Employment Law Outline

Employment Outline Fall 2011
Professor Rich Paul
 Rothstein and Liebman, Employment Law (7th ed. 2011),
-Chapter 1: Work and Law-
A.     Work and Society
Ø  Employment law evolved from master/servant relationship to freedom of contract in the 19th century industrial revolution. However, it was not until the end of the 19th century when they began to regulate employment. Started b/c of hazardous and inherent unequal bargaining power, this was in conflict w/ freedom of K. (see chart)
Ø  Laborem Exercens: Encyclical of Pope John Paul II on Human Work (1981)
§  Work and the Man- work means any activity (spiritual role of work). Work defines you.
Ø  David Gregory Commentary on Encyclical of Pope John Paul II
§  “there is no doubt that human work has an ethical value of its own;” and that “work helps us become more fully human.”
§  It represents your income stream. Economic security is intertwined with your ability to work. It is central to your existence.
Ø  Cynthia L. Estlund, Working Together: The Workplace, Civil Society, and the Law
§  Social Aspect of Work: Venue for relationship; economic security; w/o work obsess on others.
Ø  Alain De Botton, Workers of the World, Relax (Pg 6)
§   In America, ppl work even when there isn't financial pressure, as work defines ppl
§  Work is a way to make money and become more fully ourselves
§  Workplace promotes individual self esteem and sense of community
Ø  Steven Greenhouse, The Big Squeeze: Tough Times for the American Worker (Pg 8)
§  Even w/ so much inflation, workers' wages have barely increased
§  We are defined by our employment, as it makes up our identity and represents income stream
§  Economic security is intertwined w/ ability to work, and is central to your existence
§  Work is biggest venue to form relationships and connect in broad and abstract sense
Ø  Analyzing Case:
§  1) Statute 2) Contract 3) Tort [ fraud, negligence, emotional distress] B.      Legal Intervention
Ø  Bammert v. Don’s Super Valu, Inc. (Pg 11)
§  Bammert was fired from her at will job b/c her cop husband arrested her boss’ wife for drunk driving.
§  Issue: Does the public policy exception apply to a retaliatory discharge based upon the conduct of a non-employee spouse.
§  Law: At will employee can be discharged for any cause except when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law. Brockmeyer(also be filled under K law)
·         Law must be evidenced by constitutional, statutory provision, or administrative provision that articulates a fundamental and well-defined public policy. Just b/c employees actions are praiseworthy is not enough.
§  Holding: 1) this was a fundamental policy but 2) wasn’t fired for her conduct but husbands- this would expand policy too much.
§  Defense: With this decision, person can influence police officer in form of retaliatory firing
Ø  Fundamental Purpose Test
§  Clearly contravene public welfare, and gravely violate paramount requirement
·         Notes: Fortunato v. Office (856 A. 2d 530): dental office (pg 16 note 3)
·         Thompson v. North American Stainless (131 S.Ct. 863): finance filed under anti-retaliation section of Title VII of the Civil Rights Act of 1964.
·         Here, they are filing whereas he’s just doing his job in Bammert.
-Chapter 2:The Development of Employment Law –
 
A.     The Foundations of Employment Law
Ø  Master- Servant: Early employment K’s made the employment K different from other contracts and made illegal any attempt on the part of the workers to bargain collectively.
Ø  Employer- Employee: What is an Employee?
š Lemmerman v. A. T. Williams Oil Co.
·         Mom worked for employer, and son just tagged along. Son slip and mom filed work comp.
·         Issue: Was kid and employee? Found to be an employee.
·         Reasoning: Different jrx have different test but under CL control test applies- Whether or not the punitive employer has the right to control manner, method, and means of how the goal is accomplished. This is an objective test, employers intent doesn’t matter.
š Notes:
·         For work comp doesn’t matter if illegally employed. Varies between courts whether illegal minor employee should be capped at work comp.
–          San Diego- Shamu Case: argued employee b/c it was for purposes of promotion but P argued dual capacity
·         Gastroenterolgy Association v. Wells  (business partner v. employee)
–          Whether they operated independently and mange the business or is subject to the firm’s control.
Ø  Employment at Will
š Wood: defined the at will doctrine.
š California 2922
·         It is an indefinite hiring and is determinable at the will of either party and in this respect there is no distinction between domestic and other servants.
·         However, if a document states the period then it is hiring under a fixed period. A hiring for an agreed upon of time can only be determined for good cause; a good and sufficient reason, regulated by good faith, and that the behavior is sufficiently serious that it causes some injury to the employer.
Ø  Sources of Modern Employment Law
š Public Employment
·         McAuliffe v. Mayor & City of New Bedford
§  U have a constitutional right to talk politics but not be a public employee. The policy of employee at will affected his answer. Not good law.
·         Military  Employment:
§  Though this is a third category of law, this is a subsection of public employment but not entitled to many of the constitutional protections.
·         Boyle Exerpt
§  Pendleton Act: created a class of fed employees who had to obtain their offices through a merit system of competitive examinations, but it also prohibited political solicitations.
§  Hatch Act: Employee may take an active part in political activity. Exceptions: solicit campaign from subordinates or persons having business pending before agency, while on duty, use gov’t prop, and run for a partisan political office.
§  Oklahoma v. US Civil Service Commission
Ø  Upheld Congress's right to force state/local gov't to choose between fed funds and keeping EEs who violated the Hatch Act