SUMMARY NOTES ON Employment Law

SUMMARY NOTES ON Employment Law Describe the functions of the U.S. Constitution as it relates to employment law. - ANS Statutory laws created by the "law of the land" in the United States. Laws must comply with the Constitution. Summarize the concept of common law. - ANS Common law refers to law created by judicial decision on a case by case basis. Describe the types of employer-employee relationships. - ANS An employee may work for a single employer; on the other hand, an integrated enterprise is one in which the operations of two or more employers are considered so intertwined that they can be considered a single employer for purposes of both federal statutory coverage and liability. Joint employer: two or more entities not engaged in an integrated exercise exert control over an employee, such that each entity may be considered an employer. Note employee and independent contractor below. Describe employee and independent contractor status. - ANS An employee works for another person or company for a wage or salary. In exchange, he/she is under both the protection of and is responsible to that employer to act in the best interest of the company. An independent contractor, on the other hand, maintains much of the control in his situation [control over hours scheduled, the process of the work; financially responsible for his own benefits, workers comp and unemployment; may work for multiple companies at one time; brings his own tools to the job]. There is a written contract that binds the contractor to the employer for a specific time and to complete a particular outcome, usually for a "bulk dollar amount". The IRS has a 20 point test for independent contractor status. Employers cannot treat employees like contractors, nor the opposite. The common law agency test and economics realities tests may also guide status. Differentiate between rights and responsibilities of employers and employees. - ANS Employer Rights: 1. Employees are on time and in attendance (unless ill, leave, etc) 2. Employees are working in the best interest of the employer's goals 3. Employees log hours accurately 4. Employees follow all laws, policies and procedures; including discrimination, harassment 5. Employees add to the health and safety of the workplace 6. Employees keep private the information that should be confidential (coworkers, company secrets, etc) 7. Right to remain a viable business (so undue hardship comes into play, WARN) 8. Right to compete with other companies. Employee Rights: 1. Safe and healthy workplace 2. Pay commensurate with job; paid on time and in legal way 3. Fair treatment 4. Privacy, limited 5. Resources needed to do the job 6. Workplace free of discrimination 7. Knowing where they stand (performance management) 8. Knowing what is expected (policies and procedures, job description, behavior) 9. Most employers, unemployment compensation and worker's compensation coverage. Describe the role of the employee handbook in a legal context. - ANS Established employer's policies and procedures.Employment at will—some employees have claimed that the handbook creates an "implied contract". It is recommended that there be a statement in the handbook that it is not a contract. Ask employees to sign that they had read and understood, agreeing to it. Second, the newest handbook is the one that "trumps" all others, regardless of which handbook was current when the employee joined the company. There is protection in noting that it is the employee's responsibility to keep an updated copy. If we don't follow our own handbook, it's no protection; follow procedures outlined. Progressive discipline, reserve right to jump steps (employee can claim, "hey, you didn't give me all these warnings and things"; some breaches by the employee should lead to immediate termination). Describe respondeat superior doctrine and the scope of employment. - ANS Respondeat superior: employer is only responsible for the employee's actions performed within the scope of employment. Scope of employment: related to the job description, foreseeable by the employer as part of the job [on work time? On work site? suggested by employer? not specifically forbidden] Potential example of how this can seem gray: If you have one work location, employer is not responsible for you during your commute. If you drive from one location to another during the workday, the travel between one and the other location is within the scope of employment. Bottom line: did the action serve the employer's interest? Describe the functions of the U.S. Constitution as it relates to employment law. - ANS Statutory laws created by the "law of the land" in the United States. Laws must comply with the Constitution. Summarize the concept of common law. - ANS Common law refers to law created by judicial decision on a case by case basis. Describe the types of employer-employee relationships. - ANS An employee may work for a single employer; on the other hand, an integrated enterprise is one in which the operations of two or more employers are considered so intertwined that they can be considered a single employer for purposes of both federal statutory coverage and liability. Joint employer: two or more entities not engaged in an integrated exercise exert control over an employee, such that each entity may be considered an employer. Note employee and independent contractor below. Describe employee and independent contractor status. - ANS An employee works for another person or company for a wage or salary. In exchange, he/she is under both the protection of and is responsible to that employer to act in the best interest of the company. An independent contractor, on the other hand, maintains much of the control in his situation [control over hours scheduled, the process of the work; financially responsible for his own benefits, workers comp and unemployment; may work for multiple companies at one time; brings his own tools to the job]. There is a written contract that binds the contractor to the employer for a specific time and to complete a particular outcome, usually for a "bulk dollar amount". The IRS has a 20 point test for independent contractor status. Employers cannot treat employees like contractors, nor the opposite. The common law agency test and economics realities tests may also guide status. Differentiate between rights and responsibilities of employers and employees. - ANS Employer Rights: 1. Employees are on time and in attendance (unless ill, leave, etc) 2. Employees are working in the best interest of the employer's goals 3. Employees log hours accurately 4. Employees follow all laws, policies and procedures; including discrimination, harassment 5. Employees add to the health and safety of the workplace 6. Employees keep private the information that should be confidential (coworkers, company secrets, etc) 7. Right to remain a viable business (so undue hardship comes into play, WARN) 8. Right to compete with other companies. Employee Rights: 1. Safe and healthy workplace 2. Pay commensurate with job; paid on time and in legal way 3. Fair treatment 4. Privacy, limited 5. Resources needed to do the job 6. Workplace free of discrimination 7. Knowing where they stand (performance management) 8. Knowing what is expected (policies and procedures, job description, behavior) 9. Most employers, unemployment compensation and worker's compensation coverage. Describe the role of the employee handbook in a legal context. - ANS Established employer's policies and procedures.Employment at will—some employees have claimed that the handbook creates an "implied contract". It is recommended that there be a statement in the handbook that it is not a contract. Ask employees to sign that they had read and understood, agreeing to it. Second, the newest handbook is the one that "trumps" all others, regardless of which handbook was current when the employee joined the company. There is protection in noting that it is the employee's responsibility to keep an updated copy. If we don't follow our own handbook, it's no protection; follow procedures outlined. Progressive discipline, reserve right to jump steps (employee can claim, "hey, you didn't give me all these warnings and things"; some breaches by the employee should lead to immediate termination). Describe respondeat superior doctrine and the scope of employment. - ANS Respondeat superior: employer is only responsible for the employee's actions performed within the scope of employment. Scope of employment: related to the job description, foreseeable by the employer as part of the job [on work time? On work site? suggested by employer? not specifically forbidden] Potential example of how this can seem gray: If you have one work location, employer is not responsible for you during your commute. If you drive from one location to another during the workday, the travel between one and the other location is within the scope of employment. Bottom line: did the action serve the employer's interest?