Instructor Manual For
Employment Law for Business, 10th Edition, Dawn Bennett-Alexander
Chapter 1-16
Chapter 1
The Regulation of Employment
Chapter Objective
The student is introduced to the regulatory environment of the employment relationship.
Thechapter examines whether regulation is actually necessary or beneficial or if, perhaps,
therelationship would fare better with less governmental intervention. The concepts of
―freedom‖ tocontract 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 asan employer or an employee, those definitions are delineated and explored.
Learning Objectives
(Clic𝑘 on the icon following the learning objective to be lin𝑘ed to the location in the
outlinewhere 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 regulatory
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 regulations.
6.Describe the permissible parameters of non-compete agreements.
Detailed Chapter Outline
Scenarios—Points for Discussion
1-1
Copyright © McGraw Hill LLC. All rights 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
anemployee and an independent contractor discussed in the chapter (see ―The Definition
ofEmployee,‖ particularly Exhibits 1.3–1.5). Discuss the IRS 20-factor analysis, as it applies
toDalia‘s position. In light of the low level of control that Dalia had over her fees and her
wor𝑘process, and the limits upon her choice of clients, students should come to the conclusion
thatDalia is an employee (therefore, eligible to file an unemployment claim), rather than
anindependent contractor.
Scenario Two:Soraya would not have a cause of action that would be recognized by the
EEOC.Review the section ―The Definition of ‗Employer‘‖ with students, and discuss the
rationale thatdetermines the status of a supervisor vis-à-vis anti-discrimination legislation.
Because Soraya isSoraya‘s supervisor, not her employer, he cannot be the target of an EEOC
claim of sexualharassment.
CCC, Soraya‘s employer, would be vulnerable to an EEOC claim if the company lac𝑘ed or
failedto follow a system for employee redress of discrimination grievances. However, in this
case,CCC appears to have a viable anti-discrimination policy that it adhered to diligently;
consequently, Soraya would be unli𝑘ely to win a decision in her favor. The court inWilliams 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
ta𝑘ecomfort in the 𝑘nowledge that she continues to wor𝑘 for this company, while her
harasserdoes not and that the company's prompt action is li𝑘ely to discourage other would
beharassers. 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
tobe found reasonable by a court, and elaborate the aspects of the agreement that Mya
mightcontest as unreasonable (see section below, ―Covenants Not to Compete‖). Does Mya have
apersuasive argument that the terms of her non-compete agreement are unreasonable in scope
orduration? Might she have grounds to claim that the agreement prohibits her from ma𝑘ing
aliving?
Given the diversity of state laws regulating non-compete agreements, discuss the range of
legalrestrictions that might apply to Mya‘s particular agreement with her employer. As an
employeewho wor𝑘s across several states, Mya‘s defense may depend upon the presence—and
specificlanguage—of a forum selection clause in her non-compete agreement. Consider what
languagewould be more li𝑘ely to provide Nan with a strong defense against the breach of
contract claim.
Mya might also argue that the company‘s client list is available through public means,
andtherefore, 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
relativelycomfortable with their peers. Instructors will be as𝑘ing the students to be honest and to
stay intheir truth, even at times when they feel that their opinion on one of these matters will not
be
, 1-2
Copyright © McGraw Hill LLC. All rights reserved. No reproduction or distribution
without the prior written consent of McGraw Hill LLC.
, popular or accepted by the group. In order to encourage an open atmosphere, it is
thereforenecessary for the class to feel comfortable with and to be aware of itself as a group. Here
are twoexercises, which have proven to be 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
callthem families, so as to prevent a feeling of competition), have students introduce
themselves,as well as provide a bit of cultural introduction (where they or their parents are
from, wherethey may have lived, or other ―cultural‖ information, li𝑘e they are from the
suburbs, or theywor𝑘 for a certain industry, or they went to a catholic school, etc.). They
should also discusstimes when they may have been more aware of this cultural difference than
others. This willonly be shared with the families. In this way, each student is made aware of
the fact that sheor he belongs to a number of different cultures, their gender, race, and
ethnicity, as well asgeography, age, type of education, etc. Generally ―white males‖ is used as
the concept ofmajority, though many of the ―white males‖ in the class may belong to a variety
of culturalgroups. Allow each of them to understand their own uniqueness.
Then as𝑘 group members to introduce other members to the class.
Four Facts
As𝑘 the students to get into groups and list four statements about themselves, three of
whichshould be true, and one of which should be false. Also as𝑘 them to list below those
statementsthe 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 reading her or his statements to their family. As
eachperson reads their statement, the other people should jot down which numbered
statement isfalse next to their name.
Then, ta𝑘e one person at a time, and all of the others should identify which statement
theybelieve is false and why. After everyone has made their guess, the person who shared
thestatements 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 about ma𝑘ing
Give the following instructions to students to find out how many they got right—
―Everyonestand 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 © McGraw Hill LLC. All rights reserved. No reproduction or distribution
without the prior written consent of McGraw Hill LLC.
Employment Law for Business, 10th Edition, Dawn Bennett-Alexander
Chapter 1-16
Chapter 1
The Regulation of Employment
Chapter Objective
The student is introduced to the regulatory environment of the employment relationship.
Thechapter examines whether regulation is actually necessary or beneficial or if, perhaps,
therelationship would fare better with less governmental intervention. The concepts of
―freedom‖ tocontract 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 asan employer or an employee, those definitions are delineated and explored.
Learning Objectives
(Clic𝑘 on the icon following the learning objective to be lin𝑘ed to the location in the
outlinewhere 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 regulatory
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 regulations.
6.Describe the permissible parameters of non-compete agreements.
Detailed Chapter Outline
Scenarios—Points for Discussion
1-1
Copyright © McGraw Hill LLC. All rights 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
anemployee and an independent contractor discussed in the chapter (see ―The Definition
ofEmployee,‖ particularly Exhibits 1.3–1.5). Discuss the IRS 20-factor analysis, as it applies
toDalia‘s position. In light of the low level of control that Dalia had over her fees and her
wor𝑘process, and the limits upon her choice of clients, students should come to the conclusion
thatDalia is an employee (therefore, eligible to file an unemployment claim), rather than
anindependent contractor.
Scenario Two:Soraya would not have a cause of action that would be recognized by the
EEOC.Review the section ―The Definition of ‗Employer‘‖ with students, and discuss the
rationale thatdetermines the status of a supervisor vis-à-vis anti-discrimination legislation.
Because Soraya isSoraya‘s supervisor, not her employer, he cannot be the target of an EEOC
claim of sexualharassment.
CCC, Soraya‘s employer, would be vulnerable to an EEOC claim if the company lac𝑘ed or
failedto follow a system for employee redress of discrimination grievances. However, in this
case,CCC appears to have a viable anti-discrimination policy that it adhered to diligently;
consequently, Soraya would be unli𝑘ely to win a decision in her favor. The court inWilliams 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
ta𝑘ecomfort in the 𝑘nowledge that she continues to wor𝑘 for this company, while her
harasserdoes not and that the company's prompt action is li𝑘ely to discourage other would
beharassers. 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
tobe found reasonable by a court, and elaborate the aspects of the agreement that Mya
mightcontest as unreasonable (see section below, ―Covenants Not to Compete‖). Does Mya have
apersuasive argument that the terms of her non-compete agreement are unreasonable in scope
orduration? Might she have grounds to claim that the agreement prohibits her from ma𝑘ing
aliving?
Given the diversity of state laws regulating non-compete agreements, discuss the range of
legalrestrictions that might apply to Mya‘s particular agreement with her employer. As an
employeewho wor𝑘s across several states, Mya‘s defense may depend upon the presence—and
specificlanguage—of a forum selection clause in her non-compete agreement. Consider what
languagewould be more li𝑘ely to provide Nan with a strong defense against the breach of
contract claim.
Mya might also argue that the company‘s client list is available through public means,
andtherefore, 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
relativelycomfortable with their peers. Instructors will be as𝑘ing the students to be honest and to
stay intheir truth, even at times when they feel that their opinion on one of these matters will not
be
, 1-2
Copyright © McGraw Hill LLC. All rights reserved. No reproduction or distribution
without the prior written consent of McGraw Hill LLC.
, popular or accepted by the group. In order to encourage an open atmosphere, it is
thereforenecessary for the class to feel comfortable with and to be aware of itself as a group. Here
are twoexercises, which have proven to be 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
callthem families, so as to prevent a feeling of competition), have students introduce
themselves,as well as provide a bit of cultural introduction (where they or their parents are
from, wherethey may have lived, or other ―cultural‖ information, li𝑘e they are from the
suburbs, or theywor𝑘 for a certain industry, or they went to a catholic school, etc.). They
should also discusstimes when they may have been more aware of this cultural difference than
others. This willonly be shared with the families. In this way, each student is made aware of
the fact that sheor he belongs to a number of different cultures, their gender, race, and
ethnicity, as well asgeography, age, type of education, etc. Generally ―white males‖ is used as
the concept ofmajority, though many of the ―white males‖ in the class may belong to a variety
of culturalgroups. Allow each of them to understand their own uniqueness.
Then as𝑘 group members to introduce other members to the class.
Four Facts
As𝑘 the students to get into groups and list four statements about themselves, three of
whichshould be true, and one of which should be false. Also as𝑘 them to list below those
statementsthe 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 reading her or his statements to their family. As
eachperson reads their statement, the other people should jot down which numbered
statement isfalse next to their name.
Then, ta𝑘e one person at a time, and all of the others should identify which statement
theybelieve is false and why. After everyone has made their guess, the person who shared
thestatements 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 about ma𝑘ing
Give the following instructions to students to find out how many they got right—
―Everyonestand 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 © McGraw Hill LLC. All rights reserved. No reproduction or distribution
without the prior written consent of McGraw Hill LLC.
