finals

• Employment-at-Will


  Employers can hire and fire who they want, employees may quit when they want
• Exceptions to Employment-at-Will


  • Refusing to commit an illegal act
  • Important public duty (jury duty)
  • Public right (filing for workers' compensation)
  • "Whistle Blowing"
  • Contracts in violation of public policy, i.e. exculpatory agreements
• Wrongful discharge


  If firm dismisses employee in violation of public policy exception, employee may sue
• Ballalatak v. All Iowa Agriculture Assn. case summary
• Noncompete agreements


  Employees sign not to leave employment and compete directly with employer
• Zambelli Fireworks Manufacturing Co. v. Wood case summary
• Anti-raiding covenants


  Employees required to sign an agreement they will not recruit fellow employees for another company when they leave their current place of employment
• Substance abuse issues


  • Alcohol the most commonly abused
  • 8% of workers are serious alcohol abusers
  • Another 3-8% of adults abuse or are addicted to illegal or improperly dispensed drugs
  • One in eight of workers have substance abuse problem
• Costs of substance abuse

  Total economic cost over $250 billion per year; cost to employers ~ $100 billion per year
• Safety issues with substance abuse
• Drug-Free Workplace Act


  Requires all companies of more than $25,000 worth of business with the federal government to certify they have "drug-free" workplace
• Omnibus Transportation Employee Testing Act
• Guidance on employee substance abuse policies

  • Pre-employment screening usually OK
  • Testing employees on annual basis or part of occasional physical exams usually legal
  • Drug tests upheld when job is safety sensitive job
  • Random drug test upheld when announced as a condition of employment
  • After accidents – OK because public safety issues outweigh employee's privacy
  • "Reasonable suspicion" – document this carefully in employee file
  • Announced policy of such tests and safety is an issue
  • Use Certified Labs to give and process drug testing
  • Give all employees copy of company policy and keep a signed receipt from employee
  • Make policy clear, ensure testing is not discriminatory or done carelessly
• Occupational Safety and Health Act of 1970 (OSHA)


  Created Occupational Safety and Health Administration (OSHA), Occupational Safety and Health Review Commission (OSHRC), and National Institute for Occupation Safety and Health Council (NIOSH)
• OSHA requirements
• Caterpillar Logistics Services, Inc. v. Solis case summary
• OSHA health standards


  Protection from asbestos exposure, vinyl chloride, coke-oven emissions, and other industrial carcinogens
• Most Common Workplace Safety Violations

  • No written hazard communication program
  • No info or training on hazardous chemicals
  • Electrical conductors not protected when entering boxes or fittings
  • Electrical covers missing
  • Guards missing on grinding wheel
• Commission never discussed the subject
• Secretary's decision is vacated
• Caterpillar Logistics wins
• Most OSHA standards concern

  • Safety
  • Health
• OSHA to issue standards that "Must adequately insure to the extent feasible . . . that no employee will suffer material impairment of health or functional capacity even if there is regular exposure to the hazard…for the period of his/her working life."
• Exhibit 15.1 - Most Common Workplace Safety Violations

  • No written hazard communication program
  • No info or training on hazardous chemicals
  • Electrical conductors not protected when entering boxes or fittings
  • Electrical covers missing
  • Guards missing on grinding wheels or spinning machinery
  • Hard hats not worn on construction sites
  • No fall protection for workers on elevated work surfaces
  • No portable fire extinguishers
  • Improper use of electrical cords
  • Not maintaining OSHA Injury and Illness Log
• Hazard Communication Standard (HazCom)


  • Issues exposure limits for some specific toxic substances
  • Chemical producers and users must conduct a "hazard determination" of chemicals they use/produce
  • Where these chemicals are used, employers must have: 1) A written plan, 2) Labels for chemical containers, 3) Material Safety Data Sheets (MSDS), 4) Employee Training Programs
• Policies making clear that organization has the right to access e-mails that come to company computers or accounts
• Software scans e-mails for red flag words – sex, guarantee, social security number, etc.
• These controls help companies reduce: Lost work time, Litigation from harassment from e-mails with sexual content, Loss of information that should be secure
• Maryland (2012): First state to ban employers from requesting access to social media account of employees & job applicants
• Some employers ask for voluntary access to social media but do not insist
• Everything once posted, even if removed, can be retrieved later
• Workers' Compensation


  • States enact worker's comp. laws to provide employer paid insurance for work-related accidents
  • To have a claim, worker must show 1) injury 2) as a result of an accident or occupational disease, 3) that arose out of and in the course of employment
  • Compensable injuries - mental, nervous disorders, and heart attacks on the job
  • Reduced payments from tort damages to a schedule
  • Objectives: 1) Provide benefits to work-accident victims regardless of fault, 2) Provide a certain remedy and relieve hassles of tort litigation, 3) Protect public and private charities from undue burden, 4) Reduce fees to lawyers and expert witnesses, 5) Encourage ER safety w/accident rating-based premium, 6) Provide open communication of accident for future safety
• Workers' Compensation Benefits and Incentives

  • Obligations to employees, NOT independent contractors
  • Companies pay premiums based on injury claims records – vary widely among states and occupations. Generally fewer claims = lower premiums
  • Different states have different systems, rules, payout histories
  • Usually worker receives 2/3 of their gross wages as disability income, up to a state-imposed weekly maximum
  • Benefit Categories: Death, Total disability, Permanent partial disability, Temporary partial disability, Medical expenses
• Long was an in-home certified nursing assistant (CNA) working for Superior Senior Care. Company had 5 employees in its office and 100 independent contractors. Clients would contact Superior; it would post requirements to match CNAs with clients.
• Superior received fee for referral service; clients deposit funds in an escrow account with Superior; CNAs paid from escrow account. Long was told her pay would be $10/hour. Duties based on client needs. She didn't have to take any assignment – could choose. General duties: cooking, house cleaning, laundry, helping clients shower and move around.
• Long filed for workers' compensation. Superior said she was independent contractor, not employee.
• Administrative Law Judge held Long was an employee.
• Commission reversed – that she was an independent contractor – not eligible for worker's compensation.
• Long appealed. Whether an person is an employee or independent contractor depends on facts of each case.
• Here, Long was acting as an independent contractor.