Select Page

Employment Law
SUNY Buffalo Law School
Avery, Diane

Employment Law Outline
Professor Avery, Before Fall 2007 
Preliminary Questions:
1.      1.      Source of Law
2.      2.      Who is covered?
3.      3.      Procedural rights?
4.      4.      Substantive Rights?
5.      5.      What forum?
6.      6.      Who pays?
7.      7.      Employer’s defenses?
8.      8.      Employee’s remedies?
9.      9.      When did injury/ breach occur?
10. 10.  Is Plaintiff an employee?
11. 11.  Is Defendant an employer?
I. Work and Law
A.    A.     Work & Society
B.     B.     Legal Intervention
Wagenseller v. Scottsdale Memorial Hospital: (Ariz.1985) p.10
Facts: Group of ee’s go on rafting trip and engage in lewd activities (drinking, mooning, public urination). P refuses to participate. Ee is subsequently promoted and then discharged.
Issue: What can an er require as a condition of employment?
Holding: Not clearly stated, but the case examines what an er can ask an ee to do as a condition of employment. If er can discharge ee for refusing to participate, it seems like a condition of employment.
Always look at how long ee was employed by er before action in question occurs. The longer the employment, the greater the “interest” the ee has in the job.
II. Development of Employment Law
Foundations of Employment Law
1.      1.      Master-Servant
2.      2.      Employer-Employee
Lemmerman v. A.T. Williams Oil: (N.C. 1986) p. 19
            Facts: Mom brings child to work, child does odd jobs while mom works, child slips and falls and is injured on the job. Child wants to bring tort action, so he argues that he is not an ee so that he could bring the claim as a tort action.
            Issue: Was child an ee for purposes of workers compensation recovery?
            Holding: Child is an ee for purposes of workers compensation.
            Although child did not fill out tax forms, was not on payroll, the court looked to objective facts of the situation (he had tasks and was paid) and determined that by allowing child to work, he was deemed an ee.
            Components of a Contract for Employment:
(1)     (1)     duration
(2)     (2)     provisions for termination/ notice of termination
if no duration is specified, then K is treated as employment at will
er can terminate ee at any time for good reason, bad reason, or no reason
employment-at-will is a k, but with no duration
reinstatement is not a remedy under a pure breach of contract action, limited to compensatory damages (reinstatement would be a remedy under Title VII, ADA, ADEA, NLRA)
3. Employment-at-Will
Clarke v. Atlantic Stevedoring (EDNY 1908) p. 28
Facts: After going to work for Atlantic (D) in response to a letter he received from Atlantic’s superintendent, which appeared to guarantee continuous work, Clarke(P) and 96 black longshoreman were later discharged and their places filled by white longshoreman.
Issue: Does promise of continuous work without a definite term enough to provide ee’s with Just Cause protection?
Holding: A contract of hiring, indefinite with respect to the term for which the contract shall run, is at most a contract terminable at will.
Court prefers to find at-will employment, unless a term is proven by P
“permanent employment” does not imply just cause protection—at will only
Civil Service
–begins to change the at will rule, civil service bribed ee’s to work for a lower wage in exchange for job security
substantive and procedural protections are provided to civil service workers
identify the fact that ee is not an independent contractor and bill of rights issues need to be identified ASAP
there is no term, but you are protected from arbitrary discharge
discharge decisions are review by gov’t commissions—must exhaust these channels before going to court
tenure implies a property interest—Constitutional issues 4th and 1st Amendment issues, due process and equal protection
elected officials and policy makers are not a part of civil service
Sources of

ement to arbitrate must be particularly clear.
Not resolved: Whether such a waiver would be enforceable.
Union cannot waive substantive rights or federal forum rights on behalf of an employee under federal law
P prefers to go to court b/c of juries and the likelihood that they would be sympathetic to his claim and evidentiary protections
Gilmer (p. 4 of supp.) (1991) holds that an ee who signed an agreement to arbitrate all claims did waive his right to a federal forum
Distinction: In Gilmer, the ee signed the form himself, in Wright the issue was whether or not the union could waive this right on behalf of its ee’s.
There is a presumption of “arbitrability” in that arbitrators are in a better position to interpret the agreements than the courts. If the claim, therefore, involves a federal statue rather than simply the CBA, federal courts are more likely to hear it.
3. Government Regulation of Employment
4. Nondiscrimination
5. Judicial Modification of the At Will Rule
6. Other Sources
The Changing Economic and Social Setting
1.      1.      Demographics
Workforce is aging and becoming more diverse—illegal immigration
2.      2.      New Work Arrangements:
Donovan v. DialAmerica (S.Ct. 1985) p. 81
Facts: D was paying less than minimum wage to two groups of workers which it considered independent contractors. P filed suit alleging violation of the FLSA minimum wage requirements for ee’s.
Issue: Were these workers ee’s for purposes of the FLSA?
Holding: Researchers were ee’s
                Researchers who also distributed were not ee’s
Sureway Cleaners test for an ee: