Principles of Employment Law
Authors:
Hodges, Ann C. / Gely, Rafael
Edition:
2nd
Copyright Date:
2018
18 chapters
have results for employment law
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.
- 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.
- 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 seven 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 35 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 including, for example, claims relating...
- 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:
- 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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Chapter 2 Job Security 123 results (showing 5 best matches)
- American Law Institute, Restatement of the Law Third Employment Law (2015) [hereinafter Restatement of Employment Law]. Although labeled the “Third” Restatement, there does not currently exist a Restatement of Employment Law.
- In 2015, the American Law Institute (ALI) published the Restatement (Third) of Employment Law. The Restatement includes nine chapters which address the existence of the employment relationship, the termination of employment contracts, issues of compensation and benefits, principles of tort liability for tortious acts to employees, the tort of retaliation in violation of public policy, other tort actions like defamation, wrongful interference and misrepresentation, principles of privacy and autonomy, employee obligations and restrictive convenants, and remedies.
- In proposing META, the National Conference of Commissioners on Uniform State Laws hoped to eliminate the disjointed employment framework that currently exists as a result of states adopting differing approaches to modifying the employment-at-will doctrine. To date, however, no state has adopted META.
- A 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,
- Although the law governing the employment relationship has evolved considerably over the years, its patchwork quality has led many commentators to argue in support of a comprehensive and uniform legislative approach to replace the different and often competing state judicial approaches to the employment-at-will doctrine. This section briefly overviews three efforts to reform the employment-at-will doctrine as well as a proposal to clarify the many state standards governing the doctrine.
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Chapter 1 Defining the Employment Relationship 66 results (showing 5 best matches)
- 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.
- 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 as well. 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.
- 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.
- Despite the general prohibition on employing children, the employment of children is widespread in certain industries, since both federal and state laws provide plenty of opportunities for lawful child employment. The rationale for allowing the employment of young children is in part the belief that children benefit from some kind of work experience, particularly when such experience occurs in fairly safe environments and under the supervision of someone who cares for the child, such as a parent. The safety of employment in family businesses, however, has been challenged by recent data. A report by the Bureau of Labor Statistics concludes that regardless of industry, children employed in family businesses face a significantly higher risk of injury as compared to other youths.
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Chapter 5 Mandated Terms and Conditions of Employment 139 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.
- The law requires sixty days written notice of any closing or layoff to the union representing the employees, or if there is no union, to each employee affected by the action. Notice is also required to the state where the employment loss occurs and the chief elected official of the local government where the employment loss occurs.
- 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 is defined as a layoff that exceeds six months or 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, 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 requirement.
- For example, in 2017 two studies published within weeks from each other reached conflicting results regarding the employment effects of Seattle’s law increasing the minimum wage. Compare, Michael Reich, Sylvia Allegretto, & Anna Godoey, Seattle’s Minimum Wage Experience 2015–16, Center for Wage and Employment Dynamics, Institute for Labor and Employment University of California, Berkeley (June 2017), with Ekaterina Jardim, Mark C. Long, Robert Plotnick, Emma van Inwegen, Jacob Vigdor, & Hilary Wething, Minimum Wage Increases, Wages, and Low-Wage Employment: Evidence from Seattle, NBER Working Paper No. 23532 (June 2017).
- 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.
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Foreword 13 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
- Marion Crain became chair of the Group at the beginning of 2011. That same year, the Group sponsored a one-day conference on the crisis confronting public-sector employment, the proceedings of which were published in the
- 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 in 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 coursebooks, 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 coursebooks to serve as successors to the Group’s earlier works covering public employment bargaining and labor arbitration.
- 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 nonprofit trust in which royalties from past work finance future meetings and projects.
- The Labor Law Group currently has nine books in print. West Academic has published
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Chapter 4 Employee Obligations to Employers 65 results (showing 5 best matches)
- In states where the agreements are enforceable, they may be governed by statute or, more often, by common law. The first question a court will address when evaluating a noncompetition agreement is whether consideration was provided in exchange for that promise. Many courts will find an agreement entered at the time of hire to be supported by the consideration of employment itself, even when the employment is at-will, with no guarantee that the job will last. Some courts also apply the same rule to covenants adopted during employment, accepting continued work as consideration. Courts in other states require additional consideration for these agreements to be valid, such as a pay raise or change in employment status. Finally, some courts consider the duration of employment in evaluating whether a noncompete agreement is enforceable.
- 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 discussed in Chapter 2, supra, an employee who enters a contract for a specific duration can sue the employer if the contract is terminated prematurely. However, the employee can also be sued if the employee decides to leave prior to that time. In addition to contractually agreed obligations, employees might be subject to other duties towards their employers which are created by law, and thus implied in all employment contracts.
- Restatement of the Law, Employment Law § 8.09
- Restatement of Employment Law, § 8.01
- See Restatement of Employment Law, supra note 83
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Chapter 3 Privacy, Autonomy and Dignity in the Workplace 142 results (showing 5 best matches)
- 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);
- The increasing number of state medical marijuana laws have led to claims from employees who have been terminated or denied employment based on lawful use of medical marijuana. Employees alleging wrongful termination based on public policy reflected in medical marijuana statutes have been unsuccessful in several states, as courts have found the law was not intended to regulate employment. The fact that federal law continues to prohibit use of medical marijuana has influenced courts considering these cases to rule for employers.
- Restatement of Employment Law §§ 7.02–7.05
- Several states also have laws limiting the use of credit checks by employers. Illinois, for example, prohibits obtaining credit reports or making employment decisions on the basis of credit history or credit reports, with exceptions for certain defined jobs where credit history is a bona fide occupational requirement.
- 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, although a few states restrict the use of honesty tests. 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.
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Table of Contents 20 results (showing 5 best matches)
Chapter 6 The Regulation of Workplace Health and Safety 73 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. 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.
- Employment Law, § 7.24, at 644 (5th ed. 2015).
- Id. at 739, 385 S.E.2d at 379–80. Courts in Virginia may be confusing the various risk doctrines. See Steven L. Willborn, et al., Employment Law: Cases and Materials 938 (5th ed. 2012).
- For an injury to occur in the course of employment, it must happen within a period of employment at a place where the employee reasonably may be when performing employment duties and while the employee is fulfilling those duties or doing an activity incidental to them. related activity, the injury clearly satisfies the course-of-employment requirement.
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Index 58 results (showing 5 best matches)
Title Page 4 results
Chapter 7 Privatization of Employment Dispute Resolution 38 results (showing 5 best matches)
- the Court opened the door to widespread adoption and enforcement of arbitration agreements in employment. Because in the arbitration provision was included in a securities registration application, and not in an employment contract, the Court did not need to determine the scope of the exclusion for employment contracts in the Federal Arbitration Act (FAA). The FAA, the statutory basis for enforcing arbitration agreements, states “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” As a result, employers could impose agreements to arbitrate all claims relating to employment on most employees as a condition of employment, with limited exceptions.
- Challenges to arbitration based on differences between arbitral and judicial procedure frequently argue unconscionability. Unconscionability is a state law concept, and cases vary in their application. In , a claim for employment discrimination and harassment under state and federal law, the court found an arbitration provision unconscionable. involving claims under the Fair Labor Standards Act, Age Discrimination in Employment Act, Title VII and the Employee Retirement Income Security Act, the court enforced a similar arbitration agreement. Although there was a disparity in bargaining power and acceptance was a condition of employment, the court found no procedural unconscionability.
- Mark Gough, The High Cost of an Inexpensive Forum: An Empirical Analysis of Employment Discrimination Claims Heard in Arbitration and Civil Litigation, 35 Berk. J. Emp. & Lab. L. 91, 97–99 (2014); Colvin & Pike, supra note 66 in Labor and Employment Law and Economics 361, 380 (Kenneth G. Dau-Schmidt et al., eds. 2009).
- for example, the court found that the parties agreed to arbitration where the employer sent a letter informing the employees that “[s]eeking, accepting or continuing employment” constituted an agreement to arbitrate employment disputes and the employee continued employment, thereby accepting the offer. , the court refused to enforce an arbitration agreement that applicants were forced to sign in order to be considered for employment. The court found a promise to consider the plaintiff’s application to be inadequate consideration under Tennessee law. Further, because the arbitration provider reserved the right to change the rules and procedures of arbitration at any time without notice to the employees or their consent, any promise by the provider in exchange for the agreement to arbitrate was illusory. The court in
- . Although the cases were not employment law cases, because they were decided under the Federal Arbitration Act they apply to employment arbitration.
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Summary of Contents 7 results (showing 5 best matches)
Table of Cases 16 results (showing 5 best matches)
West Academic Publishing’s Law School Advisory Board 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: January 17th, 2018
- ISBN: 9781683283591
- 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 seven 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. Chapter 6 examines workplace health and safety. Finally, Chapter 7 discusses the expanding role of arbitration in the resolution of employment disputes.
