Topic 2
Employment At-will, Exceptions, and Tort Liability for Wrongful Discharge;
Privacy Rights in the Employment Relationship
Employment At-will, Exceptions, and Tort Liability for Wrongful Discharge [Chapter 2]
1) "At-Will" relationship presumed under CA law in the absence of an employment contract ("K")
-Dr. Malos' article on At-Will and international comparative employment relationships
2) Exceptions to Employment at Will (which virtually swallow the rule!):
*WARN
-WARN (non)applicability to recent layoffs in Silicon Valley? [Does not apply to temporary employees, "closing of a faltering company", or "unforeseeable business circumstances". Cf. California's version of this statute.]
*Violation of Public Policy (e.g., jury duty, whistleblowing, workers compensation);
-Federal whistleblower protection—problem issues
-Sarbonnes-Oxley [“SoX”; in class];
-Non-compete agreements—forced acceptance contrary to public policy in CA [more in Outline 4, Ch. 3 materials]
-Non-Compete Agreements and the Public Policy Exception to Employment At-Will
-Compare Enforceability of Compulsory Arbitration, Non-compete, and Trade Secrets provisions in employment [note that some employers also may try to exact waiver of right to sue via Class Actions, but practice violates NLRA right to concerted action via legal claims]
-Note: Recent U.S. Supreme Court decisions [May 2018] upholding enforceability of arbitration agreements even when they limit collective worker challenges to employers by banning class actions [i.e., Federal Arbitration Act of 1925 trumps NLRA] probably does not affect California law; the Armendariz decision [CA Supreme Court, 2000] requires reasonable protection of worker rights generally if arbitration agreements are to be upheld, but the California Supreme Court's ruling in Iskanian v. CLS Transportation, 59 Cal. 4th 348 (2014) had already upheld the enforceability of class action waivers in arbitration agreements
-But: California Assembly Bill 51 in effect would now prohibit employers from requiring job applicants or employees to sign compulsory arbitration agreements as a condition of employment as an unlawful waiver of rights, forums, or procedures conferred under FEHA--except that enforcement of AB 51 has been enjoined [TRO] pending a full hearing on the merits in U.S. Chamber of Commerce v. Becerra. So, watch these pages for developments.
https://www.npr.org/2018/05/21/605012795/supreme-court-decision-delivers-blow-to-workers-rights
-And see also the Defend Trade Secrets Act of 2016 which provides, among other things, that employees are immune from civil or criminal liability for disclosing trade secrets for purpose of reporting or investigating suspected violation of law [i.e., whistleblowing] or for disclosing trade secrets in legal proceeding if information is filed under seal
*Implied Contract; Employee Handbooks and Disclaimers
*Violation of Implied Covenant of Good Faith/Fair Dealing (Guz v. Bechtel)
*Estoppel (see, e.g., Helmer v. Bingham Toyota Isuzu; employee induced to leave secure job by false promises re: future employment)
*Illegal Reasons (e.g., violation of CRA'64; '91; Non-retaliation; FEHA; ADA; ADEA; i.e., remainder of course, starting w/ Ch. 3)
3) Constructive [as distinguished from "Wrongful Discharge"]
4) Tort Liability for Wrongful D [examples in class]
*Outrageous Conduct (Section 46, Restatement of Torts)
*Infliction of Emotional Distress
*Defamation
*Invasion of Privacy (more below; see Chapter 14 materials)
Privacy Rights in the Employment Relationship [Chapter 14]
5) Public Sector Employees (or, Watch Out when the Government is also your Boss!)
Federal:
*4th Amendment to U.S. Constitution
*Privacy Act
California:
*Coming on Jan. 1, 2020, California will adopt extremely strict privacy protection modelled after the EU's General Data Protection Regulation [GDPR]
*Law is entitled the California Consumer Protection Act, but applies to employers in regards to employees' rights to know what personal information is being collected about them and to access and receive a copy of that information [also, no discrimination or retaliation based on information or request to access same]; may require disclosure of information gained via job application or performance review processes--more later as developments occur.
6) Public and Private Employees:
*O.C.C. S.S.A. (prohibits interception of phone communications by govt. agents without a warrant)
*E.C.P.A. of 1986 (Prohibits interception of electronic communications by all persons or businesses without consent of all parties and business purpose if a business is involved)
*USA PATRIOT Act [let’s hope this puppy gets repealed!]
-Electronic Monitoring and Workplace Privacy under the Patriot Act
*Tort Liability--4 types
-Intrusion into seclusion (City of Ontario v. Quon; see also O'Connor bv. Ortega; video on employee monitoring in class if time and Zoom cooperates; on your own if not)
https://www.youtube.com/watch?v=U-mqdz-20Xs
-Public disclosure of private facts (resembles defamation, but may also disclose true facts)
-False light (can happen in employment context in circumstances not rising to defamation)
-Commercial appropriation (very rare in employment context)
* Regulation of Off-Work Activity (text @ 652; Cal. Labor Code Section 96)
-New Cal. Labor Code Section 96(k) re: regulation of off-work lawful conduct [“lifestyle choice protection” provision may implicate issues in employee handbooks such as smoking, moonlighting, fraternization, and similar prohibitions; concerns originally expressed by business groups not realized due to limitation to administrative enforcement]
7) Related bases of Tort Liability [for disclosing sensitive information]
*Defamation (damaging disclosure of untrue info)
*Misrepresentation (In re Randi W.)
-Employment References: The tightrope between defamation, negligence, and misrepresentation
*CA AB 2770--provides qualified privilege in defamation or privacy claims to current or previous employers who tell a prospective employer whether or not a candidate would be eligible for rehire, and, if not, whether that is based on determination of sexual harassment
8) Internet/E-mail monitoring; Company Policy/Implied K
9) Social media—NLRA/NLRB and other legal and practical considerations
NLRB implications [beware of policies restricting, e.g., criticism of boss/employer or communication with media when they may implicate "concerted activity" by workers that relate to the "terms and conditions of employment"]