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Employment Law
University of Dayton School of Law
Perna, Richard P.

Employment Law Outline

What is an Employee?

I. Master – Servant Relationship
A. General
1. Used in employment law
2. Deals with who is or is not an employee
3. And who’s employee is it
4. Each state can create their own definition and state/jurisdiction
5. Most of the time an employee wants to be an employee because the gain
a. But sometimes they don’t
b. If they are not – it is a way around workers comp – then the employer wants the employee to be an employee
6. The Undocumented Worker
a. Most statutes cover this person
1) Because it is illegal to have this person work for you the employer should not be able to profit
b. The employer should be estopped from arguing that this person is an employee because it is illegal
c. It should be up to the employee as to whether or not they want to be considered (or argued) that they are an employee
B. Servant
1. Had duty to obey
C. Master
1. Had duty
a. To give legal order
b. Treat servant well
D. Basic Rule
1. Obey 1st and complain later (as long as order was lawful)

II. Independent Contractors and Employees
A. Line is starting to blur
B. Donovan v. Dial America
1. 6 Factor Test
a. The degree of the alleged employer’s right to control the manner in which the work is to be performed
b. The alleged employee’s opportunity for profit or loss depending upon his managerial skill
c. The alleged employee’s investment in equipment or materials required for his task, or employment of helpers
d. Whether the service rendered requires a special skill
e. The degree of permanence of the working relationship
f. Whether the service rendered is an integral part of the alleged employers business
2. Do not need to meet each one or only one
3. Basically looking at all of them and the strength of one can compensate for the absence or weakness of another
4. Most important factor is the Economic Realities Test
a. In general Employees do not put their own compensation on the line
b. (but this is starting to change with economic sharing and so

he 70’s)

B. Private
1. Bill of Rights do not apply
2. 2 and 3 from above irrelevant because it is in the private sector
C. Weiss question – If it is workable in the Public sector, why is it not in the private?
D. Civil Service
1. A comprehensive series of legislation specifying grounds for dismissing
a. Grounds for promotion
b. Job evaluations/descriptions for many of the positions
2. Bad side
a. Makes changes very difficult
b. New administrator can’t just say they want to do things differently
3. Civil Service Regulations look very similar to other countries entire Public and Private Labor Code looks
a. Fed Gov. regulates Fed employees
b. State Gov. regulates state employees
c. Sometimes within the state, local gov. regulates local employees, but this depends on the state and its const.