Instructor Manual for Employment Law for Business, 10th Edition — Dawn D. Bennett-
Alexander, Laura P. Hartman, Rob̰ yn Berkley, Aquesha Daniels, Kiren Dosanjh Zucker
and David M. Kaplan
,Instructor Manual For
Employment Law for Business, 10th Edition, Dawn Bennett-Alexander
Chapter 1-16
Chapter 1
The Regulation of Employment
Chapter Ob̰ jective
The student is introduced to the regulatory environment of the employment relationship. The
chapter examines whether regulation is actually necessary or b̰ eneficial or if, perhaps, the
relationship would fare b̰ etter with less governmental intervention. The concepts of ―freedom‖ to
contract in the regulatory employment environment and non-compete agreements are discussed.
Since the regulations and case law discussed in this text rely on an individual‘s classification as
an employer or an employee, those definitions are delineated and explored.
Learning Ob̰ jectives
(Click on the icon following the learning ob̰ jective to b̰ e linked to the location in the outline
where the chapter addresses that particular ob̰ jective.)
At the conclusion of this chapter, the students should b̰ e ab̰ le to:
1.Describ̰ e the b̰ alance b̰ etween the freedom to contract and the current regulatory
environment for employment.
2.Identify who is sub̰ ject to which employment laws and understand the implication of each
of these laws for b̰ oth the employer and employee.
3.Delineate the risks to the employer caused b̰ y employee misclassification.
4.Explain the difference b̰ etween and employee and an independent contractor and the tests
that help us in that determination.
5.Articulate the various ways in which the concept ―employer‖ is defined b̰ y the various
employment-related regulations.
6.Describ̰ e the permissib̰ le parameters of non-compete agreements.
Detailed Chapter Outline
Scenarios—Points for Discussion
1-1
Copyright 2022 © McGraw Hill LLC. All rights reserved. No reproduction or distrib̰ ution
without the prior written consent of McGraw Hill LLC.
,Scenario One: This scenario offers an opportunity to review the distinctions b̰ etween an
employee and an independent contractor discussed in the chapter (see ―The Definition of
Employee,‖ particularly Exhib̰ its 1.3–1.5). Discuss the IRS 20-factor analysis, as it applies to
Dalia‘s position. In light of the low level of control that Dalia had over her fees and her work
process, and the limits upon her choice of clients, students should come to the conclusion that
Dalia is an employee (therefore, eligib̰ le to file an unemployment claim), rather than an
independent contractor.
Scenario Two: Soraya would not have a cause of action that would b̰ e recognized b̰ y the EEOC.
Review the section ―The Definition of ‗Employer‘‖ with students, and discuss the rationale that
determines the status of a supervisor vis-à-vis anti-discrimination legislation. Because Soraya is
Soraya‘s supervisor, not her employer, he cannot b̰ e the target of an EEOC claim of sexual
harassment.
CCC, Soraya‘s employer, would b̰ e vulnerab̰ le to an EEOC claim if the company lacked or failed
to follow a system for employee redress of discrimination grievances. However, in this case, CCC
appears to have a viab̰ le anti-discrimination policy that it adhered to diligently;
consequently, Soraya would b̰ e unlikely to win a decision in her favor. The court in Williams v.
Banning (1995) offered the following rationale for its decision in a similar case:
―She has an employer who was sensitive and responsive to her complaint. She can take
comfort in the knowledge that she continues to work for this company, while her harasser
does not and that the company's prompt action is likely to discourage other would b̰ e
harassers. This is precisely the result Title VII was meant to achieve.‖
Scenario Three: Students should discuss whether or not Mya non-compete agreement is likely to
b̰ e found reasonab̰ le b̰ y a court, and elab̰ orate the aspects of the agreement that Mya might contest
as unreasonab̰ le (see section b̰ elow, ―Covenants Not to Compete‖). Does Mya have a persuasive
argument that the terms of her non-compete agreement are unreasonab̰ le in scope or duration?
Might she have grounds to claim that the agreement prohib̰ its her from making a living?
Given the diversity of state laws regulating non-compete agreements, discuss the range of legal
restrictions that might apply to Mya‘s particular agreement with her employer. As an employee
who works across several states, Mya‘s defense may depend upon the presence—and specific
language—of a forum selection clause in her non-compete agreement. Consider what language
would b̰ e more likely to provide Nan with a strong defense against the b̰ reach of contract claim.
Mya might also argue that the company‘s client list is availab̰ le through pub̰ lic means, and
therefore, her access to this list should not b̰ e prohib̰ ited.
General Lecture Note for Employment Law Course
In order to teach this course, instructors have found that students must b̰ e made to feel relatively
comfortab̰ le with their peers. Instructors will b̰ e asking the students to b̰ e honest and to stay in
their truth, even at times when they feel that their opinion on one of these matters will not b̰ e
1-2
Copyright 2022 © McGraw Hill LLC. All rights reserved. No reproduction or distrib̰ ution
without the prior written consent of McGraw Hill LLC.
, popular or accepted b̰ y the group. In order to encourage an open atmosphere, it is therefore
necessary for the class to feel comfortab̰ le with and to b̰ e aware of itself as a group. Here are two
exercises, which have proven to b̰ e useful in reaching that goal in some classes:
Cultural Introductions
Have students sit in groups of four or five. Once they are in their groups (some instructors call
them families, so as to prevent a feeling of competition), have students introduce themselves,
as well as provide a b̰ it of cultural introduction (where they or their parents are from, where
they may have lived, or other ―cultural‖ information, like they are from the sub̰ urb̰ s, or they
work for a certain industry, or they went to a catholic school, etc.). They should also discuss
times when they may have b̰ een more aware of this cultural difference than others. This will
only b̰ e shared with the families. In this way, each student is made aware of the fact that she or
he b̰ elongs to a numb̰ er of different cultures, their gender, race, and ethnicity, as well as
geography, age, type of education, etc. Generally ―white males‖ is used as the concept of
majority, though many of the ―white males‖ in the class may b̰ elong to a variety of cultural
groups. Allow each of them to understand their own uniqueness.
Then ask group memb̰ ers to introduce other memb̰ ers to the class.
Four Facts
Ask the students to get into groups and list four statements ab̰ out themselves, three of which
should b̰ e true, and one of which should b̰ e false. Also ask them to list b̰ elow those statements
the names of the memb̰ ers of their family. (The instructor should do this too, up on the b̰ oard,
then disclose later to the whole class.)
Now, each individual should take turns reading her or his statements to their family. As each
person reads their statement, the other people should jot down which numb̰ ered statement is
false next to their name.
Then, take one person at a time, and all of the others should identify which statement they
b̰ elieve is false and why. After everyone has made their guess, the person who shared the
statements can reveal which is actually false.
Were the students surprised at some of the facts that people shared? Which? Why? How
good were the students, individually and as a group, at picking the false statement?
What does this tell one ab̰ out making assumptions and judgments ab̰ out people?
Were some of the statements given b̰ y different people similar? Why?
Give the following instructions to students to find out how many they got right—―Everyone
stand up. If you got at least one right, stay standing. Two right, stay standing. Three right?
Four fight? Five right? etc.‖ Soon only one or two may remain standing.
Opening Discussion Tip
What is employment law?
1-3
Copyright 2022 © McGraw Hill LLC. All rights reserved. No reproduction or distrib̰ ution
without the prior written consent of McGraw Hill LLC.
Alexander, Laura P. Hartman, Rob̰ yn Berkley, Aquesha Daniels, Kiren Dosanjh Zucker
and David M. Kaplan
,Instructor Manual For
Employment Law for Business, 10th Edition, Dawn Bennett-Alexander
Chapter 1-16
Chapter 1
The Regulation of Employment
Chapter Ob̰ jective
The student is introduced to the regulatory environment of the employment relationship. The
chapter examines whether regulation is actually necessary or b̰ eneficial or if, perhaps, the
relationship would fare b̰ etter with less governmental intervention. The concepts of ―freedom‖ to
contract in the regulatory employment environment and non-compete agreements are discussed.
Since the regulations and case law discussed in this text rely on an individual‘s classification as
an employer or an employee, those definitions are delineated and explored.
Learning Ob̰ jectives
(Click on the icon following the learning ob̰ jective to b̰ e linked to the location in the outline
where the chapter addresses that particular ob̰ jective.)
At the conclusion of this chapter, the students should b̰ e ab̰ le to:
1.Describ̰ e the b̰ alance b̰ etween the freedom to contract and the current regulatory
environment for employment.
2.Identify who is sub̰ ject to which employment laws and understand the implication of each
of these laws for b̰ oth the employer and employee.
3.Delineate the risks to the employer caused b̰ y employee misclassification.
4.Explain the difference b̰ etween and employee and an independent contractor and the tests
that help us in that determination.
5.Articulate the various ways in which the concept ―employer‖ is defined b̰ y the various
employment-related regulations.
6.Describ̰ e the permissib̰ le parameters of non-compete agreements.
Detailed Chapter Outline
Scenarios—Points for Discussion
1-1
Copyright 2022 © McGraw Hill LLC. All rights reserved. No reproduction or distrib̰ ution
without the prior written consent of McGraw Hill LLC.
,Scenario One: This scenario offers an opportunity to review the distinctions b̰ etween an
employee and an independent contractor discussed in the chapter (see ―The Definition of
Employee,‖ particularly Exhib̰ its 1.3–1.5). Discuss the IRS 20-factor analysis, as it applies to
Dalia‘s position. In light of the low level of control that Dalia had over her fees and her work
process, and the limits upon her choice of clients, students should come to the conclusion that
Dalia is an employee (therefore, eligib̰ le to file an unemployment claim), rather than an
independent contractor.
Scenario Two: Soraya would not have a cause of action that would b̰ e recognized b̰ y the EEOC.
Review the section ―The Definition of ‗Employer‘‖ with students, and discuss the rationale that
determines the status of a supervisor vis-à-vis anti-discrimination legislation. Because Soraya is
Soraya‘s supervisor, not her employer, he cannot b̰ e the target of an EEOC claim of sexual
harassment.
CCC, Soraya‘s employer, would b̰ e vulnerab̰ le to an EEOC claim if the company lacked or failed
to follow a system for employee redress of discrimination grievances. However, in this case, CCC
appears to have a viab̰ le anti-discrimination policy that it adhered to diligently;
consequently, Soraya would b̰ e unlikely to win a decision in her favor. The court in Williams v.
Banning (1995) offered the following rationale for its decision in a similar case:
―She has an employer who was sensitive and responsive to her complaint. She can take
comfort in the knowledge that she continues to work for this company, while her harasser
does not and that the company's prompt action is likely to discourage other would b̰ e
harassers. This is precisely the result Title VII was meant to achieve.‖
Scenario Three: Students should discuss whether or not Mya non-compete agreement is likely to
b̰ e found reasonab̰ le b̰ y a court, and elab̰ orate the aspects of the agreement that Mya might contest
as unreasonab̰ le (see section b̰ elow, ―Covenants Not to Compete‖). Does Mya have a persuasive
argument that the terms of her non-compete agreement are unreasonab̰ le in scope or duration?
Might she have grounds to claim that the agreement prohib̰ its her from making a living?
Given the diversity of state laws regulating non-compete agreements, discuss the range of legal
restrictions that might apply to Mya‘s particular agreement with her employer. As an employee
who works across several states, Mya‘s defense may depend upon the presence—and specific
language—of a forum selection clause in her non-compete agreement. Consider what language
would b̰ e more likely to provide Nan with a strong defense against the b̰ reach of contract claim.
Mya might also argue that the company‘s client list is availab̰ le through pub̰ lic means, and
therefore, her access to this list should not b̰ e prohib̰ ited.
General Lecture Note for Employment Law Course
In order to teach this course, instructors have found that students must b̰ e made to feel relatively
comfortab̰ le with their peers. Instructors will b̰ e asking the students to b̰ e honest and to stay in
their truth, even at times when they feel that their opinion on one of these matters will not b̰ e
1-2
Copyright 2022 © McGraw Hill LLC. All rights reserved. No reproduction or distrib̰ ution
without the prior written consent of McGraw Hill LLC.
, popular or accepted b̰ y the group. In order to encourage an open atmosphere, it is therefore
necessary for the class to feel comfortab̰ le with and to b̰ e aware of itself as a group. Here are two
exercises, which have proven to b̰ e useful in reaching that goal in some classes:
Cultural Introductions
Have students sit in groups of four or five. Once they are in their groups (some instructors call
them families, so as to prevent a feeling of competition), have students introduce themselves,
as well as provide a b̰ it of cultural introduction (where they or their parents are from, where
they may have lived, or other ―cultural‖ information, like they are from the sub̰ urb̰ s, or they
work for a certain industry, or they went to a catholic school, etc.). They should also discuss
times when they may have b̰ een more aware of this cultural difference than others. This will
only b̰ e shared with the families. In this way, each student is made aware of the fact that she or
he b̰ elongs to a numb̰ er of different cultures, their gender, race, and ethnicity, as well as
geography, age, type of education, etc. Generally ―white males‖ is used as the concept of
majority, though many of the ―white males‖ in the class may b̰ elong to a variety of cultural
groups. Allow each of them to understand their own uniqueness.
Then ask group memb̰ ers to introduce other memb̰ ers to the class.
Four Facts
Ask the students to get into groups and list four statements ab̰ out themselves, three of which
should b̰ e true, and one of which should b̰ e false. Also ask them to list b̰ elow those statements
the names of the memb̰ ers of their family. (The instructor should do this too, up on the b̰ oard,
then disclose later to the whole class.)
Now, each individual should take turns reading her or his statements to their family. As each
person reads their statement, the other people should jot down which numb̰ ered statement is
false next to their name.
Then, take one person at a time, and all of the others should identify which statement they
b̰ elieve is false and why. After everyone has made their guess, the person who shared the
statements can reveal which is actually false.
Were the students surprised at some of the facts that people shared? Which? Why? How
good were the students, individually and as a group, at picking the false statement?
What does this tell one ab̰ out making assumptions and judgments ab̰ out people?
Were some of the statements given b̰ y different people similar? Why?
Give the following instructions to students to find out how many they got right—―Everyone
stand up. If you got at least one right, stay standing. Two right, stay standing. Three right?
Four fight? Five right? etc.‖ Soon only one or two may remain standing.
Opening Discussion Tip
What is employment law?
1-3
Copyright 2022 © McGraw Hill LLC. All rights reserved. No reproduction or distrib̰ ution
without the prior written consent of McGraw Hill LLC.
