The Law of Employment
Author:
Estreicher, Samuel
Edition:
2nd
Copyright Date:
2021
25 chapters
have results for employment law
Preface 6 results (showing 5 best matches)
- By now, Employment Law has come into its own. Perhaps in recognition of the declining strength of unions in private companies and the degree of job change and other ferment in major companies, courts are fast developing a body of employment law to complement the statutes in this area. With the ever-developing law, the practice, too, has changed. Lawyers are no longer Labor Lawyers or Civil Rights Lawyers; they are increasingly Labor and Employment Lawyers. Nomenclature is keeping pace: The plaintiff bar has organized itself as the National Employment Lawyers Association; the hoary Industrial Relations Research Association is now the Labor and Employment Research Association; and the sections of the bar in which the lawyers enroll are Sections of Labor and Employment Law. Not surprisingly, the American Law Institute has embarked for the first time on a Restatement of Employment Law.
- This change is also reflected in the law schools, where Employment Law has become the essential port of entry for students interested in the workplace; those specializing in the field go on to take courses in Labor Law and Employment Discrimination and, perhaps, Employee Benefits. Employment Law is also the course that provides the overarching conceptual framework, the analytic connective tissue that enables students and instructors to fit the pieces together, to understand, for example, how the law governing union organization ties in with the background rule of employment at-will in non-union shops.
- Not even 20 years ago, few law schools offered a course in Employment Law and few lawyers purported to practice in the field. The law of the workplace was divided into two subjects—Labor Law (the law of unions and collective bargaining) and Employment Discrimination Law (starting with Title VII of the Civil Rights Act of 1964 with accretions nearly annually as legislatures framed new anti-discrimination laws). Teachers taught in one area or the other but rarely in both. Lawyers, too, tended to divide themselves in a similar manner.
- This book seeks to provide a useful, stimulating aid for student and instructor alike as they encounter fast-paced judicial and statutory developments. It is organized in two parts: The first tracks the common law of the employment relationship; the second deals with statutory interventions in the historical order in which they appeared.
- Some of the chapters appeared in print in an earlier version, and I am grateful to Columbia Law’s dean Gillian Lester, my coauthor on the first edition, for graciously assigning her rights to the content in that edition. I also thank friends and coauthors who reviewed page proofs: Zachary D. Fasman, Laurence Gold, Michael C. Harper, and Elizabeth C. Tippett, and the many individuals involved in the American Law Institute Restatement of Employment law, for which I served as chief reporter, the inspired editors at Foundation Press, as well as the talented NYU and Columbia law students I have been fortunate to teach in more than 40 years on the job.
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Chapter 4 Employment Torts 47 results (showing 5 best matches)
- Since employment law does not generally modify tort law, this chapter focuses only on areas of tort law that are important in the employment context.
- One tort theory in the employment context that has obtained widespread support is for discharge or other discipline in violation of clearly established public policy. In a few jurisdictions, this has been extended to discipline and other adverse decisions falling short of a discharge. The tort is similar to the express anti-retaliation provisions found in employment statutes, such as anti-discrimination laws (discussed in Chapter 11), but allows a tort recovery and operates relatively free of the procedural requirements of any particular statute.
- Under the regulations of the War Manpower Commission (WPC), employers were required to furnish discharged employees with written statements of availability and employees seeking new employment were required to display these certificates to prospective employers. Barrett’s employer had written on the certificate that he was fired for “improper conduct toward fellow employees,” in violation of the WPC prohibition on publication of information “prejudicial to the employee in seeking new employment.” Publication was satisfied by the law’s requirement of self-publication.
- [W]rongful termination of employment ordinarily does not give rise to a cause of action for fraud or deceit, even if a misrepresentation is utilized to effect the termination. “[S]uch representations are merely the means to the end desired by the employer, i.e., termination of employment.” . . .
- Publication is a dissemination of information about an individual to third parties. As a practical matter, publication may be a difficult element for the plaintiff to prove in many cases because employers concerned about liability for defamation tend to adopt “no comment” policies, or will divulge only name, title and period of employment when responding to inquiries about former employees. Such policies may help employers avoid liability but they may also make it difficult for former employees to find new employment and disserve the public interest in having employment decisions based on accurate information about the employment records of job applicants.
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Employee Obligations and Inventions 76 results (showing 5 best matches)
- Employment law has its roots in the law of agency, and many aspects of modern employment law still invoke principles of agency. A core principle of agency is the duty of loyalty. An agent has “a fiduciary duty to act loyally for the principal’s benefit in all matters connected with the agency relationship.” This duty has been carried over into aspects of employment law.
- Restatement of Employment Law § 8.01 (2015)
- U.S. law is strongly protective of employer interests in safeguarding information acquired by employees in the course of employment. We see this in the trade secret law, competition law, and the rules governing ownership of inventions developed by employees in the course of employment. Why do we have these laws? Some arguments are grounded in morality. The origins of many of the core doctrines of unfair competition law lie in the belief that it would be unjust to deprive one who has invested in research, development of goodwill, and so forth, from the fruits of that investment. The law of agency also undergirds much of the law in this area, informed by the core tenet that it is a betrayal of the duty of loyalty for an agent to compete with or reveal the confidences of the principal, i.e., the employer.
- Employees, whether they are fiduciaries or not, are under an implied obligation (part of the duty of loyalty) not to compete with their employer while still an employee. This is a common law obligation and does not require an express agreement (when employers seek to prevent competition after termination of employment, an express covenant is required and will, as we shall see, trigger judicial scrutiny). Whether a fiduciary or not, an employee enjoys a common law privilege to prepare to compete in advance of a voluntary termination of employment
- Employees owe a duty not to disclose confidential employer information to a third party without the employer’s consent. This is a common law duty, not requiring an express agreement, and one that survives the termination of the employment relationship.
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Chapter 1 The Regulation of Labor Markets 23 results (showing 5 best matches)
- The NLRA, as mentioned, does not itself prescribe minimum terms; rather, it establishes a process of collective bargaining for workers choosing collective representation. Laws mandating certain disclosures, such as the occupational safety laws or federal and state WARN legislation requiring advance notice of plant closings, may be viewed as attempts at influencing the process of negotiating employment contracts. Laws establishing waivable terms that can be bargained away by workers can also be viewed as a process-based regulation forcing parties to a relationship to divulge information that would lead to better bargains. Consider here proposals to rewrite the background assumption of employment from a waivable rule of at-will employment to a waivable rule of just-cause employment.
- The Fair Labor Standards Act, child labor laws, OSHA and discrimination laws are examples of “minimum terms” laws or “mandates”. In essence, the state is prescribing certain terms for all employment contracts. Unlike taxing and spending measures, this form of regulation is “off budget”; the direct costs of regulation are not easily measurable and are borne, in the first instance, by employers and consumers.
- Many employment regulations are designed to inhibit competitive forces. This is particularly true of laws protecting the right to engage in union organization and collective bargaining or laws requiring the payment of minimum or prevailing wages. These laws seek to reduce competition from workers willing to work under conditions less favorable than the prescribed minima. Some regulations operate also to preserve the market position of existing companies by requiring new entrants to adhere to the regulatory conditions. For example, “prevailing wage” laws require governments to purchase goods and services from firms paying prevailing wages and benefits; whatever their stated rationale, such laws reduce competition among firms. Government from time to time may reexamine existing regulatory schemes, as it has in the airline and trucking industries, which may have outlived their usefulness, inhibiting competition among firms without discernible public benefit.
- This book deals with the body of U.S. law governing the relationship of employers and their employees (including others providing services to employers but may be classified by the employer as independent contractors). The employees or contractors covered by this book may be working for private companies or in the government sector. They may or not be represented by a labor union or other agency and may or not be considered a protected group under federal or state antidiscrimination statutes. This book has some early chapters devoted to collective bargaining and discrimination law but they are not its exclusive focus because these topics are typically covered in other texts and in other courses in the law school curriculum. There is also a historical basis for this approach. In the United States, regulation of labor markets first took the form of rules for labor organization and collective bargaining, followed by legislation in the 1960s to curb racial and other group-based...
- A variant of this argument is that the law may seek to alter the values or preferences of workers and firms in order that, over time, the bargains that are reached reflect these newly instilled values and sense of self-worth. For example, occupational safety laws may create certain expectations in workers of the proper conditions for work—expectations which form a new baseline for employment contracts. Discrimination laws also may be viewed as a (largely successful) instance of the use of law to effect preference transformation. In many situations the claim by opponents of regulation that the costs of hiring minority or female workers would be prohibitive (e.g., due to the adverse reactions of customers or coworkers) did not materialize once the law forced virtually all firms to disregard these
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Collective Organization and Collective Bargaining Law 33 results (showing 5 best matches)
- Although once the fountainhead of American employment law, union organizing and collective bargaining have receded in importance with the decline of union representation in private firms from 35 percent of the workforce in 1954 to under 10 percent today. Labor law remains important for several reasons. First, unions are still quite strong in manufacturing, transportation and certain service occupations. In addition, in government offices, unions represent nearly half of all public workers. Second, the “threat effect” of unionization—the risk non-union firms face that they may become unionized—often informs the pay and benefits they provide to their workers so that, in a sense, collective bargaining influences indirectly terms and conditions in the non-union sector. Third, much of U.S. employment law is built on the model of the labor laws; central concepts like “discrimination” and virtually all remedial principles are derived from those laws. Finally, organized labor is the...
- by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . .;
- In unusual circumstances, it may be possible to argue that employment conditions with the surviving entity or stock purchaser will so radically alter the preexisting employment relationship that the union cannot any longer to be the exclusive representative of the workers in an appropriate unit.
- Prior to the 1947 Taft-Hartley amendments, the closed shop was lawful. Section 8(a)(3), as amended, limits union security agreements to those which require as a condition of employment “membership” after the thirtieth day of employment. (This means that the obligation to pay dues does not arise until after the thirtieth day of employment.) Section 8(b)(2) bars unions from denying “membership” to employees on grounds other than the “failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.” , see note above, stated that only financial core membership can be required as a condition of employment.
- 301 preemption. That is the provision of the LMRA that gives federal courts jurisdiction over claims under collective bargaining agreements and has been held to authorize courts to develop a federal common law of collective bargaining agreements. There are two strands of
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Chapter 2 The Employment Relationship 48 results (showing 5 best matches)
- A threshold question for employment law is determining whether the firm and the individual providing services to the firm are in an employment relationship. This is especially important in dealing with statutes that typically limit their protections to “employees” and their obligations to “employers”. Not all individuals who provide services to firms are employees; some may view themselves or be viewed by the employer and as a matter of law as “independent contractors” who ordinarily are excluded from the scope of employment statutes or the employer’s own benefit policies. There are few exceptions, the most prominent being There are also special laws for independent businesses, notably those establishing rights for franchisees; such laws are outside the scope of this text. We also note that many of the contract and tort principles that are the subjects of Chapters 3–5 are not limited to employment relationships.
- That the element of control is likely to inform the joint-employment inquiry under the federal discrimination laws is suggested by EEOC guidelines on handling issues raised by contingent workers placed by temporary employment agencies
- The Restatement of Employment Law (hereafter Employment Restatement), which issued in 2015, recognizes that service providers can be employees even where the putative employer does not control or have the right to control how the work is being performed. This occurs when the putative employer “effectively prevents the individual from rendering those services is an independent businessperson.” Employment Restatement
- EEOC, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary
- As to the likely effect of the ABC test, most platform companies would have difficulty satisfying prong B. They have argued that they are not providing transportation or delivery services; their principal business is providing a platform, akin to a franchise. Prong C is also a problem. This explains why Lyft and Uber actively supported Proposition 22, which effectively ended use of the ABC test in California, and may discourage other states from adopting the ABC test in their employment law.
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Chapter 5 Workplace Privacy 33 results (showing 5 best matches)
- Another approach is the public policy cause of action discussed in the previous chapter. In addition, the Restatement of Employment Law recognizes several protected employee privacy and autonomy interests (§§ 7.01–7.08) that will figure in employer decisionmaking and employment litigation.
- These laws reflect an interest, related to privacy, in protecting employee interest in personal autonomy from employer infringement. See Employment Restatement § 7.08. In employee autonomy interest under Pennsylvania law that restricted employers from requiring employee political participation in support of state no-fault bill that would affected defendant’s business interests.
- Matthew W. Finkin, Privacy in Employment Law
- Drug Testing in the Workplace: The Challenge to Employment Relations and Employment Law
- Note, Antifraternizing Polices and At-Will Employment: Counseling for a Better Relationship
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Chapter 10 Wage and Hour Regulation 29 results (showing 5 best matches)
- The key question is whether costs outweigh benefits. Particularly contentious is the question of how the benefits and burdens of minimum wage laws are socially distributed. For example, we might worry less if minimum wage laws reduced the employment of college-bound middle class teenagers than if they reduced employment of low-skilled adults from low-income families. We do not purport to resolve this debate here, only to point out that the social utility of minimum wage laws—and the perennial question of whether Congress ought to increase the minimum wage and by how much—remain contested terrain.
- U.S. Department of Labor, Office of the Assistant Secretary for Policy, Employment Law Guide: Child Labor
- State laws regulate payment of wages in a variety of ways. In addition to their own wage-hour laws, states commonly regulate the form of payment, wage payments after separation from employment, The rationale for wage-payment laws is to protect employees from overreaching by employers refusing to make a final payment for a terminated employee or based on a dubious claim that an employee owes a debt. The concern is that employers might use their position of control over wage disbursements opportunistically to force an employee who contests an employer’s position to incur the costs of bring a legal action in order to recover wages owed. These laws sometimes paint with a broad brush. For example, in Eighteen months after the employee was reinstated on these terms, he successfully sued for disgorgement of all funds withheld to that point, claiming the use of a payroll deduction for this purpose violated Maine’s wage payment law.
- . More than half of the states have a higher minimum. See U.S. Department of Labor, Employment Standards Administration Wage and Hour Division,
- Under Title VII of the Civil Rights Act of 1964, by contrast, employees are protected from retaliation by “oppos[ing] any practice made an unlawful employment practice” by the statute § 704(a), . See Chapter 11 for a discussion of anti-retaliation clauses in federal employment statutes.
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Chapter 3 Employment Contracts 75 results (showing 5 best matches)
- Another important principle of U.S. employment law is the presumption that unless the contract of employment or relevant law specifies otherwise, employment is at-will: either party is free to terminate the relationship without notice or cause. Only Montana departs from this rule, as a matter of contract law, having enacted a statute requiring that an employer have good cause to terminate a non-probationary employee. The at-will presumption is a default rule that applies in the absence of an agreement by the parties or other enforceable promise to restrict termination. The employer’s ability to terminate the relationship is also limited by a significant array of statutory laws that, for example, prohibit termination of employees for discriminatory reasons or for filing claims, giving testimony, and otherwise asserting rights under those laws.
- Although the law here is less well settled than in the case of definite-term agreements, courts may be moving away from a traditional skepticism toward indefinite-term agreements in favor of enforcing in appropriate circumstances bargained-for agreements for an indefinite term that limit termination of employment. An indefinite-term agreement may leave open the duration of the relationship or may use vague terms like “permanent” or “career” employment. Such agreements may be enforceable if they are bargained over, typically in one-on-one dealings between the employer and employee at the time of hiring or preliminary or midterm negotiations, and there is evidence that the parties intended a “cause” limit to termination of indefinite-term employment by the employer. It will often be a question of fact whether the statements were merely casual comments expressing optimism about the future, or were instead intended to be binding promises of for-cause employment.
- See Samuel Estreicher & Jeffrey M. Hirsch, Comparative Unjust Dismissal Law: Reassessing American Exceptionalism, 92 U.N.C. L. Rev. 343 (2014); Samuel Estreicher,
- Consideration is an essential requirement of any contract. It is usually not an issue in the employment context. As long as the employer makes clear the terms of employment, employers provide consideration either by indicating consent or going to work under its terms. Common law decisions requiring mutuality of obligations are no longer adhered to. A promise to work (if the contract envisions acceptance by promise or performing work under stated terms) can provide consideration for several employer promises; the obligations of the parties need not be mutual.
- Nor is mutuality of obligation required for there to be an enforceable employment agreement. Mutuality of obligation was required in some early common law rulings; modern contract law suggests, however, that a promise is not illusory if the power to terminate is conditioned by an obligation to give notice, however brief, or on the occurrence of events beyond the promisor’s control. limitation on discharge or other adverse employment action, employees typically do not agree to limit their prerogative to quit the job with or without cause. Indeed, even if an employee were to agree to provide cause for a voluntary termination, the general rule is that specific performance would not be available to enforce a “personal services” contract. ...limit an employee’s freedom to end the relationship does have some alternative legal avenues available. For example, depending on state law, the parties may be able to enter into an agreement prohibiting the employee from competing against the employer...
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Title Page 2 results
Chapter 11 Employment Discrimination Law 30 results (showing 5 best matches)
- Although not limited to employment law, arbitration agreements covering employment disputes are increasingly common. In the 1980s, the Supreme Court issued a series of rulings expanding the reach of the Federal Arbitration Act (FAA)
- Our employment discrimination laws, and the central role they play in the overall framework of rules governing employment decisions, are a product of history. This history includes—for African-Americans, the legacy of slavery and postbellum official and private discrimination until the country began seriously to address these issues in the 1960s; for women, obstacles presented by official and private policies to restrict women to certain jobs and a continued pattern of gender pay differentials; for Hispanics and other immigrant groups, language and national origin barriers.
- Express authorization of disparate-impact challenges is found in § 703(k) of Title VII, as amended by the 1991 law. Section 703(k)(1)(B)(i) provides that the plaintiff must show that a “particular” employment practice causes a disparate impact, “except that if the complaining party can demonstrate to the court that the elements of a respondent’s decision-making process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.”
- By virtue of the Age Discrimination in Employment Act of 1967 (ADEA) , the federal anti-discrimination principle also applies to employees over the age of 40 complaining of age-based employment discrimination. (In some states like New Jersey, individuals above the age of 18 are also protected against age bias, in some cases even discrimination in favor of older workers.) Federal law protects
- Although some state laws barred handicap discrimination prior to the enactment of the Americans With Disabilities Act of 1990 (ADA), only federal sector employers and government contractors were under a duty, as a matter of federal law, not to discriminate against otherwise qualified employees on account of their disability. With the passage of the ADA, all private and public employers with 15 or more employees are barred from disability-based discrimination. (Thus, ADA’s coverage is coextensive with that of Title VII.) ADA represents an extensive regulation of the workplace. The statute bars both intentional and disparate-impact discrimination. All employment standards having an adverse impact on individuals with disabilities must be “job-related and consistent with business necessity.” Employers may also not require medical examinations prior to making offers of employment (except for tests for illegal drug use); post-offer examinations must be job-related, consistent with...
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Chapter 8 Unemployment Insurance 54 results (showing 5 best matches)
- Another limitation on coverage is the definitions of “employment” and “employee.” FUTA exempts from taxation wages connected with certain types of employment (e.g., service performed in the employ of certain religious, charitable, or educational However, it specifically requires that some of these federally tax-exempted areas of employment—labor performed for state and local governments, nonprofit organizations, and Indian tribes— be covered under state law. Coverage is extended to federal employment under two programs: Unemployment Compensation for Federal Civilian Employees (UCFE) and Unemployment Compensation for Ex-Service members (UCX). Railway workers, as well, are covered by a special program administered by the Railway Retirement Board.
- (providing that leaving employment to accompany a spouse receiving a military reassignment suffices as a good cause);
- Employment and Training Administration, U.S. Department of Labor, Comparison of State Unemployment Insurance Laws: Monetary Entitlement 3–
- Employment and Training Administration, U.S. Department of Labor, Comparison of State Unemployment Insurance Laws: Appeals 1–4 (2007)
- supra note 64, at 5–22—5–25 tbl. 5-10 (summarizing state laws on part-time employment restrictions).
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Occupational Safety and Health 26 results (showing 5 best matches)
- To the extent the law covers all of the nation’s employers, OSHA should create no competitive disadvantage within American product markets. If the countries with whom we compete have similar laws which are enforced with comparable efficacy, there should be no competitive disadvantage in those foreign markets. However, such laws do increase the cost of hiring workers at the margin, and hence may reduce employment levels. Moreover, within the U.S., the law may be enforced unevenly, for the government tends to inspect workplaces where employees or their representatives have lodged complaints, particularly stringent standards may have been imposed on certain industries but not others, and the “feasibility” constraint on standards (authorized by the law) may tend to shield weaker industries from the full regulatory reach.
- OSHA does not, as a general matter, preempt state workers’ compensation laws or occupational safety and health regulation. Under Section 4(b)(4), the Act is not to be construed “to supersede or in any manner affect any work[ers’] compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.”
- OSHA applies “with respect to employment in a workplace. . . .” the Labor Department argued that the temporary housing provided to migrant farm workers, although not a condition of employment, was directly related to the workers’ employment and was a “workplace” subject to OSHA standards. The Eleventh Circuit disagreed, reasoning that the agency’s authority was limited to “the place where work is performed,” The court insisted on adherence to the agency’s prior condition-of-employment interpretation: “Only if company policy or necessity force workers to live in employer provided housing is the degree of coercion such that the hazards of apartment living are sufficiently related to employment to come under the scope of the Act.”
- shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. . . .
- did not offer a clear analysis of the relationship between the savings clause in Section 4(b)(4) and the rule of preemption under Section 18 once a federal standard has been promulgated under OSHA. Presumably, even if there is a federal standard in place, the states can still apply their workers’ compensation laws and other laws “with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” The issue might come up where states seek to impose criminal penalties for workplace hazards that also violate an OSHA standard. In
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Table of Contents 38 results (showing 5 best matches)
Chapter 13 Employee Benefits Law 58 results (showing 5 best matches)
- Although ERISA offers definitions for the terms “employee pension benefit plan” and “employee welfare benefit plan” in § 3(1)–(3), the statute does not define the operative term “plan”. It will not always be clear whether the employee benefit provisions of a particular employment contract are part of an ERISA-covered plan rather than merely terms of a contract governed by state law. This question often arises in the context where the employer is arguing that an employee or former employee’s state law claim is preempted by ERISA, presumably to take advantage of the no-jury trial and limited damages available in ERISA actions. As will be discussed below, such a claim is preempted if it “relates to” the administration of an ERISA plan. Sometimes, the employee-claimant will be arguing for ERISA coverage in order to avoid a provision in the employment contract purporting to authorize forfeiture of accrued benefits if, say, the employee is fired for “cause” or the employee works for a...
- As is true of virtually all employment statutes, and as we have seen in connection with the litigation, the law does not require an employer to provide even undisputed common-law employees with pension or welfare benefits.
- In our view, the term “participant” is naturally read to mean either “employees in, or reasonably expected to be in, currently covered employment,” or former employees who “have . . . a reasonable expectation of returning to covered employment” or who have “a colorable claim” to vested benefits. In order to establish that he or she “may become eligible” for benefits, a claimant must have a colorable claim that (1) he or she will prevail in a suit for benefits, or that (2) eligibility requirements will be fulfilled in the future. . . . “A former employee who has neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits, however, simply does not fit within the [phrase] “may become eligible.”
- In that case, a class of individuals performing services for Microsoft sued the company and its various pension and welfare plans, including its Savings Plus Plan (SPP), an ERISA-covered plan, and sought a determination that they were entitled to participate in the plan benefits because those benefits were available, in the terms of the SPP, to “any common law employee . . . who is on the United States payroll” of Microsoft. After signing agreements acknowledging they were independent contractors, the plaintiffs were hired to work on specific projects and performed a number of different functions, such as production editing, proofreading, formatting, indexing, and ...were not paid for their services through the payroll department, but rather submitted invoices to and were paid through the accounts payable department. An IRS audit determined that the plaintiffs were employees as to whom employment taxes should have been paid and income taxes withheld. Microsoft then offered some of...
- Whether the case involves pension benefits or welfare benefits, the threshold question is whether a benefits arrangement unilaterally provided by an employer or set out in an employment contract is a “plan, fund, or program” covered by ERISA. Even though vacation benefits are listed in ERISA § 3(1), that reference “should be understood to include within the scope of ERISA those vacation benefit funds, analogous to other welfare benefits, in which either the employee’s right to a benefit is contingent upon some future occurrence or the employee bears a risk different from his ordinary employment risk.”
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SUMMARY OF CONTENTS 24 results (showing 5 best matches)
Chapter 7 Workers’ Compensation Law 35 results (showing 5 best matches)
- The principal limit on coverage is the requirement, found in all of the jurisdictions, that the injury “arise out of and in the course of employment”. Although usage varies among jurisdictions, the “in the course of” element refers to injuries occurring in connection with activity occurring within the time and place limits of the employment relationship; the “arise out of” element refers to the origin or cause of the injury. “An injury ‘arises out of’ employment when it has its origin in an employee’s work-related functions and is sufficiently related to those functions to be considered part of the employee’s employment contract.”
- The rights given to a subject worker . . . under this chapter for injuries, diseases, symptom complexes or similar conditions arising out and in the course of employment are in lieu of any remedies they might otherwise have for such injuries . . . or similar conditions against the worker’s employer under other laws, common law or statute, except to the extent the worker is expressly given the right under this chapter to bring suit against the employer of the worker for an injury . . . or similar condition.
- The essential features of these laws reflected a grand compromise: Workers should be able to receive fairly prompt compensation for medical expenses and injuries sustained in the course of performing work for their employer. Compensation would be forthcoming without any inquiry into fault on the employer’s or anyone else’s part; the only question would be whether the injury was sustained “in the course of employment”. Compensation claims would be handled in a special administrative process outside of the courts, and hence the tort doctrines recognized by the courts would be inapplicable. The program would be funded by an employment tax; this charge would be absorbed by the firm as the cost of doing business.
- By a variety of rationales, courts exclude injuries arising out sexual harassment by co-workers from workers’ compensation. Colorado takes the view that such assaults are “inherently private” and thus do not “arise out of” the employment relation even though they take place during the workday at the place of employment.
- It is unclear to what extent injuries and illnesses contracted as a result of COVID-19 are covered by workers’ compensation. In New York, of example, the workers’ compensation law covers “accidental injuries arising out of and in the course of employment,” diseases” incurred on the job. Coverage for contracting COVID-19 is not likely under the “occupational disease” provision. The term “occupational disease” is defined as “a disease resulting from the nature of employment and contracted therein.” ...disease” to refer to diseases “resulting from the ordinary and generally recognized risks incident to a particular employment,” as opposed to diseases “resulting from the general risks and hazards common to” everyone. There, a theater ticket booth cashier’s claim complaining of inadequate heating was denied because the cashier’s “occupation was that of handling cash and theatre tickets” and that “this work in and of itself could not have caused the leg injury or disease” such that any...
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Chapter 14 Plant Closing Notice Law 5 results
- For definition of “employment loss,” see
- Plant closings and mass layoff are serious events with longstanding effects in the life of affected American workers and the larger community. Unlike major European countries, where legislation requires In the event of a plant closing payment of mandatory severance pay based on years of employment. Major employers in the U.S. typically provide severance pay which is similar to redundancy pay but is not mandatory. Employers as a matter of contract law generally would be liable to make these payments for services rendered while the severance pay policy was in effect, but there would no obligation to maintain these payments for future services. Some states have sought to regulate in this area, but have to be careful to avoid triggering ERISA preemption. For union-represented employees, there is likely to be some bargaining with the employer over ways of mitigating the likely effects of the company’s intended action, but this so-called “effects bargaining is likely to come too late to...
- Remedies include backpay, benefits, and medical care for period of the employment loss.
- WARN does not preempt state and local laws or collective bargaining agreements raising standards above the federal level. See
- The law requires 60 days’ advance notification of plant closings and mass layoffs to employees, unions and state and local officials. Several states have their own WARN statutes to fill in gaps in federal coverage.
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Index 121 results (showing 5 best matches)
Chapter 15 Personal Leave Law 8 results (showing 5 best matches)
- Congress also declared that the protections of the statute are available on a gender-neutral basis in order to minimize the potential for employment discrimination and to promote the goal of equal employment opportunity for men and women.
- When the employee returns, the employer must restore the employee to his or her original position, or an equivalent position in terms of pay, benefits, and other terms and conditions of employment.
- provides that “Each employer shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice, to be prepared or approved by the Secretary, setting forth excerpts from, or summaries of, the pertinent provisions of this subchapter and information pertaining to the filing of a charge.”
- By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes.
- Some critics question whether the FMLA’s gender-neutral provision of unpaid job-protection benefits does enough to advance Congress’s articulated goal of promoting equal employment opportunity for men and women. Women are significantly more likely than men to take a leave from work to care for children or elders, and the average length of leave taken by men for a birth or adoption is only about five days.
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Table of Cases 9 results (showing 5 best matches)
- Bussmann Mfg. Co. v. Industrial Comm’n, Div. of Employment Sec., 154
- Employment Div., Dep’t of Human Resources of Or. v. Smith, 159
- Express Bus, Inc. v. Employment Sec. Comm’n, 147
- Fleece on Earth v. Department of Employment & Training, 147
- Frazee v. Illinois Dep’t of Employment Sec., 158
- Open Chapter
Editorial Board 10 results (showing 5 best matches)
- William B. Graham Distinguished Service Professor of Law and Former Dean of the Law School
- Charles J. Ogletree Jr. Professor of LawHarvard Law School
- Ernest W. McFarland Professor of LawStanford Law School
- Sterling Professor of International Law and Former Dean of the Law School
- Sho Sato Professor of Law
- Open Chapter
- Publication Date: July 26th, 2021
- ISBN: 9781642427059
- Subject: Employment Law
- Series: Concepts and Insights
- Type: Hornbook Treatises
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Description:
This textbook is a one-volume treatment of the basic analytical structure and legal policy issues informing U.S. employment law. The full range of the subject matter is examined with chapters on defining who are employees (as opposed to independent contractors); employment contracts; employment torts; workplace privacy; post-termination restraints and workplace intellectual property issues; employee benefits; wage-hour laws; occupational safety; workers’ compensation; and unemployment compensation.
Introductory chapters are also included on the economic analysis of employment regulation, employment discrimination, union organization, and collective bargaining laws. The book is designed as a complement for all leading casebooks on employment law, in that it approaches the issues in a comprehensive manner that will enable the student to understand how these laws interact in particular cases. Unlike other employment law treatises, this book moves well beyond the descriptive to empower the student in tackling difficult analytical and policy issues in the field.
