Employment- Fineman- Fall 2006- Lane

Employment- Fineman- Fall 2006- Lane - AT WILL RULE Creates...

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AT WILL RULE - Creates a presumption of an indeterminate K I. Employee - permission to do work, continuing relationship, subject to authority/control, not an IC or volunteer. II. EE has burden to overcome presumption of at will employment III. Excptions A. Explicit K/Union K B. Antidiscrimination Laws C. PP reasons - good reason or no reason, not bad reason. D. Implied K IV. Policy - this is clear and unambiguous, keeps court system from being clogged V. Public EEs - more protection because of the constitution, private EEs leave protection at door - McCauliffe - police officer tried to fight rule. VI. Rutan - Rule - Use merit system in making hiring/firing decisions unless EEs are in high level policy making positions. HIRING I. Kotch - riverboat pilot case - Rule: Nepotism in hiring requires justification, and can not lead to the violation of any other statute, like title VII. II. EEOC v. Consolidated - Korean run business used word of mouth hiring A. Rule: In absence of discrimination, ER is not obligated to go out and seek diverse applicant pool. B. Rule: Can’t discriminate in ad, but you can run ad in newspaper with certain demographic. III. Residency Requirements - these will be upheld for the most part because they only require a ration reason, like fostering a sense of community, reducing unemployment in area etc. IV. Unlawful Aliens A. ER should be held to reasonable person standard and should not be held to a standard of an expert on forgeries - Collins B. NLRB must respect the policies of other agencies when establishing remedies, therefore illegal alien does not get back pay even though they were wronged because illegals are not allowed to work in US in the first place - Hoffman V. Applications - Sullivan v. USPS - can not disclose existence of application because it is in contravention of federal privacy act. A. Asking about race, sex, nat’l origin is ok, but it can be used as evidence of discriminatory intent. B. Lying in application is cause not to hire, or if found out later, cause for termination. VI. Interviews - Lysak - one can be discharged for volunteering an untruth, even if ER could not have asked the question in the first place. As long as ER fired for lie, and not discriminatory reason. VII. References - A. Qualified Privilidge Doctrine - no liability for defamation if you make statements in good faith and both parties have an interest in the subject matter. There are exceptions (burden on P to prove): i. If there is evidence of ill will or malice - negative communications and animosity are not enough ii. Excessive Publication iii. Without grounds to believe it was true - didn’t care if it was true, made no effort to verify, or not enough evidence to prove truth.
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B. Lewis v Equitable Life - EE expense report case - QP protects statements that could be untrue, but not statements that are untrue - in this case, the charge that the EEs were fired for gross insubordination untrue, so QP did not apply. VIII.
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Employment- Fineman- Fall 2006- Lane - AT WILL RULE Creates...

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