EMPLOYMENT LAW
THE EMPLOYMENT RELATIONSHIP. 4
Employees v. Independent Contractors. 4
Employer. 5
AT-WILL EMPLOYMENT.. 8
Express Employment Contracts. 9
Collective Bargaining Agreements. 10
Implied-in-fact Employment Contract. 10
Employment Manuals. 10
Modification. 11
Implied-in-Law Contract/Detrimental Reliance. 11
Wrongful Termination In Violation Of Public Policy. 11
Implied Covenant of Good Faith & Fair Dealing. 13
EMPLOYER TORTS. 14
Intentional Infliction of Emotional Distress. 14
Defamation. 15
Affirmative Misrepresentation. 16
CONSTITUTIONAL LIMITS. 17
Due Process. 17
Freedom to Speak & Associate. 17
Privacy. 19
WAGE & HOURS. 21
Minimum Standards. 21
EMPLOYMENT DISCRIMINATION.. 24
Disparate Treatment. 24
Harassment. 26
EMPLOYEE OBLIGATIONS. 27
Duty of Loyalty. 27
Trade Secrets. 27
Competition. 28
Themes:
Immutablie rules (i.e. unlawful discrimination) v. default rules (i.e. at-will employment)
Procedural posture: motion to dismiss, motion for summary judgment, JNOV.
What is sufficient to reach a jury?
Are obligations reciprocal (tort, contract)?
Constitution:
Article I Section I of California Constitution – privacy.
Federal Legislation:
National Labor Relations Act of 1935 (NLRA)
Fair Labor Standards Act of 1938 (FLSA)
Equal Pay Act of 1963 (EPA)
Title VII of the Civil Rights Act of 1964
Occupational Safety and Health Act of 1970 (OSHA)
Employment Retirement Income Security Act of 1974 (ERISA)
Americans with Disabilities Act of 1990 (ADA)
Family and Medical Leave Act of 1993 (FMLA)
NLRA legitimized unions and collective bargaining.
Surge in legislation response to failure of NLRA.
State regulation:
Workers compensation; unemployment insurance compensation scheme.
Stories:
William H. Sylvis and formation of unions in response to failure to pay.
Lubna Baloch and Pakistani typist for Berkeley.
Triangle Waist Co. – fire and wrongful death suits.
Wal-Mart employee lock-in policy. Approaches: media, unionize, sue. Claims: false imprisonment, constructive discharge, wage and hour.
CLAIMS
DEFENSES
Constitutional claims (§1938)
Private employer, not under color of state law,
– 1st/14th: free speech/free association
Justified restriction
– 5th/14th: due process
– 4th: search & seizure
– privacy
Statutory claims
– whistleblower
– wage and hour laws (Borello, Lauritzen,
Not employees;
– unlawful discrimination under Title VII
LNDR, mixed motive
– disparate treatment
– harassment / hostile work environment
Insufficiently severe or pervasive
Breach of contract claims (Chiodo, Hetes, Ohanian)
Parole evidence rule, statute of frauds, unconscionability, modification
– union representation contract
Can avoid (Gilmer)
– duty of fair representation by union (Vaca)
– express contract
– implied-in-fact contract
– employee manual/personnel policies
not to lateral hiring. (467 U.S. 69).
Volunteers not employees because not employees, so no statutory protections.
Question: Could you contract to work for $3.15 an hour as independent contractor? No. Status defined by statute, not agreement of parties. But see Hensley.
“Economic reality” test:
1. Right to control performance
2. Meaningful opportunity for profit or loss
3. Investment in equipment/material
4. Special skills
5. Permanancy of relationship
6. Integral part of business
Taxicab Leases (R):
Driver pays cab company for use of car. Different interests: driver, company, public.
Six factors applied?
If taxicab drivers got together an organized, possible antitrust violations. If employees and organized competition, duty of loyalty violation. If unionized, protected.
Test: Right of control most important (Borello & Easterbrook Lauritzen dissent) and economic reality test (Lauritzen majority).
Question: Was this individual/class a member of the group the statute sought to protect? Borello majority and Lauritzen dissent focus on the language/purpose of the Act. FLSA defines employ as “suffer or permit to work.”
As of 1995 statistics, 8.5 million Americans independent contractors. No workers’ compensation or unemployment. No legal remedy for discrimination under federal statutes. PacBell – fired employees and hired back as independent contractors.
Borello (R):
Cucumber farmers and California’s workers’ compensation law. P: Ct of Appeal found independent contractors by law. H: Reverse. Employees for the purpose of California’s workers’ compensation protections. A: Analyzed purpose of the statute. Contracted as “share farmer,” but legal test independent. Total responsibility for plants in assigned plots. Evidence of employee relationship right to terminate at will. Agency principles broader than “control” test.
