,TABLE OF CONTENTS b b
Chapter 1 The Regulation of Employment
b b b b b
Chapter 2 The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal
b b b b b b b b b b b b b
Concepts
b
Chapter 3 Title VII of the Civil Rights Act of 1964
b b b b b b b b b b
Chapter 4 Legal Construction of the Employment Environment Chapter 5 Affirmative
b b b b b b b b b b
Action
b
Chapter 6 Race and Color Discrimination Chapter 7
b b b b b b b
NationalOrigin Discrimination Chapter 8 Gender
b b b b b b
Discrimination Chapter 9 Sexual Harassment
b b b b b b
Chapter 10 Sexual Orientation and Gender IdentityDiscrimination Chapter 11
b b b b b b b b b
ReligiousDiscrimination
b b
Chapter 12 Age Discrimination Chapter13
b b b b b
DisabilityDiscrimination
b b
Chapter 14 The Employee’s Right to Privacy and Management of Personal
b b b b b b b b b b
Information
Chapter 15 Labor Law 857
b b b b
Chapter 16 Selected Employment Benefits and Protections
b b b b b b
Chapter 1 b
, The Regulation of Employment b b b
ChapterObjective b
The student is introduced to the regulatory environment of the employment relationship. The
b b b b b b b b b b b b
bchapter examines whether regulation is actually necessary or beneficial or if, perhaps, the
b b b b b b b b b b b b
brelationshipwould fare better with less governmental intervention. The concepts of ―freedom‖ to
b b b b b b b b b b b b
bcontract in the regulatory employment environment and non-compete agreements are discussed.
b b b b b b b b b b
bSince the regulations and case law discussed in this text rely on an individual‘s classification as an
b b b b b b b b b b b b b b b b
bemployer or an employee, those definitions are delineated and explored.
b b b b b b b b b
LearningObjectives b
(Click on the icon following the learning objective to be linked to the location in the outlinewhere the
b b b b b b b b b b b b b b b b b
chapter addresses that particular objective.)
b b b b b
At the conclusion of this chapter, the students should be able to:
b b b b b b b b b b b
1. Describe the balance between the freedom to contract and the current regulatory
b b b b b b b b b b b
environment for employment.
b b b b
2. Identify who is subject to which employment laws and understand the implication of eachof
b b b b b b b b b b b b b
these laws for both the employer and employee.
b b b b b b b b b
3. Delineate the risks to the employer caused by employee misclassification. b b b b b b b b b b
4. Explain the difference between and employee and an independent contractor and the tests
b b b b b b b b b b b b
that help us in that determination.
b b b b b b b
5. Articulate the various ways in which the concept ―employer‖ is defined by the various
b b b b b b b b b b b b b
employment-relatedregulations.
b b b
6. Describe the permissible parameters of non-compete agreements. b b b b b b b
DetailedChapterOutline b b
Scenarios—Points for Discussion b b
, Scenario One: This scenario offers an opportunity to review the distinctions between an employee
b b b b b b b b b b b b b
andan independent contractor discussed in the chapter(see ―The Definition of Employee,‖
b b b b b b b b b b b b b
particularly Exhibits 1.3–1.5). Discuss the IRS 20-factor analysis, as it applies to Dalia‘s position. In
b b b b b b b b b b b b b b b
light of the low level of control that Dalia had over her fees and her work process, and the limits upon
b b b b b b b b b b b b b b b b b b b b b
her choice of clients, students should come to the conclusion that Dalia is an employee (therefore,
b b b b b b b b b b b b b b b b
eligible to file an unemployment claim), rather than an independent contractor.
b b b b b b b b b b b
Scenario Two: Soraya would not have a cause of action that would be recognized bythe EEOC.
b b b b b b b b b b b b b b b b
bReview the section ―The Definition of ‗Employer‘‖with students, and discuss the rationale that
b b b b b b b b b b b b b
bdetermines the status of a supervisor vis-à-vis anti-discrimination legislation. Because Soraya is
b b b b b b b b b b b
bSoraya‘s supervisor, not her employer, he cannot be the target of an EEOC claim of sexual
b b b b b b b b b b b b b b b
bharassment.
CCC, Soraya‘s employer, would be vulnerable to an EEOC claim if the company lacked or failedto
b b b b b b b b b b b b b b b
bfollow a system for employee redress of discrimination grievances. However, in this case, CCC
b b b b b b b b b b b b b
bappears to have a viable anti-discrimination policy that it adhered to diligently; consequently,
b b b b b b b b b b b b
Soraya would be unlikely to win a decision in her favor. The court in Williams v. Banning (1995)
b b b b b b b b b b b b b b b b b b
offered the following rationale for its decision in a similar case:
b b b b b b b b b b b
―Shehasan employerwho was sensitive andresponsiveto hercomplaint.She cantake
b b b b b b b b b b b b b b
comfort in the knowledge that she continues to work for this company, while her harasser
b b b b b b b b b b b b b b b
does not and that the company's prompt action is likely to discourage other would be
b b b b b b b b b b b b b b b
harassers. This is precisely the result Title VII was meant to achieve.‖
b b b b b b b b b b b b
Scenario Three: Students should discuss whether or not Mya non-compete agreement is likely tobe
b b b b b b b b b b b b b
bfound reasonable by a court, and elaborate the aspects of the agreement that Mya might contest as
b b b b b b b b b b b b b b b b
bunreasonable (seesection below, ―CovenantsNot toCompete‖). Does Mya have a persuasive b b b b b b b b b b b b
bargument that the terms of her non-compete agreement are unreasonable in scope or duration?
b b b b b b b b b b b b b
Might she have grounds to claim that the agreement prohibits her from making a living?
b b b b b b b b b b b b b b
Given the diversity of state laws regulating non-compete agreements, discuss the range of legal
b b b b b b b b b b b b b
brestrictions that might apply to Mya‘s particular agreement with her employer. As an employeewho
b b b b b b b b b b b b b
works across several states, Mya‘s defense may depend upon the presence—and specific
b b b b b b b b b b b b
language—of a forum selection clause in her non-compete agreement. Consider what language
b b b b b b b b b b b b
would be more likely to provide Nan with a strong defense against the breach of contract claim.
b b b b b b b b b b b b b b b b b
Mya might also argue that the company‘s client list is available through public means, and
b b b b b b b b b b b b b b
therefore, her access to this list should not be prohibited.
b b b b b b b b b b
General Lecture Note for Employment Law Course b b b b b b
In order to teach this course, instructors have found that students must be made to feel relatively
b b b b b b b b b b b b b b b b
bcomfortable with their peers. Instructors will be asking the students to be honest and to stay in theirb b b b b b b b b b b b b b b b b
truth, even at times when they feel that their opinion on one of these matters will not be
b b b b b b b b b b b b b b b b b b
Chapter 1 The Regulation of Employment
b b b b b
Chapter 2 The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal
b b b b b b b b b b b b b
Concepts
b
Chapter 3 Title VII of the Civil Rights Act of 1964
b b b b b b b b b b
Chapter 4 Legal Construction of the Employment Environment Chapter 5 Affirmative
b b b b b b b b b b
Action
b
Chapter 6 Race and Color Discrimination Chapter 7
b b b b b b b
NationalOrigin Discrimination Chapter 8 Gender
b b b b b b
Discrimination Chapter 9 Sexual Harassment
b b b b b b
Chapter 10 Sexual Orientation and Gender IdentityDiscrimination Chapter 11
b b b b b b b b b
ReligiousDiscrimination
b b
Chapter 12 Age Discrimination Chapter13
b b b b b
DisabilityDiscrimination
b b
Chapter 14 The Employee’s Right to Privacy and Management of Personal
b b b b b b b b b b
Information
Chapter 15 Labor Law 857
b b b b
Chapter 16 Selected Employment Benefits and Protections
b b b b b b
Chapter 1 b
, The Regulation of Employment b b b
ChapterObjective b
The student is introduced to the regulatory environment of the employment relationship. The
b b b b b b b b b b b b
bchapter examines whether regulation is actually necessary or beneficial or if, perhaps, the
b b b b b b b b b b b b
brelationshipwould fare better with less governmental intervention. The concepts of ―freedom‖ to
b b b b b b b b b b b b
bcontract in the regulatory employment environment and non-compete agreements are discussed.
b b b b b b b b b b
bSince the regulations and case law discussed in this text rely on an individual‘s classification as an
b b b b b b b b b b b b b b b b
bemployer or an employee, those definitions are delineated and explored.
b b b b b b b b b
LearningObjectives b
(Click on the icon following the learning objective to be linked to the location in the outlinewhere the
b b b b b b b b b b b b b b b b b
chapter addresses that particular objective.)
b b b b b
At the conclusion of this chapter, the students should be able to:
b b b b b b b b b b b
1. Describe the balance between the freedom to contract and the current regulatory
b b b b b b b b b b b
environment for employment.
b b b b
2. Identify who is subject to which employment laws and understand the implication of eachof
b b b b b b b b b b b b b
these laws for both the employer and employee.
b b b b b b b b b
3. Delineate the risks to the employer caused by employee misclassification. b b b b b b b b b b
4. Explain the difference between and employee and an independent contractor and the tests
b b b b b b b b b b b b
that help us in that determination.
b b b b b b b
5. Articulate the various ways in which the concept ―employer‖ is defined by the various
b b b b b b b b b b b b b
employment-relatedregulations.
b b b
6. Describe the permissible parameters of non-compete agreements. b b b b b b b
DetailedChapterOutline b b
Scenarios—Points for Discussion b b
, Scenario One: This scenario offers an opportunity to review the distinctions between an employee
b b b b b b b b b b b b b
andan independent contractor discussed in the chapter(see ―The Definition of Employee,‖
b b b b b b b b b b b b b
particularly Exhibits 1.3–1.5). Discuss the IRS 20-factor analysis, as it applies to Dalia‘s position. In
b b b b b b b b b b b b b b b
light of the low level of control that Dalia had over her fees and her work process, and the limits upon
b b b b b b b b b b b b b b b b b b b b b
her choice of clients, students should come to the conclusion that Dalia is an employee (therefore,
b b b b b b b b b b b b b b b b
eligible to file an unemployment claim), rather than an independent contractor.
b b b b b b b b b b b
Scenario Two: Soraya would not have a cause of action that would be recognized bythe EEOC.
b b b b b b b b b b b b b b b b
bReview the section ―The Definition of ‗Employer‘‖with students, and discuss the rationale that
b b b b b b b b b b b b b
bdetermines the status of a supervisor vis-à-vis anti-discrimination legislation. Because Soraya is
b b b b b b b b b b b
bSoraya‘s supervisor, not her employer, he cannot be the target of an EEOC claim of sexual
b b b b b b b b b b b b b b b
bharassment.
CCC, Soraya‘s employer, would be vulnerable to an EEOC claim if the company lacked or failedto
b b b b b b b b b b b b b b b
bfollow a system for employee redress of discrimination grievances. However, in this case, CCC
b b b b b b b b b b b b b
bappears to have a viable anti-discrimination policy that it adhered to diligently; consequently,
b b b b b b b b b b b b
Soraya would be unlikely to win a decision in her favor. The court in Williams v. Banning (1995)
b b b b b b b b b b b b b b b b b b
offered the following rationale for its decision in a similar case:
b b b b b b b b b b b
―Shehasan employerwho was sensitive andresponsiveto hercomplaint.She cantake
b b b b b b b b b b b b b b
comfort in the knowledge that she continues to work for this company, while her harasser
b b b b b b b b b b b b b b b
does not and that the company's prompt action is likely to discourage other would be
b b b b b b b b b b b b b b b
harassers. This is precisely the result Title VII was meant to achieve.‖
b b b b b b b b b b b b
Scenario Three: Students should discuss whether or not Mya non-compete agreement is likely tobe
b b b b b b b b b b b b b
bfound reasonable by a court, and elaborate the aspects of the agreement that Mya might contest as
b b b b b b b b b b b b b b b b
bunreasonable (seesection below, ―CovenantsNot toCompete‖). Does Mya have a persuasive b b b b b b b b b b b b
bargument that the terms of her non-compete agreement are unreasonable in scope or duration?
b b b b b b b b b b b b b
Might she have grounds to claim that the agreement prohibits her from making a living?
b b b b b b b b b b b b b b
Given the diversity of state laws regulating non-compete agreements, discuss the range of legal
b b b b b b b b b b b b b
brestrictions that might apply to Mya‘s particular agreement with her employer. As an employeewho
b b b b b b b b b b b b b
works across several states, Mya‘s defense may depend upon the presence—and specific
b b b b b b b b b b b b
language—of a forum selection clause in her non-compete agreement. Consider what language
b b b b b b b b b b b b
would be more likely to provide Nan with a strong defense against the breach of contract claim.
b b b b b b b b b b b b b b b b b
Mya might also argue that the company‘s client list is available through public means, and
b b b b b b b b b b b b b b
therefore, her access to this list should not be prohibited.
b b b b b b b b b b
General Lecture Note for Employment Law Course b b b b b b
In order to teach this course, instructors have found that students must be made to feel relatively
b b b b b b b b b b b b b b b b
bcomfortable with their peers. Instructors will be asking the students to be honest and to stay in theirb b b b b b b b b b b b b b b b b
truth, even at times when they feel that their opinion on one of these matters will not be
b b b b b b b b b b b b b b b b b b
