Term
| Alternative Dispute Resolution (ADR) |
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Definition
| mechanisms used to resolve legal disputes confidentially and privately. Can be carried out by mutual agreement between the parties, as a contractual term of employment, or ordered by and handled through a court system. |
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Term
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Definition
| Helps screen frivolous claims and those with less evidentiary merit, controls costs for the parties, reduces burdens on the judicial system and taxpayers. |
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Term
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Definition
| An informal hearing where a neutral 3rd party reviews evidence, finds facts, and issues a ruling about the contested legal issue(s). Both Plaintiff and Defendant normally subject to limits on the evidence they can present (time, documents, witnesses, etc.) |
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Term
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Definition
| An informal settlement conference where a neutral 3rd party encourages the Plaintiff and Defendant to resolve their issues privately. If successful, the parties sign a negotiated, binding, settlement agreement. If the parties cannot settle and reach an impasse the case is redirected back into the court system or administrative agency. |
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Term
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Definition
| Complaint, Answer, and Counterclaim/Response |
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Term
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Definition
| Formal written filings made by the parties to a legal action. Are public records that can be viewed by anyone in most cases (including members of the media). |
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Term
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Definition
| The initial court filing made by the Plaintiff that sets forth the factual allegations and legal basis for relief. Must be properly served upon the Defendant (generally by certified mail, the Sheriff’s Office, or a licensed process server). |
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Term
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Definition
| The Defendant’s formal response to the Complaint admitting or denying its allegations. Generally must be filed within 20 (Federal Courts) or 30 (State Courts) days of the Complaint. |
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Term
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Definition
| The Defendant’s formal filing asserting any legal claims for relief that arise from common facts/circumstances, to the extent they are available. Plaintiff’s must similarly respond to any counterclaims within the above mentioned response periods. |
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Term
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Definition
| The process through which the parties gather information from one another about the important facts involved in the legal claim. Information gained in this process can be used as the basis for a Motion, admitted into evidence at trial in some cases, or used to impeach a witness at trial (call his or her credibility into question). Governed by the Rules of Civil Procedure. Parties generally have 30 days to respond to discovery requests (can be extended). |
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Term
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Definition
| Interrogatories, Request for Production of Documents, and Depositions. |
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Term
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Definition
| Written questions presented to the opposing party that must be answered truthfully in writing within 30 days of when they are presented. |
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Term
| Requests for Production of Documents |
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Definition
| Requests for written documents relevant to the case that must be produced within 30 days of the date they are sought. |
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Term
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Definition
| In-person interviews of the opposing party or individuals with knowledge of relevant facts in the case. Responses are given under oath, in the presence of a court reporter, and are transcribed into written form. |
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Term
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Definition
| Written requests filed by either party asking that the Court take a given action under the applicable Rules of Civil Procedure. Most commonly used by ERs to seek Summary Judgment against a Plaintiff (where the Court can dismiss a Complaint if its allegations, taken as true, fail to state a legal basis for relief). |
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Term
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Definition
| The primary, formal hearing in which evidence is presented and the fact finder (Judge or Jury) evaluates the evidence presented (witness testimony, documents, and other forms) and determines whether the Plaintiff’s factual assertions are true, and if so, whether the Defendant’s conduct violated the law. Upon a finding of liability the fact finder must then evaluate evidence and determine the proper amount of damages to award to Plaintiff. |
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Term
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Definition
| If the Court determines that the Plaintiff has proven his or her case, it will grant a judgment that orders relief in accordance with the law. If the opposing party fails to honor the judgment willingly or cannot do so, it must be enforced through the Clerk of Court where the Defendant is located. |
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Term
| Steps of Judgement and Collection Enforcement |
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Definition
| Docketing, Notice, and Execution. |
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Term
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Definition
| Formally filing the judgment with the Clerk. Validates the judgment and makes it legally enforceable (and part of the public record.) |
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Term
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Definition
| The holder of the judgment must give the other party notice of their rights under the law if the debtor is an individual. Typically done by providing a standard form that allows the debtor to exempt certain property from collection. |
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Term
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Definition
| The act of physically seizing the debtor’s property to satisfy the terms of the judgment. Carried out by the Sheriff’s Office where the debtor is located. Can take place at any point up to 10 years after Docketing. |
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Term
| Employment-At-Will Doctrine (EAW) |
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Definition
| All 50 states follow the judicially-created doctrine of employment-at-will. In essence, the states agree that unless the parties have agreed otherwise or the employer’s conduct violates a specific state or federal law, that employers are free to hire, terminate, promote, demote, reassign, or otherwise make employment decisions as they see fit, regardless of the moral, ethical, or practical ramifications of those decisions. |
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Term
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Definition
| The employment laws that exist on the Federal and State level function as exceptions to the ER’s general authority to act as it chooses. |
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Term
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Definition
| Promotes efficiency within the labor market and other general capitalist ideals. |
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Term
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Definition
| The employment-at-will doctrine, which is followed by courts in all 50 states, holds that unless the law says otherwise, an employer has unlimited discretion in decisions related to the employment relationship. Based largely in ideas of freedom to contract and economic efficiency. |
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Term
| Contract-Based exceptions EAW |
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Definition
| Express Contracts, Implied Contracts, and The Implied Covenant of Good Faith and Fair Dealing |
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Term
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Definition
| The parties to an employment relationship may always “contract around” the at-will rule by entering into an express contract that governs the terms of their relationship |
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Term
| EAW: Minimum Express Contract Requirements |
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Definition
1. Be offered by the ER and accepted by the EE
2. Be supported by consideration
3. Be in writing (to satisfy the statute of frauds) |
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Term
| EAW: Specific Areas of Concern with Express Contracts |
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Definition
| Covenants Not to Compete, and Mandatory Arbitration Clauses. |
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Term
| Covenants Not to Compete (Non-Competition Agreements) |
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Definition
| Are enforceable in all but a few states, but individual state law varies tremendously |
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Term
| NC Rules for Non-Competition Agreements |
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Definition
disfavored as a matter of law, and will be enforced only when the covenant (agreement):
1. Is in writing 2. Is made a part of the employment contract 3. Is supported by valuable consideration 4. Contains restrictions that are reasonable as to time and territory 5. Protects a legitimate business interest 6. Does not violate public policy
1. Is in writing
2. Is made a part of the employment contract
3. Is supported by valuable consideration
4. Contains restrictions that are reasonable as to time and territory
5. Protects a legitimate business interest
6. Does not violate public policy |
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Term
| Non-Competition Agreements: Dealing with Unreasonable Restrictions |
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Definition
| Courts have taken different approaches where an agreement contains restrictions that are unreasonable. NC approach: No “Blue Penciling” (Re-writing unreasonable terms to make them reasonable.) Courts here will strike the unreasonable restriction from the agreement (renders the agreement unenforceable unless the restriction is severable). |
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Term
| Mandatory Arbitration Clauses |
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Definition
| Provisions in an employment application or agreement that requires an employee to submit all employment-related disputes to binding arbitration (and give up his or her right to sue the employer in a court of law) |
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Term
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Definition
| Where there is no contract due to an absence of a contractual formality, a court may still find that the conduct of the ER and EE gave rise to an implied contract, and the terms that are the subject of the contract become part of the particular employment relationship and are legally enforceable. |
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Term
| Implied Contracts: Areas of Concern |
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Definition
-Attempted express contracts that fail (ex: oral contract for fixed-term employment)
-Oral statements made to an EE on which the EE would reasonably be expected to rely
-Written statements in a company policy manual |
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Term
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Definition
| NC Courts do not recognize implied contracts in the employment relationship |
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Term
| Effect of Express and Implied Contracts |
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Definition
| Employee can be terminated only for good cause (as it is defined by the agreement or the courts if the agreement doesn’t say anything about grounds for termination). |
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Term
| Good Cause Employment Contracts |
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Definition
-Any failure of an employee to live up to his or her basic obligations:
1. Attendance and punctuality
2. A reasonable quality and quantity of work
3. Abstention from conduct that is detrimental to the employer’s
business |
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Term
| The Implied Covenant of Good Faith and Fair Dealing (Not Recognized in NC) |
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Definition
| Based in the idea that the ER and EE are in a fiduciary relationship, and that each owes the other a duty to act in good faith and to not act in a manner that would prevent the other party from performing his duties in the relationship |
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Term
| EAW: Tort-Based Exceptions |
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Definition
| Vicarious Liability, Intentional Torts, Wrongful Discharge in Violation of Public Policy, and Negligence-Based Torts |
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Term
| Vicarious Liability (Respondeat Superior) |
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Definition
| An employers general legal responsibility for an act (or acts) of an employee is not presumed and must be proven (unlike Title VII, which makes ERs responsible for employment decisions regardless of circumstance). |
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Term
| Proving Vicarious Liability |
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Definition
1. The ER expressly authorized the tortious act
2. That the act occurred in the course and scope of the actor’s employment
3. The ER ratified the EE or agent’s tortuous conduct. |
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Term
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Definition
| Civil wrongs against a person based on the intent of the actor to carry out the act that causes harm. |
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Term
| Common Intentional Tort Theories in the Employment Context |
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Definition
| False Imprisonment, Intentional Infliction of Emotional Distress, and Intentional Interference with Contractual Relations. |
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Term
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Definition
| Allows an employee to state a claim against an employer where the employer has unreasonably interfered with the employee’s freedom of movement. Issues commonly arise during employer inquiries into employee wrongdoing, or substance abuse testing. |
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Term
| False Imprisonment: Legal Elements |
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Definition
1. Intentional restraint
2. To a bounded area
3. Against the person’s will
4. Of which the person was aware |
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Term
| Intentional Infliction of Emotional Distress (IIED) |
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Definition
| Allows an employee to bring a claim against an employer where an employer has unlawfully subjected the employee to extreme emotional distress. |
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Term
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Definition
1. The actor must know or should know that its conduct would cause emotional
distress
2. The actor's actions were extreme and outrageous (Would “shock the conscience” of a reasonable person, run “beyond the boundaries of decency set by a civilized society”)
3. The actions were the cause in fact of the EE’s distress
4. The emotional distress was severe (Such that no human being could be reasonably expected to endure it, NC requires that the distress be “severe, disabling, and of a type that can be generally recognized and diagnosed by trained professionals”) |
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Term
| Intentional Interference with Contractual Relations |
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Definition
When employer does either of the following:
1. Knows of a valid employment contract between another ER and EE and
2. Induces the EE to break its contract with the ER (ex: hiring an EE known to be bound by a Non-Competition Agreement) |
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Term
| Wrongful Discharge in Violation of Public Policy (WDPP) |
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Definition
| ERs are prohibited under the law in virtually all states from taking actions against an EE that would “frustrate” public policy. |
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Term
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Definition
1. The public policy that the EE basis her claim on must be “strongly held within the
community” and must be expressed in a constitution or statute
2. The ER’s acts must clearly frustrate the goals of the public policy |
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Term
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Definition
-Refusal to commit an unlawful act (Class example: Bartender fired for refusing to violate our dram shop act by serving a visibly intoxicated patron)
-Exercise of a statutorily protected right (Ex: EE fired for claiming Workers' Comp. benefits)
-Fulfilling a public obligation (Ex: Honoring jury duty, military service commitments)
-Reporting employer conduct that violates state or federal law (Whistle Blowing) |
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Term
| Negligence-Based Torts (Negligent Hiring, Retention, and Supervision) |
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Definition
| Employers have a duty to use due care in the hiring process, decisions relating to whether an employee should continue to be employed, and the supervision of employees. Breach of this duty of care can give rise to one of the tort claims listed. |
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Term
| Negligence-Based Torts: Legal Elements |
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Definition
| Breach of a Duty of Due Care, Causation, and Damages. |
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Term
| Breach of a Duty of Due Care |
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Definition
| Actual or constructive notice of an EEs unfitness for a particular job. ER knew or should have known that the EE posed a danger to those around him or her |
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Term
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Definition
Must show that but for the breach of duty, the harm probably not have resulted.
-Must show that there were well known and foreseeable harms occurring on the ER’s premises while the EE was on duty, courts here have not held ER’s liable where the harm occurred outside of the workplace and the EE was off-duty |
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Term
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Definition
| Some type of physical or emotional harm (Note: vicarious liability not required with these torts (Negligence of ER is at issue here) |
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