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Employment Law
University of Connecticut School of Law
Pandya, Sachin C.

EMPLOYMENT LAW OUTLINE-SPRING 2011
 
INTRODUCTION
“immutable” rules
parties cannot change
ex. Need to pay employees minimum wage
“default” rules
parties can alter them
 
INVOLUNTARY SERVITUDE
13th amendment
bailey v Alabama
1908 signed a K to work for employer 1 year on the farm in exchange for an advance of $15.  P quits before the year is up and does not pay back the advance that he was suppose to.
Court says involuntary servitude here because there is no way to rebut the presumption.  He has NO choice to leave or he faces criminal penalties
Consent doesn’t alter whether there is involuntary servitude after the fact
 
What if it was a remedy for money damages (civil) and not jail (criminal)?
Clear distinction here
If this was a civil action for civil damages then it would not be involuntary servitude issue because it would not be peonage
Court draws a line between civil and criminal
Is this a stable argument?
NOàamount of compulsion is the same regardless of whether penalty is jail time or money damages
Yesà the purpose of the systems are different. One is to punish and the other is compensation.
Could create a civil code that is criminal in effect.  If civil fines are so excessive that they cannot be paid, would it be essentially the same as a criminal statute
Pollock v Williams
Similar facts to bailey v Alabama
Bailey applies and the law is unconstitutional
Law itself is the instrument of coercion
Contemporary Cases
Paradise lost and Pickle Factory
 
LEGAL BOUNDARIES OF THE EMPLOYMENT RELATIONSHIP
Employees vs Independent Contractors
Common law test
Relies heavily on the level of control that a company exercises over the manner and means by which a worker performs her job
Applied in wolf v coca cola
Under this test an employment relationship exists if the putative employer reserves the right to control not only the result to be achieved, but also the means to be used to attain the result
IC relationship exists where the putative employer reserves only the right to control the ends to be achieved
Courts accord considerable weight to the amount of supervision that the putative employer has a right to exercise over the worker
Factors to consider
Skill required
Source of the instrumentalities and tools
Location of the work
Duration of the relationship between the parties
Whether the hiring party has the right to assign additional projects to the hired party
Extent of the hired parties discretion over when and how long to work
Method of payment
Hired parties role in hiring and paying assistants
Whether the work is part of the regular business of the hiring party
Whether the hiring party is in business
Provision of employee benefits
Tax treatment of the hired party
Economic reality test
Focuses on the economic circumstances of the working relationship to determine whether the worker was dependent on the putative employer for work
Accords less weight to the “control” factor than the common law test
Test’s critical inquiry should focus on whether the worker “is economically dependent on the business to which he renders service or is, as a matter of economic reality, in business for himself.
Totality of the circumstances approach to evaluate, factors look at:
Degree of the putative employers right to control the manner in which the work is to be performed
Workers opportunity for profit or loss depending upon managerial skill
Workers investment in equipment or materials required for his task, or his employment of helpers
Whether the service rendered requires a special skill
Degree of permanence of the working relationship
Whether the service rendered is an integral part of the alleged employers business
Secretary of Labor v Lauritzen
7th circuit observed that the fact that migrant farmers returned to the alleged employer year after year indicted permanency
 
Six Criteria: (Easterbrook will be in italics-underlined!)
–          Control
o   The wage arrangement is a way to effectively motivate employees and to provide a means of determining their wage—to make the workers more productive. D hadn’t relinquished control. D’s right to control applies to the entire pickle farming operation, not just he details of harvesting. D is referred to as the boss.
§  He didn’t control how each member of the family worked—he only negotiated with the head of the family. Under this analysis everyone would be an employee—if contractor controls the entire operation doesn’t mean that the subcontractors are employees.
–          Profit and Loss
o   There is no corresponding possibility for migrant worker loss. A reduction in money earned by the migrants is not a loss sufficient to satisfy the criteria for independent contractor status. They can make more—but they can’t lose what they already have. Therefore, it is not an opportunity for investment.
§  Thinks there is some managerial skill—the head of the family decides who will work. This is the type of decision that a supervisor usually makes. The opportunity to obtain profit for efficient management is not the same as exposing a stock of capital to a risk of loss. There is a possibility of being exposed to a loss if you take opportunity costs into account. (Def. The valu

is saying that it’s possible to objectively determine this.
·         If you were to come up with an objective test—what would that care about? Is it about being integral or about convenience—you need pickers, but you don’t necessarily need a truck driver, you could carry them. OR Even if the business doesn’t go under—it will be so expensive that it is necessary.
 
COVERED EMPLOYEES
Even if a worker is clearly an employee rather than an IC, he or she may not be subject to the protections of a particular employment law
Wolf v Coca-Cola
Issueà P an employee of D and therefore beneficiary of the ERISA plan?
P only had a K with Access an staffing company independent of coke, that provided she was an IC of Access
To assert a claim under ERISA must be a “participant” or a “beneficiary” of an ERISA plan
2 requirements for “participant” status
1. Must be an employee.  Common-law analysis used
2. Must be “eligible” to receive a benefit according to the language of D’s plan
was not an employee here bc wore a different color badge than those worn by regular employees, was paid by Acdess and requested pay raises through access, was not invited to events for regular coke employees, and P even testified that she did not consider herself a regular employee
 
COVERED EMPLOYERS
who is an employer for purposes of employment law?
Joint-Employer Principle
More than one employer can be held individually and jointly liable for failure to pay minimum wages and overtime pay for all the work performed for all joint employers (FLSA)
Employers will be considered to be joint-employers where:
1. Arrangement between the employers to share the employees services or
2. One employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee’s services or
3. The employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer