Principles of Employment Law

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More About This Textbook

Overview

West® understands that, over time, teaching and learning methods change. Concise Hornbooks have been developed specifically to provide for the needs of today's law student. The series features concise analyses of basic areas of law by prominent legal scholars.
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Product Details

  • ISBN-13: 9780314168771
  • Publisher: West Academic Publishing
  • Publication date: 2/28/2009
  • Series: Concise Hornbook Series
  • Edition description: New Edition
  • Pages: 309
  • Product dimensions: 6.20 (w) x 9.30 (h) x 0.50 (d)

Table of Contents

Chapter 1 Defining the Employment Relationship 1

§1.1 Who Is an Employee? 1

1.1.1 The Employee Versus the Independent Contractor 1

1.1.1.1 What Is at Stake? 1

1.1.1.2 Determining a Worker's Status 2

1.1.1.2.1 The Common Law Test 4

1.1.1.2.2 The Economic Reality Test 5

1.1.1.2.3 The Hybrid Test 10

1.1.1.3 Critical Appraisals of the Employee/Independent Contractor Distinction 11

1.1.2 Individuals Who Cannot Be Employed 12

1.1.2.1 Children 12

1.1.2.2 Undocumented Workers 14

§1.2 Who Is an Employer? 16

1.2.1 The Employee/Employer Distinction 16

1.2.2 Multiple Potential Employers 18

Chapter 2 Job Security 20

§2.1 The Employment-at-Will Doctrine 21

§2.2 Statutory Protections 22

§2.3 Common Law Protections 23

§2.4 Is Employment at Will the Default Rule? 23

§2.5 Contract Based Modifications to Employment at Will 24

2.5.1 Express Contract Modifications 24

2.5.1.1 Just-Cause Contracts 24

2.5.1.2 Specific Duration Contracts 27

2.5.1.3 What Is Just Cause? 29

2.5.2 Implied Contract Modifications 30

2.5.2.1 The Case of Employee Handbooks 30

2.5.2.1.1 Legal Standard 31

2.5.2.1.2 Disclaimers 33

2.5.2.1.3 Handbook Modifications 34

2.5.2.2 Implied-in-Fact Contracts 36

2.5.3 Promissory Estoppel 37

2.5.4 Covenant of Good Faith and Fair Dealing 38

§2.6 Tort Based Modifications to Employment at Will 40

2.6.1 Discharge in Violation of Public Policy 40

2.6.1.1 What Is Public Policy? 42

2.6.1.2 Public Versus Private Concerns 44

2.6.1.3 Elements of a Successful Claim 46

2.6.1.4 Activities Protected by the Tort 47

2.6.1.4.1 Refusing to Engage in Illegal Conduct 48

2.6.1.4.2 Performing a PublicObligation 50

2.6.1.4.3 Exercising a Legal Right or Privilege 50

2.6.1.4.4 Reporting a Statutory Violation 52

2.6.1.5 Preclusion 54

2.6.1.5.1 Exclusivity Concerns 54

2.6.1.5.2 Preemption Concerns 56

2.6.1.6 In-House Attorneys and the Tort of Wrongful Discharge 57

2.6.2 Intentional Infliction of Emotional Distress 60

2.6.3 Intentional Interference With Contractual Relations 63

§2.7 Reform Efforts and the at-Will Doctrine 66

2.7.1 The Montana Wrongful Discharge From Employment Act 67

2.7.2 The Model Employment Termination Act 68

2.7.3 The American Law Institute's Proposed Restatement of the Law Third, Employment Law 69

Chapter 3 Privacy, Autonomy and Dignity in the Workplace 71

§3.1 Protections Regarding Speech and Association 72

3.1.1 Constitutional Protection for Speech 72

3.1.2 Constitutional Protection for Association 78

3.1.3 Statutory Protection 80

3.1.3.1 Private Sector Labor Law 80

3.1.3.2 Public Sector Labor Laws 83

3.1.3.3 Other State Laws 84

§3.2 Protection From Instrusive Employment Practices 85

3.2.1 Background Investigations 86

3.2.2 Interrogation 94

3.2.2.1 Statutory Restrictions 94

3.2.2.2 Constitutional Restrictions 96

3.2.3 Searches 97

3.2.3.1 Constitutional Limitations 97

§3.2 Protection From Intrusive Employment Practices-Continued

3.2.3.2 Invasion of Privacy and Other Tort Claims 100

3.2.3.3 Statutory Restrictions 101

3.2.4 Surveillance and Monitoring 102

3.2.4.1 Constitutional Restrictions 102

3.2.4.2 Invasion of Privacy and Other Tort Claims 103

3.2.4.3 Statutory Restrictions 105

3.2.4.4 A Duty to Monitor? 106

3.2.5 Pre-Employment and Employment Testing 106

3.2.5.1 Polygraph Examinations 106

3.2.5.2 Honesty Tests 108

3.2.5.3 Psychological and Personality Tests 109

3.2.5.4 Medical Tests 110

3.2.5.5 Genetic Testing 111

3.2.5.6 Drug Testing 113

3.2.5.6.1 Constitutional Restrictions 114

3.2.5.6.2 Statutory Restrictions 115

3.2.5.6.3 Common Law Claims 116

3.2.6 Regulation of Off-Work Activity 117

3.2.6.1 Constitutional Protections 117

3.2.6.2 Common Law Claims 118

3.2.6.3 Statutory Claims 121

3.2.6.4 Contractual Claims 123

3.2.7 Grooming and Dress Restrictions 123

3.2.7.1 Constitutional Claims 124

3.2.7.2 Statutory Causes of Action 125

§3.3 Negligent Hiring, Supervision and Retention 128

Chapter 4 Employee Obligations to Employers 132

§4.1 Implied Duty of Loyalty 133

4.1.1 Soliciting Customers or Co-Workers 134

4.1.2 Assisting a Competitor 135

4.1.3 Remedies 136

§4.2 Trade Secrets 136

4.2.1 Definition of Trade Secrets 136

4.2.2 Misappropriation of Trade Secrets 139

§4.3 Employee Inventions 141

4.3.1 The Shop Right Doctrine 142

4.3.2 "Holdover" Provisions 143

4.3.3 Statutory Protections 144

§4.4 Noncompetition Covenants 145

4.4.1 Enforceability 145

4.4.2 Remedies 150

4.4.3 Noncompetition Agreements and Lawyers 151

Chapter 5 Mandated Terms and Conditions of Employment 152

§5.1 Wages and Hours 152

5.1.1 Introduction 152

5.1.2 Fair Labor Standards Act 154

5.1.2.1 Overview 154

5.1.2.2 Substantive Obligations 154

5.1.2.2.1 Minimum Wage 155

5.1.2.2.2 Overtime Pay 156

5.1.2.2.3 Child Labor Restrictions 156

5.1.2.3 Coverage 157

5.1.2.3.1 The Employer-Employee Relationship 157

5.1.2.3.2 Individual or Enterprise Coverage 158

5.1.2.3.3 Exempt and Nonexempt Employees 160

5.1.2.4 Implementation Problems 164

5.1.2.4.1 Defining Compensable Time 164

5.1.2.4.2 Determining the Base Rate 166

5.1.2.5 Enforcement Issues 168

5.1.3 Living Wage Ordinances 170

5.1.4 State Wage Payments Laws 171

5.1.5 Equal Pay Act 173

5.1.5.1 Overview 173

5.1.5.2 Elements of a Violation 174

5.1.5.3 Employer's Defenses 175

5.1.5.4 Remedies 176

§5.2 Family and Medical Leave Act 177

5.2.1 Overview 177

5.2.2 Typically Litigated Issues 180

5.2.2.1 What is a Serious Health Condition? 181

5.2.2.2 Notice Questions 182

5.2.2.3 Employee's Reinstatement to the Same or Equivalent Position 183

§5.3 Employee Retirement Income Security Act 184

5.3.1 Overview 184

5.3.1.1 Coverage of ERISA 185

5.3.1.2 What Is a Plan? 186

5.3.1.3 Who Is an Employee? 187

5.3.1.4 Reporting and Disclosure Obligations 188

5.3.2 Pension Plans 190

5.3.2.1 Types of Pension Plans 190

5.3.2.2 Minimum Plan Design Features 192

§5.3 Employee Retirement Income Security Act-Continued

5.3.2.3 Code Limitations and Nondiscrimination Rules 195

5.3.2.4 Plan Termination and Insurance 196

5.3.2.5 Amendment of Pension Plans 199

5.3.3 Welfare Plans 199

5.3.3.1 Types of Welfare Benefit Plans 200

5.3.3.2 Regulation of Health Plans 201

5.3.3.3 Amendment of Welfare Plans 203

5.3.4 Fiduciary Regulation 204

5.3.4.1 Who Is a Fiduciary? 204

5.3.4.2 Fiduciary Standards 206

5.3.4.3 Prohibited Transactions 208

5.3.4.4 Special Issues Regarding 401(k) Plans 209

5.3.5 Enforcement 210

5.3.5.1 Causes of Action Under ERISA 210

5.3.5.2 Remedies 211

5.3.5.3 Preemption 212

§5.4 Unemployment Compensation 215

5.4.1 Overview of the Program 215

5.4.1.1 Coverage 215

5.4.1.2 Taxes 216

5.4.1.3 Benefits 217

5.4.1.3.1 Qualifying Requirements 217

5.4.1.3.2 Amount of Benefits 217

5.4.1.3.3 Duration of Benefits 218

5.4.1.3.4 Disqualification for Benefits 218

5.4.1.4 Administration 219

5.4.1.5 Preclusion of Other Claims 220

5.4.2 Eligibility 220

5.4.2.1 Circumstances of Separation 220

5.4.2.1.1 Voluntary Quit 221

5.4.2.1.2 Termination 222

5.4.2.1.3 Unemployment Resulting From a Labor Dispute 224

5.4.2.2 Continuing Eligibility 226

5.4.3 Critical Perspectives 228

§5.5 Worker Adjustment and Retraining Notification Act 229

5.5.1 Coverage 229

5.5.2 Notice Required 230

5.5.3 Employer Defenses to the Failure to Give Required Notice 230

5.5.4 Enforcement 231

Chapter 6 The Regulation of Workplace Health and Safety 235

§6.1 Workers' Compensation 235

6.1.1 Overview 235

6.1.2 The Exclusivity Principle 237

6.1.2.1 Intentional Conduct 238

6.1.2.2 The Dual Capacity & Dual Persona Doctrines 239

6.1.3 Injuries and Occupational Diseases 241

6.1.4 The Course of Employment 244

6.1.4.1 The Personal Comfort Doctrine 244

6.1.4.2 The Horseplay Rule 245

6.1.4.3 Recreational and Social Events 247

6.1.4.4 The Going and Coming Rule 248

6.1.4.4.1 The Special Mission Exception 249

6.1.4.4.2 Premise Line Exception 249

6.1.4.4.3 Employer Conveyance Exception 250

6.1.4.4.4 Travelling Employee Exception 250

6.1.5 Arising Out of Employment 251

6.1.5.1 Increased Risk Test 252

6.1.5.2 Actual Risk Test 252

6.1.5.3 Positional Risk Test 253

The Statutory Defense of Willful Misconduct 253

§6.2 Occupational Safety and Health Act 254

6.2.1 Coverage 254

6.2.2 Procedural Overview 255

6.2.3 Employer Duties 257

6.2.4 Standards Promulgation 258

6.2.5 Establishing a Violation of an OSHA Standard 260

6.2.5.1 Specific Duty Clause Violation 260

6.2.5.2 General Duty Clause Violation 262

6.2.5.3 Employer Defenses 264

6.2.5.3.1 Unpreventable Employee Misconduct 265

6.2.5.3.2 Infeasibility 265

6.2.5.3.3 Greater Hazard 266

6.2.6 Employee Rights and Responsibilities 266

6.2.6.1 Overview of Rights 266

6.2.6.2 The Right To Be Free from Retaliation 267

6.2.6.3 Employee Responsibilities 268

Table of Cases 271

Index 297

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