employment law outline

Topics: Employment, Contract, Employee benefit Pages: 32 (12252 words) Published: May 8, 2015
Employment Law Outline

General Theme for Regulating/Not Regulating:

Structure of Legal Responses to Problem
1. Economic Rational
a. Inefficient for government to intervene
b. People best at knowing what they want (rational beings)
2. In balance of information between employer/employee (safety) 3. Power inbalances
a. Employees may have no other options (captive)
b. Employers have more power in general
4. People are irrational, don’t know what is best for them 5. Social cost to society from “rational” choices (third-party effects) Employees v. Independent Contractor
1. Employees are those who as a matter of economic reality are dependent upon the business to which they render service. (Secretary of Labor v. Lauritzen – FLSA Standard) a. Control - Nature and degree of the employer’s control as to the manner the work is performed i. Does employer exhibit pervasive control over operation as a whole b. Profit and Loss - The alleged employee’s opportunity for profit depending upon his managerial skill i. Concerned about whether could lose everything from investment, than earning less money b/c chose ot pick pickles in a bad spot c. Investment - equipment or materials required for task or employment of workers i. Gloves are not enough (but what about lawyers who are i.c.) d. Skill - Does the service require a special skill

i. Like all skills, it increases by doing the work, and could be applied in any field (not just pickle field) e. Permanency - Degree of permanency and duration of working relationship i. Tend to not find this dispositive, because i.c. can return year after year or work for long time, and employee could work for 3 weeks at McDonalds f. Integral Part - Service is an integral part of employer’s business (side project is ic) i. Unless pick pickles, no pickles made (but does this not affect everything the employer hires to do; how distinguish?(E)) g. Dependence of Worker on “Employer” (Key consideration) i. Ex Post view (maj) – depend on def’s land, crops, expertise, equipment, nad marketing ii. Ex Ante view (Eastebrooke) – If they chose to not work there would other jobs be available. h. Eastebrook – person statute was meant to cover (In FLSA cases, unskilled, low-paid employees are meant to be protected) 2. Covered v. Non-Covered Employees

a. Employees may be covered even if sign paperwork stating not covered i/o/i i. Workers when signed the paperwork did not know themselves to be employees (Vicaino v. Micrsoft) ii. Or, waiver in contract is held to be definition of office, not explicit waiver (Vicaino v. Microsoft) iii. Reflects willingness to protect workers beyond contract rights At will Doctrine

Employment at Will Doctrine
1. Default Condition
a. Overrode by mutual understanding between the parties that the employment was for a fixed and definite period (note: permanent or lifetime employment is not for a fixed period) i. Sometimes can be inferred from the terms of the contract 1. Rate-of-Pay Rule – hiring at stated sum for week, month, or year, is definite employment for the period named - Jurisdictions are split over whether to enforce ii. If not default, employment is a condition precedent to recover wages unless the contract is divisible or the condition is waived by the employer 2. Employer/Employee can terminate the employment at any time. Tort Exceptions to the At-will Doctrine

1. Damages for Tort Violations of At-Will Doctrine
a. Standard Monetary
i. Lost Wages
ii. Salaries
iii. Commissions
iv. Benefits
v. Expected Reduction in Future Wages (unlike Title VII, not likely to reinstate)… b. Mental Distress
c. Loss of Reputation and other compensatory
d. If conduct is sufficiently outrageous, punitive damages can also be recovered 2. Wrongful Discharge in Violation of Public Policy
a. 3d Party Effects - Prevented from firing if did not take on action that would hurt 3rd Parties i. Not 3d party harms that have already occurred (if harmed third party and than report it; Devries...
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