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Employment Law
SUNY Buffalo Law School
Avery, Diane

Not unionize (however, NLRA applies to non-unionize employees)
Not public employees
·         Employment at will is a contractual relationship
C. The New Deal labor legislation
·         NLRA has weak remedies
·         Only make whole remedies (employee has obligations to mitigate
·         Only fines on second boycott rules on unions)
·         When employees go on strike they can be permanently replaced
E. The emerging individual rights model
Hoffman Plastic Compounds, INC. v. NLRB
·         Awarding backpay to illegal aliens runs counter to policies underlying IRCA (making it criminal for illegal aliens to obtain work), policies the Board has no authority to enforce or administer.
Williams v. Mohawk Industries, Inc. (United States Court of Appeals) appeal from motion to dismiss 12 (b) 6
·         P (legal employees) sues D under Federal RICO for hiring illegal workers to reduce wages. P also claimed unjust enrichment.
·         For RICO you need conduct of an enterprise through a pattern of racketeering activity, also in civil case you need to show the requisite injury to business or property, and that such injury was by reason of the substantive RICO violation. 
1.)    pattern of racketeering- racketeering activity means any act which is indictable under the immigration and Nationality Act. (Ps claimed hundreds, even thousands, of federal immigration laws)
2.)    Conduct of an enterprise- only loose or informal association of distinct entities needed, have similar objective with other entities (trying to cut wages to get more money, works for the benefit for both D and the hiring agencies), D must participate in the operation or management of the enterprise itself (met burden to overcome the motion by alleging they have some control over the other entities)
3.)    Injury to business or property to Ps- Ps have alleged business interest (legal entitlement) affected by D’s RICO violations.
4.)    By reason of Substantive RICO violations (proximate cause)- the hiring of thousands of illegal workers on substandard wage terms depresses the wage scales of legal workers
·         Motion denied
G. The reconstitution of work
Is a person an employee? 
·         Common law agency- Most restrictive test
o       The primarily focuses on the employer’s right to control not only the “result accomplished by the work,” but also the details and means by which that result is accomplished.
·         Economic realities test- more inclusive (used for FLSA)
o       A person who follows the usual path of an employee and is dependent on the business for which he serves
·         Hybrid test (at one time used by most federal court of appeals)
o       Courts examine the economic realities of the work relationship, but with particular emphasis on the employer’s right to control the means and manner of the worker’s performance
·         US Supreme reinvigorated the common law standard
o       The court rejected the economic realities test under the statute suggesting that this broader standard was limited in application to the FLSA
*No set test to decide if a person is an employee or employer. Instead, the issue must be examined in the context or the legislative purpose of the particular statutory rights at issue.
Joint employer model
If the contracting entity maintains significant control over the work and the workers are economically dependent upon the contracting entity the employee are employed both by the subcontractor and the contracting employer.
Estrada  v. Fedex Ground Package System, INC. (Cal. App) (get facts) (are they employees for the purpose of California labor law.) (ONLY APPLIES TO SINGLE ROUTE DRIVERS)
·         Are a group of people employees of Fedex or subcontractors?
·         Because the statute does not define employee the common law test applies. The essence of the test is the control of details (whether the principal has the right to control the manner and means by which the worker accomplishes the work). But there are other additional factors:
1. whether the worker is engaged in distinct occupation or business,
2. whether the work is usually done under the principal’s direction or by a specialist without supervision
3. the skill required
4. whether the principal or worker supplies the instrumentalities, tools, and place of work
5. the length of times for which the services are to be performed
6. the method of payment, whether by time or by job
7. whether the work is part of the principals regular business,
8. whether the parties believe they are creating an employer-employee based relationship
The parties label is not dispositive
·         First, the agreement stating that the “drivers could satisfy the objectives of the contract by whatever means that wish” had no weight because Fedex’s conduct spoke louder than words and also this is true for Fedex’s ascertain that they could not fire at will. CONTRACT IS NOT DISPOSITIVE
·         Second, the trial courts findings are supported by substantial evidence. Fedex control the way the drivers dress and looked, control what types of equipment they needed, their route could be changed unilaterally by Fedex, they can reject driver’s helper, customers paid fedex not the drivers, the drivers were not engaged in a separate profession or business, drivers have worked there for a long time, work full time with regular route, must work only for fed-ex, need no experience and they are paid weekly, not by the job, and they have to be at the pick-up stop at a certain time. 
·         The drivers are employees, and FOUND NO ENTREPRENEURIAL opportunity.
Fedex Home Delivery v. National Labor Relations Board (US Court of Appeals) (get facts)
·         Use common law agency test. Uphold the board if at least it can be said to have made a choice between two fairly conflicting views. 
·         While important animating principle by which to evaluate those factors in cases where some factors in cases where some factors cut one way and some the other is whether the position presents the opportunities and risks inherent in entrepreneurialism.
·         The common law factors include, inter alia,
1.)    The extent of control which the master may exercise over the details of the work;
2.)    The kind of occupation
3.)    Whether the worker supplies the instrumentalities, tools, and place of work;
4.)    Method of payment
5.)    The length of time the person is employed
6.)    W

ood cause to fire
Three claims most commonly recognized limitations on At-will
·       Contract claims (imply contractual obligations, such as some form of job security or disciplinary procedure, from an employer’s unilateral promise expressed orally or in a employee handbook)
·       Covenant of good faith and fair dealing
·       Public policy tort (example; firing for whistle blowing)
A. At-will
Savage v. Spur Distributing Co.
·         P moved his family for a job. P was told that it was a permanent position as long as he performed the work satisfactorily and that he would be paid a salary of 300 dollars a month and a bonus to be determined by the company’s earning.
·         Is there a contract for permanent employment?
·         Would need mutuality and extra consideration. 
·         He made no other consideration, (giving up job, moving family, incurring costs are not consideration)
Note statute of frauds is not relevant because it is capable of being performed within a year
This case seemed to be using contract law; however, it is totally bogus. Do not need additional consideration. Also do not need mutuality. 
·         Today you do not need additional consideration, or mutuality (both being bond)
·         Many courts now reject these doctrines, opening the way for discharged employees to assert that an employer’s express or implied promises not to discharge without cause were enforceable even if the employee remained free to quit and had not provided any consideration apart from his labor. Still have to overcome burden of at-will
B. Expressed agreements- written
Constructive Termination
Guiliano v. Cleo, Inc. (Tenn. Supreme)
·         P was constructively terminated without cause and is he entitled to the remainder of his salary under Paragraph 9, which states, “company terminates this agreement and your employment without cause, you shall continue to be paid your then current salary from the date of termination through….
First issue
·         D’s right to change the appellant’s work duties (stated in contract)did not include the right to remove all of his duties (contract defined position as an executive position).
·         P had to stay at home, and took part in no business with D for three months
·         He has been constructively terminated without cause (material breach)
Second issue
·         P received a job after being terminated paying more than he was receiving with D. D claims that he can no longer received the rest of the money he was granted under paragraph 9.