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Employment Discrimination
University of South Carolina School of Law
Seiner, Joseph A.

·         Employment Law
·         01/08/08
·         -Individual Employment Law: it is different from employment discrimination law because employment discrimination law is based on treated employees differently because of something (race, sex, religion, etc.), whereas employment law is broader, that deals with anything in the employment relationship. 
·         -for example: minimum wage laws, drug testing, defamation, political expression, etc. are all issues covered in this class.
·         -Hypo: possible causes of action
·         ®gender discrimination (Title 7 of the civil rights act of 1964 or equal pay act: same for federal and state law in South Carolina), defamation, freedom of speech (bush pres. sticker), at will employment vs. oral contract for life, invasion of privacy because of drug test
·         -You work at McD in Va as a fry cook. Your boss terminates you because you were born in January, and he doesn’t like Capricorns. 
·         ®Biggest concept in the class: Employment at will
·         -in most states, and employer can make take an employment action in any case as long as there is not a contract that states otherwise. 
·         -most if not all countries are not employment at will: the arbitrary reason to fire people does not exist in those countries. 
·         -vast majority of workers don’t have an employment contract, and can be terminated for any reason at all. 
·         -focus on the exceptions to employment at will: political protections and title 7 (cannot terminate because of race, gender, or religion). 
·         -other factors: does the employee manual create a contract, and is there a contract which changes the default rule of at will employment.
·         01/10/08
·         Employment Law
·         Employees vs. Independent contractors
○     Focuses on the question of who becomes an employee.
■     This is very important because it affects how the employee is bound to treat you, and what rights you have. 
○     Very technical definitions under different statutes and common law.
○     Secretary of Labor v. Lauritzen
■     Migrant workers work for Lauritzen as pickle harvesters. Question is whether the fall under the definition of employees under the Fair Labor Standards Act (FLSA) of 1934. 
■     Migrant workers are paid based on how many pickles they pick, and if they are doing poorly their may be a bonus to keep them picking. The migrant workers have control over how to pick and how to manage the picking families, but the land is owned by the defendants.
§    The land is divided up by the defendant. 
■     Question of the case: are these migrant workers employees under the FLSA. 
§    FLSA defines employee as: any individual employed by an employer.
¨      Statute goes on to say that to employ means that you suffer or permit to work. 
¨      Courts have interpreted this to require an “economic reality” analysis, which has six criteria:
² Control: court says pickle pickers don’t have enough control to be an independent contractor.
² Profit or loss opportunity: court says migrants don’t invest in the business, so they don’t have much opportunity for loss.
² Investment in equipment or materials (capital investment): only had to buy gloves
² Special skills required: only takes 5 minutes to learn to pick a pickle
² Permanency: court says that this is a fuzzy issue: many repeat pickle pickers.
² Integral part of business: important part of business.
§    Court holds that this is an issue for a jury, but are probably employees.
■     Easterbrook Concurrence: hates this economic reality 6 part test. He still thinks they are employees, but that we should look at the statute, and decide as a judge whether they fall within congress’s definitio

ne did everything but the final step; the final step was performed by these workers. 
§    Because the factory is no longer in business, and plaintiffs cannot find them to sue them, they are seeking to make liberty a joint employer under the FLSA (fair labor standards act). 
■     4 factor test: applied by the district court
§    power to hire and fire
§    supervise and control work
§    determining rate and method of payment
§    maintained employment records
■     Economic Reality Test: 6 part test they should have applied
§    degree of control
§    workers opportunity for profit or loss and investment in business
§    degree of skill required
§    permanence or duration of the work relationship
§    extent to which the work is an integral party of the employer’s business
¨      this case is not conclusively resolved, it is sent back to district court. 
¨      Different requirements of employee’s you need to be covered by certain statutes:
² There is some definition of who is an employee, and how many you must have to be an employer who falls under the act
§ Title 7: 15 employees
§ FMLA: 50 employees
§ FLSA: monetary threshold: 500K of annual sales
■     Part Time workers: 14 workers and 1 worker that works 4 days a week. Does this make him an employee and make the employer fall under Title 7. 
§    Supreme Court held that they are employers, and made the rule: look at the payroll, and if you fall on the payroll then you are an employee. So Title 7 uses a payroll test.