responsible for foreseeable injuries."
4. a. The Supreme Court refused to find an exception to the going and coming rule. Smyth chose to work at home. He was not required to do so. A home does not become a second jobsite merely because one works long hours and the employer knows that the employee often takes work home.
b. Discussion. Presumably, the family’s case would be greatly strengthened (assuming they would be able to demonstrate that the student was with Smyth for business reasons).
5. The widow received workers’ compensation benefits. The Michigan court of appeals said alcoholism is a disease and workers are entitled to compensation if their occupational experience aggravates that disease. The court found that Gacioch was predisposed to alcoholism but was not an alcoholic when he took the job. The conditions of his job accelerated that predisposition so that it became an addiction.
Syllabus
Plaintiff, Smyth, sent an e-mail to his supervisor over the company e-mail system which contained material the employer determined was inappropriate and unprofessional. Smyth was terminated as a consequence of his actions. Smyth sued, claiming his discharge was against public policy in that he was terminated in violation of his right to privacy (that is, his right not to have his e-mail read and held against him). The court found that Pennsylvania (the state law that applied to this case) may actually recognize a public policy against discharges related to invasion of employee’s right to privacy. However, here Smyth did not have a reasonable expectation of privacy in e-mail communications he voluntarily made to his supervisor over the company e-mail system; and in this instance a reasonable person would not consider Pillsbury’s interception of this e-mail to be a “substantial and highly offensive invasion of” Smyth’s privacy. Thus, Pillsbury was entitled to a dismissal of Smyth’s action.
1. The plaintiff, Smyth, failed on his invasion of privacy claim because: (a) He had no reasonable expectation of privacy when using a company-wide e-mail system; (b) even if Smyth had a reasonable expectation of privacy, a reasonable person would not have considered the employer's interception of the communication to be a substantial and highly offensive invasion of privacy; (c) the court noted that Pillsbury, the employer, did not require Smyth to disclose personal information about himself; and (d) the Court concluded that the company's interests outweighed any privacy claim Smyth might have had.
2. Smyth lost because as an at-will employee, under Pennsylvania law, he could be fired for any reason unless he was able to show his dismissal violated public policy. He was unable to do so; thus, Pillsbury was within its legal rights in firing him notwithstanding its broken promises.
3. Discussion. Remind students of employers' concerns not merely about productivity but also about the threat of lawsuits against the employer for employee e-mail comments.
4. a. Generally, yes, although an employer who wishes to clearly have that right should put it in writing for all employees that it reserves the right to inspect offices when there are good, legitimate business reasons for doing so. It is possible for an employer to have caused an employee to have an expectation of privacy (see below), which could then cause problems for the employer.
b. This is a good example where the general rule does not hold because the employer has given the employee an expectation of privacy.
Syllabus
Barrera sued his employer, Con Agra, Inc. and Swift & Co., claiming retaliatory discharge in violation of public policy, as well as false arrest and imprisonment. He alleged that he was fired on June 14, 1996 in retaliation for having filed a worker’s compensation claim related to a slip and fall accident that occurred March 22, 1996. Defendant says the firing came about after he allegedly violated company policy against eating in the employee locker room of the hog processing plant where he worked. When asked to report to human resources over the incident, defendant alleges that Barrera threatened the lives of several employees, was fired, the local police were called and he was arrested, charged with first degree harassment. Both the district and circuit courts held that Barrera had failed to prove any causal relationship between the filing of the worker’s compensation claim and his termination, other than that which might be inferred by the relatively close timing. He also failed to support his claim of false imprisonment, because that action generally runs against only the party doing the actual detention.
1. Barrera lost his retaliation/public policy claim because he could not prove a causal relationship between his filing of a workers’ compensation claim and his subsequent dismissal. He lost his false imprisonment claim because the detention was by the police rather than the defendant Swift.
2. a. Discussion. Swift may have misunderstood the situation due to the language barrier, but even if that were the case, the employer would have the right to dismiss the at-will employee absent a tort or contract exception.
b. Perhaps a good faith and fair dealing exception might emerge from the expectation that reasonable communication in the workplace is implied in the employment relationship and that an employer who knowingly hires an employee who cannot speak English may have to take reasonable steps to communicate with that employee.
3. a. The Delaware Supreme Court ruled that Schuster had a common law cause of action for breach of the covenant of good faith and fair dealing based on the alleged violation of Delaware public policy by the defendant’s alleged acts of sexual harassment.
b. Schuster claimed, and the court agreed, that she had a cause of action based upon her employer’s manipulation and falsification of her employment record. The court ruled that the alleged manipulation and falsification might constitute a breach of the covenant of good faith and fair dealing. Schuster also claimed that she was a victim of slander, but the court rejected that claim because of lack of publication. No one heard the allegedly slanderous remarks other than Schuster and her direct supervisor, Goff. The case was allowed to proceed on the merits.
4. The court said no. “General promises or assurances that an employee will … only be terminated for ‘good cause’ do not constitute a binding contract. An employee must reveal a more formal agreement with the employer to modify at-will employment.”
5. The Iowa Supreme Court reversed. The court rejected negligent discharge as an exception to the employment-at-will doctrine. The court rejected the defamation judgment finding that Huegerich had failed to prove that the IBP management had “published” the allegation that Huegerich had been dismissed for possession of “speed.”
6. The court rejected her wrongful discharge claim. However, the court found that she had expressed a cause of action under Kansas law for negligent infliction of emotional distress. The court found the requisite physical injury in the plaintiff's inability to lactate. Here the court appears to have been determined to find a way for the plaintiff to recover. Hence, the recognition of the tort claim.
1. Much of the argument is economic in nature. Immigrants keep wages down for businesses and lower the cost of services, such as lawn care. On the other hand, immigrants compete for blue-collar jobs, which, as noted, act to hold down wage increases. The divide also likely reflects differences in education, cultural experiences and the like.
2. Discussion
3. Recently, we have taken the pragmatic direction of embracing those who can make an immediate, material contribution to the economic and cultural welfare of the nation. That policy is a departure from our historic stance of treating all immigrants as being of equal worth regardless of potential productivity. We also now give less attention to our historic interest in uniting divided families. On the other hand, our old policy of favoring our traditional western European sources of immigrants was considered racist by some.
More broadly, we arguably need greater numbers of immigrants in order to compensate for our slow population growth and to inject some vitality into our aging demographic mix.
According to Becker: "[Y]oung, ambitious, energetic and skilled immigrants---the kind any country would love to have---would tend to be [the ones likely to immigrate under such a system]." He feels that these immigrants would contribute immediately to our nation's economy. In answer to the argument that "citizenship should not be for sale," Becker says this ignores historical fact---immigrants have always paid a price to immigrate.
1. a. Of course, under the ancient notion of respondeat superior, we have believed that employers should bear responsibility because they hired the employees: They, in effect, decided that the employees would stand in for the master. Hence the master should bear liability. Further, the master possessed deep pockets thus permitting the plaintiff a more realistic opportunity for meaningful recovery. And the employer is better able to insure against and pass along any losses that result.
In the newer lines of negligence cases, the plaintiff must identify a breach of duty by the employer as in the failure to dismiss an employee whom the employer knew or should have known to be dangerous.
b. Discussion
2. Abplanalp won. The court held that Com-Co. had no protectible interest in clients Abplanalp knew personally before he began work for Com-Co. A protectible interest is not recognized when the customer list is not secret or where there is no specialized knowledge. The only protectible interest is in the list of customers developed while in Com-Co’s employment only.
3. a. Discussion. Many employee-testing experts doubt the value of credit reports in identifying good applicants. However, the credit agencies and employers say that common sense proves the value of those credit reports.
b. Under the Fair Credit Reporting Act, credit agencies normally need not tell job applicants that their files are being investigated. However, they must do so if their files hold public information of an adverse nature such as court decisions or tax rulings. Likewise employers generally need not inform applicants about a credit check when they apply (many do so voluntarily). However, when an applicant is rejected because of information in a credit report the employer is required to notify the applicant and identify where the report is housed. (Those requirements are often ignored.) See Gilbert Fuchsberg, “More Employers Check Credit Histories of Job Seekers to Judge Their Character,” The Wall Street Journal, May 30, 1990, p. B1.
4. The nurses lost. The court held that an employee’s time is “work” subject to the FSLA only if it is spent predominantly for the benefit of the employer. Since the nurses could do what they wanted to do, except be more than 20 minutes from the hospital and not consume alcohol or drugs, their on-call time was predominantly theirs, so payment below minimum wage was not in violation of the FSLA.
5. The circuit court held that there was no improper search and seizure: The employer had the right to enter the employee’s office and computer since the search was for the purpose of obtaining evidence of work-related misconduct. Whether the misconduct was criminal or not does not matter. The employee had no expectation of privacy in files downloaded from the internet in violation of the employer’s policy.
6. On appeal, Bechtel won. Guz was an at-will employee. The employer had an absolute right to eliminate the employee’s work unit and transfer the unit’s responsibilities to another group of employees. Keeping an employee for 20 years does not create an implied-in-fact employment contract. A covenant of good faith and fair dealing does not impose substantive duties beyond those incorporated in their employment agreement.
7. The court held that she could not receive compensation because: (1) Ampex freely permitted its employees to smoke on the premises, outside the plant building, and thus this was not properly characterized as a “total smoking ban;” and (2) “smoking restrictions are common in today’s workplace and … the particular restriction at issue here was not imposed in a manner that was arbitrary, unreasonable, or in bad faith.”
8. The jury’s award of $100,000 compensatory and $200,000 punitive damages was affirmed on appeal. The court held that there was substantial evidence for the jury to conclude that Rulon-Miller was wrongfully terminated, rather than routinely reassigned as claimed by IBM. Substantively, the court held that “[t]he duty of fair dealing by an employer is, simply stated, a requirement that like cases be treated alike. Implied in this, of course, is that the company, if it has rules and regulations, apply those rules and regulations to its employees as well as affording its employees their protection.” The company had the right to dismiss an employee for conflicts of interest, but it was for the jury to determine whether such a conflict existed here. The jury found otherwise and the court affirmed.
9. a. Terrel's principal claims were breach of privacy, breaking and entering, trespass, and negligent supervision.
b. For the employer. The trial court dismissed the complaint ruling that: (a) The employee had a diminished privacy claim since the car was on company property, the employee was aware of the company policy against drinking, the employer had a duty to maintain a safe workplace, and the intrusion was minimal; (b) the intrusion into Terrel's car was proper because of employers' well-settled duty to maintain safe working conditions; and (c) Indiana does not recognize the tort of negligent supervision. The decision was affirmed by the Court of Appeals.
10. Discussion. Consider the situations in which the job function involves public health or safety and situations where the health and safety of co-workers would be at issue. See Gillina Flynn, “Eill Drug Testing Pass or Fail in Court?,” Personnel Journal, April 1996, p. 141.
11. Discussion. One issue to remind students of is the Solomon Smith Barney case reported in the text box on pp. 428-29 of text, where the company was sued by the estate of a motorcyclist who was killed by an employee who was driving and speaking on his cell phone to a client at the time of the accident.
12. No. Federal law prohibits firing an employee for serving on a jury. Even threatening to do so is illegal.
13. Plaintiffs would have to show some evidence of a public policy (e.g., in a statute or the constitution) against private (as opposed to governmental) limitations on the right of association or free speech. Here, plaintiffs could not do this and lost their case.
14. The exclusivity of the workers’ compensation law applies to the worker personally and those injured as a derivative result of the employee’s injury (such as a spouse’s loss of consortium), but does not foreclose suit by another who were themselves directly injured by the employer’s negligence, such as the child here. The Court of Appeals decision was confirmed by the decision of the California Supreme Court, 945 P. 2d 781 (1997).
15. a. Yes. Injuries from assaults at work, said the court, are excluded if the person was an active participant in the assault (here Lang was not) and when the assault is not connected to the job assignment. Here friction at work was the cause of the assault.
b. The key issue was whether Lang’s injury “arose out of” his employment.
16. No. The heart attack was not shown to be job related, nor was the immediate cause of death, the bacterial infection, job related.
17. a. Negligent supervision and retention of the costumer.
b. Here, Disney did not take action against the costumer once his activities were known. Further, it had not corrected the problem of the holes when it first became aware of them and told the employees that the problem would be corrected.
Certain cases where employers have been held liable have heightened the concern that employers have become dangerously vulnerable to lawsuits for injuries involving employees. For example, in March of 1991 a Portland, Oregon jury found McDonald's to be negligent when a 19-year-old employee was involved in an automobile accident after work. The employee had worked a 12-hour split shift after having worked 8 hours the night before. He fell asleep at the wheel after leaving work. His car crossed the center line and struck the plaintiff's car causing the death of the McDonald's employee and injuring the plaintiff. The jury awarded $400,000 to the plaintiff. The family of the deceased employee is suing McDonald's for $10 million. The decision is particularly striking because the plaintiff did not allege a violation of labor law or company policy. Rather, McDonald's was found to be negligent for allowing its employee to drive after working for an extended period. McDonald's had not compelled the employee to work the extra hours. However, the supervisor was aware of the employee's work and school schedule. For its part, McDonald's wonders how it is to identify workers who are too tired to drive. See Amy Stevens, “Bosses Fret They May Be Liable for Tired Workers on Road Home,” The Wall Street Journal, April 16, 1991, p. B1.
McDonald's was likewise the defendant in a California case attempting to hold the company responsible for an auto accident involving a McDonald's employee who struck a motorcycle while driving home. The employee had spent part of the evening with other employees cleaning up the restaurant playground. He then went to another employee's home for socializing and discussion of the “Spring Blitz” cleanup. Thereafter, he was involved in the accident. A lower court found for McDonald's. However, an appeals court sent the case back saying that the lower court had to decide whether the employee had fully abandoned his “special errand.” The appeals court took note that the five employees gathering after work and talking about the “Blitz” and the performance of other McDonald's stores was consistent with the “family” feeling that the fast food chain encourages. See Albert R. Karr, “Labor Letter,” The Wall Street Journal, January 22, 1991, p. A1.
The following article details yet another expansion of our conventional sense of employer liability.
JURY'S VERDICT IN RAFT DEATH CLOUDS OUTINGS
By Thomas R. King and John B. Hinge
A federal jury's verdict holding DDB Needham responsible for the drowning death of a retired employee on a company-sponsored rafting trip will force businesses to reassess the risks of giving employees and clients a good time.
Late last week, a U.S. District Court jury in Chicago ordered DDB Needham to pay $1.1 million to the family of James Fasules, one of five men who drowned on a white-water rafting expedition on Canada's Chilko River in 1987. The jury held the Omnicom Group unit partly responsible for the accident. Mr. Fasules was held partly responsible himself. The rafting company, which ran the trip, wasn't held responsible at all.
The jury award sends a clear message that companies can be held responsible for events they sponsor - even those outings in which the lines between business and social activity are blurred. Two more lawsuits arising out of the drownings still are to be decided - one of which concerns the death of a would-be client, Procter & Gamble executive Robert Goldstein.
Lawyers and ad officials quizzed yesterday said the decision will make it nearly impossible for businesses to justify outings that can in any way be viewed as potentially dangerous. Events such as wilderness hiking expeditions and rock climbing, for example, will likely be substituted with tamer outings, such as picnicking and rounds of golf.
“We think it's a very important jury decision, not only for this case but for all future cases where businesses are using marketing tools that are dangerous,” said Stanley M. Chesley, a Cincinnati attorney for the family of Mr. Goldstein.
The Fasules case is believed to be the first time a federal jury has decided that companies can be held liable for off-work outings, said Brian Crowe, the attorney for the Fasules family. But he doesn't expect the ruling to apply to mishaps in milder celebrations.
“The whole message is that if you're going to take someone on a risky venture, you have to let him know what he's getting involved with,” said Mr. Crowe of the Chicago law firm Henslee Monek & Henslee. In this instance, Mr. Fasules was a raw rookie at rafting while other participants were veterans who knew what to expect, the attorney explained.
But DDB Needham's attorney, William Swindal of the Chicago law firm Hinshaw & Culbertson, maintained the agency's innocence. “Our argument was that there was no duty owed to Mr. Fasules,” he said. “We did nothing wrong. We didn't run or operate the raft.” He wouldn't comment on whether the agency plans to appeal the verdict.
If there was any good news for DDB Needham, it was the fact that the jury award fell short of the $5 million that Mr. Fasules's family had originally sought.
The jury decided on the $1.1 million award after determining Mr. Fasules was partly responsible. One guide who was aboard the raft testified that he pulled Mr. Fasules to a safe place after the accident, but that the retired executive apparently left that place and then drowned.
The Wall Street Journal, December 4, 1990, p. B1. Reprinted by permission of The Wall Street Journal.
Syllabus
An employee (Mary T.) of Capitol City Foods, sued Capitol for, among other things, the sexual harassment committed by a supervisor (Vernon Johnson). The harassment was committed while both parties were off duty and away from the workplace. The Superior Court of Sacramento County denied Capitol’s motion for summary judgment on the sexual harassment claim and Capitol petitioned for a writ of mandate ordering the trial court to grant its summary judgment motion.
A California appellate court issued the writ directing the Superior Court to grant Capitol’s motion for summary judgment. The court found that Johnson was not acting within the scope of his employment when the alleged harassment occurred and pointed to the following: Mary T. and Johnson were off-duty during the incident, they had agreed to the date, and there was no evidence that “Johnson used his authority as supervisor to compel Mary’s presence. The mere facts that the parties were in Johnson’s office when the date was arranged and that Mary was wearing her uniform when Johnson picked her up were insufficient to establish that Johnson was acting within the scope of his employment when the alleged harassment occurred.
Syllabus
Steven Trujillo assaulted “Rocky” Medina (a patron of Cowboys) in the parking lot of Graham’s Cowboys, Inc. (Cowboys). Medina sued Cowboys for negligently hiring and supervising Trujillo. The trial court found for Medina, Cowboys appealed and the appellate court affirmed.
The appellate court sustained the lower court’s decision based on the facts that Trujillo was employed by Cowboys as a doorman; his job included assisting in maintaining peace in Cowboys, using force if necessary; Cowboys’ doormen were necessarily in constant contact with members of the public, most of whom would have been drinking and many of whom might tend to be argumentative; and Cowboys knew or should have known that Trujillo was unfit to be employed as a doorman in that he had been involved in several fights at Cowboys and in its parking lot as a Cowboys patron. The court held that Trujillo was unsuitable to for the position considering the risk he posed to those with whom he would foreseeably come into contact during his employment; that his attack on Medina was foreseeable; and that Cowboys was negligent in the hiring and training of Trujillo, which negligence was the proximate cause of Medina’s injuries.
Cowboys challenged the ruling on the ground that Trujillo was not on duty on the night of the assault and therefore the hiring of Trujillo could not have been the proximate cause of Medina’s injuries. However, there was ample evidence that Trujillo was present on the premises at Cowboy’s request, that he had come to work and been told by a Cowboys employee to remain in case he was needed later and that he did remain. Therefore, Trujillo encountered Medina as a direct result of Trujillo’s employment relationship with Cowboys. Held for Medina.
Syllabus
James Miedema filed a workers’ compensation claim after experiencing severe pain in his lower back while in the restroom at work. The court held that workers’ compensation claims must satisfy both parts of a two-part analysis in order to be compensable: (1) The injury must arise in the course of employment, and (2) it must arise out of that employment. Miedema satisfied the first part in that the injury occurred after he had clocked in for work and while he was on the work premises. However, he did not meet the second part of the analysis because there was no causal connection between the conditions of his employment and the injury to his back. “The injury must not have coincidentally occurred while at work, but must in some way be caused by or related to the working environment or the conditions of his employment. There is no indication that the design of the restroom or of the toilet Dial provided for its employees contributed to Miedema’s injury.” Found for Dial Corp.
Syllabus
Plaintiff was a quality control inspector whose job was to assure that no adulterated poultry products were sold. Two months before her termination, after failing to get management to enforce proper sanitary rules, she informed the plant’s on-site governmental inspectors of the problem, who then saw the condition corrected. Her supervisor then told her she would be fired if she went to the government inspectors again. A week prior to her discharge, she and other quality control inspectors reported another problem to management. The day of her discharge, a government inspector required a large quantity of poultry to be reprocessed. Management believed plaintiff had informed the government inspector and she was discharged.
Plaintiff claimed her termination was against public policy, relying on the public policy represented by the Virginia Meat and Poultry Products Inspection Act. The court found that plaintiff was asking for the court to establish a common law “whistle-blower” retaliatory discharge claim as an exception to Virginia’s employment at will doctrine. The court refused to do so. Plaintiff lost.
Syllabus
The plaintiff, an at-will employee who was discharged by the defendant hospital, brought a number of causes of action under both tort and contract theories alleging that her termination violated public policy. She contended that she was discharge for refusing to take part in certain activities (e.g., drinking, spitting, performing “Moon River” literally) on a camping trip with her supervisor (who was also female). The trial court dismissed all of the causes of action on the defendants’ motion for summary judgment and Wagenseller appealed.
The Arizona Supreme Court identified the relevant issues as: (1) Is an employer’s right to terminate an at-will employee limited by any rules which, if breached, give rise to a cause of action for wrongful terminations; and (2) if the “public policy” doctrine or some other doctrine does form the basis for such an action, how is it determined?
In remanding the case to the trial court, the Arizona Supreme Court stated: “It is difficult to justify this court’s further adherence to a rule which permits an employer to fire someone for ‘cause morally wrong[.]’ We hold that an employer may fire for good cause or for no cause. He may not fire for bad cause—that which violates public policy.” Thus, the Arizona Supreme Court adopted the public policy exception to the employment-at-will doctrine for Arizona.
Gil A. Abramson and Elisabeth J. Lyons, “Protection of Employers' Records from Disclosure to Employees, Government Agencies, and Third Parties,” Labor Law Journal 41, No. 6, June 1990, p. 353.
David A. Allen, “Less Stress, Less Litigation,” Personnel 67, No. 1, January 1990, p. 32.
Steve Bergsman, “Employee Conduct Outside the Workplace,” HR Magazine 36, No. 3, March 1991, p. 62.
Clara Bingham, “The Child-Labor Sting,” Newsweek, March 26, 1990, p. 36.
Arthur Caplan, “Genetic Screening May Decide Jobs,” Des Moines Register, November 11, 1990. p. 2C.
Tom Carney, “Study: Effects of Drugs on Job Are Exaggerated,” Des Moines Register, November 28, 1990, p. A2.
Anne Carothers-Kay, “Vulgarity Now Grounds for Job Firing,” Des Moines Register, September 27, 1990, p. 2A.
Shari Caudron, “Angry Employees Bite Back in Court,” Personnel Journal 75, no. 12, Dec. 1996, p. 33.
Laurie P. Cohen and Wade Lambert, “Firms' Right to Fire `At Will' is Bolstered,” The Wall Street Journal, January 8, 1990, p. B2.
Laurie P. Cohen and Ann Hagedorn, “Sweatshop Conditions Described by Witnesses in Workplace-Injury Case,” The Wall Street Journal, October 24, 1990, p. B8.
Jeffrey L. Cross, “The Employee Polygraph Protection Act of 1988: Background and Implications,” Labor Law Journal 40, No. 10, October 1989, p. 663.
Sonni Efron, “Targets Get Bigger in Sweatshop War,” Los Angeles Times, February 5, 1990, p. A3.
David Everett and Michael Mehle, “U.S. Finds Thousands Working in Violation of Child Labor Laws,” Des Moines Register, March 16, 1990, p. 1A.
James Fenton, “Negligent Hiring/Retention Adds to Human Resources Woes,” Personnel Journal 69, No. 4, April 1990, p. 62.
Gilbert Fuchsberg, “Prominent Psychologists Group Gives Qualified Support to Integrity Tests,” The Wall Street Journal, March 7, 1991, p. B8.
William Fulmer and Ann Wallace Casey, “Employment at Will: Options for Managers,” Academy of Management Executive 4, No. 2, 1990, p. 102.
Wayne E. Green, “Employees Battle Firms for Pension-Plan Surpluses,” The Wall Street Journal, June 5, 1990, p. B1.
Arthur S. Hayes, “Layoffs Take Careful Planning to Avoid Losing the Suits that Are Apt to Follow,” The Wall Street Journal, November 2, 1990, p. B1.
Tom Juravich, “Here Are the 10 Worst Jobs in America,” Des Moines Register, March 18, 1991, p. 4A.
Mark J. Keppler, “Halting Traffic on the Road to Wrongful Discharge,” Personnel 67, No. 3, March 1990, p. 48.
Amy Dockser Marcus, “Courts Uphold Oral Pledges of Lifetime Employment,” The Wall Street Journal, December 12, 1989, p. B1.
Amy Dockser Marcus, “Mother Fired for Absences to Care for Ill Child Wins Jobless Benefits,” The Wall Street Journal, March 13, 1991, p. B5.
Ellen Neuborne, “Workers in Pain: Employers Up In Arms,” USA Today, Jan. 9, 1997, p. 1B.
Richard J. Pratt, “Unilateral Modification of Employment Handbooks; Further Encroachments on the Employment-at-Will Doctrine,” University of Pennsylvania Law Review, 139, No. 1, November 1990, p. 197.
Sally Roberts, “Employer Liability Has Sobering Effect on Holiday Parties, “ Business Insurance, Dec. 13, 1993.
Alan Sipress, “Companies Begin Forcing Workers to Alter Lifestyles,” Des Moines Register, April 7, 1991, p. A1.
Jolie Soloman, “Firms Face Tough Choices in an Employee's Arrest,” The Wall Street Journal, March 29, 1990, p. B1.
Stephen Kreider Yoder and Wade Lambert, “California Rulings Could Limit Workers in Wrongful Firing Suits,” The Wall Street Journal, December 21, 1990, p. B4.
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