Employment Law - Discharge

Front 1

Right to Terminate

Back 1

For an at-will employee the general rule is that An employer has the right to hire/fire an employee and employee has a right to quit without any reason.

Front 2

Exceptions to Right to Terminate (4)

Back 2

1) Whistleblower exception
2) Breach Of Contract
3) Bad Faith
4) Public Policy

Front 3

Whistle Blower (Terminate exception) (3)

Back 3

1) Employee engaged in activity protected by whistleblower statute
2) Employee was the subject of adverse employment action; AND
3) There is a causal link between the protected activity and the adverse employee action.

Front 4

Breach of Contract Exception (def + types) (2)

Back 4

For there to be a breach of contract that takes the employment out of employment at will there has to be a contract.
1) Express written contract
2) Implied contract

Front 5

Implied Contract types (2)

Back 5

1) Written
2) Conduct

Front 6

Implied Written Contract Types

Back 6

i.Conditions
ii. With Cause
iii. Handbooks
iv. Annual Salary
v. Non-terminable
vi.“Just cause”

Front 7

Implied Written Contract - Conditions

Back 7

- (Gordon v. Matthew Bender)
- Just because a contract has a condition does not mean that it is not a contract at will.
- Requiring “acceptable/satisfactory” performance does not take the contract out of at will.

Front 8

Implied Written Contract - With Cause

Back 8

- (Scribner v. World Com):
- These words take a contract out of the realm of at will, and mean that there has to be a reason “related to performance” for the discharge.

Front 9

Implied Written Contract - Handbooks

Back 9

(Woolley v. Hoffman):
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.

- Employee must have a reasonable expectation in addition to the handbook.
- Unilateral contract: A handbook creates a unilateral contract. This means that the employer can change them as they see fit unless an employee reasonably relies on them.
- Notice: to make a change employer generally has to just post the handbook on the website. However, for big stuff you likely have to do more (send email, require to check box, etc.)

Front 10

Implied Written Contract - Annual Salary

Back 10

Can create an employment for a term

Front 11

Implied Written Contract - Non-terminable

Back 11

This means that you have to pay the person no matter what, even if you fire them for cause.

Front 12

Implied Written Contract - “Just cause”

Back 12

This only requires that there be an objective good faith belief/due diligence that there was reason to fire them. Whether there is actually good reason does not matter.

Front 13

Contract Implied from Conduct (def + factors) (6)

Back 13

(See’s Candies Case):

Contract may be shown by the acts and conduct of parties, interpreted in the light of the subject matter and of the surrounding circumstances. The relevant factors are:
i. Duration of employment
ii. Commendations/promotions
iii. Lack of criticism
iv. Personnel policies or practices
v. Actions or communications by the employer reflecting assurances of continued employment
vi. Industry practices

Front 14

Bad Faith Termination Exception

Back 14

Good faith and fair dealing is implied in every employment contract.

Front 15

Bad Faith Termination Exception - Factors (2)

Back 15

(Cleary v. American Airlines):
o Longevity of employee’s service
o Expressed policy of the employer

Front 16

Bad Faith Termination Exception - Damages

Back 16

no tort damages for GF/FD, only contract damages

Front 17

Public policy Termination Exception (def + application) (4)

Back 17

An at will employee possesses a tort action when he or she is discharged for performing an act that public policy would encourage, or for refusing to do something that public policy would condemn.

Applies:
1. Refuses to commit unlawful acts
2. Exercises statutory rights
3. Is performing a public function
4. Is reporting an employer’s unlawful conduct

Front 18

Public policy Termination Exception - Employee discretion

Back 18

(Arres v. IMI)
Employees are not just free to use their interpretation to create a PP exception.
- Employees “can pursue public policy, but they have to do it the right way.”
- Employee has to follow policies and procedures unless the company is explicitly violating a statute or public policy.

Front 19

Public policy Termination Exception - Heroic Conduct

Back 19

(Gardner v. Loomis Armored)
There is a public policy in encouraging heroic conduct.

Front 20

Public policy Termination Exception - Self Defense

Back 20

(Murphy v American Home)
There is a public policy in self defense, but this can be rebutted if the employer can show legitimate business purpose for the policy.

Front 21

Public policy Termination Exception - Federal Safety Regulations

Back 21

(Mehlman v Mobil)
Federal safety regulations satisfy the statute requirement for PP.

Front 22

Public policy Termination Exception - Patient Safety

Back 22

No PP for this

Front 23

Discharge Preemption (def)

Back 23

- Only preempted where there is a cause under the statute that is doing the preempting.
- It is not enough to say there is a federal law, the federal law has to give you a way to get a remedy.

Front 24

Discharge Preemption - Collective Bargaining

Back 24

(Lingle v Norge)
State law will only be preempted if application of state law requires INTERPRETATION of a collective bargaining agreement.
- Just referring to it doesn’t count.

Front 25

Discharge Preemption - Whistle blower

Back 25

A common law claim is not precluded by federal whistleblower claim on the same facts.
- This means that the same facts can create multiple causes of action.

Front 26

Discharge Preemption - Common Law claims

Back 26

(Wilson v Monarch)
- Federal law will not preempt a state common law tort claim as long as the actions the claim is based on rises beyond the employment law claim to become a common law claim (IEED, Invasion of Privacy, etc.)

Front 27

IEED (def + applies) (3)

Back 27

Has to rise to the level of outrageous conduct, outside of normal wrongful termination. Applies when:
1. Abuse of a relation or position which gives employer power to damage the plaintiff’s interest
2. Knows the plaintiff is susceptible to injuries through mental distress; or
3. Acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.

Front 28

IEED and Employment at Will

Back 28

No IIED here because of discharge itself, has to be because of MANNER OF DISCHARGE.

Front 29

After acquired evidence rule

Back 29

If an employer finds a legitimate reason for firing an employee after they fired them for discrimination, then it can reduce the damages the employee can get.