Employment Law

by Estreicher, Samuel; Lester, Gillian

• ISBN13: 9781587784798
• ISBN10: 1587784793
• eBook ISBN(s): 9781628102550
• Format: Paperback
• Copyright: 2008-04-07
• Publisher: West Academic
• More Book Details

Summary

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.

Author Biography

Samuel Estreicher is Dwight D. Opperman Professor of Law & Director of the Center for Labor and Employment Law at New York University School of Law. He teaches and writes in the areas of Labor Law, Employment Discrimination Law, Employment Law, ADR, Federal Courts, and Supreme Court Litigation Gillian Lester is Professor of Law at the University of California, Berkeley. She teaches Employment Law and Contracts and has written in such areas as Social Insurance and Employee Benefits, Discrimination Law, and Workplace Intellectual Property

Table of Contents

Preface	p. v
The Nature of Labor Markets
The Regulation of Labor Markets	p. 1
The Model of Competitive Labor Markets	p. 1
Reasons for Regulation of Labor Markets	p. 6
Redistribution	p. 6
Evolving Social Norms or Preference Transformation	p. 7
Correcting "Market Failure"	p. 7
Objections to Regulation	p. 10
Modes of Regulation	p. 12
Taxing and Spending Measures	p. 12
"Minimum Terms" Laws or Mandates	p. 12
Regulation of the Process of Bargaining	p. 13
The Employment Relationship	p. 14
What is at Stake?	p. 14
The Nature of the Employment Relationship	p. 15
Tests for Employee Status	p. 17
Common Law or "Right of Control" Test	p. 17
The "Economic Realities" or "Economic Dependency" Test	p. 21
Areas of Difficulty under the Common Law or "Right of Control" Test	p. 23
Laws Distinguishing Among Employees	p. 26
Joint Employment	p. 30
The Common Law of the Employment Relationship
Contractual Exceptions to Employment At-Will	p. 33
Presumption of At-Will Employment	p. 33
Agreements for a Definite Term or for an Indefinite Term Limiting Termination of Employment	p. 35
General Principles of Contract	p. 35
Agreements for a Definite Term	p. 36
Agreements for an Indefinite Term Limiting Termination of Employment	p. 37
Constructive Discharge and "Wrongful Demotion"	p. 40
Statute of Frauds	p. 41
Standard of Cause	p. 42
Substantive Dimension	p. 42
Procedural Dimension	p. 45
Employer Promises Enforceable as a Matter of Promissory Estoppel	p. 45
Binding Employer Statements	p. 46
Are Statements in Employment Manuals and Handbooks Binding on the Employer?	p. 46
Can Employers Modify or Rescind Commitments Made in Previous Unilateral Statements?	p. 51
Implied Duty of Good Faith and Fair Dealing	p. 54
Employment Torts	p. 56
"Bad Faith Breach"	p. 56
Discharge or Other Discipline in Violation of Clearly Established Public Policy	p. 58
Common Law	p. 58
Source of Established Public Policy	p. 60
Conflicting Duties	p. 61
Clear Adverse Impact on Public Policy	p. 62
No Interference with an Alternative Scheme	p. 63
Legislation	p. 63
Other Tort Theories for Challenging Termination Decisions	p. 64
Fraud or Deceit	p. 64
Wrongful Interference with Contractual Relations	p. 65
Intentional Infliction of Emotional Distress	p. 66
Defamation	p. 67
Publication	p. 67
Privilege	p. 68
Absolute Privilege	p. 68
Qualified Privilege	p. 69
Workplace Privacy	p. 70
Constitutional Law	p. 70
Physical Privacy	p. 70
Self-Incrimination	p. 76
Associational Privacy	p. 77
State Constitutional Law	p. 77
Legislation	p. 78
Investigative Techniques	p. 78
Polygraphs	p. 78
Telephone Monitoring	p. 78
Electronic Communication Monitoring	p. 79
Investigation of Consumer Credit Reports	p. 80
Areas of Special Concern	p. 80
Records Privacy	p. 80
Identity Privacy	p. 80
"Legal Activity" Laws	p. 81
Decisional Law	p. 81
Information, Mobility and Competition	p. 82
Introduction	p. 82
Common Law Duty of Loyalty	p. 84
Trade Secret Law	p. 86
Definition of a Trade Secret	p. 88
Improper Acquisition, Use or Disclosure	p. 91
Inevitable Misappropriation	p. 93
Remedies	p. 95
Non-Compete and Other Restrictive Covenants	p. 97
Legitimate Interests	p. 100
Reasonable Duration and Scope	p. 102
Reason for Termination of Employment	p. 105
Remedies	p. 106
Judicial Modification	p. 106
Injunction and Damages	p. 108
Choice of Law Clauses	p. 108
Employee Inventions	p. 110
Statutory Interventions
Workers' Compensation Law	p. 117
Origins of Workers' Compensation Legislation	p. 117
Rationale for Regulation	p. 120
Covered Employers and Employees	p. 123
Covered Injuries	p. 124
Express Exclusions	p. 124
"Arising out of and in the Course of Employment"	p. 125
Potential Escape Routes from the "Exclusive" Remedy of Workers' Compensation	p. 126
"Dual Capacity" Employer	p. 126
Absence of a Remedy under Workers' Compensation	p. 126
Injuries Outside the "Compensation Bargain"	p. 127
Challenges	p. 128
Unemployment Insurance	p. 130
Overview	p. 130
Basic Mechanics of UI Programs	p. 133
Finance	p. 133
Experience Rating	p. 134
Procedure	p. 136
Coverage	p. 138
Eligibility	p. 140
Monetary Eligibility	p. 142
Nonmonetary Eligibility	p. 144
Voluntary Quits and "Good Cause"	p. 144
Misconduct	p. 145
"Able and Available"	p. 150
Refusal of Employment Opportunities	p. 151
Collective Organization and Collective Bargaining Law	p. 154
Rationale for Regulation	p. 154
Basic Premises	p. 156
Administrative Procedures	p. 158
Protected Concerted Activity	p. 159
Selection of Exclusive Bargaining Representative	p. 161
The Process of Collective Bargaining	p. 162
Administering the Labor Agreement	p. 165
Individual Rights and the Collective Agreement	p. 167
Union Democracy	p. 168
Labor Law and Business Change	p. 169
Wage and Hour Regulation	p. 171
History	p. 171
Basic Requirements of the Statute	p. 171
Minimum Wage	p. 171
Overtime Premium	p. 173
Child Labor Restrictions	p. 173
Anti-Retaliation	p. 175
Rationale for Regulation	p. 175
What Counts as Compensation?	p. 177
What Counts as Work or Hours Worked?	p. 178
Covered Employers and Employees	p. 181
Enterprise Coverage	p. 181
Employee Coverage	p. 182
Employee vs. Independent Contractor	p. 182
Employees Personally Engaged in Interstate Commerce	p. 183
Exemptions	p. 184
Other Exclusions from Coverage	p. 186
Administrative Enforcement	p. 187
Private Enforcement	p. 188
State Wage Payment Laws	p. 188
Employment Discrimination Law	p. 191
Rationale for Regulation	p. 191
Supply-Side Explanations	p. 191
Demand-Side Explanations	p. 191
Role of Anti-Discrimination Law	p. 192
Title VII	p. 193
Gender Discrimination	p. 195
Religious Discrimination	p. 197
Age Discrimination	p. 197
Disability Discrimination	p. 199
Retaliation	p. 201
Administrative Process and Remedies	p. 202
Occupational Safety and Health	p. 204
Coverage and Regulatory Scheme	p. 204
Covered "Workplace" and "Working Conditions"	p. 205
Limited Preemption of State Law	p. 205
Exclusive Agency Enforcement	p. 209
Rationale for Regulation	p. 210
Standards	p. 212
Setting the Standard	p. 212
Securing Compliance with OSHA Standards	p. 219
General Duty Clause	p. 220
Inspections	p. 222
Protection Against Discrimination	p. 223
Conclusion	p. 225
Employee Benefits Law	p. 226
Overview	p. 226
Rationale for Regulation	p. 228
Why Do Employers Provide Pensions?	p. 228
Why Regulate?	p. 230
Implications of the Shift to DC Plans	p. 232
Coverage Issues	p. 234
Covered "Plans"	p. 234
Eligible "Participants"	p. 237
Preventing Forfeiture of Pension Benefits	p. 240
Vesting Rules	p. 240
Minimum Funding Requirements	p. 241
Prohibition of Discharge for Attaining or Exercising Pension Rights	p. 241
Regulating the Rate of Accrual of Pension Benefits	p. 242
No Cut-back of Accrued Benefits	p. 242
PBGC Termination Insurance	p. 243
Reporting and Disclosure Obligations	p. 248
Fiduciary Obligations	p. 251
Determining Fiduciary Status	p. 252
"Dual Hat" Issues	p. 253
Giving Advice to Employee Participants	p. 253
Making Benefit Determinations	p. 255
Amending the Plan	p. 256
Promoting Employer Stock	p. 259
Fiduciary Investing: Prudence	p. 261
Fiduciary Investing: Duty of Loyalty and "Exclusive Benefit" Rule	p. 264
Non-"Interference" Obligations	p. 265
Application to Welfare Benefit Plans	p. 265
Application to "Basic Organizational Decisions"	p. 266
"Specific Intent" Requirement	p. 267
Targeted Benefit Plan Changes	p. 268
ERISA Preemption of State Law	p. 270
State Mandates Not Requiring Ongoing Administration of a Plan	p. 271
State Mandates Regulating "Payroll Practices"	p. 271
State Regulation of Insurance	p. 272
State Regulation of Practices Violative of Federal Discrimination Law	p. 273
Arguable Shift Towards Narrower Scope of ERISA Preemption	p. 273
Personal Leave Law	p. 278
Introduction	p. 278
Basic Requirements	p. 279
Notice and Designation of Leaves	p. 280
Interaction of FMLA with the Americans with Disabilities Act	p. 282
Paid Leave and Other Policy Issues	p. 283
Table of Cases	p. 287
Index	p. 303
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