Reveiw Questions #2

[Rip Verkerke <ripv@virginia.edu>]

A student asked:

Several of us had a little discussion group last night and we came out
confused on a few points:

1-Negligence/Vicarious Liability
Our notes suggest that a person would bring a negligence claim for 2
reasons:
(a) the actions of the EE may have been outside the scope of employment (so
the ER would escape RS liability, but may still be liable for negligence)
and,
(b) To get punitive damages.
Is it really true that an Er can be held liable for conduct an EE does
outside the scope of emp, even under a negligence theory?   It seems this
would expose the ER to endless liability, is there a limiting principle
here?

2-Sample exam, spring 1992, Q 1 (airport x-ray machine)
This Q involves an EE who is forced to do an illegal/wrongful act at the
peril of losing his/her job.  The EE protests but performs the act and is
fired anyway.   Does this EE have a retaliatory discharge tort claim?  It
seems those claims exist only to protect Ees who refuse to do the
illegal/wrongful act and are terminated for refusal.  If these doctrines do
not apply, it seems all the EE is left w/ is a bad faith or duress claim,
both of which are hard to sell to a court.  Are we missing something?

3-QJSA/QPSA
If an EE lives to retirement, and then dies say a year later, does it make
any substantive difference whether the EE chooses a lump sum or an annuity
plan?  We realize the methods of distribution will differ, but are the sums
the same?

4-This may be a dense Q, but here goes:  One review Q discusses an
employment plan involving tuition benefits.  We know that pension benefits
are at the heart of ERISA plans, and there are health benefits, etc.  Can
tuition also be an ERISA plan benefit, or are there limits on the sorts of
benefit-areas that can constitute an ERISA plan?

I hate to trouble you w/so many Q's, even a short response would be
appreciated.  Also, it's late, so I hope these make sense.  Thanks.

Rip responded:

(1) You have the principal reasons exactly right.  Suppose that a
jurisdiction has not embraced the more expansive principles of enterprise
liability that extend the scope of employment beyond its traditional limits.
Imagine, for example, that most intentional torts are considered outside the
scope of ordinary jobs (except perhaps bouncers and security guards).  Quite
a few jurisdictions fit this description.  In these circumstances, an
employer might well be held liable for negligent hiring or retention when an
employee assaults a customer or innocent bystander.  The key facts would be
that the employer had notice of the employee's dangerous propensity and that
there was something the employer could have done to prevent the attack from
occurring.

(2) It is an open question whether someone fired after complying with an
illegal request is protected.  Some courts have held that an employee
coerced into committing an unlawful act cannot rely on the public policy
tort to challenge a subsequent discharge.  But others have recognized a
cause of action on the theory that the original coercion is what got the
employee in trouble and/or that the employer should not be able to use the
employee as a scapegoat after having coerced him or her into committing the
illegal act.  My hope in asking the question was that students would wrestle
with the question of which approach is preferable.

(3) It makes a huge difference.  Under the lump sum distribution option, the
employee gets the present value of a lifetime of pension benefits.  Under
the normal QJSA option, the employee gets one year of full benefits and then
the survivor annuity at half the full benefit level.

(4) You might take a quick look at the definitional provisions of ERISA.
Section 3(1) defines "welfare plan" and includes, among other things,
"scholarship funds."  See Appendix p.185.  There is also some discussion of
coverage in the casebook (p.765-66).  But assuming that you had not read the
list in  3(1), I would expect you to answer the question by saying "I don't
know for sure whether this is an ERISA welfare plan, but if it is then . . .
"