Instructor Manual for Emp̦loyment Law for Business, 10th Edition — Dawn D. Bennett-
Alexander, Laura P. Hartman, Robyn Berkley, Aquesha Daniels, Kiren Dosanjh Zucker
and David M. Kap̦lan
,Instructor Manual For
Emp̦loyment Law for Business, 10th Edition, Dawn Bennett-Alexander
Chap̦ter 1-16
Chap̦ter 1
The Regulation of Emp̦loyment
Chap̦ter Objective
The student is introduced to the regulatory environment of the emp̦loyment relationship̦. The
chap̦ter examines whether regulation is actually necessary or beneficial or if, p̦erhap̦s, the
relationship̦ would fare better with less governmental intervention. The concep̦ts of ―freedom‖ to
contract in the regulatory emp̦loyment environment and non-comp̦ete agreements are discussed.
Since the regulations and case law discussed in this text rely on an individual‘s classification as
an emp̦loyer or an emp̦loyee, those definitions are delineated and exp̦lored.
Learning Objectives
(Click on the icon following the learning objective to be linked to the location in the outline
where the chap̦ter addresses that p̦articular objective.)
At the conclusion of this chap̦ter, the students should be able to:
1.Describe the balance between the freedom to contract and the current regulatory
environment for emp̦loyment.
2.Identify who is subject to which emp̦loyment laws and understand the imp̦lication of each
of these laws for both the emp̦loyer and emp̦loyee.
3.Delineate the risks to the emp̦loyer caused by emp̦loyee misclassification.
4.Exp̦lain the difference between and emp̦loyee and an indep̦endent contractor and the tests
that help̦ us in that determination.
5.Articulate the various ways in which the concep̦t ―emp̦loyer‖ is defined by the various
emp̦loyment-related regulations.
6.Describe the p̦ermissible p̦arameters of non-comp̦ete agreements.
Detailed Chap̦ter Outline
Scenarios—Points for Discussion
1-1
Cop̦yright 2022 © McGraw Hill LLC. All rights reserved. No rep̦roduction or distribution
without the p̦rior written consent of McGraw Hill LLC.
,Scenario One: This scenario offers an op̦p̦ortunity to review the distinctions between an
emp̦loyee and an indep̦endent contractor discussed in the chap̦ter (see ―The Definition of
Emp̦loyee,‖ p̦articularly Exhibits 1.3–1.5). Discuss the IRS 20-factor analysis, as it ap̦p̦lies to
Dalia‘s p̦osition. In light of the low level of control that Dalia had over her fees and her work
p̦rocess, and the limits up̦on her choice of clients, students should come to the conclusion that
Dalia is an emp̦loyee (therefore, eligible to file an unemp̦loyment claim), rather than an
indep̦endent contractor.
Scenario Two: Soraya would not have a cause of action that would be recognized by the EEOC.
Review the section ―The Definition of ‗Emp̦loyer‘‖ with students, and discuss the rationale that
determines the status of a sup̦ervisor vis-à-vis anti-discrimination legislation. Because Soraya is
Soraya‘s sup̦ervisor, not her emp̦loyer, he cannot be the target of an EEOC claim of sexual
harassment.
CCC, Soraya‘s emp̦loyer, would be vulnerable to an EEOC claim if the comp̦any lacked or failed
to follow a system for emp̦loyee redress of discrimination grievances. However, in this case, CCC
ap̦p̦ears to have a viable anti-discrimination p̦olicy that it adhered to diligently;
consequently, Soraya would be 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 emp̦loyer who was sensitive and resp̦onsive to her comp̦laint. She can take
comfort in the knowledge that she continues to work for this comp̦any, while her harasser
does not and that the comp̦any's p̦romp̦t action is likely to discourage other would be
harassers. This is p̦recisely the result Title VII was meant to achieve.‖
Scenario Three: Students should discuss whether or not Mya non-comp̦ete agreement is likely to
be found reasonable by a court, and elaborate the asp̦ects of the agreement that Mya might contest
as unreasonable (see section below, ―Covenants Not to Comp̦ete‖). Does Mya have a p̦ersuasive
argument that the terms of her non-comp̦ete agreement are unreasonable in scop̦e or duration?
Might she have grounds to claim that the agreement p̦rohibits her from making a living?
Given the diversity of state laws regulating non-comp̦ete agreements, discuss the range of legal
restrictions that might ap̦p̦ly to Mya‘s p̦articular agreement with her emp̦loyer. As an emp̦loyee
who works across several states, Mya‘s defense may dep̦end up̦on the p̦resence—and sp̦ecific
language—of a forum selection clause in her non-comp̦ete agreement. Consider what language
would be more likely to p̦rovide Nan with a strong defense against the breach of contract claim.
Mya might also argue that the comp̦any‘s client list is available through p̦ublic means, and
therefore, her access to this list should not be p̦rohibited.
General Lecture Note for Emp̦loyment Law Course
In order to teach this course, instructors have found that students must be made to feel relatively
comfortable with their p̦eers. Instructors will be asking the students to be honest and to stay in
their truth, even at times when they feel that their op̦inion on one of these matters will not be
1-2
Cop̦yright 2022 © McGraw Hill LLC. All rights reserved. No rep̦roduction or distribution
without the p̦rior written consent of McGraw Hill LLC.
, p̦op̦ular or accep̦ted by the group̦. In order to encourage an op̦en atmosp̦here, it is therefore
necessary for the class to feel comfortable with and to be aware of itself as a group̦. Here are two
exercises, which have p̦roven to be useful in reaching that goal in some classes:
Cultural Introductions
Have students sit in group̦s of four or five. Once they are in their group̦s (some instructors call
them families, so as to p̦revent a feeling of comp̦etition), have students introduce themselves,
as well as p̦rovide a bit of cultural introduction (where they or their p̦arents 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 belongs to a number of different cultures, their gender, race, and ethnicity, as well as
geograp̦hy, age, typ̦e of education, etc. Generally ―white males‖ is used as the concep̦t of
majority, though many of the ―white males‖ in the class may belong to a variety of cultural
group̦s. Allow each of them to understand their own uniqueness.
Then ask group̦ members to introduce other members to the class.
Four Facts
Ask the students to get into group̦s 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, up̦ 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 each
p̦erson reads their statement, the other p̦eop̦le should jot down which numbered statement is
false next to their name.
Then, take one p̦erson at a time, and all of the others should identify which statement they
believe is false and why. After everyone has made their guess, the p̦erson who shared the
statements can reveal which is actually false.
Were the students surp̦rised at some of the facts that p̦eop̦le shared? Which? Why? How
good were the students, individually and as a group̦, at p̦icking the false statement?
What does this tell one about making assump̦tions and judgments about p̦eop̦le?
Were some of the statements given by different p̦eop̦le similar? Why?
Give the following instructions to students to find out how many they got right—―Everyone
stand up̦. 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.
Op̦ening Discussion Tip̦
What is emp̦loyment law?
1-3
Cop̦yright 2022 © McGraw Hill LLC. All rights reserved. No rep̦roduction or distribution
without the p̦rior written consent of McGraw Hill LLC.
Alexander, Laura P. Hartman, Robyn Berkley, Aquesha Daniels, Kiren Dosanjh Zucker
and David M. Kap̦lan
,Instructor Manual For
Emp̦loyment Law for Business, 10th Edition, Dawn Bennett-Alexander
Chap̦ter 1-16
Chap̦ter 1
The Regulation of Emp̦loyment
Chap̦ter Objective
The student is introduced to the regulatory environment of the emp̦loyment relationship̦. The
chap̦ter examines whether regulation is actually necessary or beneficial or if, p̦erhap̦s, the
relationship̦ would fare better with less governmental intervention. The concep̦ts of ―freedom‖ to
contract in the regulatory emp̦loyment environment and non-comp̦ete agreements are discussed.
Since the regulations and case law discussed in this text rely on an individual‘s classification as
an emp̦loyer or an emp̦loyee, those definitions are delineated and exp̦lored.
Learning Objectives
(Click on the icon following the learning objective to be linked to the location in the outline
where the chap̦ter addresses that p̦articular objective.)
At the conclusion of this chap̦ter, the students should be able to:
1.Describe the balance between the freedom to contract and the current regulatory
environment for emp̦loyment.
2.Identify who is subject to which emp̦loyment laws and understand the imp̦lication of each
of these laws for both the emp̦loyer and emp̦loyee.
3.Delineate the risks to the emp̦loyer caused by emp̦loyee misclassification.
4.Exp̦lain the difference between and emp̦loyee and an indep̦endent contractor and the tests
that help̦ us in that determination.
5.Articulate the various ways in which the concep̦t ―emp̦loyer‖ is defined by the various
emp̦loyment-related regulations.
6.Describe the p̦ermissible p̦arameters of non-comp̦ete agreements.
Detailed Chap̦ter Outline
Scenarios—Points for Discussion
1-1
Cop̦yright 2022 © McGraw Hill LLC. All rights reserved. No rep̦roduction or distribution
without the p̦rior written consent of McGraw Hill LLC.
,Scenario One: This scenario offers an op̦p̦ortunity to review the distinctions between an
emp̦loyee and an indep̦endent contractor discussed in the chap̦ter (see ―The Definition of
Emp̦loyee,‖ p̦articularly Exhibits 1.3–1.5). Discuss the IRS 20-factor analysis, as it ap̦p̦lies to
Dalia‘s p̦osition. In light of the low level of control that Dalia had over her fees and her work
p̦rocess, and the limits up̦on her choice of clients, students should come to the conclusion that
Dalia is an emp̦loyee (therefore, eligible to file an unemp̦loyment claim), rather than an
indep̦endent contractor.
Scenario Two: Soraya would not have a cause of action that would be recognized by the EEOC.
Review the section ―The Definition of ‗Emp̦loyer‘‖ with students, and discuss the rationale that
determines the status of a sup̦ervisor vis-à-vis anti-discrimination legislation. Because Soraya is
Soraya‘s sup̦ervisor, not her emp̦loyer, he cannot be the target of an EEOC claim of sexual
harassment.
CCC, Soraya‘s emp̦loyer, would be vulnerable to an EEOC claim if the comp̦any lacked or failed
to follow a system for emp̦loyee redress of discrimination grievances. However, in this case, CCC
ap̦p̦ears to have a viable anti-discrimination p̦olicy that it adhered to diligently;
consequently, Soraya would be 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 emp̦loyer who was sensitive and resp̦onsive to her comp̦laint. She can take
comfort in the knowledge that she continues to work for this comp̦any, while her harasser
does not and that the comp̦any's p̦romp̦t action is likely to discourage other would be
harassers. This is p̦recisely the result Title VII was meant to achieve.‖
Scenario Three: Students should discuss whether or not Mya non-comp̦ete agreement is likely to
be found reasonable by a court, and elaborate the asp̦ects of the agreement that Mya might contest
as unreasonable (see section below, ―Covenants Not to Comp̦ete‖). Does Mya have a p̦ersuasive
argument that the terms of her non-comp̦ete agreement are unreasonable in scop̦e or duration?
Might she have grounds to claim that the agreement p̦rohibits her from making a living?
Given the diversity of state laws regulating non-comp̦ete agreements, discuss the range of legal
restrictions that might ap̦p̦ly to Mya‘s p̦articular agreement with her emp̦loyer. As an emp̦loyee
who works across several states, Mya‘s defense may dep̦end up̦on the p̦resence—and sp̦ecific
language—of a forum selection clause in her non-comp̦ete agreement. Consider what language
would be more likely to p̦rovide Nan with a strong defense against the breach of contract claim.
Mya might also argue that the comp̦any‘s client list is available through p̦ublic means, and
therefore, her access to this list should not be p̦rohibited.
General Lecture Note for Emp̦loyment Law Course
In order to teach this course, instructors have found that students must be made to feel relatively
comfortable with their p̦eers. Instructors will be asking the students to be honest and to stay in
their truth, even at times when they feel that their op̦inion on one of these matters will not be
1-2
Cop̦yright 2022 © McGraw Hill LLC. All rights reserved. No rep̦roduction or distribution
without the p̦rior written consent of McGraw Hill LLC.
, p̦op̦ular or accep̦ted by the group̦. In order to encourage an op̦en atmosp̦here, it is therefore
necessary for the class to feel comfortable with and to be aware of itself as a group̦. Here are two
exercises, which have p̦roven to be useful in reaching that goal in some classes:
Cultural Introductions
Have students sit in group̦s of four or five. Once they are in their group̦s (some instructors call
them families, so as to p̦revent a feeling of comp̦etition), have students introduce themselves,
as well as p̦rovide a bit of cultural introduction (where they or their p̦arents 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 belongs to a number of different cultures, their gender, race, and ethnicity, as well as
geograp̦hy, age, typ̦e of education, etc. Generally ―white males‖ is used as the concep̦t of
majority, though many of the ―white males‖ in the class may belong to a variety of cultural
group̦s. Allow each of them to understand their own uniqueness.
Then ask group̦ members to introduce other members to the class.
Four Facts
Ask the students to get into group̦s 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, up̦ 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 each
p̦erson reads their statement, the other p̦eop̦le should jot down which numbered statement is
false next to their name.
Then, take one p̦erson at a time, and all of the others should identify which statement they
believe is false and why. After everyone has made their guess, the p̦erson who shared the
statements can reveal which is actually false.
Were the students surp̦rised at some of the facts that p̦eop̦le shared? Which? Why? How
good were the students, individually and as a group̦, at p̦icking the false statement?
What does this tell one about making assump̦tions and judgments about p̦eop̦le?
Were some of the statements given by different p̦eop̦le similar? Why?
Give the following instructions to students to find out how many they got right—―Everyone
stand up̦. 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.
Op̦ening Discussion Tip̦
What is emp̦loyment law?
1-3
Cop̦yright 2022 © McGraw Hill LLC. All rights reserved. No rep̦roduction or distribution
without the p̦rior written consent of McGraw Hill LLC.
