Selected Portions of the North Dakota Worker’s Compensation Law

The following sections of the North Dakota Century Code are similar to the Indiana laws, with a few variances, we considered for today's reading assignment. In class, we'll look for and discuss the potential significance of these differences. (Hard copies of these laws will be provided in class.)

§ 65-01-01. Purposes of workforce safety and insurance law--Police power

The state of North Dakota, exercising its police and sovereign powers, declares that the prosperity of the state depends in a large measure upon the well-being of its wage workers, and, hence, for workers injured in hazardous employments, and for their families and dependents, sure and certain relief is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation, except as otherwise provided in this title, and to that end, all civil actions and civil claims for relief for those personal injuries and all jurisdiction of the courts of the state over those causes are abolished except as is otherwise provided in this title. A civil action or civil claim arising under this title, which is subject to judicial review, must be reviewed solely on the merits of the action or claim. This title may not be construed liberally on behalf of any party to the action or claim.

§ 65-01-01.1. Civil liability for intentional injuries

The sole exception to an employer's immunity from civil liability under this title, except as provided in chapter 65-09, is an action for an injury to an employee caused by an employer's intentional act done with the conscious purpose of inflicting the injury.

§ 65-01-03. Person performing service for remuneration presumed an employee

Each person who performs services for another for remuneration is presumed to be an employee of the person for whom the services are performed, unless it is proven that the person is an independent contractor under the "common law" test. The person who asserts that a person is an independent contractor under the "common law" test, rather than an employee, has the burden of proving that fact.

§ 65-01-10. Waiver of rights to compensation void--Deduction of premium from employee prohibited--Penalty

No agreement by an employee to waive rights to compensation under this title is valid except as provided in section 65-05-25. No agreement by any employee to pay any portion of the premium paid or payable by the employer into the fund is valid, and any employer who deducts any portion of such premium from the wages or salary of any employee entitled to the benefits of this title is guilty of a class A misdemeanor.

North Dakota Defamation & At-Will Employment Exercise/Case

Here is the exercise we discussed today, along with an abbreviated version of the court's resolution of the issue.

Forester v. West Dakota Veterinary Clinic

In Honor of Constitutional Law Day

Check out this Scavenger Hunt

The Self-Publication Problem

Consider the following syndicated article (excerpted here from The Olympian (WA)). How does this fit with the cases discussed today? Does an Oklahoma court adopting the concept of self-publication seem as far-fetched as one of the cases indicated? Would hiring the article's author as an expert help? How would you counter the testimony?

Your Office Coach: Handling gap in employment after a firing

By MARIE G. MCINTYRE, PH.D. | McClatchy-Tribune News Service • Published September 16, 2008

Q. After being fired more than a year ago, I am still looking for work. Companies simply will not hire someone who was terminated by their previous employer.

The sad thing is that I really am a good employee, but the boss who fired me was spawned from Satan himself. Now he's ruined my future, and no one will give me a chance.

I've always heard that it's a big mistake to tell interviewers you were fired, so I never bring it up. However, they always find out when they check my background. How do I get past this barrier?

A. Because your termination raises a big red flag, you want to counteract that negative impression with as much positive information as possible. Potential employers need evidence that you will be an asset, not a problem.

The way you dress, speak and act must convey competence and professionalism. Interviewers should wonder why someone like you would ever be fired.

If you had a good record before encountering the boss from hell, emphasize your productive past. Get letters describing your strong work ethic and valuable contributions. Encourage people to contact your previous managers.

You also need to explain your dismissal. Since interviewers will find out anyway, you want to shape their perception of the event.

For example: "After successfully holding two jobs, I ran into a difficult situation with my last employer. I couldn't seem to make my manager happy, so we agreed that it would be best if I left. I've never had that type of problem before, and I don't expect to ever have it again. These references from my previous managers can verify that I am a productive, reliable employee."

To shrink your growing employment gap, take on volunteer activities or temporary assignments. Both can be legitimately listed on your resume. In addition to demonstrating motivation and initiative, these interim work activities will provide current references and possibly some job leads.

Finally, although it may be a long shot, consider renegotiating the official reason for your departure. Contact the most sympathetic manager at your former company and explain your difficulty in finding employment. Ask if the terminology in your personnel record could be modified. The answer may be no, but you lose nothing by asking.

E-mail Policies

Here are a couple employee e-mail policies for your consideration. Consider what is included in these policies, how you might modify them to achieve certain client goals, and how you would inform employees of the policies. Think also about any ambiguous language and how it could be improved (and whether you or your client would want to "improve" it).

North Dakota University System Computer Network and Usage Policy

Professional Independent Insurance Agents of Illinois Sample E-mail Policy

Office Politics

Legal Times ran an interesting commentary recently from some leading labor and employment law professors. Consider the scenario:

Imagine you work for the largest company in town. You live from paycheck to paycheck like a large portion of lower- to middle-wage workers and can’t afford to be without a job for long. Your company has pretty high turnover, and it has a reputation for firing people it labels troublemakers, people who don’t fit into the corporate culture.

Now imagine that at a mandatory work meeting, your supervisor warns you that Congress is considering legislation that will make it easier for unions to come into your company. A union here would be a disaster, the supervisor warns, and would mean layoffs, or even worse, closing down entire locations. Unions are bad news. And just to top it off, if a Democrat gets into the White House, we can be sure that bill in Congress will become the law. So think about that, he says, when you’re in that voting booth.

. . . .

So what’s the big deal? Can’t employees just choose not to attend these coercive meetings, whether on politics or religion?

In most cases, the answer is no. Although physically employees may walk out of such meetings or not attend, employees risk being fired if they are considered to be insubordinate to their supervisors by failing to listen to them or by not attending these assemblies. Indeed, employees have been lawfully terminated for merely asking questions of their employers during such captive audience meetings or for leaving such meetings without permission.

Obviously there are two sides to every story -- but, regardless of your view, this is a difficult issue, and the authors frame the issues quite well. Think about what you recommend to address these issues, if anything, and why.

Additional Cases

I have provided a couple of additional cases for discussion in class. You may pick up hard copies in my office or, below, please find links to those cases for your reference.

Class 1:
Earthworks v. Sehn

Class 2:
Hawkins Chemical, Inc. v. McNea (ND)
Matyi v. Cahill Salon & Tan, Inc. (MN)
Salon 2000, Inc. v. Dauwalter (MN)

Bad Faith Factor

Even though the court in Rudman summarily dismissed the "fraud" issue, the court's brief discussion sparked the cynic in me. Bad faith must play an important role in the judge or jury's logic, admittedly or not, right? While the court conceded that some of Cowles' testimony was manipulative, it does make you wonder if Cowles was simply not pleased with what Rudman had to offer after working with him for a couple of months and then decided to "ice" him.

If we shift to Collins' issue as head chef, though, doesn't it seem like Marrimount's decision to hire a Hispanic assistant chef was just a demonstration of managerial oversight without the bad faith factor...even if it was an important issue to Collins? Regardless, it seems impossible to separate what some judges and juries might call bad faith and what other judges might call a legitimate business decision. Thoughts?

North Dakota Contracts in Restraint of Business

At the end of today's class we discussed the possibility of a non-compete clause in North Dakota. Below is the entire statute.

North Dakota Century Code 9-08-06. In restraint of business void - Exceptions.

Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind is to that extent void, except:

1. One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part of either, so long as the buyer or any person deriving title to the goodwill from the buyer carries on a like business therein.

2. Partners, upon or in anticipation of a dissolution of the partnership, may agree that all or any number of them will not carry on a similar business within the same city where the partnership business has been transacted, or within a specified part
thereof.

For Thursday, consider what this would mean for our client (Reily) if he were doing business in North Dakota. What might this mean for potential employers looking to locate their business in North Dakota? Do you think this means virtually no employers use non-compete clauses in the state? Why or why not?

The California Non-Compete Clause

This article, in PC World, highlights a significant change in California law, one that is bound to make some waves in employment law circles. The California State Supreme Court recently invalidated non-solicitation contracts, which employers had used to prevent employees from leaving the company with clients and other employees.

In Edwards v. Arthur Anderson, the court determined that non-solicitation clauses are no longer legal in contracts that apply to California residents. Note that the decision appears to preserve non-solictiation agreements in the context of a sale of a business or the sale of a significant portion of a company's stock.

We won't cover the details of non-compete clauses, which are similar, until Class 8, but this is a timely case to get you thinking about Employment Law. Don't worry about whether you understand the nuance or background of this case, but do think about what this could mean in other contexts and for potential clients. If you were an employer, does this impact where you do business? And with whom? Are there ways around this issue if a non-solicitation agreement is desired?

Course Materials (Also Available in Syllabus)

This course uses the CaseFile Method. Each day will involve the use of a new case file, prepared by a “partner” along with supplemental materials from a “paralegal.” The file will include facts and issues, as well as the key cases and other supporting materials.

This method has been chosen because I believe it is the best method to provide knowledge about the basics of labor and employment law as well as the skills you must have to be an effective lawyer (i.e., make your knowledge useful). As an added benefit, the materials are an extremely cost effective way to reach the course goals. The materials for each segment of the course, (1) Employment Law and (2) Labor Law, are available online at the CaseFile Method web site (click on the links below). The materials are $12.95 for each segment of the course (i.e., $12.95 for Labor Law and $12.95 for Employment Law).

Employment Law
Labor Law

The CaseFile Method web site states: “Please note, you may use the first three CaseFiles in any category free of charge. Upon purchase, your account will be enabled to access the appropriate CaseFiles. Due to the nature of the CaseFile Method, we cannot offer refunds for purchased CaseFiles.” As such, if you are not sure you will stay in the course, you may review the first three case files at no cost, while you determine whether you wish to remain in the course.

I will also provide additional reading assignments throughout the term to supplement the case files. This may include newspaper articles, law review articles, and other writings related to the issues we are discussing. These materials will be from sources available to you at no cost.

Course Syllabus -- Fall 2008

Labor & Employment Law Course Overview and Syllabus

Law 291: Labor and Employment Law (Fall 2008)
Prof. J. Fershee
Tues./Thurs. 9:05 a.m. to 10:35 a.m., Room 212
Office Hours (rm 306): Monday, 1:00 p.m. to 2:00 p.m. or by appt.
e-mail: jfershee[@]law.und.edu; phone: 701.777.2261

Click Here for the Syllabus