Employment Law notes PDF

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Employment Law notes for Prof. James Cooney. Includes how to brief a case, Employment at will , disparate impact, title VII, sexual harassment. ...

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Employment Law - Thursdays Prof. James Cooney

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Employment at will- employer may terminate your employment without explanation or cause.  Unfair vs illegalmany times aren’t the same thing o Employment at will came about in the 18th century along with capitalish  Plaintiff sues defendant by complaining to HR rep  Briefing a case- summarize in 1 or 2 pages.  Law suites are filed in trial if they lose they can appeal high courts can either affirm, reverse, or demand (whole new trial)  Employment law is civil rather than criminal  Burdens of proof; o Civil= plaintiff has burden”preponderance of evidence”if plaintiff tips scale 51% in their favor they win Court Systems 1. Federal Court System  - Certorial (death penalty) 2. U.S. Supreme Court (highest court) - 9 total justices (reduce the likeliness of a tie) o tie is possible b/c a justice cant vote if there is a conflict of interest o in the event of a tie the decision of the lower court are upheld o justices are appointed by the president and approved by the senate o 5 majority o 4 dissent - it is possible to have 4-4 or tie decision   3. U.S. Courts of Appeal - normally is a panel of 3 judges   4. U.S. District Court (lowest court) - Every state has a district court - 1 per sate (1 judge for New Jersey district court) - called a “trial court”, all trials in federal system - 1 judge (trial judge) - court reporters types up the record of the case - people testify, testimonies, being recorded on “record” - brief – lawyers summarize the most important facts, make an argument why the jury got it either wrong or right - appellate judges review the record to make their decisions. -

U.S supreme court and court of appeals are both appellate courts.

Trials (civil) - Jury - Judges/Bench trial o Plaintiff chooses what kind of a trialtypically plaintiff wants jury and defendant wants judge - Lawyers file briefs (summary/main points of case) - Supreme court doesn't need to take any case unless it’s a death penalty case New Jersey State Courts 1. NJ Supreme Court - 7 justices - Nominated by governor and confirmed or rejected by senatordon't get life terms

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Difference between judges and justices o Judges are called judges everything under U.S. Supreme Court o Justices are only Supreme Court, and State Supreme Courts Retirement age for NJ age 70 Appellate Division: (3 judges, sometimes only 2 if the case probably wont get change)

Employment Law - Thursdays Prof. James Cooney

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o mid-level court o if 2-1 decision in Appellate Division then case is taken at NJ Supreme Court, otherwise they decide what they want to take trial courts are called Law Division in NJ o Law Division & Appellate Division = NJ Supreme Court o Trial court o Either jury or bench “Certification”

NJ Supreme Court  Appellate Divison  Law Division Two types of trials - Jury Trial - Bench trial o Where the Judge makes the decision, no jury - Jury and judge may sway decision due to sympathy or past history Sources of Law 1. Constitution a. U.S. Constitution b. State Constitution - Constitution does not help against private companies 2. Court Cases, called legal precedent legal precedent: a. lower courts must follow decisions of higher courts o Example Roe vs Wade b. Courts follow own prior decision - Precedent can be reversed 3. Statutes (“laws”) o Legislative branch creates the law o Interpreted by the Judicial branch o Signed off by the Executive branch, president - Regulations or “regs” o Rules o Agencies -> FDA o Regulations are more in depth then statutes -

Congress can amend statutes

4. Common Law: - All states follow the British Common Law except; o Lousiana follows the French common law - TORT Law: when injured due to someone’s negligence Employment at Will - means that an employer can terminate employee for any reason, or no reason at all, at any time. - Cam about in the 18th century along with capitalism - “illegal” vs. “unfair” o unfair has no meaning. o Example: guy gets fired for wearing a Saints hat because boss is a Colts fan. Not

a lawsuit

Employment Law - Thursdays Prof. James Cooney Exceptions to Employment at will: 1. Contract a. Express Contract – expressed in writing, terms and conditions, duration of employment i. Says how long and how much employee makes/works; b. Implied Contract – document like an employee handbook i. Unintended document that make promises c. CBA – Collective Bargaining Agreement or “Union contract” i. Must have “Just Cause” 1. employer will show why employee was fired for “just cause” ii. grievance if denied, -> binding arbitration iii. any employee can be covered by multiple contracts at once 2. Constitution Rights a. Must be working for public sector b. Constitution doesn't apply to private sector organizations 3. Statutes or laws a. Title VII (1964) – person can not be terminated due to race, sex, religion…etc b. ADEA (1967) c. ADA (1990) Age Disability Act Labor Law Employer | Union | You Employment Law Employer | You

Plaintiff vs Defendant (plaintiff suing defendant)/Employer suing Employee Most of the times is employee suing employer Plaintiff =  (Pi) Defendant =  (Delta) Breach of Confidentiality Agreement: - employee signs agreement; company secrets not going to release to third parties - clients Breach of Non-Compete Agreement: - not allowed to work in industry where employee previously worked

Employees normally sue by order: 1. First obvious target is employer 2. Then harasser 3. Then HR

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Remedies: what you get in the end, what plaintiff gets -

can’t sue everyone because you hate them. Can be court sanction for frivolous actions

Employment Law - Thursdays Prof. James Cooney

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Employer’s obligation to pay for legal fees - sometimes harasser pays for legal fees, the decision is up to the employer Who decides who the defendants will be? - plaintiff decides. Plaintiff & attorney discuss decision Plaintiff/lawyer writes demand letter, goes to defendant -

a lot of cases get settled before court

if demand letter was rejected… Anatomy of a Lawsuit: 1) plaintiff files complaint (“allegations”) – not proven yet a. Demand letter lawyer may send this to employer to attempt to settle out of court. b. Complaint is filed by plaintiffcomplaint consists of unproved allegations 2) Defendant files answer (answers complaint) (35 days) a. Answer to complaint filed by defendant that either confirms or denies complaint 3) Mediation (NJ – required, middle man) a. Decides on a middle ground b. Doesn't always need to settle c. Hopefully end up with settlement 4) Discovery – discover/learn the facts from the other side a. Sent 1) Interrogatories – written questions b. 2) Request documents (personnel files, time sheets) c. 3) *Depositions – take testimony before a trial; recorded by court reporter/stenographer (best oath) i. taking testimony, asking questions of witnesses/parties involved ii. only lawyers and witnesses iii. so that there are no surprises - at least 2 ½ years to get to depositions - the purpose of dispositions is to lock parties involved into their original story and cant change statement o if witness tries to change information from depositions = impeachmentsettlement can occur 5) Motion for summary judgment (defendant) a. Attempt to settle case without trialusually by defendant 6) Trial (jury or bench – when judge alone decides case) a. Verdict b. Remedies (if plaintiff wins) include reinstatement to same or similar job and or injunction (prohibits employer from continuing discrimination or whatever they were doing) *cases can reach settlement at any stage of a lawsuit^ Witness “Impeachment” X--------------------------------------------Y Deposition Trial Witnesses are brought under oath to tell the truth/facts (deposition). If witnesses decide to change story during the trial, lawyer can “impeach” witness. Adverse Employment Action - Adverse to employee - Means something bad happened

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Something unfair happens on the job (ex: wrongfully terminated, denied a promotion)

Statute of Limitation:

Employment Law - Thursdays Prof. James Cooney -

File complaint within deadline 2 years for NJ

TORT – when something bad happens of negligence/intentional to someone - Personal injury case - 2 years 6 years to bring a breach of contract complaint EEOC: - Federal claims go to this agency - 180 days - NJ = 300 days Continuing Action – Remedies (assumes plaintiff wins) (acts of discrimination) - Non-monetary remedies o Reinstatement to employment (plaintiff wants job back) o Injunction (sometimes called cease and assist)  Order to defendant/employer to stop the harassment/discrimination - Monetary remedies o Back Pay – Mitigation (trying to do good, find work…etc to lessen damages)  Plaintiff will receive lost salary/benefits from their years out of work.  2010 – 2013:  salary is $100k x 3yrs = $300k  300k – 100k (from mitigation)  200k + 300k (from compensatory damages)  500k + 500k (from punitive damages)  1mil – 300k (from lawyer fees)  = 700k 2000-------------------2013-------------------2015 Termination---------verdict (Made 100k) o Front pay  If unlikely that plaintiff will find a new job, they will receive a few more years salary o Compensatory damages (pain & suffering, emotional distress)  Treating doctor  Expert witness (forensic psychiatrist) o Punitive damages (punish defendant/corporate wrong doer…etc)  Malice involved  Need to know size of company so that they do not file bankruptcy.  If filed, plaintiff might not receive money  Basically to punish wrongdoing (defendant) to make sure they wont do it again o “Feeshifting”  1mil + 300k (losing defendant pays for plaintiffs lawyers fee) o Attorney’s fee  employer must pay legal fees o Costs  Plaintiff’s lawyer get 1/3 of the winningscontingency=contingent on plaintiff winning  Defendant legal fees get paid win or lose Readings:

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Duke University Case Wooley vs Loroche

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Burdens of Proof Plaintiff vs Defendant 51% vs 49% - plaintiff wins 50% vs 50% - defendant wins because plaintiff has to prove enough evidence Criminal --> beyond a reasonable doubt Standard Arbitrator Civil --> preponderance of evidence Plaintiff has burden of proof in civil case Plaintiff vs Defendant Briefing a case: (dates) 1. Forum (court) 2. Parties (position they hold within the company 3. Procedure (ex. Trial division then appellate division etc) 4. Facts* 5. Issue* 6. Holding* (means the outcome or conclusion, answer to the issue) 7. Reasoning* (why did the court decide the way it did) 8. Disposition a. Affirmed: higher court agreeing with lower court b. Reversed: higher court disagrees with lower court c. Remanded: case is sent back to lower court 9. Dissent a. The opinion of what the loser of the case thought Duke University Case: 1. Forum: a. Arbitration Holding i. Arbitration is a private process. ii. Much quicker process iii. Cheaper 2. Parties: a. Employer (Duke Univ), Mr. A (employee at Duke U) i. Mr. A is appealing his discipline that he received from his employer 3. Facts: a. Mr. A was supervisor b. Ms. B was subordinate c. Had sexual relationship (consensual relationship) d. Ms B gets married e. Ms. B file report/complaints f. First Investigation: warning i. Letter of reprimand sent to Mr A g. Second Investigation: interview i. Mr & Ms. B bring tape to investigator, but no one else is allowed to hear the tape ii. Investigator interviewed other employees: 1. Some say Mr A is guilty of improper conduct 2. Some say denied the improper conduct h. Mr. A terminated

4. Procedure: (exception to employment-at-will) a. Duke had a policy i. Gave employees a chance to review terminations

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5. Issue: a. Whether the termination of Mr. A with just cause, and if not what shall be the remedy? b. Arbitration Holding-“university burden of proff” i. Clear and convincing evidence” c. Evidence (University)- tape, Ms. B (was forced to go to the arbitration), witness 6. Holding: a. No, b. What shall be the remedy? i. Reinstatement ii. No backpay (time served) iii. Suspension/time served on record iv. Demotion v. Professional counseling 1. Sexual harassment 7. Reasoning: a. Not enough evidence against Mr. A Wooley vs Hoffman La Roche: - Forum: o NJ Supreme Court 1085 - Parties: o Wooley (died) Estate vs Hoffman o Employer is the Plaintiff (dead)Estate - Facts: o No contract o Employer handbook  Refuse to resignterminated - Procedure: o Law Division (aka lower court/trial court) (judgment to the defendant)  Breach of Contract (K)  Intentional affliction of emotional distress (do not need to know)  Defamation (when you say bad things about somebody) (do not need to know o Appellate Division (judgment to the defendant) - Issue: o Policy manual = contract o Whether Employee Handbook is contract (Implied) o K=contract - Trial Court/Law Division o = Defense o Appellate Division  = defense - Holding: o Wooley won case o Reversed remanded o Breach of Implied Contract o Yes, (jury could conclude that) Remand Disclaimer: (not accountable for whatever implied) - not a contract - employee at will Employment at will - Duke Univ (policy) - Wooley (implied contract)

Constitutional Claims 1) U.S. 2) State

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Public sector “State action” o depriving someone of their rights Bill of Rights o 1st 10 amendments of the constitution. o 4th amendment (unreasonable search and seizure)  only applies to PUBLIC SECTOR

Pickering vs. Board of Education Case: June 3, 1968 -

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Forum: o Supreme Court of the United States Parties: o Plaintiff Marvin L. Pickering  Teacher suing school board for termination o Defendant Board of Education  Public teachers  Township High School District 205, Will County, Illinois Procedure: o Circuit Court  Supreme Court of Illinois  Supreme Court of U.S.  Illinois law: required to hold hearing on dismissal.  Admin hearing o 5th Amendment  “Due Process” o Circuit Court  Affirmed termination  Bd of Ed  Illinois Supreme Court  Bd of Ed  U.S. Supreme Court  o Hearing before school board, board ruled in the defendants favor Facts: o Teacher wrote that teachers weren’t getting paid while money was being spent on athletes o Teacher wrote letter to editor of newspaper about a recently proposed tax increase that was critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools  Letter basically was an attack on the school board’s handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools’ educational and athletic programs  Also charged the superintendent of school with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue. o The Board claims statements were false and that the statements challenged the motives, honesty, integrity, truthfulness, responsibility and competence” of both the Board and the school administration.  Board also charged that the statements damaged the professional reputations of its members and school administrators, would be disruptive of faculty discipline, and would tend to instigate “controversy, conflict and dissension” among teachers, administrators, the Board of Education, and residents of district. Issue: o Teacher writing letter to newspaper then being terminated by school Board o Did board of education violate Pickerings 1st amendment o (Limitations)- False claims are not protected by 1st amendment o Difference between “LIE” and “MISTAKE”

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Holding: o Yes (pg 4) o “The appellant’s right to freedom of speech were violated and we reverse”...