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Employment Law
South Texas College of Law Houston
Carlson, Richard R.





Employment at Will: E or ee can terminate the employment r/s at any time.

– Can you modify an at will contract?

o If you’re trying to say that the K changed, YOU must prove:

§ 1) notice of the change

§ 2) acceptance of the change

· when an ee continues working after notice of the change, as a matter of law, he has accepted it

– A promise made by an E or ee in an at-will r/s is illusory IF it is dependent on period of cont’d employment (mandatory arbitration wasn’t illusory b/c not dependent on cont’d emp)


A. Employee/Independent Contractor (IC) Problem (want to control ees but don’t want to be regulated by things like Title VII)

How to determine if it’s an EE v an IC:

STEP ONE: does the K say that they’re an EE or an IC?

– this is just persuasive bc an E could lie to avoid regulation or liability or w.e

STEP TWO: does the controlling statute have a definition or IC exemption?

STEP THREE: Which common-law test applies?

– Control Test: does the E have contractual or economic power over the details of the work (or is the worker doing it all himself)

– Economic Realities Test: is the E responsible for operation or not?

o Other factors: 1) the E is near monopsony (one buyer, many sellers) = IC; 2) workers’ lack of sophistication = ee; 3) standardized terms = ee

o Newsboys: they were ees where their work was integrated into the publishing enterprise and was organized/managed/monitored by E

– Statutory Purpose Test: are these the workers Congress meant to protect under the statute? (some states use this (not federal and not TX))

– Federal Hybrid Test: combination of control and economic realities tests.

STEP FOUR: run through random factors: i.e. duration of work, how you’re paid (by job v. hour)

B. Who Can be Employed?

a. Children

– Under 14: unlawful, except to be employed by parents (or in agriculture)

– 14 – 15: unlawful, except as allowed by DOL rules limiting hours and nature of work

– 16 – 17: lawful except in work of nature barred by DOL

b. Aliens

– Immigration Reform and Control Act

o Must verify ID and eligibility (check papers; actual status irrelevant)

o Don’t knowingly hire or employ person you learn is unauthorized

§ Good faith verification creates a presumption that you didn’t know (on the other hand, willful blindness = constructive knowledge)

o Don’t discriminate based on citizenship or national origin

– Current ICE Initiative: An Expanded E-Verify System

o Voluntary internet checking system managed by USCIS

o As long as an E is actively appealing a mismatch, he isn’t deemed to be in constructive knowledge on part of the E

o Some states mandate the use of E-Verify (not TX)

– Hoffman v. NLRB Case: can’t award backpay to undocumented person bc conflicts w/ immigration policy

o Undocumented workers still count as “employees” for the NLRA and statutory E coverage

o Union Elections Final: undocumented aliens’ votes count even if find out later they’re undocumented

o Retaliation is Still Unlawful: can’t call ICE in retaliation of union activity

o May still get backpay if it’s a Title VII claim

o Still enforce minimum wage/OT and other FLSA and MSPA regardless of documentation

o Worker’s Compensation

§ IF a state extends ee coverage to undoc aliens, they are generally still allowed coverage for medical treatment

§ Disability: states are divided

C. Who is the Employer?

a. Joint Employer Theory

– a person or corp. can be a joint E for purposes of statutory duties depending on the economic realities and control the person or corp. has over the ee

§ Direct v Indirect Control: direct control determines if they’re a joint E

§ Regularity/Continuity of r/s: a joint E is more likely to have a continuous r/s with the ee

§ K is only a factor – still look at the totality of circumstances

§ If an E has multiple entities that it runs, the ees cannot be combined in order to get statutory coverage they wouldn’t get otherwise

§ IRS may pursu

ng factor in the E’s decision

b. E’s Affirmative Defense: E bears the burden of proving that it would have made the same decision regardless of discriminatory intent

1. Effect: if E wins, it still violated the law, but P’s remedies are limited to a declaratory judgment, an injunction against the E’s unlawful discriminatory practices, and atty’s fees (no backpay or reinstatement)

b. Discriminatory Questions

a. Title VII and the ADEA do not specifically prohibit an E from asking applicants about things like race, color, national origin, gender, religion, or age. BUT can be used as evidence of discriminatory intent

b. The ADA prohibits E’s from asking pre-employment questions regarding medical hx or condition

1. To get nominal damages, must prove that 1) E violated the ADA and 2) that E intentionally discriminated

2. To get punitive, must prove that E acted w/ malice or reckless indifference to rights of P

c. Disparate Impact

o not discriminatory on its face but has a discriminatory impact

Elements to prove disparate impact theory

1. Disparate impact – that E’s practice/policy excludes a disproportionate number of minorities

2. Business necessity – E must prove that the practice was job related and justified by business necessity

a. must show a significant correlation btwn the qualification and job performance

i. validate content of the test w/ job (Ex: typing test for secretary job)

ii. validate criteria (Ex: high test scores show success on the job)

iii. can have common sense validation “in the right cases” even though EEOC regs say otherwise

3. Less intrusive alternative – P then must prove there was an effective, less discriminatory alternative