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4th Amendment Special Need Search:
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Privacy
Public Employers
o Quon A government employers warrantless search is reasonable if it is:
(1) justified at its inception; and
(2) narrowly and reasonably tailored to the objectives of the search.
o Is there a reasonable expectation of privacy? 4 factors (Vega-Rodriguez):
(1) Whether work area was given for employees exclusive use.
(2) Extent to which others had access to the space.
(3) Nature of the employment.
(4) Whether employees were on notice that the area was subject to surveillance.
o To what extent did the employee consent to monitoring? (Watkins)
Private Employers
o Tort of intrusion 2 elements (Hernandez):
(1) Intentional intrusion into an area where Plaintiff had a reasonable expectation of
privacy; and
Look to: identity of intruder, extent to which others had access to the area, and the
means of the intrusion.
(2) Intrusion would be highly offensive to a reasonable person.
Look to: the degree, settings, and motives of the intrusion.
o No reasonable expectation of privacy in emails voluntarily sent to a co-worker over a company
server. (Smyth v. Pillsbury)
Freedom of Expression
Whether one can be discharged based on a romantic relationship often hinges on the existence and
content of a company policy on the matter (Rulon-Miller policy; McCavitt no policy)
Where a government employee is speaking on a matter of public concern, the interests of the employee,
as a citizen, are balanced against the governments interest, as an employer, in promoting efficiency.
(San Diego v. Roe; Rankin v. McPherson)
Where a government employee is speaking pursuant to his official duties, he is not speaking as a citizen
for 1st Amendment purposes, and thus his statements are not insulated from employer discipline.
(Garcetti)
Employment at Will Rule
An employment relationship is presumed to be terminable at will, absent contrary evidence.
After-Acquired Evidence
An employer can only rely on after-acquired evidence if the wrongdoing was of such severity that the
employee would have been terminated on that ground at the time of discharge had the employer known
about it. (McKennon)
Breach of contract claims after-acquired evidence can be used to complete bar employer liability if the
wrongdoing was such that it undermined the very basis upon which the employee was hired. (McDill)
o Tort claims after-acquired evidence may only be used to limit liability.
Arbitration Agreements
Unless Congress or the state legislature has evinced an intention to preclude a waiver of a judicial forum
for a particular claim, arbitration agreements are always enforceableassuming that the forum
established by the arbitration agreement is fair. (Gilmer)
Breach of Implied Terms
Generally, employees are required to refrain from:
o (1) Competing with the employer during the period of employment.
o (2) Appropriating the employers trade secrets or other confidential information
o (3) Otherwise using the employers resources in such a way as to further potentially competing
ends.
An employee may not solicit his employers customers for his new business while still employed by the
company. (Lamorte Burns)
o Duty of loyalty employee must not take actions contrary to the employers interest.
An employee with managerial discretion has an additional duty to further the employers interests.
(Arrowood v. Lyon)
Restrictive Covenants
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Trade Secrets
Springfield Rare Coin information is not protectable where:
o (1) It has not been treated as confidential and secret by the employer.
o (2) It was generally available to other employees and known by persons in the trade.
o (3) It could easily be duplicated by reference to telephone directories or industry publications.
o (4) Where the customers on such lists did business with more than one company or otherwise
changed businesses frequently so that their identities were known to the employers competitors.
The Uniform Trade Secrets Act:
o Trade secret means information, including a formula, pattern, compilation, program, device,
method, technique, or process, that:
Derives independent economic value, actual or potential, from not being generally known
to, and not being readily ascertainably by proper means by, other persons who can obtain
economic value from its disclosure or use.
Is the subject of efforts that are reasonable under the circumstances to maintain its
secrecy.
OSHA - Duties
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Pepperidge Farm to find a 5(a)(1) (General Duty Clause) violation, the Secretary must show:
o (1) Actual or potential physical harm.
o (2) Sufficient causal connection between the injury and the workplace condition.
o (3) That the employer was aware of the workplace hazard.
Constructive knowledge can be imputed onto the employer based on industry norms.
o (4) That the hazards were likely to cause death or serious bodily harm.
o (5) That alternative means existed to eliminate or reduce the hazard.
The GDC creates a duty for the employer to create a work environment free of hazards; it does not
create individual duties to each employee. (Reich v. Arcadian)
The requirement that employers protect all employees against hazardous workplace conditions extends
to independent contractors. (Teal v. E.I. DuPont)
The right to compensation is not limited to those cases where the injury occurs while the employee is
performing the classical duties for which he/she was originally hired. Far less than a direct request by
the employer operates to bring an injury-causing activity within the provisions of workers
compensation. (Eckis v. Sea World)
Perry [MINORITY EXCEPTION TO NO-FAULT SYSTEM] an employee can be found to have acted
outside of the scope of employment by violating a work restriction if the following elements are shown:
o (1) Employer expressly and carefully informed the employee that he must not perform the
specific task;
o (2) Employee knew and understood the specific restriction;
o (3) Employer did not knowingly continue to accept the benefit of the violation of the restriction;
and
o (4) The injury for which benefits are claimed arose out of conduct that clearly violates the
specific restriction.
Most jurisdictions allow recovery of benefits so long as the employee was making a good
faith effort to advance his employers interests.
A home does not become a second jobsite simply because ones employment requires long working
hours and the employer knows that the employee frequently brings work home the employee has to be
required (explicitly or implicitly) to bring work home. (Santa Rosa)
Remedies
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No reinstatement.
o After-acquired evidence.
o Undocumented workers.
o Person will not fit with company; frontpay awarded instead (Parr v. Triplett)
Backpay/frontpay
Fines (OSHA/IRCA)
o If an OSHA violation results in an injury not barred by workers compensation, the employee
may have a per se negligence tort claim.
Tort damages
Non-Compete Agreements
o Acceptance (preliminary injunction)
o Rejection
o Blue penciling (modifying the agreement rare)
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