Chapter 1. Defining the Employment Relationship 101 results (showing 5 best matches)
- The joint-employer principle has also been adopted under other employment laws. Department of Labor regulations incorporate the joint-employer principle for purposes of the Family and Medical Leave Act. The Equal Employment Opportunity Commission has adopted an approach similar to that under the FLSA.
- In addition to the protections provided under both federal and state law, employment contracts with children could be challenged on contract common law principles. For example, contracts involving children could be voided on grounds of incapacity. The contractual incapacity argument has been raised in cases involving challenges by minors to employment contracts requiring them to arbitrate employment disputes.
- Assuming a substantive difference does exist between the application of the two tests, commentators have suggested that the Supreme Court’s 1993 decision in may have led some courts to retreat from their use of the hybrid test in employment discrimination cases. Court held that when a statute, such as ERISA, does not usefully define the term “employee,” the definition should accord with common law agency principles. Because the Court’s interpretation of the definition of “employee” in ERISA appears largely identical to the definition of “employee” in Title VII some lower courts have concluded that they must apply a common law test to determine employee status under these statutes as well.
- At the federal level, for example, the FLSA regulates the employment of children. Under the FLSA the employment of children under the age of 14 is generally prohibited, while children ages 14 and 15 are allowed to work in some limited types of jobs outside of school hours. The employment of children between the ages of 16 and 17 is lawful except in occupations deemed to be hazardous as classified by the Secretary of Labor. Every state has also enacted child labor laws. When both the FLSA and a state law apply, the law setting the higher standards must be observed.
- Another group of individuals who are not allowed employment are undocumented workers. Unlike the prohibitions regarding child labor, the laws regarding undocumented workers are intended not for their own well-being, but for the economic protection of other workers. In particular, prohibiting the employment of undocumented workers limits the available labor pool, likely protecting the wages of U.S. workers.
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Chapter 2. Job Security 254 results (showing 5 best matches)
- A recent survey of state law identifies twenty-one jurisdictions as having applied the good faith and fair dealing principle to employment contracts, and thirty jurisdictions as not recognizing the principle at all in the employment context. See Dau–Schmidt & Haley, supra note 28, at 346–47.
- American Law Institute, Restatement of the Law Third Employment Law (April 7, 2008 draft) [hereinafter Restatement of Employment Law]. Although labeled the “Third” Restatement, there does not currently exist a Restatement of Employment Law.
- meaning that the employment relationship is not considered to be at will where the parties have provided otherwise by contract or where the law prohibits termination for a specific reason. Thus, where the parties have voluntarily agreed that the contract will last for a specific duration, or that the employee can only be terminated for cause, or where some other common law principle (e.g., public policy considerations) is applicable, or where a statute makes it illegal for the employer to terminate employment relationship for a particular reason, the employment relationship is not at will.
- Employers and employees can avoid the reach of the employment-at-will doctrine through voluntary agreements. Contract based job security protections can be express or implied, and written or oral. Such provisions are evaluated by the courts in light of traditional common law contract principles.
- in Chapter 2, Montana is the only state that has legislatively changed the default rule from at-will employment to job security absent good cause to terminate. Yet because most other states have also moved away from the at-will default rule through the use of the common law, some critics have expressed the view that it may be misleading to state, as does the Proposed Restatement, that “courts in 49 states recognize the principle that the employment is presumptively an at-will relationship.” Arguably so many exceptions presently exist to the at-will doctrine that the exceptions may have swallowed the rule. Part of the concern is that the Proposed Restatement’s classification of common law erosions of the at-will rule as “exceptions” and its apparent failure to appreciate the magnitude of those exceptions may halt the evolution of employment law in some jurisdictions and may lead other jurisdictions to abandon various of the common law protections that they currently afford employees.
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Preface 11 results (showing 5 best matches)
- The employment relationship is increasingly regulated by law. For many years, the employment relationship was primarily contractual, with terms and conditions of employment set by agreement of the parties. The law of the workplace was labor law, which dealt chiefly with union organizing and collective bargaining. The 1960s saw the enactment of statutes prohibiting employment discrimination, dividing the law of the workplace into the subjects of labor law and employment discrimination law. The enactment of federal employment discrimination statutes and the decline of collective bargaining, along with changing conditions in the economy and the workplace, unleashed a plethora of employment regulation through both statute and common law, leading to a dynamic and rapidly developing body of law now known as employment law.
- The book is designed to provide a basic understanding of employment law and is a useful supplement to any of the current employment law casebooks. It does not follow the structure of any one book, but rather is divided into six substantive chapters. Chapter 1 discusses the question of who is an employee and who is an employer, a centrally important issue for almost all areas of employment law. Chapter 2 follows with an analysis of the employment-at-will doctrine and job security claims, an area of law that has developed exponentially in the last 25 years through both statutory and common law. Chapter 3 focuses on privacy, autonomy and dignity in the workplace, a topic that includes speech and association claims as well as legal challenges to intrusive employment practices. While most of the book concentrates on legal claims commonly filed by employees against employers, Chapter 4 analyzes the claims that employers may have against employees ...property rights and violations of the...of
- Employment law does not incorporate only relatively new statutes and claims, however. It includes laws enacted in the early twentieth century such as workers’ compensation statutes and the Fair Labor Standards Act governing minimum wage, overtime and child labor. In addition, it overlaps in many areas with the traditional subjects of labor and employment discrimination law. This book will assist anyone interested in the study of today’s workplace in understanding the laws that govern its operations. The traditional subjects of labor law and employment discrimination are not a focus of the book, although discussion of these laws is included where they overlap with the concepts covered. Employee benefits law, sometimes the subject of a separate course in the curriculum, is included in the employment laws covered here.
- Employment law seeks to balance the rights and interests of employers, employees and society. To understand employment law, it is essential to understand the interests of each of these groups. This theme runs through each of the chapters. Additionally, we have attempted to do the following:
- (6) Relate each subject area to labor and employment discrimination law, where relevant, to assist the reader in attaining a fuller understanding of the law of the workplace.
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Foreword 14 results (showing 5 best matches)
- In July 2005, Kenneth G. Dau–Schmidt became the Chair of the Labor Law Group. Shortly after his election, the Group held a meeting in Chicago with nationally recognized practitioners to discuss how best to teach students about the practice of labor law in the new global economy of the information age. The outline that resulted from this meeting served as the basis for
- When Robert J. Rabin became Chair in 1996, the Group and a number of invited guests met in Tucson, Arizona, to celebrate the imminent fiftieth anniversary of the Group. The topics of discussion included the impact of the global economy and of changing forms of representation on the teaching of labor and employment law, and the impact of new technologies of electronic publishing on the preparation of teaching materials. The Group honored three of its members who had been present at the creation of the Group, Willard Wirtz, Ben Aaron, and Clyde Summers. The Group next met in Scottsdale, Arizona in December, 1999, to discuss the production of materials that would more effectively bring emerging issues of labor and employment law into the classroom. Among the issues discussed were integration of international and comparative materials into the labor and employment curriculum and the pedagogical uses of the World Wide Web.
- The Labor Law Group had its origins in the desire of scholars to produce quality casebooks for instruction in labor and employment law. Over the course of its existence, the hallmarks of the group have been collaborative efforts among scholars, informed by skilled practitioners, under a cooperative non-profit trust in which royalties from past work finance future meetings and projects.
- In 1984, the Group, now chaired by Robert Covington, sponsored another general conference to discuss developments in the substance and teaching of labor and employment law, this time at Park City, Utah. Those discussions and a subsequent working session led to the conclusion that the Group should devote principal attention to three new conventional length course books, one devoted to employment discrimination, one to union-management relations, and one to the individual employment relationship. In addition, work was planned on more abbreviated course books to serve as successors to the Group’s earlier works covering public employment bargaining and labor arbitration.
- Laura J. Cooper became Chair of the Group in July, 2001. In June, 2003, the Group met in Alton, Ontario, Canada. The focus there was on labor law on the edge—looking at doctrinal synergies between workplace law and other legal and social-science disciplines, and workers on the edge, exploring the legal issues of highly-compensated technology workers, vulnerable immigrant employees, and unionized manufacturing employees threatened by foreign competition. The Group also heard a report from its study of the status of the teaching of labor and employment law in the nation’s law schools and discussed the implications of the study for the Group’s future projects. Members of the Group began work on a case book on international labor law at this meeting. During Professor Cooper’s term the Group also finished its popular reader
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Chapter 5. Mandated Terms and Conditions of Employment 302 results (showing 5 best matches)
- Finally, most state wage payments laws provide protections regarding the distribution of wages following separation from employment. While the requirements vary significantly from state to state, the general intent of these laws is to assure that employees will receive the wages to which they are entitled soon after the termination of the employment relationship.
- Several events can trigger a notice requirement. First, notice is required of a shutdown, either temporary or permanent, of a single site of employment if fifty or more fulltime employees suffer an employment loss during any thirty-day period. An employment loss includes both a layoff which exceeds six months and a 50% reduction in work hours in each month of a six month period. A mass layoff also requires notice and is defined as an employment loss at a single site of employment within a thirty-day period of either one-third of the employees, if at least fifty are laid off, or 500 employees. WARN contains provisions designed to prevent an employer from timing layoffs to evade liability. Thus, a mass layoff or plant closing has occurred under the law if an employer lays off two or more groups of employees from a single site of employment within a ninety-day period which together exceed the minimum required to constitute a closing or mass layoff, although none alone meets the minimum...
- The Equal Pay Act of 1963 (EPA) was enacted by Congress as an amendment to the FLSA. Although involving many of the same issues normally discussed in the context of employment discrimination law—a subject beyond the scope of this book—the provisions of the EPA are relevant to the discussion on wage protections.
- The U.S. Congress and legislatures across many states have been actively engaged in the regulation of various aspects of the employment relationship, requiring employers to provide certain terms and conditions of employment to employees, and directly regulating the provision of certain types of employment benefits. This chapter discusses these legislative efforts. We begin with a discussion of various statutes regulating wages and hours of employment. We then turn our attention to the regulation of employee benefits, discussing mandates regarding employee leave for family and medical reasons, and issues pertaining to the regulation of pensions and other welfare plans. We conclude the chapter with a discussion of issues pertaining to separation of employment, specifically obligations that employers may owe to their current or former employees.
- In 1985, ERISA was amended to require that a sponsor of a group health plan make continuation coverage (so-called COBRA coverage) available to employees who lose coverage following the occurrence of a “qualifying event.” Upon the occurrence of a “qualifying event,” a participant in a group health plan must be given the opportunity to elect to continue to be covered under the group health plan for either 18 or 36 months, depending on the nature of the qualifying event. The principle qualifying event is termination of employment for reasons other than an employee’s “gross misconduct” and the question of whether an employer’s grounds for terminating an employee constitute gross misconduct is one that is heavily litigated. Other qualifying events include the death or divorce of the participant resulting in loss of coverage to the spouse, or the loss of coverage of a dependent child who ceases to be dependent.
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Chapter 3. Privacy, Autonomy and Dignity in the Workplace 269 results (showing 5 best matches)
- See Matthew Finkin, Privacy in Employment Law 490–540 (2d. ed. 2003) (listing the numerous state polygraph laws including some, like Rhode Island and Massachusetts, that prohibit requiring a polygraph as a condition of employment).
- See Katherine V.W. Stone, From Widgets to Digits: Employment Regulation for the Changing Workplace (2004) (describing the impact of technological change on the workplace and the laws relating to employment and recommending changes in the law to adapt to the new workplace); William A. Herbert, The Electronic Workplace: To Live Outside the Law You Must Be Honest, 12 Employee Rts. & Employment Pol’y J. 49 (2008) (discussing the limited legal response to the increasing use of computer technology in the workplace and arguing for a comprehensive approach); Matthew W. Finkin, Second Thoughts on a Restatement of Employment Law, 7 U. Pa. J. Lab. & Employment L. 279, 280–81 (2005) (suggesting that the wide-ranging legal issues relating to employee privacy are seriously in need of legislative action); S. Elizabeth Wilborn, Revisiting the Public/Private Distinction: Employee Monitoring in the Workplace, 32 Ga. L. Rev. 825, 826–30 (1998) (discussing the increase in employer use of monitoring,...of
- The severe restrictions on polygraph testing led employers to seek other methods to determine employee honesty prior to hiring. Paper and pencil honesty tests are not covered by the federal Polygraph Act or most state laws. A few states restrict the use of honesty tests by statute. For example, Rhode Island law allows employers to give written honesty tests, but precludes their use as the “primary basis for an employment decision.” Massachusetts bars employers from requiring any lie detector test, including a written honesty test, as a condition of either initial or continuing employment.
- Rafael Gely, Distilling the Essence of Contract Terms: An Anti–Antiformalist Approach to Contract and Employment Law, 53 Fla. L. Rev. 669, 702 (2001).
- See Matthew Finkin, Privacy in Employment Law 791–822 (2d ed. 2003) (describing various state laws on genetic testing and information).
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Chapter 4. Employee Obligations to Employers 83 results (showing 5 best matches)
- In states where the agreements are enforceable, they may be governed by statute or, more often, by common law. In almost every state, the ultimate test for enforceability is reasonableness. Before determining whether an agreement is reasonable, a court typically will consider whether it is supported by consideration. Many courts will find an agreement entered into at the time of hire to be supported by the consideration of employment, even if the employment is not guaranteed for any period of time. Some courts also apply the same rule to covenants adopted during employment. For example, a New York court concluded that continued employment when the employer has the right to discharge at will and without cause is forbearance from a right that constitutes consideration for a noncompetition agreement obtained during the employment relationship. By way of contrast, some courts hold that an at-will employment relationship cannot provide consideration for a covenant, as there is no... ...of...
- The employment relationship imposes obligations on both employers and employees. As evidenced by the coverage of this book, the vast majority of disputes in the context of the employment relationship involve employees’ claims against employers. The employment relationship, however, also creates a number of obligations on employees. As we discussed in Chapter 2, In addition to contractually agreed obligations, employees might be subject to duties towards their employers which are created by law, and thus implied in all employment contracts.
- The duty of loyalty described above protects the interests of the employer against detrimental employee actions arising during the course of employment. Employers might also have an interest in protecting their interests following the departure of particular employees. As discussed , in § 4.4, employers can contractually protect their post-termination interests via non-compete agreements. In addition, employers enjoy the protection of the common law duty not to disclose trade secrets. This duty does not require an agreement between the employer and the employee and is enforced by means of the tort of trade secret misappropriation.
- is illustrative of cases examining the enforceability of holdover provisions. In , the defendant, after leaving his job, completed an improved model of a product sold by the plaintiff. Although the defendant had performed a variety of functions during his employment, he had not worked on research and development. The defendant, however, had signed a holdover provision wherein he agreed to assign to the employer all invention rights that arose during the period of employment or “within one year after the termination of employment.” The question presented to the court was the enforceability of this provision.
- See Richard Carlson, Employment Law, 817 (2005).
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Chapter 6. The Regulation of Workplace Health and Safety 154 results (showing 5 best matches)
- Workers’ compensation laws typically exempt from coverage certain categories of workers, most commonly agricultural laborers and domestic service employees. Under some state statutes, however, employers can voluntarily elect to cover these workers. In addition, these laws usually exclude casual laborers and, as with most employment law statutes, the laws generally apply only to employees and not independent contractors.
- In order for an injury to arise out of employment, it must have its origin in an employment-related risk or be incidental to the discharge of employment-related duties. To use a simple illustration, in the case of an employee who falls off a roof while performing roofing work during his employment with a construction company, the resulting injuries arise out of employment because they are a probable consequence of working as a roofer. Likewise, in the context of a delivery driver who is injured in a car accident while driving on behalf of her employer, the injury is properly regarded as arising out of employment as it results from a risk associated with employment as a delivery driver.
- Henry H. Drummonds, The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace, 62 Fordham L. Rev. 469, 595 (1993) (citing Mark Rothstein et al., Employment Law 601–28 (2d ed. 1991)).
- In contrast to injuries that result from some employment-related risks, injuries that occur because of risks personal to the employee do not arise out of employment unless the employment contributes to the risk or aggravates the injury. Thus, where an employee dies at work as a result of the internal effects of a heart attack that occurred because of an idiopathic condition, the death does not arise out of employment. On the other hand, if a shuttle bus driver experiences an idiopathic seizure while driving and is injured when the bus swerves into on-coming traffic, the injury arises out of employment because the job placed the employee in a position that increased the consequences of having a seizure.
- Although each state determines specific aspects of its workers’ compensation system, such as employee eligibility requirements and payment schedules, the basic program features are similar from state to state. Employers assume some of the costs of workplace injuries by providing compensation to employees who suffer injuries and occupational diseases that arise out of and in the course of employment. In addition, these laws provide compensation without regard to the negligence or fault of either the employer or employee. Finally, with limited exceptions, if a workers’ compensation law covers an injury or illness, that law provides the employee’s exclusive remedy.
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Table of Contents 54 results (showing 5 best matches)
Chapter 5. Mandated Terms and Conditions of Employment Part 2 101 results (showing 5 best matches)
- U.S. Dep’t of Labor, Employment & Training Administration, Comparison of State Unemployment Laws, Monetary Eligibility, 2007 at 3–2, http://atlas.doleta.gov/unemploy/uilawcompar/2007/monetary.pdf.
- U.S. Dep’t of Labor, Employment & Training Administration, Comparison of State Unemployment Laws, Extensions and Special Programs, 2007 at 4–1, http://atlas.doleta.gov/unemploy/uilawcompar/2007/extensions.pdf.
- U.S. Dep’t of Labor, Employment & Training Administration, Comparison of State Unemployment Laws, Nonmonetary Eligibility, 2007 at 5–7, 5–26, http://atlas.doleta.gov/unemploy/uilawcompar/2007/nonmonetary.pdf. See, e.g, Utah Code Ann. § 35A–4–405(2)(a) (specifying that an individual terminated for just cause is disqualified until he or she earns “an amount equal to at least six times the claimant’s weekly benefit amount in bona fide covered employment”).
- U.S. Dep’t of Labor, Employment & Training Administration, Comparison of State Unemployment Laws, Appeals, 2007, at 7–1 to 7–4, http://atlas.doleta.gov/unemploy/uilawcompar/2007/appeals.pdf.
- U.S. Dep’t of Labor, Comparison of State Employment Laws, Appeals, supra note 384, at 7–1.
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Index 256 results (showing 5 best matches)
The Labor Law Group 5 results
The Labor Law Group Part 2 36 results (showing 5 best matches)
Title Page 6 results (showing 5 best matches)
Copyright Page 1 result
- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: February 24th, 2009
- ISBN: 9780314168771
- Subject: Employment Law
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This book provides a comprehensive overview of employment law and is a useful supplement to any employment law casebook. The book is divided into six chapters. Chapter 1 examines who is an employee and who is an employer. Chapter 2 analyzes the employment-at-will doctrine and job security claims. Chapter 3 focuses on privacy, autonomy, and dignity. Chapter 4 analyzes claims that employers may have against employees. Chapter 5 discusses employment terms and benefits that are directly mandated by law, like minimum wage, or strongly encouraged or regulated by law, such as pensions. Finally, Chapter 6 examines workplace health and safety.