VIII. Employer Employee

I. COMPETITION WITH EMPLOYER OR PRINCIPAL

Elements to prove:

  1. prohibit an employee;
  2. from acting in any manner inconsistent with his or her agency or trust;
  3. at all times; and
  4. bind the employee to exercise utmost good faith and loyalty in the performance of his or her duties.

A. CLAIM FOR EMPLOYEE BREACH OF FIDUCIARY DUTY

Elements to prove against former employee:

  1. for breach of fiduciary duty;
  2. by alleging that employee;
  3. while in its employ;
  4. planned;
  5. later formed;
  6. competing corporation;
  7. that obtained a contract;
  8. from employer’s customer; and
  9. used confidential information.

B. CLAIM FOR MISAPPROPRIATION AND UNFAIR COMPETITION

Elements to prove against former employee:

  1. for misappropriation and unfair competition;
  2. by alleging that employees who left company;
  3. to form competing company;
  4. used employer’s trade secrets to gain advantage over employer.

II. CONTRACTUAL COVENANT NOT TO COMPETE VIOLATED

Elements to prove to enforce it:

  1. ancillary to employment agreement;
  2. must be reasonable in time and area;
  3. necessary to protect employer’s legitimate interests;
  4. not harmful to public; and
  5. not unreasonably burdensome to employee.
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III. EMPLOYER BREACH OF EMPLOYEE MANUAL

Elements to prove:

  1. an employer;
  2. breached the employee manual;
  3. only where the manual contained no legal disclaimer; and
  4. the employee detrimentally relied on the manual.

IV. EMPLOYER IMPROPERLY HANDLING EMPLOYEE WAGES

Elements to prove:

  1. an employee;
  2. who has performed services;
  3. in accordance with a contract of employment;
  4. has a right to recover;

V. EMPLOYER LIABILITY FOR EMPLOYEE ACT

Elements to prove:

  1. for personal injuries to or death of another person or injury to another person’s property;
  2. occasioned by his employee’s;
  3. negligence, fraud, misconduct, or other unlawful act;
  4. when done within the scope of his authority; and
  5. whether the authority is
    1. express;
    2. implied; or
    3. inferred from the general course of business.

VI. EMPLOYER RETALIATION AGAINST EMPLOYEE

Elements to prove:

  1. the employee has been subjected to;
    1. discharge;
    2. suspension;
    3. demotion; or
    4. other adverse employment action;
  2. because such employee has:
    1. disclosed; or
    2. threatens to disclose
  3. to a supervisor or to a public body;
  4. an activity, policy or practice of the employer; and
  5. that is in violation of law, rule or regulation;

VII. HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT

Elements to prove:

  1. an employer’s conduct;
  2. has the purpose or effect;
  3. of unreasonably interfering with an individual’s work performance; or
  4. creating an intimidating, hostile or offensive working environment.

VIII. NEGLIGENT HIRING

Elements to prove:

  1. the employer;
  2. knew or should have known of;
  3. the employee’s propensity to;
    1. commit injury; or
    2. the employer failed to investigate a prospective employee notwithstanding knowledge of facts that would lead a reasonably prudent person to investigate that prospective employee.

IX. NEW YORK CITY HUMAN RIGHTS LAW

Elements to prove:

  1. the plaintiff subjectively perceived the environment to be abusive;
  2. the conduct alleged objectively created an environment a reasonable person would see as hostile or abusive, but such harassment need not be “severe or pervasive” although “petty slights and trivial inconveniences” are not actionable;
  3. the hostile or abusive work environment was because of the plaintiff’s race, gender, religion, or national origin; and
  4. there must be a basis for imputing the hostile work environment conduct to the employer.

X. NEW YORK STATE HUMAN RIGHTS LAW

Elements to prove:

  1. the plaintiff subjectively perceived the environment to be abusive;
  2. the conduct alleged objectively created an environment a reasonable person would see as hostile or abusive in that;
    1. there was frequent discriminatory conduct;
    2. of a severe nature;
    3. threatening and humiliating, not a mere offensive utterance, unless it is “extraordinarily severe;” and
    4. it unreasonably interfered with the employee’s work performance;
  3. the hostile or abusive work environment was because of the plaintiff’s race, gender, religion, or national origin; and
  4. there must be a basis for imputing the hostile work environment conduct to the employer.

XI. QUID PRO QUO SEXUAL HARASSMENT

Elements to prove:

  1. unwelcome sexual conduct;
  2. whether sexual advances;
  3. requests for;
    • a) sexual favors;
    • b) other verbal; or
    • c) physical conduct of a sexual nature;
  4. is used either explicitly or implicitly;
  5. as a basis for employment decisions; and
  6. affecting compensation, terms, conditions or privileges of a complainant’s employment.

XII. SEX DISCRIMINATION IN WAGE PAYMENT

Elements to prove:

  1. an employee paid a wage at a rate less;
  2. than the rate where an employee of the opposite sex;
  3. in the same establishment is paid;
  4. for equal work;
  5. on a job where the performance requires equal skill, effort and responsibility;
  6. performed under similar working conditions,
  7. except where payment is made pursuant to a differential based on:
  • a) a seniority system;
  • b) a merit system;
  • c) a system measuring earnings by quality or quantity of production;
  • d) any factor other than sex

XIII. WORK ENVIRONMENT HARASSMENT

Elements to prove:

  1. as judged by a reasonable person;
  2. the workplace is permeated;
  3. with discriminatory intimidation, ridicule and insult;
  4. that is sufficiently severe or pervasive, and
  5. alters the conditions of the victim’s employment.

XIV. WORK, LABOR AND SERVICE (QUANTUM MERUIT)

Elements to prove:

  1. the performance of services in good faith;
  2. the acceptance of those services by the entity to whom they were rendered;
  3. an expectation of compensation; and
  4. the reasonable value of the services.

XV. WRONGFUL DISCHARGE IN VIOLATION OF COMPANY POLICY

Elements to prove:

  1. he or she may treat the contract of hiring as continuing, though broken by the master, thereby permitting recovery for damages arising from the breach; or
  2. he or she may rescind the contract, and, as such may sue on a quantum meruit basis for services actually rendered.

the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.