Employment Law Outline

EMPLOYMENT LAW – FALL 2009

THE BENEFITS AND BURDENS OF EMPLOYMENT
Chapter 1: Introduction (Private Ordering and Its Limitations) and Chapter 1: The Stakes of “Employment”
· Distinguishing “employee” from “independent contractor [p. 3-26] o Economic Realities Test (set out in Brock v. Superior Care, Inc.)
§ 1) degree of control exercised by ER over the workers
§ 2) workers’ opportunity for profit or loss and their investment in the business
§ 3) the degree of skill and indpt initiative req’d to perform the work
§ 4) the permanence or duration of the working relationship and
§ 5) the extent to which the work is an integral part of the ER’s business
· testing for : DEPENDENCE (whether, in reality, worker is dependent on firm for financial well-being)
o Case Law
§ Ansoumana v. Gristede’s Operating Corp.
· Class of worker’s hired for supermarket/drugstore delivery, mostly unskilled and supervised by Duane Reed Managers
· Use economic realities test to show workers = EEs and joint emploment
· Takeaway: labels do NOT control = look at F(x) of what workers are performing
· Distinguishing “employer” from “employee” [p. 26-37] o Importance of Distinguishing Between EE (Employee) and ER (Employer)
§ Certain fed. Statutes only apply if ER has certain # of EEs
§ Most statutes have minimum # of EEs
· Why?
o 1) Not burdening small ER with Compliance
o 2) Ease entry into the market for new ERs
§ Note: EE have can “joint employers” à know for FLSA
· Happens when EE performs work which simultanesously benfits 2 or more ERS and ne ER is acting directly or indirectly in the interest of the other ER (Ansoumana v. Gristede’s Operating Corp)
· Joint Emplyment Test (Carter v. Duchess Community College)
o who hire and fired workers
o who supervised and controlled their work schedules and conditions
o who determined rate and method of payment
o who was to maintain employment record
§ Does EE act for both ERs?
o General Test: Look at CONTROL
§ 1st: Does Congress tell you who the ER is?
§ 2nd : If Cong has not spoken à Common law of agency
§ Title of person not controlling (Clackamas)
o Case Law:
§ Clackamas Gastroenterology Associates v. Wells
· ADA claim on dismissal of bookkeeper; ADA only covers 15 or more EEs; 4 or 18 ppl are shareholders and docs
· 6 factor test TEST whether shareholder is EE:
o 1) whether the org. can hire or ire the individual or set the rules and regulations of individual’s work
o 2) whether, an, if so, to what extent the org. supervises the individual’s work
o 3) whether the individual reports to someone higher in the org
o 4) whether, and it so to what extent, the individual is able to influence the organization
o 5) whether the parties intended that the individual be an EEs as expressed in a written agreement or K
o 6) whether the individual shares in the profits, losses, and liabilities of the org
· Policy from Ginsberg Dissent: Should interpret fed discrim statutes broadly
§ Yates v. Hendon
· Yates = sole proprietor doctor: Whether sole proprietor = EE AND ER?
· ERISA covers tax law and intended ERs to be plan participants, therefore Yates also an EE
· Takeaway: If Congress has defined who is an ER à do NOT use common law test of agency

· Rise of “contingent” labor as a challenge to traditional categories [p. 37-62] o Contingent Workers = less permanent workers (impt for FLSA)
§ Vizcaino v. Microsoft Corp
· Contingent workers sign K’s saying there are Indpt Contractors; IRS says they are EEs
· Takeaway: Structure Employment Ks to be what you want to be, then plan for backup when the court says you are wrong

PRIVATE ORDERING AND DEFAULT TERMS
Chapter 2: The ‘At-Will” Default Rule and Its Limits
· Introduction to the “at-will” principle [p. 65-77] o Policy: EE AND ER can terminate relationship at ANY time for ANY reason
§ Need an attempt to balance:
· ERs need to run business as ER sees fit w/o govt interference
· Recognition of inequality in bargaining power between EE and ER AND
· Work is central to most people’s lives
§ Policies underlying at-will employment
· 1) Freedom to K
· 2) Need for Mutuality of Obligation
· 3) Common experience that Ks usually effectuate the intent of parties
· 4) Procedural protection against meritless, vexatious law suits
· 5) fairness and equity
o Limitations on At-Will Employment
§ Statutory-based
· Anti-Discrimination laws
· Anti-retaliation provisions (FMLA
§ K-based
· Promissory Estoppel
· Express Ks
o Includes Just-Cause Ks and Ks for a definite term
· Implied Ks (giving rise to a K)
§ Tort Based
· Wrongful Discharge
o Gen Rule:
§ In the absence of additional express or implied stipulation…K for permanent employment, for life, or for as long as EE chooses = AT WILL
· Hanson v. Central Show Printing Co­ – Contrast with Next Case
o Central sent P a letter saying that they would “guarantee” him work until he choose to retire; he was discharged 2 years later
o For permanent employment – need additional consideration
§ = something NOT incidental to working for the company
o Policy for pro-additional Consideration:
§ Hard to confuse ER’s aspirational statement with K for lifetime employment
§ Easy to ascertain intent to K with additional consid
· Greene v. Oli