Legal Precedents

[John]

I invite others to post links to any legal precedents that concern sexual harassment, privacy in the workplace, 'at will' employment or related issues.
***Please keep in mind that I am not an attorney and this information is not intended to be construed as 'legal advice' in any way, shape or form.***

[John]

(Please note that these court decision summaries were taken from various governmental and legal websites. Unless otherwise noted, I did not write the information given below. For further information, type in or cut and paste the decision name/number and perform an Internet search. It is recommended that you consult with an attorney trained in work related issues before embarking on any sort of legal endeavor. *** Nothing printed herein should be construed as 'legal advice' as I am not an attorney. ***
Toussaint v Blue Cross and Blue Shield of Michigan, 408 Mich 579 (1980). In that case, the court found an employment contract of indefinite duration was enforceable. This position was contrary to a century of Michigan law which had held that "special consideration" in addition to services rendered was necessary to create an enforceable employment contract when the contract was not for a definite term. More importantly, the Toussaint court also held that a contract of such indefinite duration could be created by an express, oral, or written agreement or "as the result of employee's legitimate expectations grounded an employer's policy statements." In cases that followed Toussaint in the mid-1980's, juries found such "legitimate expectations" and, as a result, awarded sizable verdicts, based on verbal assurances of an employer that the employee would have a job "so long as he did a good job," or words to that effect. Often these verbal contracts were made by supervisors who were no longer with the company or who could not recall whether such a statement was ever made to the employee. Even when the person who allegedly made the statement testified that he never said such a thing, the employee nevertheless prevailed on his contract claim by relying on a probation policy or progressive discipline policy, set forth in an employee handbook or another supervisor's statement that the policy of the company was to discharge only for cause.
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Renny v Port Huron Hospital, 427 Mich 415 (1986), the Michigan Supreme Court held that an employee handbook containing a list of disciplinary violations and a penalty for each violation and an optional grievance procedure was sufficient to create a legitimate expectation of just cause employment. Essentially, in Renny, the court held that such policies will be construed to create a just cause contract if the handbook does not contain an express at-will statement or disclaimer.
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(My comments are in italics - John)
In 1966, Professor and Arbitrator Carroll Daugherty expanded these arbitration principles into his famous seven tests for just cause. The concepts encompassed within his seven tests are still frequently used by arbitrators when deciding discipline cases.
* Was the employee forewarned of the consequences of his or her actions?
* Are the employer's rules reasonably related to business efficiency and performance the employer might reasonably expect from the employee?
* Was an effort made before discharge to determine whether the employee was guilty as charged?
* Was the investigation conducted fairly and objectively? No. I belive the 'investigation' was blown out of proportion and tainted by the sexual aspect of the material first uncovered. Had I only been found to have printed up a simple 'laundry list' of items generally considered innocuous I don't believe this situation ever would have been taken so far.
* Did the employer obtain substantial evidence of the employee's guilt?
* Were the rules applied fairly and without discrimination? (See above)
* Was the degree of discipline reasonably related to the seriousness of the employee's offense and the employee's past record? (I have had a relatively clean work record and a great production record.
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(Note: The following case concerns privacy in the workplace. I have provided only a few statements from the justices involved. To view the full decision either follow the link shown below or type in the case name in your favorite search engine. - John)
laws.findlaw.com/us/480/709.html
Cases citing this case: Supreme Court
Cases citing this case: Circuit Courts
U.S. Supreme Court
O'CONNOR v. ORTEGA, 480 U.S. 709 (1987)
480 U.S. 709

O'CONNOR ET AL. v. ORTEGA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 85-530.

Argued October 15, 1986
Decided March 31, 1987
1. Searches and seizures by government employers or supervisors of the private property of their employees are subject to Fourth Amendment restraints. An expectation of privacy in one's place of work is based upon societal expectations that have deep roots in the history of the Amendment. However, the operational realities of the workplace may make some public employees' expectations of privacy unreasonable [480 U.S. 709, 710] when an intrusion is by a supervisor rather than a law enforcement official. Some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. Because the record does not reveal the extent to which hospital officials may have had work-related reasons to enter respondent's office, the Court of Appeals should have remanded the matter to the District Court for its further determination. However, a majority of this Court agrees with the determination of the Court of Appeals that respondent had a reasonable expectation of privacy in his office. Regardless of any expectation of privacy in the office itself, the undisputed evidence supports the conclusion that respondent had a reasonable expectation of privacy at least in his desk and file cabinets. Pp. 714-719.

[ Footnote 5 ] This common-sense notion that public employees have some expectation of privacy in the workplace, particularly with respect to private documents or papers kept there, was exemplified by recent remarks of the Attorney General. In responding to questions concerning the possibility of a search and seizure of papers and offices of Government employees in connection with an investigation into allegedly illegal diversion of funds to Central American recipients, he is reported to have stated: "I'm not sure we would have any opportunity or any legal right to get into those personal papers. . . . There was certainly no evidence of any criminality that would have supported a search warrant at that time. . . . I don't think public employees' private documents belong to the Government." N. Y. Times, Dec. 3, 1986, p. All, col. 3.

Moreover, courts have recognized that a public employee has a legitimate expectation of privacy as to an employer's search and seizure at the workplace. See, e. g., Gillard v. Schmidt, 579 F.2d 825, 829 (CA3 1978) (search of desk); United States v. McIntyre, 582 F.2d 1221, 1224 (CA9 1978) (monitoring conversations at office desk).

[John]

(This law concerns access to employee personnel files - John)
www.legislature.mi.gov/(S(m20yso2jfeq15c55kidsnqbl))/mileg.aspx?page=getObject&objectName=mcl-423-501

ULLARD-PLAWECKI EMPLOYEE RIGHT TO KNOW ACT (EXCERPT)
Act 397 of 1978


423.501 Short title; definitions.

Sec. 1.

(1) This act shall be known and may be cited as the “Bullard-Plawecki employee right to know act”.

(2) As used in this act:

(a) “Employee” means a person currently employed or formerly employed by an employer.

(b) “Employer” means an individual, corporation, partnership, labor organization, unincorporated association, the state, or an agency or a political subdivision of the state, or any other legal, business, or commercial entity which has 4 or more employees and includes an agent of the employer.

(c) “Personnel record” means a record kept by the employer that identifies the employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership, or other association who has a contractual agreement with the employer to keep or supply a personnel record as provided in this subdivision. A personnel record shall not include:

(i) Employee references supplied to an employer if the identity of the person making the reference would be disclosed.

(ii) Materials relating to the employer's staff planning with respect to more than 1 employee, including salary increases, management bonus plans, promotions, and job assignments.

(iii) Medical reports and records made or obtained by the employer if the records or reports are available to the employee from the doctor or medical facility involved.

(iv) Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy.

(v) Information that is kept separately from other records and that relates to an investigation by the employer pursuant to section 9.

(vi) Records limited to grievance investigations which are kept separately and are not used for the purposes provided in this subdivision.

(vii) Records maintained by an educational institution which are directly related to a student and are considered to be education records under section 513(a) of title 5 of the family educational rights and privacy act of 1974, 20 U.S.C. 1232g.

(viii) Records kept by an executive, administrative, or professional employee that are kept in the sole possession of the maker of the record, and are not accessible or shared with other persons. However, a record concerning an occurrence or fact about an employee kept pursuant to this subparagraph may be entered into a personnel record if entered not more than 6 months after the date of the occurrence or the date the fact becomes known.


History: 1978, Act 397, Eff. Jan. 1, 1979
Popular Name: Right-to-Know
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This is the html version of the file www.legislature.mi.gov/documents/mcl/pdf/mcl-act-397-of-1978.pdf.
Google automatically generates html versions of documents as we crawl the web.
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BULLARD-PLAWECKI EMPLOYEE RIGHT TO KNOW ACT
Act 397 of 1978
AN ACT to permit employees to review personnel records; to provide criteria for the review; to prescribe
the information which may be contained in personnel records; and to provide penalties.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
The People of the State of Michigan enact:
423.501 Short title; definitions.
Sec. 1. (1) This act shall be known and may be cited as the “Bullard-Plawecki employee right to know
act”.
(2) As used in this act:
(a) “Employee” means a person currently employed or formerly employed by an employer.
(b) “Employer” means an individual, corporation, partnership, labor organization, unincorporated
association, the state, or an agency or a political subdivision of the state, or any other legal, business, or
commercial entity which has 4 or more employees and includes an agent of the employer.
(c) “Personnel record” means a record kept by the employer that identifies the employee, to the extent that
the record is used or has been used, or may affect or be used relative to that employee's qualifications for
employment, promotion, transfer, additional compensation, or disciplinary action. A personnel record shall
include a record in the possession of a person, corporation, partnership, or other association who has a
contractual agreement with the employer to keep or supply a personnel record as provided in this subdivision.
A personnel record shall not include:
(i) Employee references supplied to an employer if the identity of the person making the reference would
be disclosed.
(ii) Materials relating to the employer's staff planning with respect to more than 1 employee, including
salary increases, management bonus plans, promotions, and job assignments.
(iii) Medical reports and records made or obtained by the employer if the records or reports are available to
the employee from the doctor or medical facility involved.
(iv) Information of a personal nature about a person other than the employee if disclosure of the
information would constitute a clearly unwarranted invasion of the other person's privacy.
(v) Information that is kept separately from other records and that relates to an investigation by the
employer pursuant to section 9.
(vi) Records limited to grievance investigations which are kept separately and are not used for the purposes
provided in this subdivision.
(vii) Records maintained by an educational institution which are directly related to a student and are
considered to be education records under section 513(a) of title 5 of the family educational rights and privacy
act of 1974, 20 U.S.C. 1232g.
(viii) Records kept by an executive, administrative, or professional employee that are kept in the sole
possession of the maker of the record, and are not accessible or shared with other persons. However, a record
concerning an occurrence or fact about an employee kept pursuant to this subparagraph may be entered into a
personnel record if entered not more than 6 months after the date of the occurrence or the date the fact
becomes known.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
423.502 Personnel record information excluded from personnel record; use in judicial or
quasi-judicial proceeding.
Sec. 2. Personnel record information which was not included in the personnel record but should have been
as required by this act shall not be used by an employer in a judicial or quasi-judicial proceeding. However,
personnel record information which, in the opinion of the judge in a judicial proceeding or in the opinion of
the hearing officer in a quasi-judicial proceeding, was not intentionally excluded in the personnel record, may
be used by the employer in the judicial or quasi-judicial proceeding, if the employee agrees or if the employee
has been given a reasonable time to review the information. Material which should have been included in the
personnel record shall be used at the request of the employee.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Rendered Tuesday, February 17, 2009
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© Legislative Council, State of Michigan
Courtesy of www.legislature.mi.gov
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Popular name: Right-to-Know
423.503 Review of personnel record by employee.
Sec. 3. An employer, upon written request which describes the personnel record, shall provide the
employee with an opportunity to periodically review at reasonable intervals, generally not more than 2 times
in a calendar year or as otherwise provided by law or a collective bargaining agreement, the employee's
personnel record if the employer has a personnel record for that employee. The review shall take place at a
location reasonably near the employee's place of employment and during normal office hours. If a review
during normal office hours would require an employee to take time off from work with that employer, then
the employer shall provide some other reasonable time for the review. The employer may allow the review to
take place at another time or location that would be more convenient to the employee.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
423.504 Copy of information in personnel record; fee; mailing.
Sec. 4. After the review provided in section 3, an employee may obtain a copy of the information or part of
the information contained in the employee's personnel record. An employer may charge a fee for providing a
copy of information contained in the personnel record. The fee shall be limited to the actual incremental cost
of duplicating the information. If an employee demonstrates that he or she is unable to review his or her
personnel record at the employing unit, then the employer, upon that employee's written request, shall mail a
copy of the requested record to the employee.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
423.505 Disagreement with information contained in personnel record; agreement to remove
or correct information; statement; legal action to have information expunged.
Sec. 5. If there is a disagreement with information contained in a personnel record, removal or correction
of that information may be mutually agreed upon by the employer and the employee. If an agreement is not
reached, the employee may submit a written statement explaining the employee's position. The statement shall
not exceed 5 sheets of 8-1/2-inch by 11-inch paper and shall be included when the information is divulged to
a third party and as long as the original information is a part of the file. If either the employer or employee
knowingly places in the personnel record information which is false, then the employer or employee,
whichever is appropriate, shall have remedy through legal action to have that information expunged.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
423.506 Divulging disciplinary report, letter of reprimand, or other disciplinary action; notice;
exceptions.
Sec. 6. (1) An employer or former employer shall not divulge a disciplinary report, letter of reprimand, or
other disciplinary action to a third party, to a party who is not a part of the employer's organization, or to a
party who is not a part of a labor organization representing the employee, without written notice as provided
in this section.
(2) The written notice to the employee shall be by first-class mail to the employee's last known address,
and shall be mailed on or before the day the information is divulged from the personnel record.
(3) This section shall not apply if any of the following occur:
(a) The employee has specifically waived written notice as part of a written, signed employment
application with another employer.
(b) The disclosure is ordered in a legal action or arbitration to a party in that legal action or arbitration.
(c) Information is requested by a government agency as a result of a claim or complaint by an employee.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
423.507 Review of personnel record before releasing information; deletion of disciplinary
reports, letters of reprimand, or other records; exception.
Sec. 7. An employer shall review a personnel record before releasing information to a third party and,
except when the release is ordered in a legal action or arbitration to a party in that legal action or arbitration,
delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4
years old.
Rendered Tuesday, February 17, 2009
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© Legislative Council, State of Michigan
Courtesy of www.legislature.mi.gov
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History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
423.508 Gathering or keeping certain information prohibited; exceptions; information as part
of personnel record.
Sec. 8. (1) An employer shall not gather or keep a record of an employee's associations, political activities,
publications, or communications of nonemployment activities, except if the information is submitted in
writing by or authorized to be kept or gathered, in writing, by the employee to the employer. This prohibition
on records shall not apply to the activities that occur on the employer's premises or during the employee's
working hours with that employer that interfere with the performance of the employee's duties or duties of
other employees.
(2) A record which is kept by the employer as permitted under this section shall be part of the personnel
record.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
423.509 Investigation of criminal activity by employer; separate file of information; notice to
employee; destruction or notation of final disposition of file and copies; prohibited use of
information.
Sec. 9. (1) If an employer has reasonable cause to believe that an employee is engaged in criminal activity
which may result in loss or damage to the employer's property or disruption of the employer's business
operation, and the employer is engaged in an investigation, then the employer may keep a separate file of
information relating to the investigation. Upon completion of the investigation or after 2 years, whichever
comes first, the employee shall be notified that an investigation was or is being conducted of the suspected
criminal activity described in this section. Upon completion of the investigation, if disciplinary action is not
taken, the investigative file and all copies of the material in it shall be destroyed.
(2) If the employer is a criminal justice agency which is involved in the investigation of an alleged criminal
activity or the violation of an agency rule by the employee, the employer shall maintain a separate
confidential file of information relating to the investigation. Upon completion of the investigation, if
disciplinary action is not taken, the employee shall be notified that an investigation was conducted. If the
investigation reveals that the allegations are unfounded, unsubstantiated, or disciplinary action is not taken,
the separate file shall contain a notation of the final disposition of the investigation and information in the file
shall not be used in any future consideration for promotion, transfer, additional compensation, or disciplinary
action.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
423.510 Right of access to records not diminished.
Sec. 10. This act shall not be construed to diminish a right of access to records as provided in Act No. 442
of the Public Acts of 1976, being sections 15.231 to 15.246 of the Michigan Compiled Laws, or as otherwise
provided by law.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
423.511 Violation; action to compel compliance; jurisdiction; contempt; damages.
Sec. 11. If an employer violates this act, an employee may commence an action in the circuit court to
compel compliance with this act. The circuit court for the county in which the complainant resides, the circuit
court for the county in which the complainant is employed, or the circuit court for the county in which the
personnel record is maintained shall have jurisdiction to issue the order. Failure to comply with an order of
the court may be punished as contempt. In addition, the court shall award an employee prevailing in an action
pursuant to this act the following damages:
(a) For a violation of this act, actual damages plus costs.
(b) For a wilful and knowing violation of this act, $200.00 plus costs, reasonable attorney's fees, and actual
damages.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
423.512 Effective date.
Rendered Tuesday, February 17, 2009
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© Legislative Council, State of Michigan
Courtesy of www.legislature.mi.gov
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Sec. 12. This act shall take effect January 1, 1979.
History: 1978, Act 397, Eff. Jan. 1, 1979.
Popular name: Right-to-Know
Rendered Tuesday, February 17, 2009
Page 4
Michigan Compiled Laws Complete Through PA 586 of 2008
© Legislative Council, State of Michigan
Courtesy of www.legislature.mi.gov