Individual Employment Law Outline

Employment Law Seiner Fall 2017
 
 
Introduction: pp. 3-11
Employment At Will:  Allows employers to get away with a lot of things.  Basis of employment law in this country.  Every employment relationship can be terminated by either side for any reason or no reason at all, unless parties reach different agreement.  Employer can fire you at any time for any reason.  You can leave at any time for any reason. 
Exceptions
Title VII
Cannot do so in a way that is emotionally abrasive
Cannot be as a result of an intrusive drug test
Cannot breach a contract of employment
Other major exceptions to employment at will:
Public Policy
Express Contract
Written
Oral (note statute of limitations issue and parol evidence)
Implied Contract
Good faith termination, not just cause standard: “a fair and honest cause or reason, regulated by good faith on the part of the [ER].”  See Pugh
Covenant of Good faith: Subject to a just cause (only recognized in 11 states).
Equity
Promissory Estoppel
Additional Consideration
Legal Boundaries of the Employment Relationship
Employees v. Independent Contractors & Covered Employees: pp. 13-26, 30-33: Must be classified as an employee to be covered. Thus, If there is a dispute over the discharge of an EE, the threshold inquiry is whether or not the employment was at-will.
Not an independent contractor
Labels are not dispositive
Secretary of Labor v. Lauritzen: who is an employee EE or IC?
FLSA covers working conditions, wages, etc.  Act only applies to employees.  Statute defines an employee as someone who suffers or permits to work.
Traditionally, to define employee, courts have looked at 6 different criteria
Control—control over the migrant workers is employee, supervision of workers, direct work to be performed, authority to hire/fire
Profit and loss—pickers are not sharing in the loss, Indp. Cnt are exposed to risk of investment loss/ stake in business
EE’s Capital investment—pickers did not have any capital investment really, so seems like not independent contractors, equipment/ tools/ means of production supplied by EMP= EE
Degree of skill required—no unique skills=EE, specialized=IC
Permanency—despite being seasonal, some level of permanency→ consistency/ returning seasonal= EE
Whether work was integral part of business—is the work performed a core function of the business, Yes= EE (harvesting pickles was)
Holding:  employees, so protected by FLSA
Concurrence: (1) Does not like the subjectivity of the factors and (2) Argues: only look to “suffer or permit to work
Control- common theme courts look to in detemrining I.C. or EE, more control by worker= I.C., less control = EE (Common Law Test)
Volunteers: Generally you must have a compensatory relationship; therefore volunteers generally do not count under Title 7
Tax consequences exist for an employer
Wolf v. Coca Cola:
EE or IC? Companies don’t have to give you employee packages, but if they do so, they must abide by federal requirements
ERISA: A “participant” is defined as “any EE or former EE of an ER. . .who is or may become eligible to receive a benefit of any type from the ERISA plan
2 requirements under ERISA
Must be an employee or former EE—considered factors page 31
Must be eligible under the employer’s plan itself to receive benefits
Temporaries and leased employees are not eligible for benefits under Coca Cola’s plan—so fails 2nd prong
Benefits to using temporary or leased workers or independent contractors
Liability could be less
Keep costs down—own tools, etc.
Less benefits to pay
Get rid of inefficiency
Like a trial run—can hire for full-time later
Flexibility
Cons to using independent contractors
Less control
Less loyalty
Quality concerns
If small company, sometimes better to be an independent contractor—you might get better benefits from your agency.
Covered Employers & Introduction to Employment at Will: pp. 35-41, 47-52
 Zheng v. Liberty Apparel:
Issue:  EE or IC? Whether clothing company that puts materials out is a manufacturer/employer under FLSA?
Six Factors that the court looks at to determine a co-employer (from Rutherford) that focus on “the circumstances of the whole activity” viewed in light of “economic reality”: 
EQT Used: Whether premises and equipment were used for the work
Shift Biz: Whether a unit was shifted from one putative joint employer to another
Discrete Job: Whether the work was an integral process of production, line job
K Transferability: Whether responsibility under the contracts could pass from one subcontractor to another without material changes
Supervision: The degree to which the ER or its agents supervised the workers
Exclusivity: Whether the workers worked exclusively or pre