161 terms

Employment Law

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Immutable Rules
Rules that the parties cannot change by agreement.

Examples:

Laws requiring employers to pay a minimum wage. An employee cannot legally contract with an employer to work for a wage lower than the minimum wage.
Default Rules
Rules that state the applicable rules unless the parties agree to alter them.

Default rules can provide bargaining leverage.

Examples:
Employment-at-will is a default rule; it determines when an employee contract can be terminated, but applies when the parties do not agree to another rule.
Noncompetes
Mandatory arbitration
Coverage Elements
Employee vs. Independent Contractor Analysis
(1) Is the worker an employee or something else (independent contractor, volunteer, employer, etc.)?
(2) If the worker is an employee, is the employee eligible to receive benefits and/or protections under the terms of the statute or contract? In other words, is the employee covered?
(3) Who is the employer?
Economic Realities Test
(Used to determine whether the worker is an employee or independent contractor)
Secretary of Labor v. Lauritzen
Employees are those who as a matter of economic reality are dependent upon the business to which they render service.

To determine the economic reality of the nature of the working relationship, courts do not look to a particular isolated factor but to all the circumstances of the work activity. Certain criteria have been developed to assist in determining the true nature of the relationship, but no criteria is by itself, or by its absence, dispositive or controlling.
Economic Realities Test Factors
Employee v. Independent Contractor
Secretary of Labor v. Lauritzen
(1) The nature and degree of the alleged employer's control as to the manner in which the work is performed (CONTROL);
(2) The alleged employee's opportunity for profit or loss depending upon his managerial skill (PROFIT AND LOSS);
(3) The alleged employee's investment in equipment or materials required for his task, or his employment of workers (CAPITAL INVESTMENT);
(4) Whether the service rendered requires a special skill (DEGREE OF SKILL REQUIRED);
(5) The degree of permanency and duration of the working relationship (PERMANENCY);
(6) The extent to which the service rendered is an integral of the alleged employer's business.
(7) Dependence on Workers (This is considered the concluding factor; thus, 6 factors plus 1 summation factor): Whether the total of the testing establishes the personnel are so dependent upon the business with which they are connected that they come within the protection of the FLSA or are sufficiently independent to lie outside its ambit.
Economic Realities Test in the ambit of the Fair Labor Standards Act
In order to make the determination whether a worker is an employee or an independent contractor under the FLSA, courts use the multi-factorial "economic realities" test, which focuses on whether the worker is economically dependent on the employer or in business for him or herself. A worker who is economically dependent on an employer is suffered or permitted to work by the employer. Thus, applying the economic realities test in view of the expansive definition of "employ" under the Act, most workers are employees under the FLSA. The application of the economic realities factors must be consistent with the broad "suffer or permit to work" standard of the FLSA.
Employment Law Restatement Regarding Whether Worker is an Employee
The Employment Law Restatement focuses on whether the worker has entrepreneurial control over the work:

(1)...and individual renders services as an employee of an employer if
(a) the individual acts, at least in part, to serve the interests of the employer,
(b) the employer consents to receive the individual's services, and
(c) the employer's relationship with the individual effectively prevents the individual from rendering the services as part of an independent business.

(2) An individual renders services as part of an independent business when the individual in his or her own interest exercises entrepreneurial control over the manner and means by which the services are performed.

(3) Entrepreneurial control over the manner and means by which services are performed is control over important business decisions, including whether to hire and where to assign assistants, whether to purchase and where to deploy equipment, and whether and when to service other customers.
Louisiana Approach to Determine Whether Worker is an Independent Contractor or Employee

Hickman v. Southern Pacific Transport Co.
Whether a relationship is that of independent contractor or that of mere servant requires, among other factors, the application of the principal test: the control over the work reserved by the employer.

In applying this test it is not the supervision and control which is actually exercised which is significant, the important question is whether, from the nature of the relationship, the right to do so exists.
Core Workers
Core workers have a string affiliation with an employer and are treated by the employer as having a significant stake in the company. Core workers can be thought as being part of the so-called corporate family. They show long-term attachment to a company and have a real measure of job stability. In the language of economists, core workers have an implicit contract with their employers: if they follow certain rules and norms and meet certain standards, their employers will provide a long-term home of employment and some measure of advancement.
Contingent Workers
Contingent workers have a weak affiliation with a specific employer and do not have a significant stake in a company. They are not considered part of the corporate family. They do not show long-term attachment to a company, and they often do not have a real measure of job stability. Employers do not make implicit contracts with contingent workers.

Examples: casual workers, part-time workers, temporary workers, on-call workers, leased workers, independent contractors, subcontractors, flex-time workers, job-sharing workers, self-employed workers, home workers, and workers employed by temporary staffing agencies.
11th Amendment
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
11th Amendment Immunity
States, as sovereigns, are immune from liability unless they waive that immunity or the federal government effectively abrogates that immunity. Thus, when a public employee sues the state, her employer, under federal law, the question arises whether the state is immune from the liability.

Congress has the power to overcome the immunity when it acts under § 5 of the 14th Amendment. The US Supreme Court has developed a test to determine whether Congress effectively overcame or abrogated states' immunity in enacting specific statutes. Essentially, the Court must conclude that abrogating states' immunity was a congruent and proportional response to remedy past constitutional violations. See City of Boerne v. Flores,.

If you see state employee suing state under federal law, FREEZE; it is probably an 11th Amendment immunity issue. Can they do that?
•The Secretary of Labor CAN sue a state
•Can sue a state under state laws; a state is not immune from their own laws
Employment at Will Doctrine
Under the EAW doctrine, employers are free to terminate the employment relationship "for good cause or for no cause, or even for bad cause without thereby being guilty of an unlawful act."
Employment at Will as a Default Rule and/or a Rebuttable Presumption
The at-will doctrine has been commonly referred to as a default rule, meaning that the employment relationship is not considered to be at will where the parties have provided otherwise by contract or where the law prohibits termination for a specific reason. Thus, where the parties have voluntarily agreed that the contract will last for a specific duration, or that the employee can only be terminated for cause, or where some other common law principle (e.g., public policy considerations) is applicable, or where a statute makes it illegal for the employer to terminate employment relationship for a particular reason, the employment relationship is not at will.

Employment at will has also been described as a rebuttable presumption.
Employment at Will: What terms are omitted?
Terms that are NEVER in Employment at Will:
(1) Definite term or duration
(2) Good or just cause restriction on termination

Terms that are usually not in Employment at Will:
(1) Notice
(2) Procedures
Employment Contract Analysis
STEP 1: Does the employment contract vary Employment at Will?
Does the employment contract vary Employment at Will?
(1) Evidence of contract/employment terms
Writings
Oral statements
Other facts
Evaluate who said/wrote it and what was
said/written; type of job and custom and practice for such jobs.
(2) Evaluate the evidence at what time?
Beginning of relationship, or
During the relationship
Employment Contract Analysis
STEP 2: If the contract varies Employment at Will, how?
(1) Definite duration
Many courts will not find a variation of EAW unless there is a definite term.
Court will want to see a definite term (if you argue this variation)

(2) Good cause
Courts will always imply/infer good cause Remember under EAW, no good cause required: Can be fired for a "good reason, bad reason, or no reason at all."
If good cause is required (based on facts of the case), must be for personal or economic/financial reasons.

(3) Procedures
Usually procedures are not required under EAW
Why? Because if there are procedures where employee can dispute the termination, you are disputing the reason you are terminating. Under EAW, you don't need to defend why you are terminating the employee.

(4) Notice
Employee receives no notice, no severance pay. Some employers do provide severance pay, but under EAW not required
Employment Contract Analysis
STEP 3: If Just Cause Required, Did Employer Have It?
The court will always infer that good cause termination is part of the contract

If employee proves contract variation of employment at will, employer bears burden to establish good cause

Is it defined in the contract? If not, the court must define it. Is it the court's responsibility to act as HR?

Usually just cause includes:
(1) Personal reasons (work performance and conduct)
(2) Economic reasons (employer's financial and business situation and decisions)
Employment at Will Contract Theories
(1) Contract terms modifying Employment at Will-Express (can be oral or written)
(2) Contract terms modifying Employment at Will-Implied (manuals, handbooks, circumstances)
(3) Promissory Estoppel
Contract Based Modifications to Employment at Will
Employers and employees can avoid the reach of the Employment at Will doctrine through voluntary agreements. Contract based job security protections can be express or implied, and written or oral. Such provisions are evaluated by the courts in light of traditional common law contract principles.
Express Contract Modifications
Contractual job security protections can arise in situations where (1) the employer promises not to terminate the employment relationship except for good cause; or (2) the employer promises to hire the employee for a specific/definite period of time. These promises indicate the parties' intent to enter something other than an at-will relationship.
Just Cause Contract: Lack of Written Employment Agreement
For employees who do not have written employment agreements, the circumstances under which they can be fired or can quit may be inferred from other written documents or oral statements that may evidence the parties' understanding as to the terms of employment. The key factual determination in such cases hinges on interpreting the statement which, according to the employee, provides some form of job security.
Proving a Just Cause Contract
In order to successfully prove a just cause relationship, employees have to establish that the employer intended to create a just cause contract. Thus, for example, an express statement by the employer that employees will not be discharged without cause, will satisfy the specificity standard. This usually also requires clear and definite language.

Some courts have indicated that for a promise of just cause employment to be valid, the employee must provide additional consideration beyond simply working. The additional consideration requirement arguably helps to clarify the intent of the parties, by making it clear that the parties were bargaining about the promise of job security.

Employers have attempted to defeat employees' claims of just cause oral contracts by raising a statute of frauds problems. Contracts which cannot be performed within a year form the time they are entered, need to be evidenced by a writing to be enforceable. An employee who argues that the employer made oral assurances at the time of hiring faces a potential statute of frauds problem. If the contract extends more than a year, it has to be in writing in order to be enforceable. The majority of courts have found instead that just cause oral contracts are generally enforceable, regardless of the statute of frauds, since the contract is capable of performance within a year, as would be the case if one of the parties dies, or the employer goes out of business.
Specific Duration Contract
Another type of promise that could defeat the employment at will presumption involves a promise of employment for a specific duration of time.

In Chiodo v. General Waterworks Corp, the court held that when entering a specific duration contract, the parties must have intended the employee to provide "honest, faithful, and loyal service" in accordance with his ability. Absent proof of failure by the employee to conform to that standard, the employer could not terminate the employee during the specific period defined in the contract.

First, a promise to hire an employee for a specific time period carries with it a just cause standard.
Second, absent proof of just cause, the employer is bound to retain the employee for the duration of the agreed upon time period, even if it is economically burdensome to the employer to do so.
Implied Contract Modifications
Employment Manuals

Woolley v. Hoffman-La Roche, Inc.
Demasse v. ITT Corp.
Woolley v. Hoffman-La Roche, Inc.: Absent a clear and prominent disclaimer, an implied promise contained in an employment manual that an employee will be fired only for cause may be enforceable against an employer even when the employment is for an indefinite term and would otherwise be terminable at will.

Some courts refuse to accept the disclaimer unless it is conspicuous and obvious to the employees.

Demasse v. ITT Corp.: Employers may not change employee handbooks or other personnel policies, under certain circumstances, unless the employees accepted the proposed changes and were compensated for the policy modification.

The Restatement states that an employer may eliminate or modify promises arising from their prior unilateral statements by providing reasonable notice of the change to the employee.
Implied Contract Modifications
Employment Manuals: Inquiry
(1) What is special or different about them in employment contract analysis?
(2) Change analysis?
(3) How common?
(4) What issues predominate?
(5) Intended to vary EAW?
(6) Distributed to employee?
(7) Relied upon by employee?
(8) Disclaimers
(9) Modification
Promissory Estoppel Elements, Generally
(1) Did the employer (promisor) reasonably expect the employee (promisee) to rely on the promise?
(Promise which the promisor should reasonably expect to induce action and forbearance of definite character on part of the promisee.)

(2) Did the promise induce action or forbearance?

(3) Was there a detriment to the promisee?
(Injustice can be avoided only by enforcing the promise.)
Promissory Estoppel in Employment Law Context
An employer could be estopped from firing an employer, or required to pay damages, if the employee can show the following:

(1) The employer made a clear and unambiguous promise of employment;

(2) The employee relied on this promise;

(3) The employee's reliance was reasonable and foreseeable; and

(4) The employee was injured as a result.


Note: LA has equitable estoppel
Promissory Estoppel Damages
Under promissory estoppel, the question is what did the employee lose as a result of relying on the promise.
Promissory Fraud
Restatement of Employment Draft No. 4: § 6.05 Employer's Fraudulent Misrepresentation Inducing the Initiation, Maintenance, or Cessation of an Employment Relationship

An employer may be subject to liability for intentionally inducing an employee or prospective employee, through knowingly false representation of fact, current intention, opinion, or law;
(1) to enter into, to maintain, or to leave an employment relationship with the employer, or
(2) to refrain from entering into or maintaining an employment relationship with another employer.

Promissory fraud: At the time the promise was made there was an intent to deceit...this makes it a tort.
Defenses in Breach of Contract Cases
(1) Statute of Frauds
Contract that can't be performed in one year must
be in writing
Courts get around this by saying the contract could
have been performed in one year if the employee
were fired for good cause
LA's statute of frauds code article says that
contracts in excess of $500 must be proved by at
least one witness and other corroborating
circumstances
(2) Lack of mutuality of obligation
(3) Absence of additional or independent consideration
(4) Parol evidence rule
The parol evidence rule prohibits a party from using outside evidence to rebut the meaning of a written contract. This rule is frequently invoked when the employee alleges that oral promises of job security were made at the job interview, but he later signed a contract declaring the job to be at will. Frequently, however, an employer makes oral assurances of job security after the employee signs a written contract specifying at-will status. The parol evidence rules does not apply here, because the employee is not denying the validity of the written contract but arguing that the later oral argument modified the written contract.
(5) Convincing specificity
Breach of Contract
Art. 2005. Secondary Obligation
Parties may stipulate the damages to be recovered in case of nonperformance, defective performance, or delay in performance of an obligation.
That stipulation gives rise to a secondary obligation for the purpose of enforcing the principal one.

AKA Liquidated damages
These CAN be enforceable

Purpose of stipulated damages: to cover the actual damages
-If it is a reasonable estimate of the damages incurred, enforceable.
-If it is a penalty provision to punish the other party, not enforceable.

This test is used in LA, and generally in every state in the US.
Tort Based Modifications to Employment at Will, Generally
Even when the employer and employee clearly agree to at-will employment, so that a discharged employee has no breach-of-contract claim regardless of the reason for discharge, the employee may have a tort claim.
Wrongful Discharge in Violation of Public Policy, Generally
A tort of wrongful discharge applies when an employer dismisses an employee for a reason that violates public policy.
Analysis of Wrongful Discharge in Violation of Public Policy Claims
(1) Does the state recognize tort of WDVPP?
(2) If so, what branches?
(3) Does the state enumerate elements of the tort, like Wash., Ohio, and West Va.? (See Elements Card)
(4) Is there a public policy implicated and jeopardized?
Wrongful Discharge in Violation of Public Policy, Pigeonholes
(1) Refusing to commit unlawful acts: The classic example is refusing to commit perjury when the government is investigating the company for wrongdoing.

(2) Exercising a statutory right: The classic example is filing a claim for benefits under the workers' compensation statute.

(3) Fulfilling a public obligation: The classic example is serving on jury duty.

(4) Whistleblowing: occurs when an employee reports the company's unlawful conduct to a supervisor or outside authorities.
Wrongful Discharge in Violation of Public Policy Elements
(1) Clear public policy (Clarity)
(2) Discouraging type of conduct in which plaintiff engaged would jeopardize the public policy, [not the individual] (Jeopardy)
(3) Causation—public policy—linked conduct caused termination (Causation)
(4) Defendant can offer no overriding justification for termination (Justification)

On exam, want to see if the fact patter falls under the 4 pigeonholes (those are the strong cases). But also discuss whether the fact pattern meets the 4 elements above.
Sarbanes-Oxley
Employees of publicly traded companies are covered

Discriminating against employee who informs on mail fraud, bank fraud, wire fraud, securities fraud.

Procedure:
(1) File complaint with OSHA w/i 90 days of alleged violation
(2) OSHA investigation and determination; order becomes final in 30 days unless appealed
(3) Either party may request hearing before ALJ
(4) DOL's Administrative Review Board; If final order not issued within 180 days of filing of complaint, employee may sue in fed. dist. ct.

Does SOX extends coverage beyond employees of "public companies" to include employees of private companies that are contractors or subcontractors to those public companies? Yes.

To make a prima facie showing, the employee's complaint must allege the existence of facts and evidence showing that: "(i) the employee engaged in a protected activity or conduct; (ii) the [employer] knew or suspected, actually or constructively, that the employee engaged in the protected activity; (iii) the employee suffered an unfavorable personnel action; and (iv) the circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action.
Dodd-Frank Compared to SOX
Three key differences
(1) SOX provides for back pay following retaliatory discharge, while DF provides for double back pay
(2) Under SOX employee must file first with OSHA; under DF a whistleblower may file immediately in district court
(3) S/L under SOX is 180 days; under DF no more than 6 years after violation or no more than 3 years after material facts of violation became known


Must an employee whistleblower report the suspected illegal conduct to the SEC?
The SEC regulations provide that one is a protected whistleblower under Dodd-Frank if one has reasonable belief and provides information in any way provided by DF, including reporting under SOX. Not required to report to SEC first.

However, 5th Circuit is lone circuit to hold that protected whistleblower must report to SEC first.
Intentional Infliction of Emotional Distress Elements
(1) Voluntary act

(2) Intent to cause severe emotional distress or recklessness

(3) Outrageous conduct
Courts will usually grant summary judgment based on this element
Restatement comments' definition: "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."
How to get to outrageous conduct:
(a) Imbalance of power
(b) Repetition of conduct
(c) Escalation of conduct

(4) Causation

(5) Severe emotional distress
Intentional Interference with Business or Contractual Relations Elements
(1) Improper action or wrongful conduct by the defendant without privilege;

(2) The defendant acted purposely and with malice with the intent to injure;

(3) The defendant induced a breach of a contractual obligation or caused a party or third party to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and

(4) The defendant's tortious conduct proximately caused damage to the plaintiff."
Employment at Will in Louisiana
Louisiana law provides that employment contracts are either limited term or terminable at will. Under a limited term contract the parties agree to be bound for a certain period during which the employee is not free to depart without assigning cause nor is the employer at liberty to dismiss the employee without cause. When a contract does not provide for a limited term, an employer can dismiss the employee at any time and for any reason without incurring liability. When the employer and employee are silent on the terms of the employment contract, the Civil Code provides the default rule of employment-at-will.
Louisiana Default Rule of Employment at Will
An employer is at liberty to dismiss an employee at any time for any reason without incurring liability for the discharge.

Note: Courts cannot rule that there is no EAW in LA; it is in the civil code. The Supreme Court might be able to come back, however, and state that the courts did not interpret Art. 2747 correctly.
Louisiana Contract in Excess of $500
In seeking enforcement of an oral contract for more than 5 hundred dollars, the Civil Code requires that the contract be proved by the testimony of "one witness and other corroborating circumstances."

The plaintiff himself may serve as the witness to establish the existence of the oral contract. The 'other corroborating circumstances' need only be general in nature; independent proof of every detail of the agreement is not required. But, the other corroboration must come from a source other than the plaintiff."

Plaintiff has burden of proving the existence of an oral contract for a limited term pursuant to Art. 1846.
Why does Louisiana recognize EAW?
Public policy
"...furthers broader societal policies, such as maintaining a free and efficient flow of human resources" Quebedeaux v. Dow

Efficient flow = Hire and fire

If no EAW, then there will be no efficient flow, and businesses will leave LA. LA wants to attract, not repel business.
What must an employment contract say in order to vary Employment at Will in Louisiana? To what may parties to an employment contract agree?
Looking for DEFINITE TERM (which is similar to other states) to vary EAW

Employment is a contractual relationship. For employment contracts, employees can agree to anything that is not against public policy and not illegal.
What types of evidence can be used to support a variation in Employment at Will in Louisiana ?
(1) Documents, statements

(2) Personnel manuals or employee handbooks?Personnel manuals do not vary EAW in LA!

(3) Oral representations
The plaintiff himself may serve as the witness to establish the existence of the oral contract. But also need 'other corroborating circumstances,' which can be general in nature; independent proof of every detail of the agreement is not required. But, the other corroboration must come from a source other than the plaintiff.
Don't need a writing in Louisiana.
Equitable Estoppel (Promissory Estoppel in Louisiana)
A party invoking the doctrine of estoppel must prove the facts upon which the estoppel is based and must establish all three elements of estoppel:
(1) a representation by action or word,
(2) justifiable reliance on the representation, and
(3) a detrimental change in one's position because of the reliance.

Similar to promissory estoppel in common law states

Usually used as a back up when there is not sufficient consideration, employees want to be able to rely on the promise

Needs to be pled. If not pled originally, pleadings must be amended.
Chauvin Weird decision
If NOT an employee at will, then seen Art. 2749 AND 2024.
2749: Definite duration contract (good cause)
2024: Reasonable time and form

Issue: 2024 says " A contract of unspecified duration..."
Isn't a contract for unspecified duration EAW?
How many types of employment contracts (in terms of duration) does Louisiana recognize?
(1) Specified

(2) Unspecified

(3) Article 2024, which is still an unspecified duration but also gives you the right to notice and good cause. However it is never applied.
Can parties modify any of the elements of Employment at Will?
Yes. Definite term.
Article 2024. Contract terminated by a Party's Initiative
An at will employee, who is hired pursuant to a contract for an indefinite term, must receive reasonable notice of termination.

Thus, those who are parties to a contract for an indefinite term may be terminated at will, for any reason, but only with reasonable notice.

Where there is no specific contract between the employee and employer, the employee is at will and may be terminated for any reason, at any time, without the notice requirement.
See Louisiana Interference with Individual Rights Statutes
...
Purpose and Effect of the WARN Act
The WARN Act is not designed to prevent plant closing or layoffs. It is designed to fulfill 2 main purposes:

(1) to give employees time to find another job or to seek retraining to enter a new occupation, and

(2) to give state dislocated-worker units proper time to prepare for assisting affected employees.
What are other option instead of mass layoffs?
(1) Lower wages
(2) Reduced hours; work-hour sharing
(3) Reduction of benefits, especially retiree benefits
WARN Act, Generally

Coverage
The WARN Act requires employers with 100 or more fulltime employees to give their workers and local government officials 60 days' advance notice of plant closings or mass layoffs.

Coverage: Employers with 100 or more fulltime employees
Private employers, covered. Public employers, generally not covered unless they carry business like a business enterprise.
WARN Act
Plant closing vs. Mass layoff
Plant closing:
Permanent or temporary shutdown during any 30-day period for 50 or more employees, excluding part-time employees

Mass layoff:
At least 33% of employees (excluding any part-time employees) AND at least 50 employees (excluding any part-time employees), or
At least 500 employees (excluding any part-time employees)
Are Mergers and Acquisitions WARN Act events?
May lose job as a result of an acquisition

BUT, these are not per se WARN Act events

May not result in a mass layoff or closing. If does result in that, then WARN is invoked.
WARN Act
"Employment Loss"
"Employment loss" is

An employment termination, other than a discharge for cause, voluntary departure, or retirement,

A layoff exceeding 6 months, or

A reduction in hours of work of more than 50 percent during each month of any 6-month period.
WARN Notice Requirement
60-day notice period:

(1) Given to representative of employees (usually union rep) or to employees if unrepresented, AND

(2) State or entity and unit of local gov't
Notice Requirement Exceptions (Less than 60-day notice)
(1) Faltering company
Reduced to as much notice as is practicable; so still need to give notice
Only applies to a shutdown of a business (NOT mass layoffs)
Why? Issue here is if the business will make it or not; want the company to save itself

(2) Unforeseen business circumstances
Reduced to as much notice as is practicable; so still need to give notice
Applies to both mass layoffs and plant closures

(3) Natural disaster
No notice, but regs say otherwise: "While a disaster may preclude full or any advance notice, such notice as is practicable, containing as much of the information required in §639.7 as is available in the circumstances of the disaster still must be given, whether in advance or after the fact of an employment loss caused by a natural disaster."

(4) Good faith and reasonable grounds
Discretionary reduction of liability or penalty
"If an employer which has violated this chapter proves to the satisfaction of the court that the act or omission that violated this chapter was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of this chapter the court may, in its discretion, reduce the amount of the liability or penalty provided for in this section."
WARN Act Remedy
Creates a private right of action

Remedy:
Back pay for each day of violation at a rate of compensation not less than the higher of
-the average regular rate received by such
employee during the last 3 years of the
employee's employment; or
-the final regular rate received by such employee;

AND

Benefits under an employee benefit plan described in section 1002(3) of this title, including the cost of medical expenses incurred during the employment loss which would have been covered under an employee benefit plan if the employment loss had not occurred.
Analysis of US Workplace Privacy Law
If given a invasions of privacy question on exam, need to parse through many things.
(1) Federal and state constitutions
Federal Constitutional concerns
1st Amendment
Speech and Expression
4th Amendment
Search and seizure
Computer searches
Desk searches
(2) Federal statutes, e.g., Employee Polygraph Protection Act, Electronic Communications Privacy Act, Fair Credit Reporting Act, Genetic Information Nondiscrimination Act, National Labor Relations Act
(3) State statutes - electronic monitoring, data protection, employment reference and background check statutes
(4) State common law - invasion of privacy tort
Freedom of Speech as a Privacy Issue
Depends on definition of privacy:
Right of autonomy, right to do things without having restrictions put on you; right to be let alone
42 USC § 1983
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Governmental employees will use this as a vehicle to assert their rights

Creates private right of action for deprivation of rights created by the constitutions or laws.
The Dual Roles of Government
Public employer and employee have 2 relationships
(1) Employer and employee
(2) Government and citizen

Employee of the state of LA, and a citizen of LA
I don't give up rights as a citizen of the state because I am an employee of the state.
iBut because I am a employee, my rights might be more limited, because the state has to manage me and might have to restrict my rights.
Public Sector Workers:
Engquist v. Oregon Department of Agriculture
Class-of-One Theory
Employee says "I have an Equal Protection claim, not because I am in a protected class but because of me, I am my own class, and I was treated differently from people similarly situated to me." She claims employer terminated her and its not based on any class but her class of one.

Holding: The class-of-one theory of equal protection does not apply in the public employment context.

Engquist decisively affirms employment at will in government employment.
Public Sector Workers:
Rutan v. Republican Party
Holding: "Promotions, transfers, and recalls after layoffs based on political affiliations or support" were impermissible infringements on the right to free expression of public employees. While the 1st Amendment was not "a tenure provision" protecting employees from "constructive discharge," it nevertheless prevented the government from interfering with its employees' freedom "to believe and associate."
Public Sector Workers:
Garcetti v. Ceballos
Holding: Speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official's public duties.
Public Sector Workers:
Classified vs. Unclassified Civil Service Employees
State: Art. 10, Section 2 (A) Classified Service. The state and city civil service is divided into the unclassified and the classified service. Persons not included in the unclassified service are in the classified service.

In LA, a permanent classified civil service employee has a protected property interest in her job. Under the LA Constitution, classified service is the rule: all state employees are members of the classified civil service unless their positions are specifically excepted from classified service by law.

Rule: At both federal and state level, there are two categories for civil service jobs: classified and unclassified. Classified employees specified by statute are not EAW.
Private Workplace:
Novosel v. Nationwide Insurance Co.
Holding: The court made a public policy exception for an employee who was dismissed for refusing to join a company's lobbying effort because he privately opposed the company's stance on the issue. The court found that the free speech provisions of the Pennsylvania Constitution and the US Constitution's 1st Amendment protected the employee's refusal.
Private Workplace:
Timekeeping Systems, Inc.
Employee sent email to CEO and other employees regarding the vacation policy. It contained "flippant and grating language." Employee was asked to either write a public apology or face termination. Employee did not apologize so he was terminated. The employee filed an unfair labor charge with the NLRB, claiming that he was fired in violation of the National Labor Relations Act for engaging in protected concerted activity.

The NLRB ruled that the e-mail message at issue was clearly for the purpose of arousing opposition to the policy change and constituted a concerted activity for the mutual aid or protection of the other Timekeeping Systems employees. Although the NLRB recognized that some of the language contained in the e-mail contained "arrogant overtones," it was not enough to warrant a loss of protection for the message. Timekeeping Systems was ordered to reinstate the employee with back pay.
Private Workplace:
Does the National Labor Relations Act apply to nonunion employees?
First of all, the NLRA only applies to private employers (private sector)

The National Labor Relations Act is the major statute regulating unions; indeed the NLRA often is thought to have no relevance to nonunion establishment, except when a union is trying to organize.

But § 7 of the NRLA, which defines the rights of employees under the Act, gives employees the right "to engage in other concerted activities for the purpose of other mutual aid and protection." § 7 rights are increasingly being applied to workplaces that have no thought of unionizing.

Thus, employees need not have a conscious goal of forming a union in order to be protected.
Private Workplace:
National Labor Relations Act § 7 Analysis
(1) Concerted Activity
The NLRA protects only group activities. Activities by an individual employee solely on his or her own behalf are not covered.

(2) Work-related object
The action must be for mutual aid or protections reasonably related to wages, hours, and other terms and conditions of employment.

(3) Permissible
Even if the employees' act is concerted activity for work-related mutual aid or protection, it may still be unprotected if it is unlawful, violent, in breach of contract, or indefensible. It need not be illegal, it can also be too disruptive.
Employer may argue as a defense that employee has a duty of loyalty: Employee should limit damage done to the employer.
Private Workplace:
National Labor Relations Act Procedure
-File Unfair Labor Practice charge with regional office of NLRB (don't need a lawyer to do this).

-General counsel's office will decide whether to issue a complaint or not. General counsel represents the employee or the union (depending on the complaint)

-Hearing before Administrative Law Judge

-Appeal to Board

-Appeal to federal court of appeals
Private Workplace:
National Labor Relations Act Remedies
Back pay

Front pay

Reinstatement

Injunctive relief
Private Workplace:
National Labor Relations Board Analysis of Employer Rules
An employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights. If the rule explicitly restricts Section 7 rights, it is unlawful. If it does not, the violation is dependent upon a showing of one of the following:
(1) employees would reasonably construe the language to prohibit Section 7 activity;
(2) the rule was promulgated in response to union activity; or
(3) the rule has been applied to restrict the exercise of Section 7 rights.
Private Workplace:
National Labor Relations Act Possible Violations
(1) Rules Prohibiting Wage Discussion: Cannot have a rule that says "you can't talk about salary."
(2) Non-disparagement clause held to be unfair labor practice.
(3) Nondisclosure clause held to be unfair labor practice.

But, remember to use the Analysis for Employer Rules
Privacy Rights: Public Employers
Federal Law
Federal: US Constitution 4th Amendment

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Privacy Rights: Public Employers
State Law
State: LA Constitution Art. 1 §5. Right to Privacy

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.
Privacy Rights: Public Employers
4th Amendment Analysis from O'Connor v. Ortega used in City of Ontario v. Quon
(1) Does public employee have a reasonable expectation of privacy?
-"Operational realities of the workplace": What does the employer permit and prohibit? What happens on a daily basis
-Actual office practices
-Regulations and policies: Courts will consider policy to determine of there is an expectation of privacy; not determinative but persuasive

If yes,

(2) Balancing test
-Privacy interest of employee balanced against Public employer's interest in "efficient and proper operation of the workplace"
-Both inception and scope must be reasonable

Scalia Concurrence in O'Connor
-Public employer searches do not violate 4th Amendment if considered reasonable and normal in the private employer context
-Look to private sector whether that would be reasonable and normal in the private employer/employee context.
-Don't need to treat it differently because it's a constitutional claim

In Quon, Court doesn't decide who is right (Scalia's concurrence or the 2-prong test). Court decides to do both. So on exam, apply both.

This analysis has been used in private sector tort cases also. So although the Quon case was a 4th amendment case, it has not been limited to the public sector.
Advice to Employers after Quon
(1) Adopt a clear policy—subject to monitoring and access by employer with or without notice.
(2) Consent.
(3) Enforce policy.
If there is a harsh policy, but then you don't enforce it, then employee may have had a reasonable expectation of privacy.
But also, if you have a harsh policy where employer has access to everything may raise privacy concerns, and enforcing the policy may be a difficult task.
(4) Agreement with providers.
(5) Review subpoena and document response policies and protocols for compliance with SCA (and foreign law if relevant); consider privacy or cyber risk insurance.
Tort of Invasion Of Privacy—4 Branches
(1) Publicity given to private facts
Broad dissemination of confidential information
Elements:
(a) Giving publicity—communication to public
(b) Of Private life—expectation of privacy
(c) Highly offensive to reasonable person

(2) Intrusion on seclusion
Elements:
(a) Intentional intrusion or invasion
So if employer says open your locker I want to see what you have inside, employee says no, and employer fires employee, there was no intrusion.
But if the employee says I don't want to get fired so ok, then the employer will argue that the employee consented.
But the employee may then argue that employer threatened employee with discipline or termination, so she was coerced to comply.
But employer may argue that as employer he has a right to discipline or terminate employees.
(b) Privacy interest - Expectation of privacy
Hard element to prove because employers are adopting policies that monitor employees in every way.
(c) Highly offensive to a reasonable person
Also problematic; difficult to prove
Usually, employee will also sue for IIED because need to prove outrageous conduct

(3) False light
Lighter side of defamation; the little brother of defamation.
When suing for defamation, should also sue for false light as a backup claim.
Elements
(a) Giving publicity to private facts
(b) False light-element of fiction, although not
necessarily false
Usually will say the truth is a defense
In defamation, MUST be false.
But in false light, it can be an element of fiction, which does not mean it is false. It can be a false depiction.
(c) Highly offensive

(4) Misappropriation of name or likeness
"Hollywood tort"
Where a person, such as an actor, has a valuable name or image and it is misappropriated for money.
Does Louisiana Recognize All 4 Branches of Tort of Invasion Of Privacy?
Yes.

"In dealing with invasion of privacy allegations, courts have had to distinguish between actionable and nonactionable invasions. Generally, an actionable invasion of privacy exists only when the defendant's conduct is unreasonable and seriously interferes with the plaintiff's privacy interest. The reasonableness of the defendant's conduct is assessed by balancing his interest in pursuing his course of conduct against the plaintiff's interest in protecting his privacy. Where a defendant's action is properly authorized or justified by circumstance, it may be found reasonable and nonactionable even though it amounts to a slight invasion of the plaintiff's privacy."
Wiretap Act
Prohibits interception of wire, electronic or oral communications

Limitations
(1) Consent of one party bars claim: If one party consents, then there is no interception
(2) Ordinary course of business exemption
Ex: When you call and the recorded message says
"This call might be recorded for purposes of quality
control or service"
Must prove that they normally do this
(3) Provider exemption, 2511 (h)(ii)

Issue:
Interception must be contemporaneous with the communication.
That can happen with a phone call. When you wiretap a phone call; interception occurs contemporaneous with the phone call occurring.
But what about other communications such as email or texts?
Usually monitor or read after the email or text has been sent, so then under the definition there is no interception, unless they were monitoring as the email was sent. But that does not happen very much so this act is not used as much in the employment context.
Stored Communications Act
Prohibits accessing or obtaining without authorization wire or electronic communications electronically stored in a system

Exceptions:
(1) Conduct authorized by a provider 2701(c)(1).
Such as giving someone else your password to go
in and check something in you email.
(2) Conduct authorized by a user 2701(c)(2).
(3) Consent of user 2702(b)(3).
What is Electronic Storage?
Garcia v. City of Laredo, Texas, 702 F.3d 788 (5th Cir. 2012).
"Electronic storage" as defined encompasses only the information that has been stored by an electronic communication service provider. Thus, information that an Internet provider stores to its servers or information stored with a telephone company—if such information is stored temporarily pending delivery or for purposes of backup protection—are examples of protected electronic storage under the statute. But information that an individual stores to his hard drive or cell phone is not in electronic storage under the statute ("E-mails stored on the laptop computer are not in 'temporary, intermediate storage' [as required by § 2510(17)(A)]. Furthermore, the e-mails on the laptop are not stored 'by an electronic communication service for purposes of backup protection' as required by subsection (B).") ("Stored Communications Act protection does not extend to emails and messages stored only on Plaintiff's personal computer.").
Does unauthorized access of computers by employees or former employees violate the Computer Fraud and Abuse Act?
Circuit Split:

(1) No. The Act is an anti-hacking statute, not a misappropriation statute.
United States v. Nosal, 676 F.3d 854 (9th Cir. 2012):
Employees cannot be criminally prosecuted under the Computer Fraud and Abuse Act for violating their employer's computer use policies. In particular, the ruling establishes that employees have not "exceeded authorization" for the purposes of the CFAA if they access a computer in a manner that violates the company's computer use policies— if they are authorized to access the computer and do not circumvent any protection mechanisms.
WEC Carolina Energy Solutions, LLC v. Miller (4th Cir. 2012)
CFAA may be used to impose civil liability on employees either who are not permitted to access certain information but do so anyway or who go "beyond the bounds" of their authorized access. However, the court expressly found that the CFAA's prohibitions do not impose liability on an employee who has permission to access electronic information but then "improperly uses" that information (for example, to develop a competing business).

(2) Yes.
US v. John, 597 F.3d 263 (5th Cir. 2010)
The court found that though John was authorized to view and print all of the information that she accessed, her use of Citigroup's computer system to run in fraudulent charges was not an intended use of that system. John's access to the Citigroup computer system was confined and she was aware of the Citigroup employee company's policies, establishing restrictions on the use of the Citigroup computer system.
Despite being aware of these policies, prohibiting misuse of the company's computer system, John accessed account information for the customers whose accounts she did not manage, removed this highly sensitive information from the Citigroup premises, and used this information to perpetrate a fraud on Citigroup and its customers.
The Fifth Circuit concluded that John exceeded authorized access to a protected computer within the meaning of CFAA. The court's reasoning was that John knew that the purpose for which she was accessing the information in a Citigroup computer system both violated the employer's internal policies and was a part of an illegal scheme.
Computer Fraud and Abuse Act:
Broad vs. Narrow interpretation of "without authorization"

Dresser-Rand Co. v. Jones, 957 F.Supp. 2d 610 (E.D.Pa. 2013).
The circuit courts are split between what is cast as a broad versus a narrow interpretation of the term "without authorization."

Under the narrow view, an employee given access to a work computer is authorized to access that computer regardless of his or her intent to misuse information and any policies that regulate the use of information.

Under the broad view, if an employee has access to information on a work computer to perform his or her job, the employee may exceed his or her access misusing the information on the computer, either by severing the agency relationship through disloyal activity, or by violating employer policies and/or confidentiality agreements.
Public Employees: Drug Testing
Fourth Amendment or State Constitution

4th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Ex: Getting information about someone's drug use through urinalysis = a search and seizure case.
Private Employees: Drug Testing
State Statutes on drug testing

Seems that the LA statute does not create a private right of action. But employee can sue for other things such as invasion of privacy, WDVPP, negligence (negligent testing against the lab) by using the drug testing statutes.

As with public employees, right of action if employee can meet elements of defamation and invasion of privacy.

When looking at state statute:
Does it cover public or private employees?
Does it create a private right of action?

Invasion of privacy tort
If employer says you need to take a drug test, employee says no, and then gets fired; employee may say it is invasion of privacy. But employer will argue that there was no invasion, the testing never occurred. If the employee says yes, he may argue that it was coerced.

Wrongful discharge in violation of public policy
Policy of privacy of health information
May not be a winning claim, depending on the state
Fair Credit Reporting Act of 1970
The FCRA does NOT apply if an employer or prospective employer does its own background check. If employer does not get a 3rd party agency to do background check for them, the FCRA say nothing about them.

Employer checklist/steps that need to be followed:
(1) Before requesting a consumer report, obtain written authorization of person in document consisting solely of the disclosure § 604(b)(2); if obtaining an "investigative report" - a report based on personal interviews concerning a person's character, general reputation, personal characteristics, and lifestyle - must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation
(2) If plan to rely on a consumer report to take adverse action (e.g., refuse to hire), must give
-Pre-adverse action disclosure (oral, written, or
electronic),
-Copy of the consumer report, and
-Consumer Financial Protection Bureau's Summary
of Rights
(3) After adverse action, must give adverse action notice—orally, in writing, or electronically § 615
Fair Credit Reporting Act of 1970: Possible legal claims
(1) Employer failed to follow procedures
(2) Employer follows procedures, employee is not hired, employee sues for discrimination
(3) Employer follows procedure, employee is not hired because of a mistake in the report
Reference Checks
Why do employers do reference checks?
Want to hire a good employee, but also concerned with issues of liability.
Reference Checks
Prospective employer concerns: reasons to check references
Vicarious liability.

Negligent hiring.

Sexual harassment or other discrimination claims.
Reference Checks
Former employer concerns: reasons not to give references
1. Defamation
2. Invasion of privacy
3. Retaliation under discrimination statutes
Negligent hiring, supervising, retaining, training, and entrustment
Courts do not always distinguish among these theories of recovery, but it is important to do so. These claims are the same, but the BREACH is different.
Respondeat Superior under CC Art. 2320
(1) COURSE
a. Time
b. Place

(2) SCOPE
a. Primarily employment rooted (purpose of serving business actuated to an appreciable extent
b. Reasonably incidental to employment duties (risk is foreseeable and attributable to business of employer
Defamation: Louisiana Elements
(1) Defamatory statement

(2) Falsity

(3) Publication to a third party

(4) Fault-actual or implied malice: Lack of reasonable belief in the truth of the statement

(5) Resulting injury

Don't forget to use false light as a back-up theory
When Do Applicants or Employees Sue for Defamation?
(1) Based on employment references—sue former employers

(2) Based on terminations—reason given and published or how termination carried out
Ex: Fired because stole something, and it's not true; can sue for defamation
Defense to Defamation in Louisiana
Louisiana's Jurisprudential Conditional or Qualified Privilege

Applies to both invasion of privacy and defamation; may apply to IIED

(1) Communicated by one with an interest or duty to a recipient with a corresponding interest or duty
Why did you convey that information? Can you explain that? Did you have a duty? Did you have an interest?
Ex: Future employer calls former employer for a reference. There's a shared interest in that information

(2) Statement made in good faith
Meaning having reasonable grounds for believing that the statement is correct
This is the contrast of element 4 on defamation: Fault-actual or implied malice: Lack of reasonable belief in the truth of the statement

Thus, based on the elements and the defense, difficult for employees to win on defamation claims.
Overlap Between Employment Reference Statute and Elements of Defamation
(1) Defamation
a. Falsity
b. Malice—Not having reasonable grounds for believing the truth of the statement

(2) 23:291(A)
a. Accurate Information
b. Not acting in bad faith—Not knowingly false and misleading
Fair Labor Standards Act
On-Call Time Standard

Bright v. Houston Northwest Medical Center Survivor, Inc.
Whether the employee can use the time he is on-call effectively for his own purposes.

An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated.
Fair Labor Standards Act:
Workweek

Marshall v. Sam Dell's Dodge Corp.
Regardless of the total pay received by an employee, the Act requires that each employee receive, EACH WEEK, an amount equal to the minimum wage times the number of hours worked.

It is also important to note that compensation other than the weekly pay check (such as bonuses) can be allocated among the various workweeks.
Fair Labor Standards Act:
Bonuses Counted in Regular Rate of Pay?


Marshall v. Sam Dell's Dodge Corp.
The payment of bonuses can only be considered in connection with the minimum wages for the week in which they are paid.

Take it week by week; if there is a week when didn't get minimum wage, there is a violation; if another week went way above minimum wage, no violation.

For purposes of calculating overtime pay, section 7(e) of the FLSA provides that non-discretionary bonuses must be included in the regular rate of pay. Non-discretionary bonuses include those that are announced to employees to encourage them to work more steadily, rapidly or efficiently, and bonuses designed to encourage employees to remain with a facility. Few bonuses are discretionary under the FLSA, allowing exclusion from the regular rate.
Fair Labor Standards Act:
Demo Car, or other Facilities Furnished to Employees

Marshall v. Sam Dell's Dodge Corp.
The reasonable cost of facilities customarily furnished to employees may be considered part of their wages. However, facilities which are "primarily for the benefit or convenience of the employer" do not qualify as wages.

If employer argues oh I gave them this and thus it was compensation, first thing Wage and Hour Division will do is check IRS to see if they put those things as wages.

The Act permits in-kind payments to be included in FLSA wages only if they are primarily for the benefit or convenience of the employee, accepted voluntarily by the employee, and of a kind customarily furnished by the employer or by other employers engaged in similar activities.
Fair Labor Standards Act:
§206 Minimum Wage
Minimum wage: $7.25, but $4.25 can be paid to some workers.

Youth Minimum Wage:
The law allows employers to pay employees under 20 years of age a lower wage for a limited period -- 90 calendar days, not work days -- after they are first employed. Any wage rate above $4.25 an hour may be paid to eligible workers during this 90-day period.
Only employees under 20 years old may be paid the youth minimum wage and only during the first 90 consecutive calendar days after initial employment by their employer.

If state or local governments want to raise the minimum wage, they can do that; they are not preempted by the FLSA.
Fair Labor Standards Act:
§207 Overtime
The Act requires premium pay for overtime work—work over 40 hours in a week must be paid at a rate one-and-one-half times the regular rate of pay.

If state or local governments want to raise the overtime rate, they can do that; they are not preempted by the FLSA.
Fair Labor Standards Act:
§212 Child Labor Restrictions
(1) Under 14, no work, with few exceptions

(2) 14 and 15, work but significant restrictions as to type of job and hours they are allowed to work

(3) 16 and 17, work like an adult, except 17 identified hazardous jobs that they might not work in.
Fair Labor Standards Act:
§255 Statute of Limitations
2 years but if it is a willful violation, 3 years
Fair Labor Standards Act:
Record-keeping:
Each employer shall preserve for at least three years payroll records, collective bargaining agreements, sales and purchase records. Records on which wage computations are based should be retained for two years. These records must be open for inspection by the Division's representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office.
Fair Labor Standards Act:
Private Right of Action?
Yes. FLSA creates a private right of action in federal and state courts. Concurrent jurisdiction.

BUT,
Can also call Department of Labor Wage and Labor Division.
They may investigate the case.
They may say they will deal with the employer, and you will get your money...no need to sue.
Or they might bring suit themselves.
Might be better to go through the Department of Labor because they can get the money owed to you and thus no need hire an attorney, file suit, etc.
Fair Labor Standards Act:
The Tip Credit
§203(m) and 29 CFR §531.59
(a) In determining compliance with the wage payment requirements of the Act, under the provisions of section 3(m) the amount paid to a tipped employee by an employer is increased on account of tips by an amount equal to the formula set forth in the statute (minimum wage required by section 6(a)(1) of the Act minus $2.13), provided that the employer satisfies all the requirements of section 3(m). This tip credit is in addition to any credit for board, lodging, or other facilities which may be allowable under section 3(m).
Fair Labor Standards Act:
Remedies
Basic remedy under §216(b) is amount owed as wages and an equal amount in liquidated damages—double.
What you should have been paid times 2.

The liquidated damages, however, are subject to the defense in §260—if employer satisfied good faith and reasonable grounds defense, the court MAY reduce or eliminate liquidated damages.
Fair Labor Standards Act:
Ramifications of Willful Violations
§255 Statute of limitations
"Willful"—either knew conduct violated the FLSA or showed reckless disregard for whether conduct violated the FLSA.
Gives plaintiff 3-year, rather than 2-year, statute of limitations.
Burden on plaintiff to establish

§260 Defense to Liquidated Damages
Gives court discretion to not award all or any liquidated damages.
Burden on defendant to establish.
Fair Labor Standards Act:
§216(b) Collective Actions Elements
Elements:
(1) Similarly situated
(2) Each person must file written consent
Must opt-in
(3) No issue or claim preclusion on absent persons
Fair Labor Standards Act:
Rest and Meal Periods:
Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.
Fair Labor Standards Act:
Sleeping Time and Certain Other Activities:
An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. No reduction is permitted unless at least 5 hours of sleep is taken.
Fair Labor Standards Act:
Lectures, Meetings and Training Programs:
Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.
Fair Labor Standards Act:
Travel Time
The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved.
Fair Labor Standards Act:
Home to Work Travel
An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.
Fair Labor Standards Act:
Home to Work on a Special One Day Assignment in Another City
An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.
Fair Labor Standards Act:
Travel That is All in a Day's Work:
Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.
Fair Labor Standards Act:
Travel Away from Home Community
Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee's workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.
Fair Labor Standards Act:
Inquiry to determine whether minimum wage and overtime is owed
Ask: What are the compensable hours (hours worked) and the regular rate of pay? This will determine the minimum wage and whether overtime is owed
Fair Labor Standards Act:
Board, Lodging and Other Facilities
29 CFR § 531.29 Board, lodging, or other facilities.
Section 3(m) applies to both of the following situations: (a) Where board, lodging, or other facilities are furnished in addition to a stipulated wage; and (b) where charges for board, lodging, or other facilities are deducted from a stipulated wage. The use of the word "furnishing" and the legislative history of section 3(m) clearly indicate that this section was intended to apply to all facilities furnished by the employer as compensation to the employee, regardless of whether the employer calculates charges for such facilities as additions to or deductions from wages.

29 CFR § 531.27(b)
Thus, in determining whether he has met the minimum wage and overtime requirements of the Act, the employer may credit himself with the reasonable cost to himself of board, lodging, or other facilities customarily furnished by him to his employees when the cost of such board, lodging, or other facilities is not excluded from wages paid to such employees under the term of a bona fide collective bargaining agreement applicable to the employees.

29 CFR § 531.32(c)
It should also be noted that under § 531.3(d)(1), the cost of furnishing "facilities" which are primarily for the benefit or convenience of the employer will not be recognized as reasonable and may not therefore be included in computing wages (the cars in Sam Dell's Dodge). Items in addition to those set forth in § 531.3 which have been held to be primarily for the benefit or convenience of the employer and are not therefore to be considered "facilities" within the meaning of section 3(m) include: Safety caps, explosives, and miners' lamps (in the mining industry); electric power (used for commercial production in the interest of the employer); company police and guard protection; taxes and insurance on the employer's buildings which are not used for lodgings furnished to the employee; "dues" to chambers of commerce and other organizations used, for example, to repay subsidies given to the employer to locate his factory in a particular community; transportation charges where such transportation is an incident of and necessary to the employment (as in the case of maintenance-of-way employees of a railroad); charges for rental of uniforms where the nature of the business requires the employee to wear a uniform; medical services and hospitalization which the employer is bound to furnish under workmen's compensation acts, or similar Federal, State, or local law. On the other hand, meals are always regarded as primarily for the benefit and convenience of the employee. For a discussion of reimbursement for expenses such as "supper money," "travel expenses," etc.
Fair Labor Standards Act:
§207(o) Compensatory Time for PUBLIC Employers
Employees of a public agency which is a State, a political subdivision of a State, or an interstate governmental agency may receive, in accordance with this subsection and in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section.

Under a time off plan, an employee who works over 40 hours in a workweek must be given one and one half hours off for every hour worked over 40 hours in a workweek, and the employee must take the time off within the same pay period during which the employee worked over 40 hours in a workweek.

For instance, if an employee is paid every two weeks, and works 50 hours in the first week, the employer could give the employee 15 hours off during the second week instead of paying the employee overtime for the 10 hours he or she worked.

Congress was persuaded by the argument that many public employers (specifically police and firefighters) could not afford all the overtime for the amount of work need to serve the public. This provision allows employees to get time off rather than getting paid overtime. It needs to be agreed up; employee needs to accept it. This is only for PUBLIC employees.
Fair Labor Standards Act:
Coverage
Two Ways to Establish Coverage Under FLSA:
(1) Enterprise Coverage
(2) Individual Coverage
Fair Labor Standards Act:
Enterprise Coverage
Employees who work for certain businesses or organizations (or "enterprises") are covered by the FLSA.

These enterprises, which must have at least two employees, are:
(1) those that have an annual dollar volume of sales or business done of at least $500,000
(2) hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies

All of the employees are covered in a business if enterprise coverage applies.
Fair Labor Standards Act:
Individual Coverage
Even when there is no enterprise coverage, employees are protected by the FLSA if their work regularly involves them in commerce between States ("interstate commerce"). The FLSA covers individual workers who are "engaged in commerce or in the production of goods for commerce."

Examples of employees who are involved in interstate commerce include those who: produce goods (such as a worker assembling components in a factory or a secretary typing letters in an office) that will be sent out of state, regularly make telephone calls to persons located in other States, handle records of interstate transactions, travel to other States on their jobs, and do janitorial work in buildings where goods are produced for shipment outside the State.

Also, domestic service workers (such as housekeepers, full-time babysitters, and cooks) are normally covered by the law.

Usually look at the individual when the business does not meet the $500k requirement in enterprise coverage (so, usually small businesses).
Fair Labor Standards Act:
§213(A)(1) White Collar Exemptions
To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis no less than $455. Job titles do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the Department's regulations.
Fair Labor Standards Act:
White Collar Exemption Test

Family Dollar Case
Executive, administrative, and professional employees are exempted from coverage under the minimum-wage and overtime provisions of the FLSA, but are still covered by the equal pay and child-labor provisions.

To establish an employee is a bona fide executive, an employer must show:

(1) the employee is "compensated on a salary basis at a rate of not less than $455 per week";
USE SALARY BASIS TEST HERE

(2) the employee's "primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof".

So ask:
(1) Are they paid on a salary basis? What is the salary level?
(2) What are the job duties?
Fair Labor Standards Act:
White Collar Exemptions
Salary Basis Test
(1) Not hourly basis, salary is a set, pre-determined amount
(2) Level of salary
(3) No unauthorized deductions
When employers start making deductions to the salary, then may not be salary. Not really being paid a set an amount, their deducting. But some deductions are acceptable. Ex: took leave, so not going to pay you for that.

On exam: Every time an employer starts to deduct from salary, red flag it as an issue! It may be a basis on which they may lose the white collar exemption.
Fair Labor Standards Act:
White Collar Exemption
"Salary Basis"
Being paid on a "salary basis" means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee's work. Subject to exceptions listed below, an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. Exempt employees do not need to be paid for any workweek in which they perform no work. If the employer makes deductions from an employee's predetermined salary, i.e., because of the operating requirements of the business, that employee is not paid on a "salary basis." If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.
Fair Labor Standards Act:
White Collar Exemption
Losing the Exemption
May lose exemption in 2 ways:
(1) Duties do not match up with the job for executive, administrative, or professional job duties

(2) Impermissible or improper deductions from salary
(And thus, not really being paid a salary)
Fair Labor Standards Act:
White Collar Exemption
Duties
Need to look at the regulations to determine the job duties of executive, administrative, or professionals.

Special rule for highly compensated employees—$100,000 per year or more.
Fair Labor Standards Act:
White Collar Exemption
Safe Harbor
If an employer (1) has a clearly communicated policy prohibiting improper deductions and including a complaint mechanism, (2) reimburses employees for any improper deductions, and (3) makes a good faith commitment to comply in the future, the employer will not lose the exemption for any employees unless the employer willfully violates the policy by continuing the improper deductions after receiving employee complaints.
Fair Labor Standards Act:
Consent
Does NOT matter if the employee consented to something (getting paid less, no overtime, etc).
Fair Labor Standards Act:
Independent Contractor
FLSA does NOT cover independent contracts.
LA Wage Payment Statutes:
Purpose
This statutes goal is to get the employees final paycheck when he leaves his job.

When someone separates from employment (no matter if its resignation or discharge) the employer has to pay them by the next pay day, but no later than 15 days, whichever comes first.
LA Wage Payment Statutes:
631 Payment of amounts then due
Private Right of Action?
Yes. Statute Creates a private right of action.
LA Wage Payment Statutes:
Remedy
If employee establishes a 631 violation, you will get what you should have been paid plus court costs and attorney fees
But you may or may not get penalty wages based on good faith defense. Will get penalty wages, UNLESS employer raises defense, then may or may not get penalty wages


Under case law, attorney's fees are mandatory, but penalty wages are subject to employer's good faith, non-arbitrary defense.
LA Wage Payment Statutes:
Employer's Good Faith Defense
When the court finds that an employer's dispute over the amount of wages due was in good faith, but the employer is subsequently found by the court to owe the amount in dispute, the employer shall be liable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed.

If the court determines that the employer's failure or refusal to pay the amount of wages owed was not in good faith, then the employer shall be subject to the penalty wages.
LA Wage Payment Statutes:
Vacation Time
Vacation pay IS amount due:
(1) Employer provides vacation time with pay and employee is eligible for vacation time
(2) Employee has accrued vacation time AND has not been taken it or been paid for it.

What if the employer has a take it or lose it policy?
Some employers provide that if you don't take vacation time, then you lose it.
Ex: You work a year, and each year you have 2 weeks of paid vacation; but once accrued you need to use it within the next 6 months.

LA Supreme Court said:
This scheme is NOT illegal. Employer can set up certain terms for accrued vacation time. But what it doesn't permit is nonpayment for whenever it is accrued.

In Wyatt v. Avoyelles Parish:
Employer resigned or terminated.
Employer said you have 2 weeks of accrued time.
Employee had earned it and not taken it, so he wants to cash it out.
Employer said you didn't use it within the specified time period, so you lost it.
Court said no, once it is accrued it is payable.
LA Wage Payment Statutes:
Severance
Martin v. Iberia Bone, Joint & Foot Clinic,
Martin was employed as a physician's assistant to Dr. Knatt. Martin received a text message from Dr. Knatt stating that he did not need a physician assistant position with my office.

Employer policy: Notice or payment in lieu of notice

Court said severance was not an amount then due.
No law requires it.
This is not wages, this a lump sum payment
But professor says: Vacation time not really wages, yet is it still considered an amount then due.
So why did the court focus on whether severance was "wages"? The focus should be is it amount then due.
LA Wage Payment Statutes:
If there is a dispute as to how much is owed to employee
(1) Employer needs to pay the undisputed amount
(2) And then let the employee file a lawsuit as to the disputed portion
LA Wage Payment Statutes:
Liability of employer for failure to pay
Any employer who fails or refuses pay shall be liable to the employee either for 90 days wages at the employee's daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages.

It's not always 90 days wages. If employer tenders the payment in 10, 20, 30 etc. days then only 10, 20, 30, etc. wages are paid.

If you get to the 90 days, this is all or nothing. Either you pay the 90 days wages or you litigate it.
LA Wage Payment Statutes:
Contract forfeiting wages on discharge unlawful
If employer has employee sign something that forfeits part of their compensation, it is invalid.
Family Medical Leave Act:
Coverage Issues
Covered Employer
A covered employer is a:

(1) Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;

(2) Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or

(3) Public or private elementary or secondary school, regardless of the number of employees it employs.
Family Medical Leave Act:
Coverage Issues
Eligible Employee
An eligible employee is one who:
(1) Works for a covered employer;
(2) Has worked for the employer for at least 12 months;
(3) Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and
(4) Works at a location where the employer has at least 50 employees within 75 miles.
Family Medical Leave Act:
Purposes for which leave can be taken § 102(a)(1)
Eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons:
(1) The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;
(Both father & mother may take leave)

(2) To care for a spouse, son, daughter, or parent who has a serious health condition;

(3) For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or

(4) For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.
Family Medical Leave Act:
Notice
Notice required for (1) Foreseeable and (2) Unforeseeable leave:

(1) §102 (e) for FORESEEABLE leave-not less than 30 days notice.

(2) For UNFORESEEABLE leave, regs provide for giving as much notice as is practicable under facts and circumstances
If employee did not give required notice, employee can still take the leave but employer may delay it.
Family Medical Leave Act:
FMLA Leave in relation to Paid Leave
Does employer every pay for FMLA leave?
Yes, if the employer has paid leave.

How often to employers elect to have paid leave time count as FMLA time?
For example:
1. Employer provides 4 weeks of paid leave
2. Person wants 8 weeks of FMLA leave
3. Employer says ok but of those 8 weeks, 4 of those
weeks are from your paid leave
Almost every employer elects to do this. Why? Employee only gets one leave. If employer does not elect to do this, employee might take 8 weeks of FMLA leave and then an additional 4 weeks for his paid leave (so 12 weeks compared to 8 weeks).
Employer can do this and force their employees to take their paid leave.
Family Medical Leave Act:
§103 Employer may require certification by health care provider
When an employee requests FMLA leave due to his or her own serious health condition or a covered family member's serious health condition, the employer may require certification in support of the leave from a health care provider. An employer may also require second or third medical opinions (at the employer's expense) and periodic recertification of a serious health condition.
Family Medical Leave Act:
Maintenance of health care coverage as it would be if employee working
Employers are also required to continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.
Family Medical Leave Act:
Restoration to job or substantially equivalent job
Upon return from FMLA leave, an employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

Exception to Job Restoration
(1) Key employee exception
Fits description in §104(b)(2) and employer satisfies all requirements of §104(b)(1), including key employee notification

§104(b)(1): "An employer may deny restoration...if:
(A) such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;
(B) the employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that such injury would occur; and
(C) in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice."

§104(b)(2)
"An eligible employee described in paragraph (1) is a salaried eligible employee who is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed."

Idea is that employer will be in ruins if employee takes leaves and there is no one that can cover that position (can't just get a temp to fill the position while the employee is on leave)
Family Medical Leave Act:
Right of action?—federal or state court
Yes. Right of action—federal or state court
Family Medical Leave Act:
Statute of Limitations
2 years or 3 years if willful
Family Medical Leave Act:
Remedies
(1) The amount of wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or

(2) Any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to twelve (12) weeks of wages or salary for the employee, in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee; and

(3) Interest may also be awarded for the amount determined; and

(4) Equitable relief such as employment, reinstatement or promotion; and

5. Attorney fees and costs, including a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.
Family Medical Leave Act:
Pregnancy
Whitaker v. Bosch Braking Systems Division
Pregnancy in itself is not a per se serious health condition.

However, if the employee's pregnancy renders her unable to perform a function of her job, then it is a serious medical condition.
Family Medical Leave Act:

Byrne v. Avon
Two possible conclusions:

(1) Extreme change in behavior was itself notice or

(2) Employee was unable to give notice, and thus excused.