Part I. INTRODUCTION TO EMPLOYMENT LAW
Chapter 1. Themes of Employment Law
The law is secondary to the actions of employer and employees in the aggregate- to the labor market.
-Wages are determined by the labor market
-Employment legislation attempts to change the outcomes by influencing the workings of the labor market.
Federal Laws:
Fair Labor Standards Act (FLSA) 1960- applied to nonunion workers setting the minimum wage, requiring premium pay for overtime work and restricting child labor
The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964- First of several law enacted to prevent discrimination in the workplace.
The Occupational Safety and Health Act of 1970- Brought the health and safety under the federal aegis.
The Employment Retirement Income Security Act- protected the interest of workers in their pensions and other employee benefits.
Americans with Disabilities Act and Family Medical Leave Act- Both enacted in 1990
State Laws:
As of the mid 1970s, state courts began to examine more closely the employment decisions, and termination decisions of employers.
-EAW doctrine began to erode, and all but a few states have limited the doctrine to some degree
-State and local legislatures enacted laws on a variety of employment related topics, for example “testing”: drug testing, polygraphs, genetic testing, “truth” testing
The surge in governmental interest in the employment relationship was triggered by the failure of the National Labor Relations Act, which regulates the relationship between union and employers.
-NLRA basic assumption was that the labor market would be regulated by collective bargaining, not by legislation. Workers would be protected by their union, not by government officials. Workers rights would be guaranteed by the collective agreement, not by the law.
-Failed to achieve its purpose because collective bargaining never became established except in segments of industry. Collecting bargaining began to shrink in relation to total employment in the 1950s.
-Collective bargaining does not regulate the labor market, so the law must find a way to protect the weaker party. The courts or legislature must become the guardian.
“Immutable” Rules- a rule of law that is mandatory and cannot be contracted around
Example: Minimum wages
Undesirable because:
1) Frustrates the intention of the parties
2) Infringes on a type of individual liberty; the freedom of workers to decide for themselves the trade-off they want between wages and workplace
Desirable: Information, psychology, public goods (benefit to all workers), third
e likely it is for one to be an employee because it establishes an economic dependency on the other
6. Is the work an integrated part of the whole operation- If it is an integration and necessary part of the operation then there is dependence and the worker is more likely an employee
7. Dependence of the workers on the boss (huge part of analysis)- if the worker is economically dependent on the other part he/she is an employee
Policy why balancing test should be abandoned (pg 20):
1. The test produces different results; this is because the test is a fathom and does not tell the judge how to use or weigh the factors of the test, it is unfair and unpredictable.
B. Covered Employees
– Even if a worker is clearly an employee rather than an independent contractor, he or she may not be subject to the protections of a particular employment law. Employment statutes often exempt part-time workers, home workers, leased workers, and other “contingent” workers.
Wolf v. Coca-Cola Co.- Appellant worked as a computer programmer and analyst at Coca-Cola. Appellant obtained the job by Access, a staffing company independent of Coca-Cola and only had an employment with Access, however she had a one year contract with Coca-Cola. The employment contract between appellant and Access stated that she was an independent contractor.
