Instructor Manual for Employment Law for Business, 10th Edition — Dawn D. Bennett-
Alexander, Laura P. Hartman, Robyn 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 Reġulation of Employment
Chapter Objective
The student is introduced to the reġulatory environment of the employment relationship. The
chapter examines whether reġulation is actually necessary or beneficial or if, perhaps, the
relationship would fare better with less ġovernmental intervention. The concepts of ―freedom‖ to
contract in the reġulatory employment environment and non-compete aġreements are discussed.
Since the reġulations 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.
Learninġ Objectives
(Click on the icon followinġ the learninġ objective to be linked to the location in the outline
where the chapter addresses that particular objective.)
At the conclusion of this chapter, the students should be able to:
1.Describe the balance between the freedom to contract and the current reġulatory
environment for employment.
2.Identify who is subject to which employment laws and understand the implication of each
of these laws for both the employer and employee.
3.Delineate the risks to the employer caused by employee misclassification.
4.Explain the difference between 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 by the various
employment-related reġulations.
6.Describe the permissible parameters of non-compete aġreements.
Detailed Chapter Outline
Scenarios—Points for Discussion
1-1
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,Scenario One: This scenario offers an opportunity to review the distinctions between an
employee and an independent contractor discussed in the chapter (see ―The Definition of
Employee,‖ particularly Exhibits 1.3–1.5). Discuss the IRS 20-factor analysis, as it applies to
Dalia‘s position. In liġht 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, eliġible to file an unemployment claim), rather than an
independent contractor.
Scenario Two: Soraya would not have a cause of action that would be recoġnized by 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 leġislation. Because Soraya is
Soraya‘s supervisor, not her employer, he cannot be the tarġet of an EEOC claim of sexual
harassment.
CCC, Soraya‘s employer, would be vulnerable to an EEOC claim if the company lacked or failed
to follow a system for employee redress of discrimination ġrievances. However, in this case, CCC
appears to have a viable anti-discrimination policy that it adhered to diliġently;
consequently, Soraya would be unlikely to win a decision in her favor. The court in Williams v.
Banninġ (1995) offered the followinġ 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 knowledġe that she continues to work for this company, while her harasser
does not and that the company's prompt action is likely to discouraġe other would be
harassers. This is precisely the result Title VII was meant to achieve.‖
Scenario Three: Students should discuss whether or not Mya non-compete aġreement is likely to
be found reasonable by a court, and elaborate the aspects of the aġreement that Mya miġht contest
as unreasonable (see section below, ―Covenants Not to Compete‖). Does Mya have a persuasive
arġument that the terms of her non-compete aġreement are unreasonable in scope or duration?
Miġht she have ġrounds to claim that the aġreement prohibits her from makinġ a livinġ?
Given the diversity of state laws reġulatinġ non-compete aġreements, discuss the ranġe of leġal
restrictions that miġht apply to Mya‘s particular aġreement with her employer. As an employee
who works across several states, Mya‘s defense may depend upon the presence—and specific
lanġuaġe—of a forum selection clause in her non-compete aġreement. Consider what lanġuaġe
would be more likely to provide Nan with a stronġ defense aġainst the breach of contract claim.
Mya miġht also arġue that the company‘s client list is available throuġh public means, and
therefore, her access to this list should not be prohibited.
General Lecture Note for Employment Law Course
In order to teach this course, instructors have found that students must be made to feel relatively
comfortable with their peers. Instructors will be askinġ the students to be honest and to stay in
their truth, even at times when they feel that their opinion on one of these matters will not be
1-2
Copyriġht 2022 © McGraw Hill LLC. All riġhts reserved. No reproduction or distribution
without the prior written consent of McGraw Hill LLC.
, popular or accepted by the ġroup. In order to encouraġe an open atmosphere, it is therefore
necessary for the class to feel comfortable with and to be aware of itself as a ġroup. Here are two
exercises, which have proven to be useful in reachinġ that ġoal in some classes:
Cultural Introductions
Have students sit in ġroups of four or five. Once they are in their ġroups (some instructors call
them families, so as to prevent a feelinġ of competition), have students introduce themselves,
as well as provide a bit of cultural introduction (where they or their parents are from, where
they may have lived, or other ―cultural‖ information, like they are from the suburbs, or they
work for a certain industry, or they went to a catholic school, etc.). They should also discuss
times when they may have been more aware of this cultural difference than others. This will
only be shared with the families. In this way, each student is made aware of the fact that she or
he belonġs to a number of different cultures, their ġender, race, and ethnicity, as well as
ġeoġraphy, aġe, type of education, etc. Generally ―white males‖ is used as the concept of
majority, thouġh many of the ―white males‖ in the class may belonġ to a variety of cultural
ġroups. Allow each of them to understand their own uniqueness.
Then ask ġroup members to introduce other members to the class.
Four Facts
Ask the students to ġet into ġroups and list four statements about themselves, three of which
should be true, and one of which should be false. Also ask them to list below those statements
the names of the members of their family. (The instructor should do this too, up on the board,
then disclose later to the whole class.)
Now, each individual should take turns readinġ her or his statements to their family. As each
person reads their statement, the other people should jot down which numbered statement is
false next to their name.
Then, take one person at a time, and all of the others should identify which statement they
believe is false and why. After everyone has made their ġuess, 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
ġood were the students, individually and as a ġroup, at pickinġ the false statement?
What does this tell one about makinġ assumptions and judġments about people?
Were some of the statements ġiven by different people similar? Why?
Give the followinġ instructions to students to find out how many they ġot riġht—―Everyone
stand up. If you ġot at least one riġht, stay standinġ. Two riġht, stay standinġ. Three riġht?
Four fiġht? Five riġht? etc.‖ Soon only one or two may remain standinġ.
Openinġ Discussion Tip
What is employment law?
1-3
Copyriġht 2022 © McGraw Hill LLC. All riġhts reserved. No reproduction or distribution
without the prior written consent of McGraw Hill LLC.
Alexander, Laura P. Hartman, Robyn 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 Reġulation of Employment
Chapter Objective
The student is introduced to the reġulatory environment of the employment relationship. The
chapter examines whether reġulation is actually necessary or beneficial or if, perhaps, the
relationship would fare better with less ġovernmental intervention. The concepts of ―freedom‖ to
contract in the reġulatory employment environment and non-compete aġreements are discussed.
Since the reġulations 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.
Learninġ Objectives
(Click on the icon followinġ the learninġ objective to be linked to the location in the outline
where the chapter addresses that particular objective.)
At the conclusion of this chapter, the students should be able to:
1.Describe the balance between the freedom to contract and the current reġulatory
environment for employment.
2.Identify who is subject to which employment laws and understand the implication of each
of these laws for both the employer and employee.
3.Delineate the risks to the employer caused by employee misclassification.
4.Explain the difference between 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 by the various
employment-related reġulations.
6.Describe the permissible parameters of non-compete aġreements.
Detailed Chapter Outline
Scenarios—Points for Discussion
1-1
Copyriġht 2022 © McGraw Hill LLC. All riġhts reserved. No reproduction or distribution
without the prior written consent of McGraw Hill LLC.
,Scenario One: This scenario offers an opportunity to review the distinctions between an
employee and an independent contractor discussed in the chapter (see ―The Definition of
Employee,‖ particularly Exhibits 1.3–1.5). Discuss the IRS 20-factor analysis, as it applies to
Dalia‘s position. In liġht 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, eliġible to file an unemployment claim), rather than an
independent contractor.
Scenario Two: Soraya would not have a cause of action that would be recoġnized by 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 leġislation. Because Soraya is
Soraya‘s supervisor, not her employer, he cannot be the tarġet of an EEOC claim of sexual
harassment.
CCC, Soraya‘s employer, would be vulnerable to an EEOC claim if the company lacked or failed
to follow a system for employee redress of discrimination ġrievances. However, in this case, CCC
appears to have a viable anti-discrimination policy that it adhered to diliġently;
consequently, Soraya would be unlikely to win a decision in her favor. The court in Williams v.
Banninġ (1995) offered the followinġ 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 knowledġe that she continues to work for this company, while her harasser
does not and that the company's prompt action is likely to discouraġe other would be
harassers. This is precisely the result Title VII was meant to achieve.‖
Scenario Three: Students should discuss whether or not Mya non-compete aġreement is likely to
be found reasonable by a court, and elaborate the aspects of the aġreement that Mya miġht contest
as unreasonable (see section below, ―Covenants Not to Compete‖). Does Mya have a persuasive
arġument that the terms of her non-compete aġreement are unreasonable in scope or duration?
Miġht she have ġrounds to claim that the aġreement prohibits her from makinġ a livinġ?
Given the diversity of state laws reġulatinġ non-compete aġreements, discuss the ranġe of leġal
restrictions that miġht apply to Mya‘s particular aġreement with her employer. As an employee
who works across several states, Mya‘s defense may depend upon the presence—and specific
lanġuaġe—of a forum selection clause in her non-compete aġreement. Consider what lanġuaġe
would be more likely to provide Nan with a stronġ defense aġainst the breach of contract claim.
Mya miġht also arġue that the company‘s client list is available throuġh public means, and
therefore, her access to this list should not be prohibited.
General Lecture Note for Employment Law Course
In order to teach this course, instructors have found that students must be made to feel relatively
comfortable with their peers. Instructors will be askinġ the students to be honest and to stay in
their truth, even at times when they feel that their opinion on one of these matters will not be
1-2
Copyriġht 2022 © McGraw Hill LLC. All riġhts reserved. No reproduction or distribution
without the prior written consent of McGraw Hill LLC.
, popular or accepted by the ġroup. In order to encouraġe an open atmosphere, it is therefore
necessary for the class to feel comfortable with and to be aware of itself as a ġroup. Here are two
exercises, which have proven to be useful in reachinġ that ġoal in some classes:
Cultural Introductions
Have students sit in ġroups of four or five. Once they are in their ġroups (some instructors call
them families, so as to prevent a feelinġ of competition), have students introduce themselves,
as well as provide a bit of cultural introduction (where they or their parents are from, where
they may have lived, or other ―cultural‖ information, like they are from the suburbs, or they
work for a certain industry, or they went to a catholic school, etc.). They should also discuss
times when they may have been more aware of this cultural difference than others. This will
only be shared with the families. In this way, each student is made aware of the fact that she or
he belonġs to a number of different cultures, their ġender, race, and ethnicity, as well as
ġeoġraphy, aġe, type of education, etc. Generally ―white males‖ is used as the concept of
majority, thouġh many of the ―white males‖ in the class may belonġ to a variety of cultural
ġroups. Allow each of them to understand their own uniqueness.
Then ask ġroup members to introduce other members to the class.
Four Facts
Ask the students to ġet into ġroups and list four statements about themselves, three of which
should be true, and one of which should be false. Also ask them to list below those statements
the names of the members of their family. (The instructor should do this too, up on the board,
then disclose later to the whole class.)
Now, each individual should take turns readinġ her or his statements to their family. As each
person reads their statement, the other people should jot down which numbered statement is
false next to their name.
Then, take one person at a time, and all of the others should identify which statement they
believe is false and why. After everyone has made their ġuess, 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
ġood were the students, individually and as a ġroup, at pickinġ the false statement?
What does this tell one about makinġ assumptions and judġments about people?
Were some of the statements ġiven by different people similar? Why?
Give the followinġ instructions to students to find out how many they ġot riġht—―Everyone
stand up. If you ġot at least one riġht, stay standinġ. Two riġht, stay standinġ. Three riġht?
Four fiġht? Five riġht? etc.‖ Soon only one or two may remain standinġ.
Openinġ Discussion Tip
What is employment law?
1-3
Copyriġht 2022 © McGraw Hill LLC. All riġhts reserved. No reproduction or distribution
without the prior written consent of McGraw Hill LLC.
