WHITEBOARD NOTES BLAW 485 12/2/21 Assignment #10 P#4 – the matron job

WHITEBOARD NOTES
BLAW 485
12/2/21
Assignment #10
P#4
– the matron job (women) and the jailer job (men) were paid differently – was this OK
EPA – the court must consider whether the 2 jobs entail equal skill, effort and responsibility
– the actual job description is more informative/important than the job title
– key point: look to see if the jobs are substantially equal, not identical
– the court must look at the working conditions using the Corning standard of “surroundings” and “hazards”
– see if any of the defenses apply (seniority, merit, or factors other than sex)
– the court did find that the working conditions were substantially equal for matrons and jailers even though the jailers spent more time with prisoners than the matrons did
Smith v. City of Jackson, Mississippi
Key takeaways:
1. you can bring a disparate impact case under the ADEA
2. in this particular case, the court allowed the pay disparity because the City had a valid reason – reason factor other than age – for giving the more junior officers more money than the senior ones
Oubre v. Entergy Operations
Key takeaways:
1. if the release does not meet the requirements of the OWBPA
a. part of written agreement
b. refers to ADEA
c. doesn’t apply to rights, claims after agreement
d. employee gets something not already entitled to
e. employee gets written notice from employer to consult attorney
f. 21-day period to consider agreement, 7-day to revoke
45-day period if early retirement offered to group
it would not be valid
2. retaining settlement money does not constitute a ratification equivalent to a valid release of the ADEA claims because the release did not meet the requirements
P#5
Airline’s argument for having a mandatory retirement age for flight engineers: age would be a BFOQ for flight engineers and therefore exempted from coverage under the ADEA – an employer may discriminate on the basis of age without violating the ADEA when age is a BFOQ reasonably necessary to the normal operation of the business
– big issue in this case was safety, then it would require expert testimony and evidence to show that the risk to passenger safety increased when flight engineers over the age of 60 were imployed
Assignment #11
1. common law right to privacy not meant to interfere with constitutional guarantees – freedom of speech and freedom of the press (including public’s right to know about matters of legitimate public interest and to be informed about public figures’ lives)
2. not spelled out in Constitution, S. Ct. has recognized federal constitutional right to personal privacy; right to privacy implicit in the Bill of Rights (prohibits various types of unreasonable governmental intrusion upon personal freedom; Griswold v. Conn.)
3. issues for employers:
a. monitor employee phone calls in the ordinary course of business to evaluate employee performance and customer service, or document business transactions, or meet security or other needs
b. monitor email for business reasons
c. test employees for drugs or search their lockers for drugs
d. personnel decisions based on medical reports
e. discuss strengths and weaknesses of employees for hiring, promotion, retention decisions
f. evaluations for former employees
4. protection for federal employees:
a. Bill of Rights
i. 1st Amendment’s protection of freedom to associate
ii. 4th Amendment’s protection against unreasonable search and seizure
5. protection for employees of state and local governments: 14th Amendment
6. protection for employees in the private sector: not directly controlled by Bill of Rights because challenged employer actions aren’t governmental actions; provided by state constitutions, statutes, case law, and CBAs
Private Sector Employees: Property Searches
1. private employers are generally less restricting in conducting searches on company property because they are not subject to the same restrictions imposed on public employers by the federal Constitution
2. private employers are generally less restricted in conducting searches on company property, but restrictions may be found in state constitutions, statues, and common law
3. Has the employer created a reasonable expectation of privacy through their actions? Ex. the employer allows the employees to use their own locks on their lockers v. the employer provides the employees with locks
4. actions that an employer can take to avoid potential liability:
a. disseminate employee handbook
b. publicize any company policy that notes, due to security concerns for a drug-free environment, company policy is that lockers, briefcases, desks, may be subject to search as necessary
Invasion of Privacy
Right to privacy protects employees’ interests in not disclosing personal matters, which may include protection of medical records and unreasonable disclosure of private facts.
Confidentiality of Medical Records
1. Medical records within the nature of materials entitled to privacy protection (ex. just disclosing a list of names with what medications they’re taking could reveal the nature of employee illnesses).
2. ADA requires that information about a job applicant’s or employee’s medical condition must be maintained in a separate file from the general personnel file
3. ADA only allows disclosure of medical records or information when:
a. supervisors need to know about necessary restrictions or accommodations
b. employer’s medical staff need to know about a condition that might require emergency treatment
c. gov’t officials investigating compliance with ADA request the records
4. State laws may require employers and health care providers to establish and maintain appropriate procedures to ensure that employee medical information remains confidential – laws may prohibit disclosure without signed consent from employee.
Unreasonable (Public) Disclosure of Private Facts
1. the wrong that is being committed is in publicizing information about someone that is private and not anyone else’s business; under this tort there is the recognition that some information is to be kept private (ex. medical information, sex life, financial condition) – recognized as a tort in some jurisdictions
2. to prevail in this lawsuit, a P must show:
a. fact disclosed was private in nature
b. disclosure was made to the public
c. disclosure would be highly offensive to a reasonable person
d. the disclosed fact was not of legitimate concert to the public
AND
e. the who disclosed the fact did so with reckless disregard of the private nature of the fact disclosed
Intrusion on Seclusion
1. to prevail in this lawsuit, a P must show:
a. intrusion into a private pace, conversation, or matter
(P must show the D penetrated some zone of physical or sensory privacy surrounding the P or obtained unwanted access to data about the P)
AND
b. in a manner highly offensive to a reasonable person
2. ask the question: did the P have an objectively reasonable expectation of solitude or seclusion in the place, conversation, or data source
Video Surveillance
To avoid state constitutional or statutory claims for invasion of privacy, employers shouldn’t set up cameras where employees have reasonable expectation of privacy.
Common business practices to avoid privacy claims: post signs to notify employees and public that certain areas are under surveillance.
3. Employers should prepare and distribute written policy on surveillance, obtain written consent from employees
Video Surveillance
1. To avoid state constitutional or statutory claims for invasion of privacy, employers shouldn’t set up cameras where employees have reasonable expectation of privacy.
2. Common business practices to avoid privacy claims: post signs to notify employees and public that certain areas are under surveillance.
3. Employers should prepare and distribute written policy on surveillance, obtain written consent from employees acknowledging receipt of notice to preserve consent defense.
Sanders v. ABC
1. takeaway: just because an employee does not have complete privacy does not mean that there cannot be a finding of invasion of privacy
2. court found that a conversation held at a workplace among co-workers could still be classified as a private conversation even though other co-workers could hear it – there was a reasonable expectation of privacy in the workplace in that situation
To be continued…
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