Employment Law

Changing Terms of Employment (definite and indefinite)

Definite term: During the period of the employment you would have to have voluntary renegotiation and/or additional consideration. Indefinite term: End old contract, make new offer, see if EE accepts by continuing to work. Or change conditions prospectively (old contract for past work, new contact for new work).

Mandatory Employment Arbitration: Unconscionability

FAA § 2: "an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, . . . , shall be valid, irrevocable, and enforceable, save upon such grounds ..." One such ground is "unconscionability" which is governed by state law of contract Unconscionability (p. 170 casebook)- UCC § 2-302: "if the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse the contract...."

Where is the Economic Realities Test applied?

It is used when the definition of "employee" or "to employ" in the statute elaborates beyond a circular definition in a way that shows an intent at broad coverage, or where the legislative history shows evidence of such a broad intent. For example, under the FLSA "to employ" is defined broadly as "to suffer or permit to work" and this expressed broad intent justifies the economic realities test.

Employee Handbooks: Traditional Rule

Traditionally EE handbooks not treated as binding, merely "aspirational." Offers of job security treated with suspicion, much more skepticism than terms in ordinary commercial contracts. Handbooks need: clear intent to be bound, express provision, special consideration, perhaps also mirror image mutuality and actual reliance. Woolley is the beginning of applying modern rules of contract interpretation to employment contracts.

What are common legislative solutions to the problem with covenants not to compete?

1. Prohibit noncompetes for low wage workers. (Washington, Oregon, Illinois, Massachusetts, others) 2. Prohibit noncompetes altogether. (ND, Calif, OK, D.C.) 3. Administrative fines or private cause of action for overbroad noncompetes.

Drug Testing - Overview

2011 Survey: 50% of ERs Test Job Applicants, 45% Test Incumbent Workers. (Higher than other developed countries) ER interests include: Safety, including Legal Obligations; Productivity (On the Job and Absenteeism); Reduce Theft, Illegal Activity on the job; Reduce Medical Costs; EE Morale, Public Image, ER Preference EE interests include: safety, theft, privacy, and accuracy

What is the problem with regulatory arbitrage?

ERs also have incentive to set up the business in such a way as to use independent contractors rather than EEs. Perhaps efficient if underlying economics support this, but incentive to do this just to avoid regulatory costs and gain a competitive advantage. Leaves costs of these unpaid for benefits and rights on the EE or society at large. Undermines ERs who pay their share of costs.

What are examples of hard and easy cases under workers' comp?

Easy cases include slip and fall on the job, hand hit by press. Hard cases are lightning strikes, tornado, hit by madman in the street, killed by jealous lover on the job. If an EE imports a personal risk (for example bringing illegal drugs into the workplace) that gives rise to an injury, it is well established that the injury is not compensable even though it occurs in the course of employment. Similarly, if the EE is exposed to an occupational risk for example the grinding gears of a machine he operates on the job that give rise to an injury, it is well established that the injury is compensable if it occurs in the course of employment.

When to Regulate? What is "Good Regulation"?

Economist's view is when individual bargaining fails: - Imperfect information (WC, OSHA) - transaction costs in long-term implicit contracts (ERISA) - public goods (min standards, OSHA, NLRA) - unequal bargaining power (FLSA, others)

What are follow-on agreements?

Follow-On Agreements: ERs may add follow-on agreements to stop people from learning a lot at a company and then quitting and patenting the project they created at the company. The courts tend to apply the same approach to holdover agreements that they do to noncompetes, i.e., applying a standard of reasonableness and the factors that bear upon it.

Terms and Conditions of Employment: Unilateral Offer and Acceptance

Can also be informal unilateral offer and acceptance (day laborer) = still have contract. Are verbal statements binding? Yes when there is an intent to be bound but this can be fuzzy line

Preclusion of Group Participation: Main Idea

Can an ER create a condition in a contract that requires you to individually arbitrate your disputes with the employer? This would stop you from joining with other people to adjudicate your claims together, sort of like collective bargaining. Below are three avenues in which it could be illegal in the employment context, but it does not look promising.

The Efficacy of Wage and Hour Regulation: Neoclassical Model

Setting a minimum wage above the market wage will cause ERs to employ fewer low wage workers, and when these workers are laid off they will go into any unregulated markets and depress wages there. It may be that the assumptions of the model do not adequately capture significant phenomena in the labor market.

Fair Labor Standards Act (regarding minimum wage)

Prohibited various forms of child labor and established a progressively more rigorous system of minimum wages and mandatory premium payments for overtime work. Adoption of minimum wage laws was motivated in part by a desire to establish a "safety net" of remuneration at a level that enables a worker to provider for the basic costs of existence in an industrial society. Preemption: The FLSA is not preemptive, the states may enact a higher minimum wage and many have.

Specific Anti-Retaliation Laws (State)

Some deal with statutory programs of workplace health and safety, workers' compensation, and the like. Many protect EEs against ER opposition to EEs' exercise of civil liberties, such as voting and the holding of political office. Some forbid ERs to coerce EEs to deal with or refrain from patronizing particular merchants.

Hybrid Tests (to determine who is an EE): Factors to Consider

Test: Examine a number of factors to examine "right to control" and "economic dependence." If yes worker is an EE, if no they are not an EE. Factors: collection of factors taken from right to control and economic realities tests, can expressly include "right to control" and or "economic dependence"

When is the ABC Test applied?

The ABC test is commonly used in state unemployment insurance (UI) statutes, but has increasingly been applied to other state statutes. State legislatures and administrative agencies have been the primary movers for adoption of the ABC test, although courts have sometimes inferred application of the test to new statutes.

Electronic Monitoring: Wiretap Act

Prohibits the interception of any electronic communication. An electronic communication is defined as any transfer of signs, signals, data, or intelligence of any nature by electronic means. Interception is defined as the acquisition of the contents of an electronic communication, and contents are defined to include any information concerning the substance, report, or meaning of that communication.

Drug Testing in the Courts - Public Sector

Public Sector or Government Mandated Drug Testing (Possible Constitutional Claim) 1. Skinner v Railway Labor Executives' Assoc, 489 US 602 (1989): testing of train crew after accident 2. Natl Treasury Employees Union v. Van Raab, 489 US 656 (1989): testing of custom agents on application for transfer or promotion Mandatory drug test IS a search under 4th Amendment, but not unreasonable if compelling government interest outweighs interest in EE privacy. Compelling interest in Skinner was safety, compelling interest in Van Raab was carry a gun and position of trust.

Whistleblower Laws

Purpose: to enlist a company's EEs-who are often the most knowledgeable about corporate malfeasance-in an effort to root it out. One way to do that is to give the EE a reward. The most common approach is to forbid retaliation against an EE who blows the whistle. Remedies include reinstatement, fringe benefits, injunctive relief, attorney's fees, back pay, and punitive damages or a civil fine depending on the state.

Neoclassical Analysis: Employment Mandates

Require that ERs provide a particular term or condition of employment, either directly or through a government program funded by an employment tax or contribution (examples include workers' compensation, unemployment compensation, and social security).

Medical Testing

Subject to ADA (1) Job Applicant: only ask after make contingent job offer, obligation to make "reasonable accommodation" of disabilities (mental or physical condition that impairs performance of major life function) (2) Incumbent EE: can only require if job related and consistent with business necessity, also obligation to reasonably accommodate Require vaccination as a condition of employment? - Generally, yes ER can require as long as accommodate religion (CRA) and medical reason for no vaccine (ADA)

Does ERISA have a broad reach?

The sweep of the statute is thus very broad since virtually any ERs business no matter how small can be said to affect commerce. Not every EE benefit however is subject to the act as the following opinion makes clear.

Test for Vicarious Liability of Franchiser?

Note even for liability under statutes that use economic realities or ABC test to determine whether worker is "employee", use "right to control" to determine vicarious liability of franchiser.

What is an example of the ABC Test?

Used in Hargrove v. Sleepy's LLC where mattress delivery drivers were being classified as independent contractors and the deliverers sued to clarify what test governed classifications under the Wage and Hour acts in NJ. Court rejected other tests and said ABC test should apply.

Preemption Clause of ERISA:

Uses the language supersedure. In its early ERISA cases, the Court treated § 514 as an instance of "explicit" preemption. Over time, however, it became increasingly clear to many of the Justices that the language is so non-specific that it is more appropriate to apply approaches traditionally used in conflict & field preemption. This broadly written provision states: "Except as provided in subsection (b) . . . the provisions of this [statute] . . . shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . not exempt under section 1003(b)[Workers' Compensation, Unemployment Compensation Disability]. . ."

Income Benefits: Temporary Partial (TP)

the EE is expected to completely recover with no or only minor long-term effects. EEs suffering temporary partial injuries can return to work under "light-duty" assignments until the "temporary" condition heals. After a "waiting period" income benefits for EEs in this category generally include 2/3 of lost wages and/or differential pay if income is lower due to light-duty assignment, for the period of their recovery.

How does OSHA enforcement work?

through inspection of the workplace by compliance officers. Inspections may be triggered by (1) complaints of EEs, (2) reports from any source of imminent dangers of serious injury, or (3) reports of fatal and multiple injuries. Or (4) just by scheduled investigation. Dangerous workplaces generally inspected every 4 years, many never inspected.

ERISA Remedies: § 502 Civil Enforcement

(a) Persons empowered to bring a civil action. A civil action may be brought: (1) by a participant or beneficiary: (A) for the relief provided for in subsection (c) of this section, or (B) to recover benefits due to him under the terms of his plan, to enforced his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; (2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title; (3) by a participant, beneficiary, or fiduciary: (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan

Workers Compensation Introduction

(a) Started first in Europe (Bismark in Germany, UK) (b) Began in US Early 1900's, constitutional challenges (interfere K, limit right to sue) overcome, by 1920's 40 states had, by 1948 last state (Mississippi) adopted. (c) Advocacy by academics and policy-makers lead to "Historic Compromise"

Unilateral Offer and Acceptance

1. No bilateral bargaining. 2. Employer offers terms of employment and employee accepts by performing. 3. Result is employer controls terms and conditions of work. However this can be tampered by the fact that the employees will go to another employer offering better terms if there is more demand than supply.

Income Benefits: Temporary Total (TT)

A full recovery from the injury is expected, but for a period the EE is completely unable to work due to the injury. After a "waiting period" these EEs generally receive their WBA for the period of their recovery.

Duty of Faithfulness (modern case)

A manager leaves his company to work for a competitor and several of the EEs under him quit and followed him to the competitor. An EE may not systematically induce other EEs to leave their jobs if his purpose of enticement is to destroy an integral part of his ER's business. The court held that the EEs who left with him were privileged to leave in mass because they were all part of the same circle of friends and it would have been permissible for them to discuss joint employment opportunities and hence they could have resolved to leave together without breaching a duty of loyalty.

Does employer misconduct impact death benefits?

A number of states increase benefits for employer misconduct. A number of states presume dependency in some cases.

Artisanal Period Case Civil Conspiracy (ends and means test)

Commonwealth v. Hunt (1842) (Boston Bootmakers). On appeal the Mass SC found that absent a contract obligation to work for a specific employer, the fact that Ds had agreed not to work for any ER who employed a nonunion worker were insufficient for conviction

What is KDS's observation about financing benefits?

Dau-Schmidt's "observation": large ERs self-insure; medium-sized ERs well served by private insurance and use them (with deductible); small ERs prefer state fund (with deductible).

What is the special relationship doctrine?

Developed to deal with non-payment of insurance claims. Applied more broadly to doctors and lawyers. Rationale to apply to EEs in general? Employment relationship a special relationship?

When to use tort or contract (employment termination)?

Discharge in violation of public policy is usually a tort and implied covenant of good faith and fair dealing is usually contract. What difference does it make? The availability of punitive damages.

What is the problem with drug testing?

Drug testing can yield a lot of private information beyond drug use including lawful prescription drug use, illness, and pregnancy.

Second Job Site Example: Santa Rosa Junior College v. Workers' Compensation Appeals Board

EE works for college and got into an accident on his drive home. He regularly did work at home and had papers to grade with him. Court held that he did not have to do work at home under his contract so the second job site exception that would allow him coverage over his travels to and from work does not apply.

What is the Going and Coming Rule?

Generally EEs are not covered by worker's comp while they are coming and going from work unless their job requires that they bring work home. There are several exceptions.

Wisehart v. Meganck (at-will rule, tort)

Loan officer at bank in at-will relationship violates protocol and is fired after the ER acts poorly in causing him to violate protocol. Holds that a duplicitous discharge of an at-will EE is not actionable in fraud, for the want of detrimental reliance by the EE. KDS thinks having discharge in violation of public policy and breach of the implied covenant of good faith and fair dealing is necessary because ER should not be allowed to assert a legal and contractual right and a right to frustrate the law or contract. They shouldn't be able to have both sides of the coin.

Social Security Disability Insurance Program

Old-Age and Survivors and Disability Insurance (OASDI) Qualified Workers, meet: 1. Min Earnings Requirement: Earn Min amount for Min number of quarters, Min change with age- Age 31-42 (20 Qu); Age 50 (28 Qu); 62 (40 Qu); $1,120/quarter 2. Definition of Total Disability (statute and cases)- (a) "Total disability" means inability, due to physical or mental impairment that is "demonstrable by medically acceptable clinical and laboratory diagnostic techniques," to engage, considering the workers age, education and work experience, in any kind of substantial gainful work that exists anywhere in the nation. (b) Disability must have or be expected to continue for at least 12 mos (c) Four step administrative process of application review, then possible appeal to courts.

White Collar Test: In re Family Dollar FLSA Litigation

Plaintiff was FD store manager who mostly did store clerk work but also managed people and was responsible for running the store. The current regulations provide that an EE qualifies as an executive if: (1) she is compensated on a salary basis at a rate of at least $455/week; (2) her primary duty is mgmt of the enterprise; (3) she customarily and regularly directs the work of two or more other EEs; and (4) she has the authority to hire or fire other EEs or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other EEs are given particular weight. P cannot overcome the exemption by claiming that she spent the majority of her time performing non-managerial duties.

Mandatory Arbitration - Federal Arbitration Act: Background

Preemption/Enforceability: The last clause of the FAA tells us that the FAA preempts state laws that previously made arbitration agreements unenforceable, but not state law on the formation or enforceability of contracts generally. As a result, private agreements to arbitrate employment disputes are enforceable unless there is some basis in a state general contract law for finding that no arbitration agreement was formed or for finding that the agreement is unenforceable.

Employment at Will

Presumption of contractual interpretation: (1) Contract for an indefinite term presumed "at-will", employee can be discharged or leave at any time for any (legal) reason (2) Contract for a definite term presumed "for cause", employee can be discharged or leave only for a substantial breach.

What are short term markets? What about long-term employment?

Short Term Spot Market: The relationship might be short term & very simple, for example when a landscaper picks up a day laborer in a parking lot with a promise of "$100 for the day." Economists refer to such labor markets as a "spot market" for labor because laborers & economists come to one "spot" to trade labor for wages at the going rate akin to a commodity exchange. Long-Term Employment: Economists refer to such employment as long-term employment subject to "internal labor market" of administrative rules designed by the employer for the operation of the firm.

ERISA: Insurance Test

State law "regulates insurance" under savings clause if: (1) law specifically directed towards entities engaged in insurance, and (2) law substantially affects the risk pooling arrangement between insurer & insured (the heart of insurance). Very broad test of regulation of insurance, not need to directly regulate insurance contract itself.

What two duties does Section 5(a) of the statute impose on ERs?

The general duty clause, applicable where no specific standard has been adopted or is applicable to the special situation, provides: each ER (1) shall furnish to each of his EEs employment in a place of employment which are free from recognized harms that are causing or are likely to cause death or serious harm to his EEs. (governs COVID still) The specific duty or standards clause, which requires that: (2) each ER shall comply with Occupational Safety and health standards promulgated under this act.

Is the minimum wage lower than projected?

The minimum wage is about $3 less per hour than it would be had the minimum wage set in 1968 been indexed to increase according to cost of living increase.

What is the Maximum Medical Improvement (MMI)?

The point at which the worker's medical condition has stabilized and further improvement is unlikely.

What is pension plan accrual?

The rate at which EE earns pension benefits over time. Accrual standards target the rate at which pension benefits are earned, a concern with many defined benefit plans. § 204 of ERISA limits backloading by requiring ERs to use one of three methods for computing accruals under a defined benefit plan.

Are independent contractors included in workers' comp?

The typical workers' compensation insurance contract based the premium amount on the wage paid by the insured ER to its EEs. Earnings of independent contractors would not count. Insured and insurers sometimes disagree on the classification, resulting in an insurer's suit against its insured for additional premium payments.

FLSA Coverage Exceptions

The workers not covered by the statute are mostly those exempted from coverage by § 13. In its present form, the FLSA gives the Secretary of Labor rulemaking authority to exempt certain executive, administrative, and professional EEs from coverage. Because such personnel almost by definition are paid in excess of the min wage, these exemptions generally are of no importance with respect to the hourly rate. However, the exemption is significant in that it removes overtime requirement.

Criminal Histories - Reform

There is concern among some that past criminal convictions sometimes are taken too seriously and serve as a bar to a person rehabilitating and furthering themselves, this has legally prompted the following potential reforms: 1. Possible CRA Title VII Civil Rights Act violation liability based on disparate impact if no legitimate business reason for using even small criminal convictions as disqualifying for work. Under Title VII of the Civil Rights Act an ER policy that is neutral on its face vis-a-via classes protected under that law but that has a disproportionate negative effect on a protected class must be proven to be legitimated by business necessity. 2. "Ban the Box" Movement: 13 states prohibit asking about criminal convictions until later in job interview process, perhaps after a conditional offer of employment is made.

Who is a fiduciary under ERISA?

Under ERISA you are a fiduciary if (1) named fiduciary in plan documents, or (2) assume fiduciary responsibilities (could be plan administrator, execs). Professionals advising them (accountants & lawyers) not fiduciaries but can be held liable for equitable relief under § 502(a)(3). Settlor might be liable for equitable relief under ERISA too. Even if not a fiduciary, may be a party of interest under § 406(6)(a) and held liable as knowing participant in breach of fiduciary duty under § 502(a)(3).

Neoclassical Model: Overview

Under the neoclassical model, private agreements enhance wealth to the benefit of both parties, otherwise they would not agree to them. The efficient role for the state is merely to protect private property rights & enforce voluntary agreements as a means of channeling resources to their most valuable use.

What are some examples of good cause?

failing substantially to perform the services that the EE was contracted to perform; breaching her duty of loyalty to the ER; and being insubordinate by willfully refusing to obey the ER's reasonable orders. However, an ER may not terminate an EE for refusing to obey an instruction in defense of his or her contract rights. EE illness, incapacity, or death can constitute "good cause" if it renders the EE unable to substantially perform his duties. The elimination of an EE's position as part of a reduction in force motivated by the economic interest of the business constitutes good cause. Has to be something that interferes with your job, it can't just be a small mess up. If you make the small mistake over and over though, cause might be met.

FLSA Coverage Exemptions

include §6(f) household employees; §7(i)-(p) commission salesmen, tobacco auction workers, some state and local EEs; § 13 executive, administrative & professional EEs, outside salesman, seasonal EEs, fishermen, reporters, casual EEs (like babysitters), and learning wage 85% of min wage for students and apprentices

Who is considered an administrative employee?

one who primary has duties of office or non-manual work related to mgmt policies or general business operations, and who exercises discretion and independent judgement with respect to significant matters.

Who is considered a professional employee?

one whose work is primarily intellectual in character. A special provision exempts from overtime requirement the majority of EEs who make $100K a year or more. Overtime exemption regulations include persons involved in computer programming work if paid on an hourly basis and at a rate of at least $27.63/hr

What factors increased the importance of employer provided benefits?

the increased mobility of the population, the decision by many unions to make improved benefits and major bargaining objective, favorable tax treatment for ER provided pension some benefits, and many others. This was fueled in part by widely reported failure of the pension plan at an automotive plant in Indiana. Public concerns included not only the appropriate funding and termination of pensions, but also individual rights to pension credits in the face of ER discretion.

What is the key inquiry to determine if something arose out of employment?

whether employment is the proximate cause of the accident

Economic Realities Test: Factors to Consider

(1) the degree of the alleged employer's right to control the manner in which the work is to be performed; (2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; (4) whether the service rendered requires a special skill; (5) the degree of permanence of the working relationship; (6) whether the service rendered is an integral part of the alleged employer's business."

Right to Control Test: Factors to Consider

(1) the skill required; (2) the source of the tools; (3) the location of the work; (4) the duration of the relationship; (5) whether right to assign additional projects; (6) hired party's discretion over when and how long to work; (7) the method of payment; (8) the hired party's role in hiring and paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) whether the hiring party is in business; (11) the provision of employee benefits; and (12) and the tax treatment of the hired party.

What is a Defined Contribution (DC) Plan?

(401k, 403b plans) the ER promises to make a "defined contribution" to an individual account for each EE with every paycheck. EE contributions are also possible. For example, the ER might promise to contribute an amount equal to 6% of pay or might promise to match any EE contribution up to 3% of pay. The EE then decides how to invest these contributions among the company stock and equity and bond mutual funds. Account portable.

Five Step Process to Determine if SSA benefits are available?

(Burden on Plaintiff in 1-4, on Commissioner in 5) (1) Is claimant currently gainfully employed? (2) is the claimant's disability severe? (3) does the claimant's disability "meet or equal" one of a list of specific impairments in regulations? (4) is the claimant able to do any work he has not previously done? (5) commissioner can rebut disability by showing significant number of jobs in national economy that the claimant can do.

What are other possible claims between employee and employer?

(1) intentional infliction of emotional distress; (2) fraud; (3) interference with contract

What are the fiduciary duties under ERISA § 404?

(a) Prudent man standard of care (1) subject §§ 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and (A) for the exclusive purpose of (i) providing benefits to participants & their beneficiaries; & (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims; (C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so and (D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III.

Combinations of Types of Injuries

(a) physical trauma/physical injury (no problem) (b) psychic trauma/physical injury (Klimas yes) (c) physical trauma/psychic injury (d) psychic trauma/psychic injury (Wolfe case yes) Problem of tracing the injury to the job

What are Hybrid Plans (DB and DC plans)

(cash balance plans) combines best of DB and DC plans. ER promises to make a defined contribution to each EE's individual account, based on compensation, professionally invests and then guarantees that the account will grow by at least some fixed % annually. Possible to have full or partial group annuitization, portability.

The Lochner Doctrine (freedom of contract under substantive due process in the 5th and 14th amendments)

1. State can only infringe on liberty of contract pursuant to a valid exercise of its police power to: (a) protect vulnerable classes of people, (b) regulate particularly dangerous activities, or (c) safeguard the general health and well-being (Lochner v. New York (1905)) 2. SC struck down a NY statute limiting to 60 the number of hours bakers could work in a week, under the theory that this limitation unconstitutionally infringed on the EEs and ERs liberty to contract under the 14th A. 3. Said no ev that bakers were mentally or physically handicapped, that baking was a hazardous occupation, or that bread produced by bakers more than 60 hours a week was in any was lesser in quality

What is the history of OSHA?

Although every state passed occupational health and safety laws by 1960, most existed more on paper than they did in the workplace. Generally weak and poorly enforced. 1969 Federal Coal Mine Health and Safety Act and then 1970 OSHA. The potential effectiveness of legislation was evidenced by the fact that states with good safety legislation had only 1/6th as many industrial accidents as states with poor legislation.

Joint Employment Becerra v. Expert Janitorial, LLC

Case: Shell game where you have a contractor for service who hires subcontractors who hire more subcontractors who hire workers who actually do cleaning. Test for Joint Employment: Between Fred Meyers and Expert? Since looking for liability under wage & hour law, apply form of "Economic Realities Test". Statute remedial, broadly to be interpreted. Joint employers jointly and severally liable for minimum wage violations. What is the Standard for Joint Employment Under NLRA? Note 4 after case. Used to be Browning Ferris Standard, new rule under Trump Board "To be a joint employer, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer's employees." (Feb 2020)

Home Care Association of America v. Wiel (domestic service workers)

FLSA has long exempted certain categories of "domestic service" workers. The exemptions include one for persons who provide "companionship services" and another for persons who live in the home where they work. This case concerns the scope of the exemptions for domestic-service workers providing either companionship services or live-in care for the elderly, ill, or disabled. In particular, are those exemptions from the Act's protections limited to persons hired directly by home care recipients and their families. Or do they also encompass EEs of 3d party agencies who are assigned to provide care in a home? Under the new regulations, 3d party ERs of companionship-services and live-in EEs may no longer "avail themselves" of the statutory exemptions. The new rules also narrow the Department's definition of "companionship services," which has the effect of limiting the scope of the Act's companionship-services exemption.

Which federal statutes use the Economic Realities Test? What about states?

Federal statutes using the economic realities tests include the FLSA and the Family Medical Leave Act (FMLA). State legislation that adopts the FLSA language regarding "to suffer or permit to work," including most state minimum wage laws, also typically use the economic realities test.

Terms and Conditions of Employment: Formal Agreement

Formal written relationship has bilateral negotiations by representatives, written "four corners" contract for a definitive term, and signed by both parties (only in high profile deals really because the person is highly wanted, like Aaron Rodgers/GB Packers)

What is the big take away from Harbor Tug case?

Harbor Tug & Barge Co. v. Papai - Big takeaway is that there are federal statutes that seaman can make worker's comp claims on.

LaRue v. DeWolff, Boberg & Associates, Inc.

Here, ee consider whether § 502(a)(2) of ERISA authorizes a participant in a defined contribution pension plan to sue a fiduciary whose alleged misconduct impaired the value of the plan assets in the participant's individual account. Or is §502(a) and §409 remedies limited to entirety of the plan? The principle statutory duties imposed on fiduciaries by that § relate to the proper mgmt, administration, & investment of fund assets, with an eye towards ensuring that the benefits authorized by the plan are ultimately paid to participants and beneficiaries. For defined contribution plans, fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive. Entire plan language does not apply to defined contribution plans. We therefore hold that although the section does not provide a remedy for individual injuries distinct from plan injuries, that provision does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant's individual accounts.

Merger Not Termination Form: Beck v. Pace International Union

Here, we decide whether an ER that sponsors and administers a single-ER defined-benefit pension plan has a fiduciary obligation under ERISA to consider a merger with a multi-ER plan as a method terminating the plan. In this case, Crown served as both plan sponsor & plan administrator. In March 2000, Crown filed for bankruptcy and preceded to liquidate its assets. ERISA allows ERs to terminate their pension plans voluntarily and in the summer of 2001, Crown began to consider standard termination, a condition of which is that the terminated plans have sufficient assets to cover benefit liabilities. PACE however proposed that rather than buy annuities, Crown instead merge the plans covering PACE union members with PACE industry union management pension fund, a multi-ER plan. Crown purchased the annuity & satisfied its obligations to plan participants. We believe that the PBGC's construction of the statute is a permissible one, and indeed the more plausible. Crown did not breach its fiduciary obligations in failing to consider PACE's merger proposal because merger is not a permissible form of termination. We hold that merger is not a permissible method of terminating a single-ER defined-benefit pension plan.

The ABC Test Factors

Hired person is presumed to be an EE unless the hiring party can show all three of the following factors: 1) Individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service & in fact; 2) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and 3) Such individual is customarily engaged in an independently established trade, occupation, profession or business.

Nippert v. Shinn Farm Construction Company (tornado case)

Hog shed builder injured in a tornado. Tornados are neutral risks. There are two tests for neutral risks (old street and three modern tests). Under the positional risk test: an EE's injuries are compensable as long as his employment duties put him in a position that he might not otherwise be in which exposed him to a risk, even though the risk is not greater than that of the general public. Therefore, victim can be compensated.

What is the Old Street Risk Doctrine?

If a person's job involves exposure to the perils of the street, he or she was covered for risks inherent to the passage in the streets but not for risks of general nature like lightning and tornadoes.

Background Checks - Employer Adverse Action

If an ER has received a report and wishes to take adverse action because of it, they must take the following steps. 1. The ER must provide a pre-adverse action notice to the individual, which includes a copy of the applicant's consumer report and a document summarizing their rights under the FCRA. Including the right to address inaccuracies in the report. § 1681m 2. The ER must then wait before taking the adverse action. While not explicitly prescribed by the FCRA, courts and FTC guidance suggest 5 days is a reasonable period to wait after the pre-adverse action notice and before taking adverse action. § 1681m 3. If the ER decides to take adverse action the ER must then give the applicant a notice of that fact. § 1681m EE remedies for non-compliance:- Civil liability for negligent noncompliance [15 U.S.C. § 1681e(b), § 1681o] (damages and Attorneys fees); Civil liability for willful noncompliance [15 U.S.C. § 1681e(b), § 1681n (possible punitive)

Why do we have OSHA?

If we have contracts (compensating wages) and workers' comp to compensate workers and give incentive to make workplace safe, why have OSHA too? Argument: economies of scale in info on workplace safety. Useful to have government prescribe rules identifying workplace risks and what do about them. Implications: 1. need OSHA most on most opaque risks (chemicals, radiation) 2. need OSHA most where parties unsophisticated about risks they face 3. should largely be advisory, not have large penalties unless intentional violations 4. OSHA regulations should be based on latest information

What is a pension?

It is a complex transaction to credit EEs for years of service, finance deferred benefits based on that service and pay those benefits over a period of years.

Unionization/Yellow Dog Contract

It is unlawful for an ER to offer improved terms of employment "in consideration for the employees' promise not to unionize." Known as a yellow dog contract and rendered unenforceable by the Norris-LaGuardia Act of 1932.

Control of Employees: Dress and Grooming Jespersen v. Harrah's Operating Co.

Jespersen worked as a bartender for many years and had exemplary record. Policy encouraging female beverage servers to wear makeup, policy not enforced until 2000. The program contained certain appearance standards that applied equally to both sexes, including a standard uniform. The program also contained some sex-differentiated appearance requirements as to hair, nails, and makeup. She argued the policy constituted sex discrimination under Title VII of the Civil Rights Act whether in its differential application as between men and women, as imposing a differentially higher burden on women, or as being based on unlawful sex stereotyping. Court not convinced. Lack of Success: Dress and grooming standards, especially "no beard" policies or limits on hair length for men, have been extensively litigated on sex discrimination grounds no success.

Disability Benefits: Jones v. Crenshaw

Jones was permanently and totally disabled in a compensable accident while in the employ of the appellees. The issues presented to the court is whether the trial judge properly compute the appellant's average weekly wage and whether the trial court erred in crediting the appellees with payments made for temporary total disability benefits against the award for permanent total disability benefits. We find the circuit court erred in computing the average weekly wage and that recovery may be had for both temporary total and permanent total disability. However, a substantial number of jurisdictions, although not all, require payments for temporary disability to be credited to the amount due for permanent disability. Jurisdictions split on this question; some do allow TT benefits to be deducted from PT benefits.

Artisanal Period (1600 - 1890) (the ascendance of "free wage labor") Describe the law of the employment relationship and the law of collective bargaining

Law of the Employment Relationship: master servant: reciprocal rights and responsibilities (ex: english rule of discharge, presumed that every servant is employed for a period of one year and can only be let go during that period upon "reasonable notice") Law of Collective Bargaining: criminal conspiracy (Commonwealth v. Pullis, 3 Doc. Hist. 59 (1806), Philadelphia Cordwainers' Case), civil Conspiracy (ends and means test) (Commonwealth v. Hunt, 45 Mass. 111 (1842) (Boston Bootmakers), various examples of illegal means, governance by injunction ... this system survives into the industrial period)

What is the majority view about if employee handbooks are binding?

Majority View on Binding: The majority view is that company policies circulated to the workforce in EE handbooks, manuals, etc., if sufficiently definite, are binding on the employer. However, the doctrinal grounding for that result varies by jurisdiction. Some adhere strictly to traditional contract theory requiring offer, acceptance, and consideration - each of which must be proved as to the particular EE should he or she make a claim grounded in the ER's policy. Several jurisdictions have applied promissory estoppel, along with but also as an alternative ground to unilateral contract doctrine.

What do OSHA penalties look like?

May range up to $7K for nonserious or serious violations, and from $5K to $70K for repeat or willful violations. An ER who willfully violates and thereby causes the death of an EE may be criminally prosecuted. Abatement orders common. Negotiated settlements with reduction in fines also common. Maximum fines (adjusts for inflation); A lot of time they will negotiate about fines & decrease them esp if the issue can be fixed (like the fan example) The purpose of OSHA is to get info out there about being safe in the workplace so pushing big fines may not be beneficial

Legalized Marijuana

Medicinal Use: More than 20 states currently legalize for medicinal purposes, few states deal with employment ramifications. Medicinal use a disability that has to be accommodated under the ADA? (no definitive answer yet) Recreational Use: Several states now have legalized marijuana for recreational use, again have not commonly dealt with employment ramifications. (a) Generally even if legal, ERs can prohibit use and require testing as condition of employment (b) Colorado: Marijuana legal AND state statute that says EEs can't be fired or discriminated against for lawful off-duty activity.

Majority Rule for Changing Employment Terms

Most courts have permitted ERs unilaterally to abrogate policy or handbook commitments to discharge only for good cause or upon observance of progressive discipline, sometimes without even a requirement of reserving that power beforehand.

Duty of Faithfulness (old case)

Nichol v. Martyn: An ironmonger left his ER and took the ER's clients with him. Court held that an EE must act in furtherance of her ER's interest but need not be unmindful of bettering her own situation in the world. Although agent must be loyal and serve the principal's interest on the principal's coin, allowed to take certain preparatory steps to run own business, even in competition with ER, even while actively employed.

How are SSA benefits paid?

Once application for benefits has been approved, cash payments began with the 60th month of disability. The amount of the monthly benefit depends upon (a) the amount of earnings on which the claimant has paid SS taxes, and (b) whether there are eligible dependents. SSDI is offset by workers' comp disability according to Richardson v. Belcher 1971 Supreme Court

What was the impact of new information technology on the job screening process?

Online applications are cheaper and faster, more information available, should lower hiring costs and improve matching of candidates to job. Certainly number of jobs with online applications rising (2013 Survey: 60-70% of all jobs listed on-line, 80% if require college degree).

Right to Control Test Overview

Originally Developed: Under tort law doctrine of respondent superior Type of Test: Totality of the circumstances test (no single factor dispositive) Test: Examine a number of factors to determine "whether the hiring party controls the manner and means of work." If yes, worker is "employee", if not worker is an "independent contractor"

Economic Realities Test Overview

Originally developed: to interpret federal laws. Type of Test: Totality of the circumstances test (no single factor dispositive) Test: Examine a number of factors to determine "whether, as a matter of economic reality, the individuals are dependent upon the business to which they render services." If yes worker is an EE, if not they are not an EE.

Norris-LaGuardia Act

Overview: An effort to legislate against yellow dog contracts. § 2 sets out as the public policy of the US that the individual unorganized worker shall be free from interference, restraint, or coercion of ER of labor or their agents [for engagement in] concerted activities for the purpose of mutual aid or protection. § 3 provides that any undertaking or promise in conflict with the public policy declared in § 2 shall not be enforceable in any court of the US. Under § 4, the federal courts are denied the power to prohibit any person in any case growing out of a labor dispute-which is defined to include a dispute between a single EE and her ER - from "aiding any person participating or interested in any labor dispute who is prosecuting any action in any court. 17 Application to the Federal Arbitration Act = Fail: The Act has been invoked as precluding federal court enforcement of waivers of group participation in employment arbitration. The judicial reception thus far has given the Act rather short shrift. The courts have rejected the law's application by one of three routes outlined on page 165.

Krizan v. Storz Broadcasting Co. (at-will rule, contract)

Plaintiff arrived at his job late after having stayed up working for the ER on his time off without notifying his ER and for such oversight he was discharged. We believe the record in the instant case fails to establish with any degree of certainty that the defendant's EEs were properly notified that future tardiness would not be countenanced and that the former policy of laxity in this regard was being abandoned.

Mitchell v. Teck Cominco Alaska, Inc. (The Implied Covenant of Good Faith and Fair Dealing Test) (minority rule)

Plaintiff fired from his job as a supervisor in the mine after ER concluded that he had sexually harassed a contractor's EE and lied during the ensuing investigation. Court determines that the ER did not treat other EEs in the same situation the same way and therefore the case should not have been dismissed on summary judgment. No precise definition for implied covenant of good faith and fair dealing but requires ER to treat like cases alike and act in a manner a reasonable person would regard as fair. Both subjective (ER can't deny EE benefit of bargain) and objective part (ER can't treat EE in manner a reasonable person would think unfair).

Buffkin v. Glacier Group (covenant not to compete)

Plaintiff hired as a sales recruiter and signed a covenant not to compete that applied for three years after leaving the job. The court first did not find any interest to be protected either through the EE's access to proprietary information or the EE's relationships with clients and noted that the accumulated training, knowledge, and skills, acquired by the EE are not in themselves legitimate interests to be protected. Court also concludes that the scope of the Agreement's noncompetition provision as it relates to the activities which it prohibits and geographic restraints is unreasonable (geographic limit was continental US and activity was employee recruitment and performance placement in any capacity...)

Artisanal Period (1600 - 1890) (the ascendance of "free wage labor") Describe the production technology and the nature of employment relationship

Production Technology: small craft shops, master/apprentice, masters know technology of production, local production Nature of Employment Relationship: status and contract (familial), some "collective bargaining" (craft guilds), one master supervise multiple journeyman

Johnson v. City of Winston-Salem

Recreational center custodian had lots of jobs that involved gripping and twisting of his hands and wrists. Although certain occupational diseases are specifically listed as compensable conditions under N.C. Gen.Stat Section 97-53, carpal tunnel syndrome is not among them. Thus, this disorder is compensable only if (1) is is "proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, or employment," and (2) it is not an "ordinary disease of life to which the general public is equally exposed outside of the employment.

Employee Reference Problem

References are useful in rewarding good EEs and matching EEs to right job. We want to encourage them. What is the problem? It can be abused by spiteful ER. Solution: Protect references by a qualified privilege, subject to defamation if privilege is abuse by over publication or malicious, intentional or reckless falsehood. BUT Fewer and fewer ERs give EEs references. (a) Kansas: Absolute privilege from defamation suit? (What about abuse?) (b) Germany: Require EE references? ER reference pools, available to correction and arbitration to employees?

Are there any other exemptions from FLSA employee status?

Retail Workers: Statute now covers retail and service workers in establishments doing business of $500K or more a year. Agriculture: The original exclusion of all agricultural workers from min wage requirements has been narrowed to those working on the smallest farms, although there is still a broad exemption from overtime requirements, not just for those on farms but for many workers in closely related work such as cotton ginning.

What are the Savings Clause and the Deemer Clause?

Saving Clause: Subsection (b)(2)(A) "Except as provided in [the "deemer" clause] . . . nothing in this [statute] . . . shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." Deemer Clause: Subsection (b)(2)(B) Neither an EE benefit plan . . ., nor any trust established under such a plan, shall be deemed to be an insurance company or to be engaged in the business of insurance or banking for the purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.

What if contract for indefinite term but condition of employment is only enforceable over time?

See National Rifle Association. ER can change condition enforced over time if (1) EE gets advance notice of change (2) with enough time to consider change and find another job. Then can assume EE acquiesced to change. Reasonable Notice.

Disability Benefits: Misc.

Situations with a PT Presumption: Most statutes include a conclusive presumption provision that entitled persons to total permanent disability benefits in certain cases such as the loss of both arms or legs or blindness. Odd Lot Doctrine: If the only work available to a person with the claimants age, education, experience, and disability is an odd lot job, one that exists only occasionally perhaps for only seasonal periods, then the fact that the claimant could perform such work does not bar her from being adjudicated totally disabled.

What is the minority view about if employee handbooks are binding?

Some courts have declined to bind ERs by their adopted policies at all on the ground, variously, that the transaction lacks "mutuality," that there is no consideration, or that as the policy may be revocable by the ER at any time making it an illusory promise.

What is the street risk doctrine?

Street risk doctrine is if the employment exposes the EE to the hazards of the street that is risk or danger incident to an inherent in the employment it provides the necessary causal relationship b/w the employment and the injury.

National Rifle Ass'n v. Ailes (reasonable notice)

The Ailes court held that the new policy would not bind a continuing EE until the EE had knowledge of the policy "complete enough" to imply consent as a matter of law. EEs get unpaid leave and the association decides it doesn't want to offer that anymore. Court holds yes they can change it if they give advance notice of change with enough time to consider the change and find another job. This is reasonable notice.

Borrowed Workers Doctrine: General

The Alday case involves two firms doing distinct businesses that complement one another, so that EEs of 1 often work alongside the EEs of another for a time, in order to further the hiring ERs business. Sometimes the borrowing is more obvious. The importance of temporary staffing agencies and EE leasing firms in the US has grown substantially. Since the workers continue to work in the same place under the same supervision, it clearly makes sense to treat them as EEs of the old ER and probably the EE of the leasing firm too.

Psychic Trauma/Psychic Injury: Matter of Wolfe v. Sibley, Lindsay, & Curr Co.

The appeal involves a claim for workmen's comp benefits for the period during which the claimant was incapacitated by severe depression caused by the discovery of her immediate supervisor's body after he had committed suicide. Relevant decisions can be divided into three categories: (1) psychic trauma which produces physical injury, (2) physical impact which produces psychological injury, and (3) psychic trauma which produces psychological injury. We hold that psychological or nervous injury precipitated by psychic trauma is compensable to the same extent as physical injury.

What is the problem with "misclassification"?

The complexity and ambiguity of the existing right-to-control and economic realities tests combined with the narrowness of the right-to-control test, give ERs opportunities, either mistakenly or purposely to "Misclassify" workers as Independent Contractors rather than EEs. States (and Federal?) Governments tired of lost taxes revenues and the undermining of public rights through Misclassification and Regulatory Arbitrage.

What is the defining characteristic of employment contracts?

The employment contract is distinguished, not only because it subjects one person to the control of another and deals with human values of sustenance, security, and survival, but also because it frequently leads to bargains which are socially unacceptable.

What is the dependency presumption?

The use of conclusive presumptions of dependency is common particularly for spouses and minor children. Often (as in the principle case), a claimant must establish both the existence of a relationship and that the deceased worker was "living with" the claimant at the time of injury. Living with does not always require actual physical presence in the home, however; a husband absent from the home while working at a distant location or because of ill health is still living with the wife.

PBGC Insurance Function

When a plan terminates with insufficient assets to satisfy its pension obligations to the EEs, the PBGC becomes trustee of the plan, taking over the plan's assets and liabilities. The PBGC then uses the plan's assets to cover what it can of the benefit obligations. The PBGC then must add its own funds to ensure payment of the remaining "guaranteed" benefits (i.e., those benefits to which participants have earned a nonforfeitable entitlement under the plan terms as of the date of termination) up to certain statutory limits (basically, 90% of promised benefits, excluding benefit increases in the last year).

What parties are covered under workers' comp?

Who is an ER and EE: The definitions of these terms are often circular, using some variant of "employ" as part of the definition. The usual result is for courts to resort to common law decisions about who is an EE, decisions often involving whether a party should be held responsible for the wrongdoing of a person alleged to be that party's EE, under the doctrine of respondeat superior. Right to control test.

Neoclassical Analysis: Employment Mandate Inefficient

Within the context of the neoclassical model, an employment mandate is always inefficient, or at best provides no increase in efficiency. Otherwise, ER would voluntarily offer benefit. The actual impact of the mandate on wages and employment depends on: how expensive the mandate is to ERs, how much it is valued by EEs, and the slopes of the demand and supply curves.

The test for unconscionability has both procedural and substantive components.

"Procedural unconscionability" refers to the conditions of contract formation and involves a focus on two factors: 1. Oppression, which exists when there is inequality in bargaining power b/w the parties, resulting in no real opportunity to negotiate the terms of the contract & the absence of meaningful choice. 2. Surprise involves the question whether the allegedly unconscionable terms were hidden from the party seeking to avoid them. "Substantive unconscionability" refers to the terms of the contract, rather than the circumstances of formation, and the inquiry focuses on whether the substantive terms unfairly favor the party with greater bargaining power. (Examples: shorten statute of limitations, limit remedies, require EE to pay half or arbitrator). Most states require both Proc and Subst Unconscionability

Exceptions to the At-Will Rule

(1) Express statutory prohibitions on discharge (examples): (a) Title VII of the Civil Rights Act (b) Many Workers' Compensation Statutes (c) Whistle Blower Statutes (d) Etc (2) Discharge in Violation of "Public Policy" (vast majority of Jurisdictions) Ex. Fire EE for refusing to perjure himself (3) Breach of the Implied Covenant of Good Faith and Fair Dealing (minority of jurisdictions in empl law) Ex. Fire EE after sale but before commission due

Job Screening - Social Media

(1) Invasion of privacy: If information is public, there is no invasion of privacy. If ER asks for access, as a condition of employment, and it is granted, not invasion of privacy. (2) Common law: protects EE privacy only if ER intrudes into a post or area where there is a reasonable expectation of privacy, without permission (3) Legislation: Currently 20 states have legislation restricting ER from insisting on access to private social media. Some impose fines for asking. Most prohibit discrimination for refusing to give access (how do you prove that is why you didn't get the job?)

For Defined Benefit plans subject to PBGC insurance, there are two type of complete plan terminations:

(1) Voluntary (29 USC § 1341): (a) Standard: Plan assets sufficient to provide all nonforfeitable benefits accrued at the time of termination. Proper notices and documents are provided. A standard termination does not implicate the PBGC's insurance function. (b) Distress: The ER meets certain financial hardship criteria and proper notices and documents are provided. A distress termination implicates the PBGC's insurance function, unless the plan is sufficient to cover all of the benefits guaranteed by the PBGC. (2) Involuntary (29 USC § 1342): An involuntary termination occurs when the PBGC takes over the plan due to failure to meet minimum funding requirements, & inability to pay benefits when due.

Four Typical Cases of Tort: Discharge in Violation of Public Policy

(1) fired for refusing to commit illegal act (perjury, etc.) (2) fired for performing a public duty or obligation (jury duty, national guard service) (3) fired for exercising a legal right or privilege (filing a workers' compensation claim) (4) fired for whistle blowing (reporting employer misconduct or illegality)

What are the five principal exceptions to coverage under ERISA?

(1) government plan (2) church plan (3) plan maintained solely for the purpose of complying with applicable WC laws or unemployment compensation or disability insurance laws (4) a plan maintained outside of the US primarily for the benefit of persons substantially all of whom are nonresident aliens; or (5) an excess benefit plan

Video Surveillance: Elements of Common Law Tort of Intrusion (on Seclusion)

(1) intrusion where reasonable expectation of privacy (identify of intruder, extent of other people's access, nature and means of intrusion); (2) manner highly offensive to reasonable person (degree and setting of intrusion and intruder's motives and objects) Defense of competing interests (balancing test).

Application of Fair Credit Reporting Act (FCRA) to EE Background Checks

(1) preempts state law defamation suits unless malice or willful intent to injury (2) qualified privilege for agencies that follow rigorous accuracy standards or give subject notice and chance to respond

What are the three ways to finance/pay for benefits?

(1) self-insurance (2) private insurance (manual rate based on industry and experience rating based on record of particular ER, works if experience rating effective and ER has deductible, competitive insurance market and good information on injuries) (3) State Insurance (24 states have, 4 are exclusive (ND, OH, WA, WY, also PR and Virgin Is)) (argument that they are administratively efficient and less exploitive than private insurance costs).

Elements of Intentional Infliction of Emotional Distress

(1) the defendant must act intentionally or recklessly; (2) the defendant's conduct must be extreme and outrageous; and (3) the conduct must be the cause; (4) of severe emotional distress. Extreme and outrageous conduct must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as utterly intolerable in a civilized community.

ERISA § 409 - Liability for Breach of Fiduciary Duty

(a) Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.

What is a Defined Benefit (DB) Plan?

(traditional plan) ER promises to pay a "defined benefit" to the EE for life, after retirement at a certain age, according to a formula based on years of service and average monthly salary. Monthly Benefit = 1.8% x (# Yrs Service) x (EE's Ave Mon Sal last 5 Yrs). Account not portable, although there are sometimes multi-ER plans. ER is responsible for setting aside enough money and investing it wisely, so that there is enough funds in the plan to pay benefits when they become due. EEs tend to prefer defined benefit plans because the risk that plan investments will go sour is on the ER and there is some protection for inflation because plan benefits are generally based on the EEs income during the last five years of service.

Doctrines concerning defamation in the employment relationship

1. "Defamation per se" (false statements concerning your fitness in your profession or job are defamation, not need to show special damages) 2. ER qualified "common interest" privilege - due to society's interest in communication among ERs, from reference bureaus to ERs and from ERs to EEs about fitness for job, ERs enjoy a qualified common interest privilege in the communication of such information. Privilege can be lost if ER "abuses" it by 1) malicious defamation (intentional or reckless) or 2) excessive publication (publishing beyond common interest). 3. Compelled self-publication (minority of states) Normally D must publish defamatory statements, but where it is foreseeable P will have to publish, D can be charged with it (disclose why left last job on job application)

Nature of Employment Relationship for "Free Labor" Under Contract

1. "Negative Freedom," can't regulate employment contracts, contract "free" from government interference 2. "Positive Freedom," worker "free" from unreasonable coercion by either the government or the employer 3. Important as freedom of contract commonly leaves employees with few rights outside protective legislation

How should we interpret the general employment statute that says it covers "employees" "Right to control test" from tort agency doctrine of respondeat superior "Economic realities test" of economic dependence Hybrid Tests "ABC Test"

1. "Right to control test" from tort agency doctrine of respondeat superior 2. "Economic realities test" of economic dependence 3. Hybrid Tests 4. "ABC Test"

Enforceability of a prohibition on group participation in arbitrations?

1. ATT v. Concepcion (2011)(Class action of phone purchasers v ATT) (SCt upheld waiver of class actions) 2. Am Express v. Italian Colors (2013)(Class action antitrust case against Am Exp)(SCt upheld waiver of class actions) Note: But in employment have NLRA § 7 and Norris LaGuardia Act 1. D R Horton, Inc. (2012)(indiv EE agreements to waive class actions in arbitration) NLRB held such agreements violate NLRA § 7 Rt to take "collective action" 2. Murphy Oil USA (2014)(indiv EE agreements to waive class actions in arbitration) NLRB reaffirmed D R Horton, Inc. held such agreements violate NLRA § 7 Rt to take "collective action"

What are the exceptions to the Going and Coming Rule?

1. Close Proximity Rule - if EE is really close (like you had to park across the street, you are walking into your office and slip on sidewalk). 2. Special Risk - an injury is compensable if, before entry upon the premises, an EE suffers injury from a special risk casually related to the employment. Two-prong test: (1) if "but for" the employment the EE would not have been at the location where the injury occurred and (2) if "the risk is distinctive in nature or quantitatively greater than risk common to the public." Classic example is a train track really close to ER so 90% of people have to cross this track to get to work. Your employment subjected you to a special risk. 3. Wage Payment or Travel Expenses: if ER pays for the travel/ commute, then they are covered. 4. Special Mission or Errand: asked to get coffee or travel to a conference, etc. 5. Second Job Site Exception: You work construction and get into an accident during the travel b/w two different job sites. Has to be a second job site for the benefit of the ER typically.

What are important qualifications in the job screening process?

1. Costs of application ↓ Number of applications ↑↑↑ (a) ERs can use algorithms to narrow applications based on objective and verifiable criteria, but algorithms may contain biases and cannot select for intangible and subjective qualities (references and personal connections still important) (b) ERs worry about "adverse selection bias (online applicants disproportionately disgruntled EEs that are a problem), ERs respond by actively "talent mining" "passive candidates" who respond by building on-line presence (Linkedin etc) so they can be "found." 2. Costs of online information cheap, ERs can survey past experiences, convictions, personal activities, political beliefs much more easily than in the past. Anything in public realm is NOT an invasion of privacy, but potential EEs easily waive privacy rights to be considered.

Outline of typical worker's comp law:

1. ER strict liability for all accidents and illnesses "arising out of" and "in the course of" employment. 2. Comp for medical and rehabilitation and up to 2/3 wages losses (or less), compensate worker for losses, but still give incentive to avoid accidents and return to work. 3. Workers' Comp is the EEs' exclusive remedy 4. Efficient and quick administrative processes (deliver high percent of insurance premiums to worker in comp). 5. Many comp awards are "scheduled", specified in statute or regulation. 6. ER must insure (proof of self-insurance, private insurance or in some states public insurance)

Covenants Not to Compete: Other Relevant Factors

1. Evidence of a "Bargained-for Exchange": Additional Consideration and the Timing of the "Offer" 2. The Circumstances of the EE's Separation from Work, some courts less likely to enforce noncompete if the EE is discharged without cause 3. Considering the Competing Interests of the EE and the Public, Doctors in remote areas example 4. The ABA Model Rules of Professional Conduct prohibit covenants not to compete for attorneys, and this rule has been successfully adopted through state codes of professional conduct or court opinion in all states. The ABA's prohibition on lawyer non-compete agreements is intended to protect attorneys' "professional autonomy" and to ensure "the freedom of clients" to select counsel of their choice.

Employee Classification Reform?

1. Federal Government, proposal for "The Payroll Fraud Prevention Act" every year since 2011. Amend FLSA to require that ERs notify workers if they are classified as "non-employees" and impose civil penalties of $1,100 per worker for misclassification or up to $5K per worker for repeated or willful misclassifications. 2. Adopt ABC test at federal level? 3. Real Action in the States: (a) movement in the states to adopt the ABC test (simpler, clearer and broader) and (b) movement in the states for real penalties for intentional or repeated misclassification.

Objections to the Neoclassical Model

1. Human Labor is Not a Commodity, Equity and Voice as Important as Efficiency (Collective Bargaining?) 2. Inequality of Bargaining Power, Monopsonistic Employer (Min Wage Law, Coll Bargaining?) 3. Transaction Costs (ERISA?) 4. Imperfect Information (OSHA?) (Health & safety regulations help attempt to minimize distortions due to the costs of info by having a centralized agency collect such info on behalf of both EEs and ERs & distribute that info in the form of rules) 5. Macro-economic Dynamic Reasons for Regulation (Public Education, CB, Min Wage, Unemp Comp) (The economy can grow or shrink as it cycles. By promoting a stable employment relationship & better wages & working conditions over time, govt regulation can encourage workers to invest in their human capital (education), which will allow ERs to pay more for the workers' time & demand more of the workers' services and economy can cycle up to a new equilibrium.)

Job Screening Introduction

1. In the past (and present?) personal connections through family and friends are often important in finding jobs. 2. For some jobs (generally low skill short-term) job screening can be cursory ("catch an apple at the plant gates", we've used you before). 3. For other jobs (generally high skill, position of trust or responsibility or more long-term) screening can be extensive: references, background check, criminal prosecution or conviction check, personality or IQ test, drug testing, etc)

Why does the independent contractor distinction matter?

1. Independent contractors are free of EE payroll taxes such as social security, unemployment compensation, and workers' compensation, which can easily constitute 20 to 30% of an ER's payroll. 2. Independent contractors do not have rights under the FLSA, Affordable Care Act (ACA), NLRA, FMLA and various state regulations, as well as having only limited rights under the CRA 3. Independent contractors are prohibited from organizing to collectively bargain by antitrust laws. 4. To the extent this saves the firm money they have a HUGE advantage over firms that use traditional EE model where the workers have legal benefits and rights. Uber/Lyft and cab drivers are a prime example.

What are the four types of workers' comp benefits?

1. Medical Benefits - include cost of all reasonable/necessary medical treatments to ease worker's pain & suffering and return her to maximum medical improvement. 2. Rehabilitation Benefits - Rehabilitative service benefits can include medical, vocational and psychological rehabilitation. Vary by state but may include: cost of vocational rehabilitation; cost to modify home or car or workplace to accommodate disability. 3. Income Benefits - scheduled or calculated benefit to generally designed to replace approx 2/3 of the worker's wage loss, subject to certain mins and maxs. Generally, WC bens are not taxed 4. Death Benefits - include a limited amount towards funeral expenses plus a scheduled lump sum or weekly benefit to eligible dependents. Death benefits may vary depending on the number of dependents and whether the spouse remarries.

What are the three different modern tests for neutral risks?

1. Peculiar Risk Doctrine: risk must be peculiar to employment and not suffered by general population. 2. Increased Risk doctrine: The job has to put you in a position to be in an increased risk as compared to the general public. But the question becomes what population are you comparing them to? Any hog worker on the field or anyone in Kansas who might be in their home knowing what was going on? 3. Positional risk doctrine: An EE's injuries are compensable as long as his employment duties put him in a position that he might not otherwise be in which exposes him to a risk even though the risk is not greater than that of the general public.

Describe the technology of drug testing

1. Screening test: Immunoassay (EMIT) - Urine added to solution of chemical "label" bound to "antibodies". Drug metabolite in urine displaces label to bind with antibodies, by measuring displaced label presume drug antibodies. (a) Cheap $5/use (b) Moderately Accurate (63-96%) Inaccurate if poor lab technique, cross-reactants (some prescription drugs or foods) or secondary exposure to drugs 2. Confirmation test: Gas Chromatography/Mass Spectrometry (GC/MS) -Chromatography separates sample in component chemical parts, Spectrometry measures those parts. (a) More expensive $80-100 (b) Much more accurate 100% if lab technique right National Institute on Drug Abuse (NIDA) Guidelines: (1) Screening Test (EMIT), (2) Confirmatory Test (GC/MS), (3) Interview by Medical Officer to Make Sure Positive Not due to Lawful Prescription Note: Federal Drug Testing Requires Confirmatory Test

What are the three major premises of employment law?

1. The employment contract is not an "ordinary" contract, one usually being thought of as a singular and discrete transaction in a commercial market; 2. It is an appropriate function for the law to come to the aid of the weaker party 3. Technology of production impacts nature of the employment relationship impacts issues in labor and employment law

Economic theories can yield different predictions that can be tested empirically to determine whether and when covenants not to compete are benefiting ERs and EEs and society at large.

1. Under the theory that non-competes mitigate "holdup problems" in valuable ER investments, economic theory predicts that they should increase EE wages, decrease worker mobility, increase ER investment and profits, and increase innovation and total wealth and welfare 2. Under the theory of non-competes extend monopsony power, economic theory predicts that non-competes will lower EE wages, decrease EE turnover, increase ER profits, and decrease innovation and total wealth and welfare.

History of the Law Governing Pensions:

1. Until early 20th century pensions governed by the "gratuity theory" of pensions. Pensions commonly contained "non-binding clauses" that courts honored, but even if they didn't, pensions were treated like a gratuity that EEs received for decades of good service. No vesting, not claim on the benefits until received. 2. In early 20th century courts developed various theories to enforce the promises of pensions: promissory estoppel; deferred wages under unilateral contract. Still at-will EEs always subject to discharge before they are eligible for the pension. 3. After WWII, skilled labor in great demand, large ERs sought to bind these EEs to them with benefits; primarily medical insurance and pensions. The tax code favored such benefits because they gave ERs a tax credit now and did not tax the EEs on the benefits until they were received. The tax deferral cost of pensions, retirement savings and other benefits to the US govt was about $308 billion in 2015. EE benefits grew to be almost 1/3 of EES compensation.

Workplace Speech and Association NLRB v. Coca-Cola Co. Foods Div.

ALJ interpreted plant managers remarks to EE as forbidding him to discuss his grievances with his fellow workers and threatening retaliation if he did so. The ALJ concluded that this conduct violated § 8(a)(1) of the NLRA because it clearly tended to interfere with and inhibit EE's free expression of their grievances. Court agrees that plant manager interfered with EE's ability to talk to coworkers, but the question is whether the ER thereby interfered with concerted activity for the purpose of mutual aid or protection. Manager's actions were a preemptive strike; a right can be denied before its exercise is attempted or even contemplated

Time, Place and Manner of Injury: When Does an Injury "Arise Out of and in the Course of Employment"? Test Elements

All workers' comp statutes in some form require that, in order to be compensable, an injury or illness must "arise out of and in the course of employment." Courts commonly treat this as two requirements: (1) that the genesis of the injury or illness occurs at a time and place that the EE is engaged "in the course of employment;" and (2) that the risk that gives rise to the injury or illness be one that "arises out of employment"

The Employee's Duty of Faithfulness at Common Law

Although an agent must be loyal and serve the principal's interest on the principal's coin, the agent is allowed to take certain preparatory steps to run their own business, even in competition with employer, even while actively employed. Forum for Enforcement: Restatement says enforceable in tort, not contract.

Paying for Employee Illness and Injury: Introduction

Although the US workplace is much safer than it once was, the problems of workplace death, injury, and illness are still a major challenge in the employment relationship. These occupational deaths, injuries & illnesses result in tens of billions of dollars in medical costs, lost wages, and other damages to workers each year. Asymmetric Information: Workers may not be able to adequately evaluate all of the hazards they face in the workplace. ERs, who might have superior knowledge about the risks of a job, have little incentive to advertise those risks to workers in soliciting EEs.

At-Will Rule

An at-will EE could be discharged for no reason, for any reason, even for a morally opprobrious reason. Today the courts more commonly recast the rule as allowing the ERs to dismiss for no reason or for any lawful reason, i.e., without having to prove cause but often omitting the allowance of morally and potentially legally opprobrious action. A contract for a definite term, however, is presumed "for cause" unless expressly stated otherwise. The EE can only be discharged (or leave) during the term of the contract "for (good) cause" that constitutes a "material breach" of the employment contract.

Limitation on Employer Abuse of Procedure

An interpretation of the FAA found in Cole v. Burns Int'l Sec. Servs. says FAA can't be applied to remedy of statutory claims unless the arbitration procedure fulfills the purpose of the statute in adjudication and remedy. Argue certain minimal procedural requirements: impartial arbitration, knowing waiver of right to go to court, allocation of costs of arbitration (ER pays for arbitrator), access to all remedies at law, minimal procedural rights (discovery right to cross examine witnesses).

Hernandez v. Hillsides, Inc. (video surveillance)

An unknown person repeatedly used a computer in plaintiff's office to view pornographic websites. ER set up secret camera to try to catch the person and had it off when EE was in her office. Considering all of the relevant circumstances, plaintiffs have not established, and cannot reasonably expect to establish, that the particular conduct of defendants that is challenged in this case was highly offensive and constituted an egregious violation of prevailing social norms. We reach this conclusion from the standpoint of a reasonable person based on defendants' vigorous efforts to avoid intruding on plaintiffs' visual privacy altogether. Activation of the surveillance system was narrowly tailored in place, time, and scope, and was prompted by legitimate business concerns. Plaintiffs were not at risk of being monitored or recorded during regular work hours and were never actually caught on camera or videotape.

Reporting and Disclosure Requirements of ERISA:

Annual reports to DOL; Benefit Statements to Participants and Beneficiaries; "Defined Benefit Plans" Annual Funding Notice to PBGC; "Defined Contribution Plans" Notice of Eligibility to Divest to Participants; Summary Plan Description to Participants (SPD); Summary of Material Modifications to Plan Participants (SMM)

Unscheduled Disability Benefits: Crelia v. Rheem Manufacturing Co.

Appellant sustained an admittedly compensable injury to her right hand during her employment. The injury occurred when four fingers of her right hand were amputated while she was working on a press. Appellant argues that the Commission erred when it found that she was not permanently and totally disabled. Court does not find that they EE provided enough evidence to show her inability to earn a meaningful wage in the same or other employment. Burden of proof of total disability on claimant. Occupational functional capability exam says capable of doing "medium work." ER offered job as janitor, declined.

Stringer v. Walmart Stores Inc. (manner of termination)

Appellants, who were Wal-Mart EEs, were terminated for unauthorized removal of company property in violation of policy (claims candy). We find appellants demonstrated a prima facie case for common law defamation per se bc a false accusation of theft is actionable per se. Appellants were not required to provide affirmative proof of injury to their reputations in order to recover for the defamatory statements at issue in this case. Although the context of the statement suggests the possibility of a qualified privilege, a jury could easily and reasonably have found that the privilege was exceeded in this case.

What is the difference between borrowed workers and independent contractors?

As ER you want a borrowed EE because that makes you liable in worker's comp only. If they are not a borrowed EE and are an independent contractor instead, then the tort system where the EE could win more is the remedy.

History of At-Will Rule

As the Common law of status, of master and servant, was eclipsed by laissez-faire, by the market autonomy theory of "free labor" in the period of industrialization following the Civil War, the assumption of fixed duration gave way to the at-will rule, and that rule took on a context that transcended the mere lack of specific duration, that the law should stay out altogether.

Pension Plan Notes

Bankruptcy Estate: The beneficiaries interest in an ERISA governed pension plan is not to be included in that beneficiaries bankruptcy estate. Can be once they are paid though. Protection of Spouse's Interests: ERISA also protects the interests of spouses by requiring that a pension plan include a provision that (1) in the case of a vested participant who does not die before the annuity starting date, the accrued benefit payable to such participant shall be in the form of a qualified joint and survivor annuity; and (2) in the case of a vested participant who dies before the annuity starting date and who has a surviving spouse, a qualified pre-retirement survivor annuity shall be provided to the surviving spouse of such participant. Borrowing Against Accrued Benefits: ERISA allows some borrowing against accrued vested pension benefits (limited to lesser of $50k or half amount in plan, loan limited to 5 years). Hardship Withdraws: ERISA allows some early withdrawals for "hardship cases": out-of-pocket medical expenses; down payment or repairs on a primary home; college tuition and related expenses; threat of mortgage foreclosure or eviction; and burial and funeral expenses; and recently CARES Act temporary amendments. Problem of bleeding 401ks.

What are the blue and red pencil doctrines?

Blue and Red Pencil Doctrine: Red pencil state (if written too overbroad, whole thing is struck) or blue pencil state (can reform covenant to enforceable part).

Expectations/Invasion of Privacy (cases)

Brazinski v. Amoco, 6 F 3d 1176 (7th Cir 1993) must show actual observation for invasion of privacy (Not in 6th Edition) Nelson v Salem State Coll., 845 NE 2d (2006) if can be seen by anyone, no expectation of privacy against surveillance (Not in 6th Edition)

How can someone lose social security benefits?

Can lose Social Security Disability Insurance if physical condition changes or obtain "substantial gainful employment" (>$1200 per mo); obligation to report changes in physical condition or employment. Once an EE is eligible for old-age benefits, they switch to that.

Death Benefits: Carey's Case

Carey a minor EE died as a result of an injury sustained while operating a golf cart in the course of his part time seasonal employment. (1) The claimants contend that the ER committed serious and willful misconduct here by entitling them to double compensation. (3) Any compensation due under subsection (e) ends at 18, unless a parent proves that they were, in fact, dependent upon the child. Absent proof of an actual dependency, prolongation of the presumption beyond what would have been the child's 18th birthday replaced income that the parents would not have received had there been no injury is contrary to the purpose of workers' comp laws.

FLSA: Domestic Service Workers Chevron Standard

Chevron Standard (applies to a lot of things): Chevron deference, or Chevron doctrine, is an admin law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. Two-step process for reviewing an agency's interpretation of a statute: (1) A court must determine whether Congress expressed intent in the statute and, if so, whether or not the statute's intent is ambiguous. (2) In examining the agency's reasonable construction, a court must assess whether the decision of Congress to leave an ambiguity, or fail to include express language on a specific point, was done explicitly or implicitly. Agencies must carry out the clearly expressed intent of Congress.

What is civil conspiracy?

Civil conspiracy is "a combo of two or more ppl by some concerted action to accomplish an unlawful purpose or to accomplish some purpose not unlawful but through unlawful means

Tackett v. Apfel (social security)

Claimant has problems with his knee and is disabled. The commission of the SSA denied both his application and request to reconsider. To establish the claimants eligibility for disability benefits under the SSA, it must be shown that: (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted where can be expected to last for a continuous period of not less than 12 months; and (b) the impairment renders the claimant incapable of performing the work the claimant previously performed incapable of performing any other substantial gainful employment that exists in the national economy. Five step test: here, no dispute over steps 1, 2, and 4. Step 3 = finds substantial evidence claimant failed to show three. Step 5 = there was no testimony of vocational experts and just rough reference to medical vocational guidelines. ALJ erred by relying only on the grids to deny.

Unscheduled Disability Benefits: In the Matter of Barrsuk v. Joseph Barsuk, Inc.

Claimant suffered a near amputation of his right arm when he fell into a scrap metal shredding machine on which he was performing maintenance. Loss of 90% of right arm scheduled PP or PT disability? ALJ said PP. Limited education and work history. Vocational Rehab Expert, Combination of injury and other factors make claimant PT. No evidence to contrary. Overturn ALJ. *Note that they take account of education and other factors in determining TT.*

Timeline on Employment Arbitration (as distinguished from labor law)

Common law: agreements to arbitrate a dispute in advance of the arising of that dispute are unenforceable 1. 1925 Congress enacts Federal Arbitration Act (FAA) (a) Expressly for "commercial and maritime disputes" (b) § 1 expressly excludes "contracts for employment of seaman, railroad EEs, & any other worker engaged in foreign or interstate commerce 2. 1925-2001: Assumed FAA did not apply to employment contracts 3. 1953: Wilko v. Swan: Supreme Court did not enforce agreements to arbitrate future disputes over violations of law under FAA 4. 1989: Rodriquez de Quijas v. Shearson overrules Wilko, FAA DOES apply to agreements to arbitrate future disputes of statutory violations 5. 1991 Gilmer v. Interstate: FAA applied to stock exchange agreement covering stockbrokers 6. 2001 Circuit City Stores Inc v. Adams: Supreme Court reads § exceptions to FAA narrowly, applies FAA to contracts for employment except for employees actively engaged in interstate commerce. Provide certainty and uniformity (exception § 2 still allows unenforcement in state law). 7. 2007 -- 19% of employment contracts have agreements to arbitrate 8. 2016 -- 50% of employment contracts have agreements to arbitrate Replacing employment litigation with employment arbitration set up by ERs

Control of Employees: Dress and Grooming Notes & Thoughts (Jespersen case)

Common-Law Right to Privacy: She could not sue for an infringement of her common-law right to privacy, because the tort of invasion of privacy recognizes no right of an EE's presentation of herself to society, but if an authentic aspect of a sincerely held religious belief precluded her from wearing makeup, then as a matter of anti-discrimination in employment law her ER would have had to have made at least a minimal effort to accommodate her. Medical Condition: If her aversion to makeup was rooted in some medical or psychiatric condition that disabled her from performing a major life activity or was perceived by her ER as being such, her ER would, again, have had to have made an effort to accommodate her under the Americans with Disabilities Act. State Gender Identification: If she were employed in one of the 5 states that protect "gender identification" from employer discrimination, she might have been able to use that.

Artisanal Period Case Criminal Conspiracy

Commonwealth v. Pullis (Philadelphia Cordwainers' case) if tried to collective bargain. Shoemakers strike where they lost and were charged with criminal conspiracy. Basically individuals can choose not to work but if they do this collectively then it is criminal conspiracy

General Modification Terms

Comp statutes vary on how long after an initial award of request for modification must be made. There are also differences about what justifies the modification, with many statutes requiring that the party requesting the change demonstrate that the physical condition of the claimant has altered. Others permit consideration of nonphysical factors, such as in the case of a claimant who has retrained and now works in a job paying more than the one he formerly held.

Firestone Case Notes

Conkright standard of review based on abuse of discretion: In Conkright v. Frommert, the SC held that an ERISA pension plan administrator with discretionary authority to interpret a plan is entitled to deference in exercising that discretion and that a single honest mistake in plan interpretation does not justify stripping the administrator of that deference for subsequent related interpretations of the plan. Varity Corp. v. Howe: holds that an ER violates its fiduciary duty as a pension plan administrator if it misleads EEs into withdrawing from the parent company's fully-funded retirement plan and shifting into the retirement plan of a new subsidiary to which the ER transferred its most risky assets. Says trust law is only starting point for judging abuse of discretion under ERISA.

When is a document a SPD? Hicks v. Fleming Companies, Inc.

Court is presented with an opportunity to consider the appropriate test for determining when a document constitutes a summary plan description under ERISA. Hicks contends that the booklet is an SPD because it looks like an SPD, contains info required in an SPD, & purports to serve the same purposes as an SPD. We hold that the appropriate test for determining whether a document constitutes a SPD is to see whether it contains all or substantially all categories of info as required by the regulation. Here, we hold that a document is a SPD under ERISA if it contains all or substantially all categories of information required and we find the booklet does not meet this test.

Psychic Trauma /Physical Injury: Klimas v. Trans Caribbean Airway, Inc.

Decedent was director of maintenance for a plane company and had a very stressful work events leading to his death. There is ample authority sustaining awards of compensation for physical injuries resulting from mental or emotional strain, where the evidence was clear, and our present decision merely follows those precedents. As we review the cases, in none of which there was a physical impact, we cannot help but concluded that the board was right in finding that in this unusual case decedent's death was accidental within the meaning and scope of the workmen's comp law; that the accident arose out of and in the course of the employment and that the death was casually related to the accident.

Woolley v. Hoffmann-La Roche, Inc.

Defendant hired plaintiff, and there was no written employment contract between them. The gist of the plaintiff's breach of contract claim is that the express and implied promises in defendant's employment manual created a contract under which he could not be fired at will, but rather only for cause, and then only after the procedures outlined in the manual were followed. The issue before us is whether certain terms in a company's employment manual may contractually bind the company. We hold that absent a clear and prominent disclaimer, an implied promise contained in an employment manual that an EE will be fired only for cause may be enforceable against an ER even when the employment is for an indefinite term and would otherwise be terminable at will. Case focuses on the "reasonable expectations of the employees."

The ABC Test Overview

Developed to interpret state laws. It is not a totality of the circumstances test. Like the hybrid formulations of the economic realities test, the ABC test looks at both control and dependence in determining the agent's status as EE or independent contractor.

Employee Voice in Determining Terms and Conditions of Employment

E.I. Du Pont De Nemous & Co.: § (8)(a)(2) of the NLRA forbids ERs from dominating or interfering in the formation or administration of a statutory "labor organization" or to contribute financial or other support to it. The issue considered by the Board was whether six safety committees and one fitness committee were ER-dominated labor organizations. The Board held they were and ordered the ER to stop dealing with them or any successor to them.

Farwell v. Boston and Worcester Rail Road Corporation (common law)

EE injured through negligence of "fellow servant" and court finds ER not liable for other EE's negligence. Common Law View: In Farwell, we see that the common law tort doctrine with respect to workplace accidents assumes that the contract between the ER and the EE perfectly balances their respective risks and compensations. The tort law only defines the respective risks and liabilities among parties who do not have an extant contract: fellow servants and 3d party victims or tortfeasors. In practice, tort law didn't provide much of a remedy for EEs. ER was liable in situations where ER was negligent. No contributory negligence, no assumption of risk (through contract), and enormous practical obstacles for EE w/o job to maintain suit.

Perry v. Sindermann, 408 U.S. 593 (1972) (constitutional protections for public employees)

EE was employed in a state college system for 10 years, the last 4 as a junior college professor under a series of one-year written contracts. ER declined to renew his employment for the next year without giving him an explanation or prior hearing. EE alleged he was not rehired based on his public criticism of the college admin, therefore infringing his free speech right, and that the ER's failure to give him a hearing violated his procedural due process right. The Court of Appeals reversed on the grounds that, despite lack of tenure, nonrenewal of EE's contract would violate the 14A if it was in fact, based on his protected free speech, and that, if he could show that he had an "expectancy" of reemployment, the failure to allow him an opportunity for a hearing would violate the procedural due process guarantee.

Suarez v. Dickmont Plastics Corporation (employer misconduct)

EE was injured while he was working for the defendant and had two fingers partially amputated when they got stuck in a hot molten plastic machine. The EE alleged that his injuries, which resulted in permanent loss of function and use of his master hand and substantial scarring, were caused by the defendant's willful and serious misconduct. The issue then is whether the defendant established as a matter of law the EE's evidence of the defendant's refusal to allow EEs to vacuum the machinery after it has been shut down failed to raise an issue affect that such conduct was substantially certain to result in injury. Question that should be sent to a jury.

Borrowed Worker Doctrine: Alday v. Patterson Truck Line

EE worked for ER who sent him to a another company's barge for unloading where he got hurt. Question was if he was a borrowed worker. Among the considerations for determining whether a servant has been borrowed by another ER are: (1) who has control over the EE and the work he is performing, beyond mere suggestion of details or cooperation?; (2) whose work is being performed?; (3) was there an agreement, understanding, or meeting of the minds between the original and borrowing ER?; (4) did the EE acquiesce in the new work situation; (5) did the original ER terminate his relationship with the EE?; (6) who furnished the tools and place for performance?; (7) was the new employment over a considerable length of time?; (8) who has right to discharge the EE?; (9) who had the obligation to pay them?

What is the Workers' Compensation Compromise?

EEs gave up possibility of tort damages in return for "sure" moderate compensation. Worker's Compensation is the exclusive remedy. ERs gave up all common law defenses (including not negligent), accepted strict liability, and agreed to insure.

Criminal Histories What are the ER and EE interests?

ER Interests: workplace safety, potential liability for negligent hiring, reduce theft/embezzlement, comply with state and federal law prohibiting convicted crimes in certain jobs, access trustworthiness and reliability of job candidate, and others EE Interests: safety and security from fellow EEs, second change or false conviction, privacy, right to have something forgotten, and criminal record combines with poor education and/or poor work history to make someone unemployable.

Notice: Cigna Corp. v. Amara

ER changed the nature of its basic pension plan for EEs. Respondent's claim in part that the ER had failed to give them proper notice of changes to their benefits, particularly because the new plan in certain respects provided them with less generous benefits. The court will be deciding whether the District Court applied the correct legal standard. To reach that question, the court must first consider a more general matter—whether ERISA's recovery-of-benefits-due provision, §502(a)(1)(B) authorizes entry of the relief the District Court provided. We conclude that it does not authorize this relief. Nonetheless, we find that a different equity-related ERISA provision, to which the District Court also referred, authorizes forms of relief similar to those that the court entered. § 502(a)(3). § 502(a)(3) authorizes appropriate equitable relief for violations of ERISA. Accordingly, the relevant standard of harm will depend on the equitable theory by which the district court provides relief. We leave it to the District Court to conduct that analysis in the first instance, but we identify equitable principles that the court might apply on remand.

What are examples of electronic monitoring?

ER electronic monitoring (keystrokes, web sites, computer files, telephone time computer time) common Likely going to become a bigger issue during remote working, etc.

Monitoring and Control: Overview

ER interests in productivity and security; EE interest in privacy (both embarrassing information and sensitive information (example social security number, fingerprint) Conflict between freedom of contract and privacy (free labor as free from regulation; or free labor as free from government and ER coercion) Complication in that what is a reasonable expectation as to privacy is important in both the common law tort standard and the constitutional law standard, and the ER has a lot of control over what expectations are reasonable.

Brennan v. Arnheim and Neely, Inc.

ER owned commercial office buildings and managed them. Question was whether the mgmt activities of the building owner at all the buildings served should be aggregated as part of a single "enterprise" within the meaning of § 3 of the act. Three main elements of the statutory definition of "enterprise:" related activities, unified operation or common control, and common business purpose. Here, the respondent's activities at the several locations are tied together by the common business purpose of managing commercial properties for profit. This case poses the problem of determining the extent to which particular forms of business affiliation alter the employing "enterprise" within the meaning of the FLSA. Often, Congress uses the number of EEs in an enterprise as the threshold for applying EE rights legislation.

Can you unilaterally amend or terminate a welfare plan?

ERISA allows an ER to unilaterally amend or terminate a health or welfare benefit plan so long as it follows the amendment procedure which, under § 1102(b)(3) of ERISA, must be included in the plan.

Employee Retirement Income Security Act (ERISA): Overview

ERISA covers not only pensions, but medical benefits and many other important deferred ER benefits. ERISA passed to solve ER opportunism and failure to set money aside to pay promised benefits. ERISA does not require ERs to provide any benefits, just says that if they do, they have to meet certain minimum standards on vesting, accrual and payment, or else they cannot deduct payments on taxes.

Kennedy v. Plan Administrator for Dupont Savings and Investment Plan

ERISA generally obligates administers to manage the plans in accordance with the document instruments governing them. At a more specific level, the act requires covered pension benefit plans to provide that benefits under the plan may not be assigned or alienated (anti-alienation provisions), but this does not apply to a qualified domestic relations order. The question here is whether the terms of the limitation on assignment or alienation invalidated the act of a divorced spouse, the designated beneficiary under her ex-husband's pension plan, who purported to waive her entitlement by a federal common law waiver embodied in a divorce decree that was not a qualified domestic relations order. We hold that such a waiver is not rendered invalid by the text of the alienation provision, but that the plan administrator properly disregarded the waiver owing to its conflict with the designation made by the former husband in accordance with the plan documents. The plan administrator therefore did exactly what § 1104(a)(1)(D) required: the documents control and those name the ex-wife.

Conflict of Interest Metropolitan Life Insurance Co v. Gleen:

ERISA permits a person denied benefits under an EE benefit plan to challenge that denial in federal court. Often the entity that administers the plan, such as an ER or an insurance company, both determines whether an EE is eligible for benefits and pays benefits out of its own pockets. We here decide that this dual role creates a conflict of interest; that a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits & that the significance of the factor will depend on the circumstances of the particular case. Court trying to decide how to apply Firestone's "abuse of discretion" standard to case where inherent conflict in denial of benefit (here plan administrator both evaluates eligibility and pays benefit). We believe that Firestone means that the word factor implies, namely, that when judges review the lawfulness of benefit denials, they will take account of several different considerations of which a conflict of interest is one

Employee Stock Ownership Plan Fifth Third Bancorp v. Dudenhoeffer:

ERISA requires the fiduciary of a pension plan to act prudently in managing the plan's assets. This case focuses upon that duty of prudence as applied to the fiduciary of an "employee stock ownership plan," (ESOP) a type of pension plan that invests primarily in the stock of the company that employs the plan participants. We consider whether, when an ESOP fiduciaries decision to buy or hold the ER's stock is challenged in court, the fiduciary is entitled to a defense friendly standard that the lower courts have called a presumption of prudence. We hold that no such presumption applies. Instead ESOP fiduciaries are subject to the same duty of prudence that applies to ERISA fiduciaries in general, except that they need not diversify the fund's assets. The proposed presumption makes it impossible for a plaintiff to state a duty-of-prudence claim, no matter how meritorious, unless the employer is in very bad economic circumstances.

Interference with Benefit Accrual

ERISA § 510 Interference with protect rights. "It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act [29 U.S.C. 301 et seq.], or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure Act. It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter or the Welfare and Pension Plans Disclosure Act. . . ."

Obligations of Employees: Creative Work

Employee Creative Work (copyrights and patents) Employees hired to do creative work: copyright can be assigned directly to ER, patent resides in the inventor, but EE can be required to assign to ER Employees not hired to do creative work: ER support creative work with time and resource (shop right doctrine), no ER support (no rights)

Economic Liberty

Employer Prohibiting Consumption: At the behest of the tobacco and alcohol lobbies, about half the states forbid ERs from discriminating against EEs because of the consumption of those products off duty (and having no consequence in the workplace). A few forbid discrimination on the basis of the consumption of any "lawful product" and 3 insulate engagement in any lawful activity off the job-with NY separately protecting recreational activities. Prohibitions on Shopping: An at-will EE can be dismissed in most states for disobeying an ER's order on where he may not shop or what products to buy in what would seem to be a reductio ad absurdum of the market autonomy theory of free labor: that the ER's freedom from public accountability as a component of its economic liberty justifies it in constraining the economic liberties of its EEs.

Monitoring: Wellness Programs

Employers collect data on EEs, smoking, alcohol use, activity, sleep, physical and blood test, usually in exchange for reduced cost in insurance or other benefit

Can employers appeal citations?

Employers have ten days to appeal to courts

Covenants Not to Compete - Enforceability

English common law - covenants not to compete unenforceable American common law - covenants not to compete disfavored, enforceable only to extent they are reasonable In arguing the reasonableness of a non-competition agreement, the ER must first show that it has a legitimate interest to be protected by the agreement. The ER also then bears the burden of establishing that the agreement is reasonable in scope as to the time, activity, and geographic area restricted. Non-competes have a presumption of being disfavored. Trade Secrets and Confidential Information: Every jurisdiction that would enforce a covenant not to compete allows the possible use of trade secrets or confidential business information to be a protectable interest. Training: Some jurisdictions allow specialized or unique training to be a protectable interest. The NJ SC rejected an outright prohibition of covenants not to compete among physician, nothing the ER's investment in skills development.

Breaches of Fiduciary Duty: In re Enron Corp. Securities, Derivatives & ERISA Litigation:

Enron Savings Plan (SP), ESOP and Cash Balance Plan (CBP) covered by ERISA (EE control over investments). Enron execs made fraudulent misreps to the public and EEs on economic health of the firm, an accounting firm participated in the fraud with accounting shenanigans. Company encouraged EEs to invest in firm through SP, ESOP, and CBO even though they knew investments were bad. Execs froze the assets, sold their stock, & left EEs holding the bag. Breaches of fiduciary duty found in this case: (1) allowing and inducing EE investment in firm at time execs & administrators knew it was a bad investment; (2) use of lockdown to freeze EE assets to benefit of managers stock sales; (3) failure to diversify EE investments (except ESOP) (must encourage under plan); (4) failure to appoint impartial plan administration & tell them about the fraud; (5) reduction in contribution to CBP because Enron stock in plan fraudulently overvalued.

What is the DOL's 2020 Joint Employer Rule Under the FLSA

Established four factors relevant to determining whether an ER is a vertical joint ER. The factors, which focus on the ER's actual exercise of control, were whether the ER: (a) Hires or fires the EE (b) Supervises and controls the EE's work schedule or conditions of employment to a substantial degree (c) Determines the EE's rate and method of payment (d) Maintains the EE's employment records. Notably, the 2020 Rule specifically excluded consideration of the EE's economic dependence on the potential joint ER.

Manner of Termination - Potential Employer Liability

Even if ER can lawfully terminate an EE, possibility of liability can arise from the manner of the termination: IIED and Defamation. IIED Elements: 1) D acts intentionally or recklessly; 2) D conduct extreme and outrageous (exclaim "outrageous"); 3) conduct cause of; 4) severe emotional distress. Defamation elements: (1) false and defamatory language (lower p in esteem of others, avoid doing business with him); (2) publication of communication of that statement to a third person; (3) fault amounting to at least negligence; and (4) damages, or some harm caused to the person who is the subject of the statement.

KDS's Argument (logically necessary)

Exception #2 - If not accepted, say ER has a right under the contract (law) to frustrate the law, alternatively state, allow ER to enforce a contract for illegal behavior. Rationale for more expansive version "protect larger public policy not present in contract negotiations between parties". Exception #3 - If not accepted, say ER has a right under the contract to frustrate the contract, alternatively stated, make contract illusory, ER can get benefit of bargain, but not give EE benefit of bargain.

What is a Qualified Domestic Relations Order?

Exception to the anti-alienation provision designed to protect primarily the interests of spouses and children of workers. In order for one of those state court orders to qualify, it must protect the interest of an individual who is an alternative payee under the relevant plan. Must in general conform to the terms of that plan.

Background Checks - Fair Credit Reporting Act

Fair Credit Reporting Act of 1971 (FCRA) 15 U.S.C § 1681: purpose to promote accuracy, fairness, and privacy of information in the files of consumer reporting agencies. Some provisions cover EE background checks. For ERs, there are a number of steps they must take before receiving a consumer report on a job applicant or a current EE. 1. ERs must tell applicants or EEs they might use their consumer report on employment decisions. This must be in writing and a stand-alone format. § 1681b and g 2. The ER must receive written permission from the potential employee to proceed. § 1681b and g 3. The ER must certify compliance with the above to the company from which they are getting the information. § 1681m

Who is considered an employee?

Federal and State Employment and Labor Statutes: Usually very general and self-referential when defining an "employee" NLRA §2(3) "The term "employee" shall include any employee, and shall not be limited to the employees of a particular employer . . ." FLSA 29 U.S. Code § 03 (e) (1) "term 'employee' means any individual employed by an employer" (g) "'Employ' includes to suffer or permit to work."

What is the Bunkhouse Rule?

For EEs who are required to live on the ER's premises for the convenience of the ER, courts commonly apply what is referred to as the "bunkhouse rule" which establishes that even ordinary risks, such as the risk of burning yourself while cooking, arise out of and in the course of employment when the EE is required to live on the premises and working or even waiting to work.

Cloverleaf Express v. Fouts

Fouts suffered a cardiac episode while employed by Cloverleaf. Fouts drove one of Cloverleaf's two company-owned trucks. Accident happened as he was helping Walmart EEs lift the conveyor line back in place. When the facts of the case are viewed in the light most favorable to the Commission's findings, it is clear to us that fair-minded persons could have reached the same conclusion as the Commission. The Commission concluded that the factors indicated that an EE/ER relationship existed and that appellee was not an independent contractor.

Vicarious and Direct Responsibility: Instrumentality Test (majority rule)

Franchiser may be held vicariously liable for conduct of franchisee only if the franchisor controls or has the right to control 'the daily conduct or operation of the particular 'instrumentality' or aspect of the franchisee's business that is alleged to have caused the harm. (Seminal case, Kerl v. Dennis Rasmussen, Inc.) Direct Liability: Franchisor has direct liability where it "designed and implemented the contractual framework" governing the franchisee that produced the legal harm.

Tort: Discharge in Violation of Public Policy Gardner v. Loomis Armored Inc.

Gardner fired for violating company rules and getting out of the armored car when he saw woman in danger. Once a plaintiff shows the violation of a public policy, the burden shifts to the ER to prove the dismissal was for reasons other than those alleged by the EE. Loomis' work rule does not provide an overriding justification for firing Gardner when his conduct directly served the public policy encouraging citizens to save persons from serious bodily injury or death.

Weekly Benefit Amount

Generally the EE's weekly benefit amount (WBA) is 2/3 of their average weekly wage (AWW) subject to a minimum and maximum based on the state-wide average weekly wage (SAWW). The max benefit amount varies from 2/3 of SAWW to 2 times SAWW in different states. Worker TT and PT benefits defined in terms of WBA.

Promissory Estoppel for Revoking Offer of Employment

Grouse v. Group Health Plan: Grouse finds out the Group Health has an opening and goes in for two different interviews. He is then told he got the job and quits his current one. They then rescind his offer. We find that the doctrine of promissory estoppel entitles Grouse to recover and remand for a new trial for damages. Fraud: Some courts have also held in this situation if the ER never intended you to actually get the job that you can also sue for fraud. In both promissory estoppel and fraud, damages as to your reliance must be proved.

What are the minimum content standards for healthcare plans (under ERISA)?

HIPPA: several basic standards were added by HIPPA. Probably the most important provisions have to do with what persons cannot be excluded from participating in a plan & what a plan may do to exclude coverage of preexisting conditions. A plan may exclude a condition by name, or include annual and lifetime limits on the total amount of benefits to be paid, so long as these limitations are uniformly applied to all participants. COBRA: requires health plans to allow participants & beneficiaries who would otherwise lose their coverage because of a qualified event to purchase ongoing coverage for a period, usually of up to 18 months. Qualified event includes death of a covered EE, reduction in hours for the EE, termination from the job, or being entitled to Medicare benefits Health care plans: HIPPA (1996), Treatment of Pre-Existing Conditions (ACA), COBRA (1985), MHPA (1996), NMHPA (1996) and mastectomy coverage.

Unscheduled Disability Benefits: Keenan v. Director for the Benefits Review Board

He had an injury, was out of work for a while, and ended up earning more in his new position at the company as a Marine Clerk and has no physical trouble performing the job. Choice b/w (1) scheduled loss of arm (2/3 AWW x specified number of weeks), or (2) unscheduled loss of earning capacity (2/3 AWW - Earning Capacity) x Duration of Disability. Here, (1) > (2) as the EE ended up in a higher paying job. We affirm the Board's denial of scheduled & unscheduled benefits and reverse the denial of the de minimis award, remanding for a determination of the relevant factors under Rambo II. In light of this holding, we also reverse the Board's denial of attorney's fees and remand to the ALJ to resolve the fee question in accordance with her reconsideration of the de minimis award. Situs of injury rule, injury to shoulder is injury to shoulder, not arm. Other cases shoulder not part of arm, therefore affirm ALJ.

Ortega v. Wakefield Thermal Solutions, Inc. (disclaimers)

He missed his flight and the HR person called a travel agency who told her there were flights available that he could have taken. He was fired for being dishonest to his ER. Handbook contains a disclaimer: not a contract for employment and says we can fire you at all with or without cause and with or without notice. The privileges and rights given to its EEs in the Handbook are totally illusionary. A jury could find that the manual is deceptively written by the ER, informing the EE that he has rights, but only if the Company agrees to give them to an EE at the time that he needs these rights. The contract could be considered by the jury to have been fraudulently written for the sole interest, financial or otherwise, of the ER.

Vicarious and Direct Responsibility for Employers Depianti v. Jan Pro, 990 NE 2d 1054 (MA 2013)

Idea that franchisor controls the franchisee who controls the EE. There is Jan Pro the franchiser who contracts with regular master franchisees who contract with unit franchisees who actually do the cleaning. Applied the Instrumentality Test (majority rule). Contract Needed?: No contract needed between Jan Pro & Depianti to find that the franchisor had direct and vicarious responsibility for the employee. Test for Vicarious Liability of Franchiser: Note even for liability under statutes that use economic realities or ABC test to determine whether worker is "employee", use "right to control" to determine vicarious liability of franchiser.

What happens if an employer fails to provide a SPD? What about notice for changes?

If any ER fails to provide a SPD or any of the several types of reports required by the act, affected participants, beneficiaries, or Secretary may bring a civil action under the act § 502 to recover civil penalty of up to $100 per day. Notice: ER may not mislead participants about impending changes in plan, but no duty to give notice of them until they happen.

Can employers contract around employee's preliminary competitive activity? What about employer disparagement?

If the solicitation of co-workers to a competing venture is of concern, an ER may contract regarding it. Product or ER Disparagement and Labor Speech: An EE who disparages her ER's product or service breaches the duty of faithfulness. Speech critical of an ER uttered during the course of a union organizing drive that is intended to incite discontent is sheltered by the right to unionize and to engage in other concerted activity for mutual aid or protection under § 7 of the NLRA

Electronic Monitoring: Search Stengart v. Loving Care Agency, Inc.

In anticipation of discovery in the discrimination suit plaintiff filed against Loving, Loving hired a computer forensic expert to recover all files stored on the laptop including the e-mails, which had been automatically saved on the hard drive. Loving Care's attorneys reviewed the e-mails and used information collected from them in the course of discovery. We hold that Stengart could reasonably expect that e-mails with her lawyer through her personal account would remain private, and that sending and receiving them via a company laptop did not eliminate the attorney-client privilege that protected them. Our analysis draws on two-principal areas: (1) the adequacy of the notice provided by the policy and (2) the important public policy concerns raised by the attorney-client privilege. Both inform the reasonableness of an EE's expectation of privacy in this matter.

What is a "benefit" plan covered b ERISA? Fort Halifax Packing Co., Inc. v. Coyne

In this case the court must decide whether a Maine statute requiring ERs to provide a one-time severance payment to EEs in the event of a plant closing is preempted by either ERISA or the NLRA. Given the basic differences between a benefit and a plan, congress's choice of language is significant in the pre-emption of only the latter. Preemption of the Maine statute would not further the purpose of ERISA. Benefit plan is EE benefit that is promised, financed, and paid over time. Purpose of ERISA is to enforce long complex promises over time, not one time payouts.

Amer Manu Mutual Ins Co. v. Sullivan, 526 US 40 (1999) (private insurer and state action)

Injured workers are suing because medical payments were withheld under the amended workers' comp scheme. They allege that by withholding these benefits, insurers acting on behalf of the state, are depriving them of property in violation of due process. The question is if a private insurer's decision to withhold payment for disputed medical treatment in a state's workers' comp system can be attributed to the state as "state action"? The Court said no. Private insurers are state actors only if there is a sufficiently close nexus between the state and the challenged action by the insurer. A close nexus between the state and a private actor exists if the state has exercised a coercive power or has provided such encouragement. However, action taken by private entities with the mere approval of the state is not state action

Paying for Employee Illness and Injury: Traditional Remedies of Contract and Tort

Injuries where ER liable (ER negligent): 1. ER defense of contributory negligence 2. ER defense of assumption of risk (through contract 3. Fellow Servant Rule (contract default: ER not assume vicarious liability in employment contract) 4. Enormous practical obstacles for EE w/o job to maintain suit 5. Costly to determine these question by tort suit Injuries where ER not liable, deal with by contract: 1. Presume loss lies where it falls (with EE) unless parties expressly contract otherwise (assumption of risk) 2. EE will know these losses lie with her, will demand "compensating wage" for a dangerous job. Compensating wage gives ER incentive to make workplace safer. 3. EE could buy insurance with compensating wage

Aetna Health Inc. v. Davila (preemption)

Insurance company decisions on what to pay for as "necessary treatment" under insurance contracts tends to affect treatment, which can result in damages. Two individuals sued their respective health maintenance organizations (HMOs) for alleged violation of a duty imposed by the TX Health Care Liability Act. We granted cert to decide whether their causes of action are completely pre-empted by the interlocking, interrelated, and interdependent remedial scheme found in ERISA. We hold that the causes of action are completely pre-empted and hence removable from state to federal court. The 6 carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted provide strong evidence that Congress did not intend to authorize other remedies that is simply forgot to incorporate expressly. Therefore, any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted. We hold that respondents state causes of action that fall within the scope of ERISA § 502(a)(1)(B) and are therefore completely pre-empted.

Patents (employee creative work)

Inventions are subject to patent protection, and, the human inventor generally has the right to the patent. In a nutshell: (1) an EE who is employed to invent something specific may be required to sign the patent for it to the ER. (2) EEs engaged in nonconventional work, or even inventive work of the general nature, who develops an invention on his own time and independent of the ERs facilities, retains full rights to the patent. (3) And EE engages in general inventive work, or even non-inventive work ER's invention uses the ER's facilities time and resources retains a legal right to the patent but maybe required to grant the ER and non-exhaustive royalty free license to use the patent.

Pension Protect Act Notes

Issuers of Publicly Traded Securities: Do not become ERISA fiduciaries simply because a covered pension plan buys/holds those securities, whether shares of stock in a corp, or shares of a mutual fund. Some investment trusts, however, do not sell interests in the market and are not traded in the conventional way. Hedge funds are one example. Determining when the managers of such a fund become fiduciaries is not an easy matter, but may have been made simpler by a provision added by the Pension Protection Act. Lockdown Solution: The lockdown problem was addressed in the Pension Protection Act by an amendment to ERISA § 404(c). It states that a beneficiary is not to be treated as in control of an individual account during the period when there is a lockdown preventing that beneficiary from actually exercising control.

What is the Pension Benefit Guaranty Corporation (PBGC)?

It is a US federally chartered corp created by ERISA to encourage the continuation and maintenance of voluntary private defined benefit pension plans, provide timely and uninterrupted payment of pension benefits, and keep pension insurance premiums at the lowest level necessary to carry out its operations.

What is the Pension Protection Act?

It made changes in the treatment of company stock (stock authorized by the company's board of directors to be issued, but how the companies treasury instead of having been sold to the public) issued two individual retirement accounts. § 901 of that act requires that an EE be able to divest her individual account of publicly traded ER security sooner than in the past. Another new provision requires that notice be given to the owner of an individual account 30 days in advance that he will have the right to divest the account of the ER security as of a certain date and describes the importance of diversification. Defined benefit plans are in general forbidden to hold more than 10% of their assets in company stock.

Terms and Conditions of Employment: Terms of Contract

It might be that the terms are unilaterally set by the employer, as in the day laborer's case, or determined through bilateral negotiations as is typically the case with university basketball coaches.

What if the employer were to offer a modest no-fault insurance policy in place of the compensating wage?

KDS's "Paternalistic" Argument: 1. EEs should buy or earn insurance against serious injury or death, individuals should insure any risk they "cannot afford to bear.; Serious injury or death is risk workers cannot afford to bear. 2. ERs can buy insurance against workplace injury or death more efficiently than EEs. Group insurance cheaper (risk spreading) ER has more control over risks of the workplace 3. ER can provide benefit to EE (insurance) that is worth more to the EE than it costs the ER 4. Insurance compensates EE and provides ER incentive to make workplace safe

Kentucky Association of Health Plans, Inc. v. Miller:

KY law provides that a health insurer shall not discriminate against any provider who is located within the geographical coverage area of the health benefit plan and who is willing to meet the terms and conditions for participation established by the health carrier, including the KY state Medicaid program & its partnerships. We granted review to decide whether ERISA preempts either or both of these any willing provider statutes. ERISA pre-empts all state laws insofar as they may now or hereafter relate to any employee benefit plan 29 U.S.C. § 1144(a), but state laws which relate insurance, banking, or securities are saved from pre-emption. To determine whether KY's AWP statutes are saved from preemption, we must ascertain whether they are laws which regulate insurance under § 1144(b)(2)(A). It is well established in our case law that a state law must be specifically directed forward the insurance industry in order to fall under ERISA's saving clause; laws of general application that have some bearing on insurers do not qualify.

Bodah v. Lakeville Moto Express, Inc.

LME safety director sent a facsmile transmission to the terminal managers of 16 freight terminals with the names and social security numbers of 204 LME employees. Respondents filed a class action lawsuit alleging that LME's dissemination of their social security numbers constituted an invasion of their right to privacy. We hold that the complaint does not allege the requisite "publicity" to support a claim for publication of private facts. Publication is publicity to public at large so substantially certain fact becomes public knowledge. 3 common law privacy torts: (1) intrusion on seclusion; (2) appropriation of name or likeness; (3) publication of private facts Publication Elements: publication of private facts where matter publicized (1) would be highly offensive to a reasonable person; (2) is not of least concern to public

Late Industrial Period (1932 - late 1970s) (The New Deal: The 1930s and its Aftermath) Describe the law of the employment relationship and the law of collective bargaining

Law of the Employment Relationship: Jones & Laughlin, protective legislation (workers comp, Social Security, FLSA, Civil Rights Act, OSHA, ERISA) Law of Collective Bargaining: NLRA (Wagner Act 1935, Taft-Hartley Amendments 1947), Landrum Griffin Act LMRDA (1959), Public Sector Laws (1960 and later)

Early Industrial Period (1865 - 1932) (the rise to power of laissez-faire) Describe the law of the employment relationship and the law of collective bargaining

Law of the Employment Relationship: Lochner doctrine, employment at will, unilateral offer and acceptance Law of Collective Bargaining: governance by injunction (civil conspiracy/yellow dog contracts, company unions, interference with contract/antitrust laws), RLA 1926, Norris LaGuardia 1933

Information Technology Period (late 1970s - present) (the emergence of the modern employment relationship) Describe the law of the employment relationship and the law of collective bargaining

Law of the Employment Relationship: erosion of employment at will, erosion of protective legislation through increased use of relationships outside traditional "employment" (Independent Contractors, Work On-Demand Apps, Crowd Sourcing) Response ABC Test? Law of Collective Bargaining: decline of private sector unions/attack on public sector unions, erosions of doctrines fostering collective bargaining (NLRA Precedents, Janis), state Laws limiting scope of public sector collective bargaining and making it harder to organize and remain organized

Electronic Monitoring Can Employers Intercept?

Lawful Interception by Employer: An interception of an EE's electronic communication by an ER is permitted if it meets at least one of two conditions: (1) when consented to, and (2) when made in the ordinary course of the employer's business. An employer is unrestricted by the law in retrieving communications stored in its own system.

Electronic Monitoring: Overview

Laws Regarding Electronic Monitoring: The ability of an ER to monitor computer use is regulated by federal as well as cognate state statutory schemes. Two important portions of the Electronic Communications Privacy Act are Wiretap Act and Stored Communications Act. Notice: A majority of ERs notify employees of their monitoring policies; but some do not. Federal law does not require notice, but notice, if sufficiently done, is evidence of consent, which is a defense to a claim of a wrongful interception.

Modification of Awards: Lowe v. Drivers Management, Inc.

Man had an accident at work and then refused to see the vocational rehabilitation specialist that was approved in his rehabilitation plan. He seeks a modification of the previous award. To obtain an modification of a prior award and go from PP to PT, the applicant must prove there exists a material and substantial change for the better or worse in that condition a change in circumstances that justifies a modification, distinct and different from the condition for which the adjudication had previously been made.

US Airways, Inc. v. McCutchen:

McCutchen participated in a health benefits plan that his ER, established under ERISA. That plan obligated US Airways (US) to pay any medical expenses he incurred as a result of a 3d party's actions. The plan in turn entitled US to reimbursement if he later recovered any money from the 3d party. This court has held that a plan administrator like US may enforce such a reimbursement provision by filing suit under ERISA. We here consider whether in this kind of a suit, a plan participant may raise certain equitable defenses deriving from principles of unjust enrichment. In particular, we address one equitable doctrine limiting reimbursement to the amount of an insurer's double recovery and another requiring the party seeking reimbursement to pay a share of the atty's fees incurred in securing funds from the 3d party. We hold that neither of these equitable rules can override the clear terms of the plan. US is enforcing a modern day equitable lien by agreement. Conversely, It means declining to apply rules, even if they would be equitable in a contract's absence, at odds with the parties expressed commitments. The EE therefore cannot rely on theories of unjust enrichment to defeat US appeal to the plans clear terms. The plaintiffs case is not over there however. The plan is silent on the allocation of atty's fees and in those circumstances, the common fund doctrine provides the appropriate default. In other words, if US wish to depart from the well-established common-fund rule, it had to draft its contract to say so and here it did not. So here, McCutchin settled for $110K, paid 40% ($44k) in atty fees and received $66K. Of that the insurer here could claim its $66,866 in medical expenses, but has to pay its shar of atty fees (40%) and so gets $40,120.

What is the Anti-Cutback Rule (pension plans under ERISA)>

No diminution of accrued benefit. The anti-cut back provisions applies to pension plans, but not welfare plans (plans programs or funds employer maintains to pay medical, sick-leave, disability, death and unemployment benefits). In some case, it may be challenging to determine where the line should be drawn between the two categories.

Occupation Disease Coverage

Occupational diseases share many of the problems of stress related injuries. They can develop years after the initial even last injurious exposure. It is sometimes hard to separate whether they are caused by work or other nonjob related factors. Early statutes in the US tended not to provide benefits for disease, but this is gradually changed. Some statutes cover disease through a general provision such as the definition of injury in the Longshoremen and Harbor Workers Comp Act. Other statutes include more detailed provisions, sometimes listing specific diseases or disease categories sometimes coupling the disease with a particular type of occupational activity. These listed diseases statutes have expanded regularly over the years.

Tort: Discharge in Violation of Public Policy Overview

One of the exceptions to the at will doctrine is a tort claim for discharge in violation of some public policy. Sources of Public Policy? Constitution, Statute, Regulations, Judicial Decisions (common law), Professional Standards.

FLSA: Covered Employment

Originally applied only to work performed in interstate commerce (extent of Federal Commerce Clause power at the time), as Federal Commerce Clause Power expanded, coverage of FLSA expanded. The act now covers all EEs of an enterprise that produces or handles goods produced for, moved in, or that have moved in interstate commerce so long as the gross volume of annual business meets specified dollar levels or it is a business operating within one of a list of industries. About 80-90% of private sector EEs and many public and agricultural EEs.

Hybrid Tests (to determine who is an EE) Overview

Overview: For some protective statutes, for which it is perceived that the legislature intended very broad coverage, courts have adopted "hybrid tests" that examine the facts of the work relationship and look for either control or economic dependence, thus encompassing both the right-to-control and economic realities tests. Originally developed: to interpret federal laws Type of test: Totality of the circumstances test (no single factor dispositive)

The Fair Labor Standards Act

Overview: § 216 of the Act provides that an action for a violation can be maintained in any federal or state court: "By any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No EE shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which the action is brought. Application to the Federal Arbitration Act = Fail: All courts that have ruled on the issue have held that § 216 is not a "substantive right," and again, that nothing in the text of the FLSA indicates that Congress meant to preempt the FAA.

Copyrights (employee creative work)

Ownership vests in the author of the work that is subject to copyright protection. However in a work made for hire, the Copyright Act provides that the statutory author is the ER for the work was prepared. Whether a work is one made for hire has been subject to a great deal of litigation and is commonly dealt with expressly by contract. Generally, employer gets copy right if you are hired to do creative work.

What is the Post-Recovery Period?

PP or PT Benefits Paid According to (1) schedule, or if (2) unscheduled paid according to (i) impairment (presume wage loss), (ii) "loss of earning capacity" (pre-injury AWW - post-injury earn capacity), or (iii) "actual wage loss" (pre-injury AWW - post-injury AWW). Depends on the jurisdiction.

Ability, Personality, and Honesty Testing

Paper and Pencil Honesty Testing- Three strategies in questions: (1) Ask directly about past dishonest activities (if admit to dishonesty don't hire) (2) Ask person how commonly are people dishonest (if they think dishonesty is common, don't hire) (3) Ask person what to do with dishonest people (if they are easy on dishonesty, don't hire) Very little regulation, some state laws. Note: there IS federal regulation of the use of polygraphs in employment (1) Employee Polygraph Protection Act of 1988 (EPPA): prohibits use of polygraphs in pre-employment screening except for certain sensitive jobs (security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors and dispensers). (2) Prohibits use of polygraph for current EEs unless particular incident of dishonesty and reason to suspect EE

Are apprentices considered employees?

Participants in formal apprenticeship programs may be required to attend a substantial # of hours of classroom instruction. So long as the apprenticeship program meets standards set by the Bureau of Apprenticeship and Training and that classroom instruction does not result in production of goods and services that can be sold by the ER, the time spent in the classroom is generally not compensable.

Political Speech and Association (cases) Novosel v. Nationwide Ins. Co., 721 F 2d 894 (3d Cir 1983)

Plaintiff (P) was an EE of Nationwide and in late Oct. 1981, a memo was circulated through the offices soliciting the participation of all EEs in an effort to lobby the state legislature to pass the "No-Fault Reform Act." According to P, his employment was terminated because he refused to participate in the lobbying effort/opposed Nationwide's political stand. Following his termination, P filed a lawsuit against Nationwide in federal district court, raising claims of wrongful discharge & breach of contract. The court of appeals vacated the district court's judgment & remanded the case for discovery and further proceedings. The court found that it was incorrect as a matter of law to declare that no cause of action for wrongful discharge was stated under PA law. The court ruled that PA law permitted a cause of action for wrongful discharge where the employment termination contravened a significant and recognized public policy. In addition, P's averment of discharge for refusing to support the lobbying efforts was sufficiently violative of public policy. Court held that P's allegation that Nationwide's custom, practice or policy created either a contractual just cause requirement or contractual procedures by which it failed to abide was a factual matter that should have survived a motion to dismiss.

Messer v. Huntington Anesthesia Group, Inc.

Plaintiff seeks recovery under the West Virginia Human Rights Act for both an aggravated or worsened physical injury & nonphysical injury stemming from the alleged refusal of her ER to accommodate her disability, a herniated disc. She alleges her primary physician informed the ER on multiple occasions that she was limited to an 8 hr work day, lifting restrictions, and that she should refrain from overtime. She asserts that her ER ignored these restrictions and failed to accommodate her physical handicap. As a result, she claims that her physical condition progressed and worsened to the point when she was not no longer able to perform her duties. I believe that let her recover under anti-discrimination laws. She chose to pursue her remedy under state law. If she had brought her action under the ADA, she would have also been able to argue that the federal statute preempted the exclusivity remedy of the state comp act.

Dicks v. Jensen (trade secrets)

Plaintiffs started their own competing lodge and contacted their former ER's customers. A customer list can be a trade secret. Held that in this case, the customer list did derive independent economic value but there were not efforts to maintain its secrecy because public boards in the lodge would list all the groups coming that summer.

Doyle v. Holy Cross Hospital (minority view for changing terms)

Plaintiffs worked as nurses until they were discharged. Applying "traditional principles" of contract law, we conclude in this case that the defendant's unilateral modification to the EE handbook lacked consideration and therefore is not binding. A modification of an existing contract, like a newly formed contract, requires consideration to be valid and enforceable. Consideration consists of some detriment to the offeror, some benefit to the offeree, or some bargained for exchange between them. No consideration existed here that would justify enforcement of the modification against existing EEs.

Neoclassical Analysis of Minimum Wage on Labor Market

Predicted effects of minimum wage would be (1) wage increase for covered workers; (2) wage decrease for uncovered workers; (3) increase in unemployment; and (4) inefficiency in production and increased consumption. Net transfer of wealth from consumers and uncovered workers to low-wage covered workers.

Minimum/Low Wage Workers

Prevalence of Minimum Wage: Other studies have examined what percent of poor people are minimum wage workers. The most recent study in this regard found that only 12.6% of poor families had minimum wage workers and that 25.7% of poor families had no worker at all. Perks for Low Wage Workers: Some have argued that the minimum wage improves opportunities for low wage workers by forcing less productive ERs out of the market in favor of more productive ERs.

Drug Testing in the Courts - Private Sector

Private Sector Common Law (Tort, Contract) and Statute 1. Tort (Privacy easily waived, Discharge in Violation of Public Policy?, Defamation, Intentional Infliction of Emotional Distress?) 2.Contract (Usually, only EEs under union contract have any contractual rights as to manner and means or whether ER requires a drug test; NLRA Drug Testing Mand Subj of Barg (ER can't unilaterally implement without bargaining); If for cause protection discharge for cause? 3. Statutes (Some state and local regulations as to procedure and use of information from drug testing, some states make drug test failure a disqualification for UC bens)

Firestone Tire and Rubber Company v. Bruch:

Private class action under § 502(a)(1) for termination of benefits & failure to meet notice requirements. First, address appropriate standard of judicial review for benefit determinations by fiduciaries or plan administers. Second, determine which ppl are participants entitled to obtain info about plan benefits under ERISA. Plaintiffs are denied benefits by the plan administrator. ERISA does not set out the appropriate standard of review for actions challenging benefit eligibility determinations. P's argue a trust law de novo standard of review and Ds argue an abuse of discretion review. The trust law de novo standard of review is consistent with the judicial interpretation of EE benefit plans prior to the enactment of ERISA. We hold the denial of benefits challenged under the act is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility benefits or to construe the terms of the plan. 29 USCA § 1132(c)(1)(B) provides that any administrator who fails or refuses to comply with a request for any info which such administrator is required by this subchapter to furnish to a participant/beneficiary may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100/day. In our view, the term "participant" is naturally read to mean either EEs in or reasonably expected to be in currently covered employment or former EEs who have a reasonable expectation of returning to covered employment or who have a colorable claim to vested interest. In order to establish that he or she may become eligible for benefits, a claim it must have a colorable claim that (1) he or she will prevail in a suit for benefits or (2) that eligibility requirements will be fulfilled in the future. Therefore, sent back to district court to determine if the Ps are participants with respect to the benefit plans about which they sought info.

FLSA: Employee Status

Problem: Much of the contestation concerns whether the persons claiming the benefit of the Act are statutory EEs entitled to that compensation in contradistinction to business proprietors who are not. Test: "To employ" is to "suffer or permit to work," very broad. Historically courts apply "economic realities test" here.

Information Technology Period (late 1970s - present) (the emergence of the modern employment relationship) Describe the production technology and the nature of employment relationship

Production Technology: large horizontally organized firms, decline in length of employments relationship, market regulated employment (benchmarking/outsourcing), international production, artificial intelligence Nature of Employment Relationship: individual contract, collective bargaining (craft, industrial, and professional), protective legislation, widespread use of subcontracting, on demand apps and crowdsourcing, (workers not "employees" under protective legislation), job polarization (wages increase for high skill jobs that are complemented by information technology; wages decrease for mid and low-skill jobs for which information technology is a substitute; so far mid-skill jobs are the ones most easily automated: mid-skill workers displaced to low-skill jobs depressing wages. Less mid-skill jobs available for personal and intergeneration "steppingstones" to rise in income distribution.

Late Industrial Period (1932 - late 1970s) (The New Deal: The 1930s and its Aftermath) Describe the production technology and the nature of employment relationship

Production Technology: large vertically integrated firms (A to Z is done under one roof), long-term employment, internal labor market (admin rules/promotion ladders), national to international production Nature of the Employment Relationship: individual contract, collective bargaining (craft and industrial), protective legislation

Early Industrial Period (1865 - 1932) (the rise to power of laissez-faire) Describe the production technology and the nature of employment relationship

Production Technology: scientific management (Taylorism, deskilling of jobs), ass production (Ford assembly line), technology of production incorporated into the assembly line, regional to national production Nature of Employment Relationship: individual contract and some collective bargaining (craft)

What does section 6 of OSHA allow?

Promulgation of New Standards: § 6 allowed the secretary of Labor to adopt during the first 2 years of the statute any established federal standards that it wanted to without the lengthy rulemaking procedures usually required. § 6 provides the secretary may modify or revoke any of these standards, or establish new standards only through the procedures prescribed by § 6 and the administrative procedure act. § 6 subsection C provides for establishing temporary emergency standards effective for 6 months pending those procedures where there is grave danger of exposure of toxic substances or new hazards. Called the (a) National Consensus Standards; (b) Promulgation of New Standards Under APA; (c) Emergency Temporary Standards Since its inception, OSHA has had trouble promulgating new regulations under (b) or (c). Hard to justify, easy to challenge. The great majority of our current OSHA standards are based on 1970 national consensus standards.

General Law of Wrongful Dismissal

Proposed Wrongful Discharge Law: In 1991, the Commissioners on Uniform State Law proposed a Model Employment Termination Act (META). This proposed act has 3 main provisions: that EEs have good cause for dismissal; the replacement of court trials with arbitration as the preferred method of litigating discharge suits; and strict limitations on ER liability for wrongful death discharge suits. ERs are allowed to avoid the good-cause requirement by expressly contracting with the EE for severance pay instead. Law Considerations: need to include the following: full compensation, expedition, fairness, accuracy, and low transaction costs.

Federal Old-Age and Survivors and Disability Insurance (OASDI):

Provides benefits for long-term, total disability. Benefits are financed through a payroll tax on employers, employees and self-employed persons. What are the requirements: Congress amended the Social Security act to provide for a worker who satisfies the eligibility requirements (meets the min numbers of quarters of OSADI tax contributions [called the min earnings requirement]) and becomes totally disabled, is entitled to retirement benefits at the same age as if there had been no work interruption.

What is the Sarbanes-Oxley Act?

Provides that every audit committee of the Board of Directors of a publicly traded corp shall establish procedures for the confidential, anonymous submission by EEs of the issuer of concerns regarding questionable accounting or auditing matters. Thus the Act requires ERs to enlist their EEs in a joint effort to prevent malfeasance (structural approach), rather than following the traditional anti-retaliation approach which pits the EE against the ER as an adversary. The law requires anonymity for the speaker of the violation and confidentiality for the information covered by the Act.

Covenants Not to Compete - Public Interest & Reasonableness

Public Interest: Reasonableness means balancing not only the ER's and EE's interests, but also the public's interest. EE mobility has positive spillover effects because they bring the knowledge and know how they have acquired at one employment to another. For example, in judging the reasonableness of geographic constraints, it matters whether the interest to be protected is a customer list or a production methods trade secret. The geographic area necessary to protect a customer list would extend only to the area over which existing customers did business. However, to effectively protect the value of a trade secret in production processes, a reasonable geographic area might be world-wide since once the process is known outside the firm it could easily spread back to the employer's current market. In judging the reasonableness of a covenant not to compete, some courts have considered whether alternative remedies including less restrictive covenants, could adequately protect the ER's legitimate interest and impinge less on the EE's economic freedom. Almost all of the recognized legitimate employer interests have alternate means of protection.

Biometric Controls (facial recognition, iris, fingerprint)

Rarely used a short while ago (2007 survey, only 2% or ERs use), more recently much more common (2018 survey 62% of employers use for some EEs) Possible invasion of privacy (use facial recognition to search the wen?) taking of private personal information (ER now has electronic record of EEs fingerprint, like social security number?) Some states passing legislation to limit use. (IL Biometric Information Privacy Act: To gather biometric information from EE, ER must first inform EE of collection and purpose in writing and receive a written release from the EE; WA and TX also have statutes.)

Income Benefits: Permanent Total (PT)

Recovery is not predicted; the EE is not expected to ever be able to return to work. The worker receives the WBA, but in some states there is a limit on the total number of weeks or dollar amount that can be received and in other states the benefit is paid until 65 or "for life".

A Brief History of the Statutory Regulation of Pay and Hours

Regulation of Max wages in England and colonies (1349 Statute of Labourers, 1630 mass wage law), early 1800's movement for 10 hour day, Lochner doctrine and obstacle, 1920's first minimum wage laws for women and children, 1931 David Bacon "prevailing wage law" (pre-new deal), 1933 New Deal Jones and Laughlin Steel case ended Lochner, 1937 Fair labor standards act (FLSA).

Why is it important to regulate overtime hours?

Regulation of standard work week hours & overtime hours and pay can protect workers who might otherwise be required to work more than they would like to at the going rate. By discouraging the use of overtime, such regulation can increase the standard hourly wage of some workers & encourage work sharing that increases employment, with advantages for female workers. However, regulation of overtime raises employment costs, setting in motion economic forces that can limit, neutralize, or even reduce employment. And increasing the coverage of overtime pay regulations has little effect on the share of workers who work overtime or on weekly overtime hours per worker.

What agency is responsible for enforcing OSHA?

Responsibility for enforcement of the statute is vested nominally in the secretary of Labor, but is administratively located in the Occupational Safety and Health Administration, and agency in the Labor Department under the assistant secretary of Labor.

Medical Rehabilitation

Responsibility for medical rehabilitation is almost always placed in the ER as part of the medical benefits. Provisions for vocational rehabilitation vary considerably, in scope of the retraining available comment and in whether such retaining is a condition of receiving benefits, and in how cost is shared among ER, EE, & public agency. Under some statutes, an injured worker who is dissatisfied with the quality of rehabilitation services he is receiving may ask to have modification of an initial award in order to obtain more or better rehabilitation.

Political Speech and Association

Rule: Most ERs can fire an at will-employee if they don't like your political speech except if a state constitution or legislature says otherwise. Influence Voting: Many states forbid employment discrimination where the purpose is to influence how EEs vote. Six states protect EE engagement in "political activity" generally; and two-LA and SC-protect the holding of political opinion. Michigan prohibits ERs from keeping records of EE political association or activity.

Control of Employees: Personal Relationships Rulon-Miller v. International Business Machines Corp.

Rulon-Miller was a low-level marketing manager at IBM. Her termination came about as a result of an accusation made by her immediate supervisor, defendant Callahan, of a romantic relationship with the manager of a rival office products firm. Callahan based his action on a "conflict of interest." But the record shows that IBM did not interpret this policy to prohibit a romantic relationship. The contract rights in an employment agreement or the covenant of good faith and fair dealing gives both employer and employee the right to breach and to respond in damages. Here, however, the question of whether, if IBM elected to exercise that right, it should also be liable for punitive damages, because of its intentional infliction of emotional distress. The issue is whether the conduct of Callahan was "extreme and outrageous," a question involving the objective facts of what happened in the confrontation as well as the special susceptibility of suffering of the employee. The jury was entitled to consider the evidence of extreme and outrageous conduct in light of the exchange followed by Callahan's conduct and pretextual statements.

Preclusion of Group Participation: Supreme Court Rulings on Private Arbitration Agreements Non-Employment Context

SCt held that the principle purpose of the Act is to ensure that private arbitration agreements are enforced according to their terms. In another case where plaintiffs tried to argue that group participation prohibition should be void because the cost of proving antitrust violation would be more than the individual damages, the SC held that the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.

How do OSHA inspections work?

Scheduled: Inspect the workplaces with the highest potential injury risk first, offices do not get inspected much, focus on construction areas, logging, docking, etc. If they want to search, need consent/warrant but if its construction, you can just drive by and see Report or incident: they can take something from a newspaper about an incident, they can use that to inspect, Inspect after EE complaints Need consent or warrant for both scheduled program and after report/incident

What is the meaning of "plan" under ERISA?

Since the statue itself does not have a comprehensive definition of "plan," the secretary of Labor has issued regulations that seek to fill the gap. Those regulations indicate that a number of benefits will not be treated as plans if paid for out of general assets. These include holiday bonuses and continued payment of wages during temporary periods of disability or during military duty. Other exempted benefit programs include providing meal facilities, selling goods or services to employees a discount, and providing on-site medical care.

Interview Questions

Some expressly or implicitly prohibited by law: 1. Specific Statutes: file workers comp claim? (WC) Union supporter? (NLRA) 2. CRA protection: Religion? Pregnancy status? Marital Status? (questions that ask directly or indirectly about a protected status) Note: Nine states prohibit asking current pay (some state considering requiring disclosure of pay). What if EE asked a prohibited question and lies about it, can they later be fired for lying?

Background Checks - Standard of Care (by reporting agency)

Standard for Care by Reporting Agency § 1681k: "maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer's ability to obtain employment is reported it is complete and up to date." Application of Fair Credit Reporting Act (FCRA) to EE background checks. Relation to State laws [15 U.S.C. § 1681t]. 1. Preempts defamation suits unless malice or willful intent to injure. 2. Qualified privilege for agencies that follow rigorous accuracy standards or give subject notice and chance to respond Disclosure and Consent § 1681b(b)(2)(A) Walker v. Fred Meyer, Inc. 953 F. 3d 1082 (2020)- Facts? Issue?- Notice here clear and conspicuous? Stand alone?

Eligibility to Participate in Pension Plans

Standards reflect some of the same concerns prompted by the accrual standards. Reserving eligibility to participate for those who with many years of service would disadvantage both younger workers and those who want to seek better jobs with a different ER at various points in their working life. One section of the act generally requires a plan to be open to any worker with one year of service who is 21 years older and above. The major exception is for plans with 100% vesting after a maximum of two years of service

Does workers' comp exclude torts for IIED against employers?

States split on whether WC excludes. KDS: treat physical assault, if harm intended or substantially certain, not an accident, therefore not excluded by WC.

What is the basic coverage provision of the ERISA?

States that it covers any EE benefit plan if it is established or maintained (1) by any ER engaged in Commerce or in any industry or activity affecting Commerce; (2) or by any EE organization or organizations representing EEs engaged in Commerce or in any industry or activity affecting commerce or (3) both. Note: includes Union plans.

Economics of Employment Regulation The Neoclassical Analysis: Structure & Regulations

Structure: The neoclassical analysis of employment regulation can be presented in a series of simple supply and demand curves. Supports freedom of contract (Lochner doctrine) Labor market regulations: those that constrain or supplant the competitive mkt in determining wages & thereby directly change the negotiated terms of the labor contract (for example minimum wage law, NLRA, Equal Pay Act)

Successive and Concurrent Harms: Geathers v. 3V Inc. (cumulative effects test)

Successive carrier problem (here same ER, but could be different ERs too). First injury under EBI and second injury under Liberty. Cumulative effect (example, two PP result in PT), how to access liability? Two solutions: (1) Apportion permanent award between two carriers (with offset for prior payment). "Fair" but problems of statute of limitations, out of state insurers and how to apportion, or (2) "Last Injurious Exposure" (ER takes EE as she finds him) assume the liability evens out over time, simple (but give incentive not to hire previously injured people). The court here picks the last injurious exposure rule. As the opinion the principle case illustrates, single jurisdiction may deal with different sorts of injuries in different ways.

Neoclassical Analysis of Employment Mandate like Unemployment Compensation on Labor Market

Supply curve shifts down by value of benefit to EEs (B) and Demand shifts down by cost of benefit to ER (C). If B > C, Labor increases. If B < C, L decreases (inefficient).

Do workers often get misclassified?

Surveys report that as many as 10 to 19 % of workers are misclassified, 30 to 47 % of employers misclassify at least some employees and in some industries as many as half of EEs are misclassified. A California State Assembly member recently estimated that California's total loss of state revenue from misclassification at $7 billion per year.

Matter of Depaoli v. Great A & P Tea Company

The Court of Appeals concluded that, as a result of the Legislature's use of the phrase "direct consequence", the statutory exclusion "applies only when the personnel decision at issue is aimed at the claimant." Here, claimant himself was not the subject of a "personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination." Although the ER's decisions contributed to the injury (by making EE work longer hours, take on more responsibility, and manage a store that was not performing well) it did so indirectly.

Income Benefits: Permanent Partial (PP)

The EE has suffered an injury from which he will never recover, but one that will not prevent him from returning to some type of work. Income benefits generally consist of a scheduled benefit (for example for a thumb 40 weeks of WBA) or for an unscheduled benefit the calculated PP benefit may be based on "impairment", loss of earning capacity", or "actual wage loss" depending on the jurisdiction. 9 states pay for the duration of the disability; 6 limit payment to 500 weeks; 3 base the length of benefit payments on the percentage of impairment; and the remainder limit payment to a specified number of weeks (200 weeks to 1,500 weeks).

The American Experience with Covenants Not to Compete: Economic View

The Empirical Evidence on Their Impact on Workers, Firms, and the Vibrancy of the Economy 1. Economic theory provides both positive and negative accounts of the efficiency of EE covenants not to compete. 2. Under the positive account, non-competes allow ERs to make potentially appropriable investments in technology, customer contacts and EE reputation to the benefits of both the ER and the EE, and society. 3. Under the negative account, non-competes allow ERs to extend monopsony power and raise potential competitor's costs to the detriment of EEs and society.

Who is the employer? Overview

The Fissured Workplace: The new information technology period has facilitated new production and subcontracting relationships in production. This has complicated not only the question of whether a worker is an "employee" under protective legislation, but also who is their ER? Large firms shedding workers down to suppliers, subcontractors or franchisees, often of their own making. When is the large firm liable to these workers as an employer? 1. Shedding of workers to smaller suppliers often results in a decrease in wages & benefits for the workers 2. Smaller suppliers sometimes violate the law leaving large liabilities they are not capitalized to cover.

Ability to be Observed

The Hillsides court asks whether the EE could be observed by others when the tort occurred; but other courts have had a different take on that question. That is, if the surreptitious video surveillance occurs in a work area that could have been observed by a co-worker or visitor during the work day, even though it was not and even though the EE was at pains to avoid being observed, the EE had no reasonable expectation of privacy. Spoken Word: Federal law prohibits intercepting of an oral communication not consented to by one of the parties.

Which federal statutes use the Right to Control Test? What about states?

The NLRA, Title VII of the CRA, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), ERISA, Occupational Safety and Health Act (OSHA); Worker Adjustment and Retraining Notification Act (WARN), Federal Unemployment Tax Act (FUTA), Federal Insurance Contributions Act (FICA), and Internal Revenue Code (IRC). State Workers' Compensation statutes commonly apply the right-to-control test

Covenants Not to Complete - Employer's Legitimate Interest

The Prerequisite of an Employer Legitimate Interest 1. The sale of a business by the EE to the ER 2. The EE is specifically engaged to conduct research on behalf of the ER 3. ER retains the EE to perform services, and the EE's work benefits from the ER's investment in information or relationships that might be appropriable when the EE leaves (for example ER investments in trade secrets, customer contacts and the EE's reputation in the market) To qualify as a legitimate interest under the common law test, a trade secret must meet the common law requirements that: 1. It derives independent economic value from being kept secret 2. The ER has taken reasonable measures to keep it secret, such as limited access, password protection and confidentiality agreements. 3. The information is not readily known or ascertainable by the general public or people in the industry. Although some courts have held that an ER can use non-competes to protect "key employees" or to protect investments in training the EE, these are minority positions without general support in the common law. Legitimate Protectable Interests: customer lists and contacts, business good will, special processes or formulas (trade secret, proprietary info), and specialized training (not general training)

Background Checks - Standard of Care (by the background check company)

The Standard of Care (By the Background Check Company) § 1681k 1. Watson v. Caruso, 424 F. Supp 3d 231 (2019)- Facts? Issue? Summary Judgment for D?- Standard of Care for D? When is report "inaccurate"? - "inaccurate when either (1)incorrect or (2) misleading in a way and to an extent to have adverse effect" Subcontracting to professional criminal records check company constitute "strict procedures for accuracy"? No Note 2: FCRA apply to background checks done by ER him or herself? (No not "consumer report" under FCRA, back under common law defamation standards)

What is the Right to Control Test the default test for?

The Supreme Court has stated that this is the default test for federal protective legislation where Congress defines the term "employee" by merely referring again to the term employee in a circular fashion, without further elaboration. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, at 323 (1992). Note: If the statute expressly excepts "independent contractor" that is also sometimes taken to indicate that the legislature intended the right-to-control test.

Changing Terms of Employment - Introduction

The at-will EE is a player in a near instantaneous series of contractual transactions: at every instant the principle (the ER) offers employment to the agent (the EE) on an "As is" or "Take it or leave it" basis. The agent accepts these terms merely by continuing in employment. At any instant the ER is free to demand a change by making it, and the EE accepts by staying on. Bargaining Power: An individual's bargaining power can actually be below zero, as she can be fired for having asked for an improvement in wages, hours, or working conditions. The common judicial assumption is that where an EE has adequate notice of a change in wages, hours, or working conditions and continues in employment, the EE has assented to the change.

What are permissible examples of preliminary competitive activity? Does the employee need to give notice to their employer?

The common law allows an EE to engage in a wide range of "preliminary" competitive activity while in the ER's employ: planning a competing venture, incorporating it, finding financing for it, renting or purchasing premises and equipment, printing letterhead and business cards and more. Notice: An EE ordinarily has no obligation to inform the ER of his intent to engage in a competitive venture unless the EE has acted "inimically to the employer's interest."

Can an employee be reinstated for employer breach of an employment contract?

The common law rule rejects an order of reinstatement as a remedy for ER breach of an employment contract.

The Implied Covenant of Good Faith and Fair Dealing Overview

The concept of an obligation of good faith in the EE relationship is thinly developed in the US In many jurisdictions, good faith is per se inapplicable to employment, not just to employment at-will. Some states apply the covenant to employment of fixed duration but exclude it from at-will employment. In those instances, although a decision to terminate an at-will EE is not subject to scrutiny on grounds of good faith, a decision not to renew an employment contract of fixed duration would be. Some jurisdictions have applied the covenant to at-will employment but have limited it to a bad faith termination benefitting the ER financially at the EE's expense, such as a termination to deprive a salesman of commissions that otherwise would become due. Inasmuch as it is an imposed obligation, to observe community standards of decency, tort damages including punitive damages would be arguable.

National Labor Relations Act - Overview

The core objective of the NLRA is the protection of workers' ability to act in concert. § 7 of the act implements that objective by guaranteeing EEs the "right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. The SC has made clear that § 7 protects EEs when they seek to improve working conditions through resort to administrative & judicial forums. In 2012, the Board applied the well-established principle that individual agreements could not be treated as waivers of the statutory right to act collectively to hold that an ER violates the NLRA when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours, or other working conditions against the employer in any forum, arbitral, or judicial. It came to this holding notwithstanding the FAA, finding no conflict under the circumstances between the NLRA and the FAA. The substantive nature of the right to group legal redress is what distinguishes the NLRA from every other statute the Supreme Court has addressed in its FAA jurisprudence. Note: The key legal instrument for workers to have a say in the decisions that govern their working lives is the NLRA of 1935.

Overview of Employment Law

The employment relationship has historically been a blend of status and contract, a relationship governed by a mixture of legally imposed rules and expressing customs or public policies, and voluntarily bargained rules expressing mutual assent.

Schedule of Benefits: Issue

The fact that most jurisdictions provide a schedule of benefits for common and simple injuries facilitate comparison of workers comp benefits b/w states. There is tremendous diversity of WC permanent partial benefits among the states. Maybe means we need a federal standard.

Can employers use polygraphs?

The federal Employee Polygraph Protect Act generally prohibits the use of polygraphy as a means of screening job applications, but it permits polygraphy as an investigative tool. The ER may request an EE to submit to a polygraph test if: there is an ongoing investigation involving economic loss or injury, EE had access to the property subject to the investigation, ER has reasonable suspicion the EE was involved, and ER executes a statement provided to the examinee before the test the explains the basis for the test, is signed by someone authorized to legally bind the ER, is retained for 3 years, and contains minimum information about the investigation.

Disclaimers

The general promulgation of a rule governing the workplace would be given contractual effect as an implied in fact contract if it had been distributed widely enough or had been made known generally to the workforce, even if the particular EE disclaimed knowledge. The Woolley court opined that a "clear and prominent disclaimer" of contractual status would be given legal effect. Not surprisingly, there has developed a textured body of law on just how clear and just how prominent the disclaimer must be. Most courts submit the issue to the jury like in Wakefield.

What is considered "good cause"?

The most common formulation of the concept in the courts is that an EE's failure amounts to "good cause" for discharge if it constitutes a "material breach" of the employment contract such that it would warrant the ER ending the contract without liability for further compensation.

Economics of Employment Regulation The Neoclassical Analysis: Assumptions

The neoclassical analysis of employment regulation begins with a set of assumptions known as "the neoclassical model." In brief, these assumptions include: (1) zero transaction costs (or that there are no time, travel, or information costs to any transaction); (2) perfect information available to all parties; (3) individuals have stable preferences; (4) rational maximization in that individuals act to rationally maximize their utility according to their preferences and firms act to rationally maximize profits according to their production technology; and (5) competitive markets.

Nature of the Injury: Long-Term Conditions

The problem of ensuring the harm is truly employment connected becomes more acute when dealing with certain types of harms like mental conditions, heart attacks, conditions that develop over time like chronic lower back pain, etc. because there's a good reason to think that these sorts of harms may have been caused wholly or partly by nonwork stresses and strains.

What is the unholy trinity?

The resulting doctrinal development provided ERs with an unholy trinity of very effective defenses to suit by EEs seeking recovery for work-related injuries even where the worker could overcome the formidable burden of proving his injury was proximately caused by the ER's intentional misconduct or negligence: contributory negligence; implied assumption of risk; and the fellow servant rule.

Successive and Concurrent Harms: Deschenes v. Transco, Inc.

The sole issue in this appeal is whether the workers comp benefits payable to a claimant with a 25% PP disability in each lung caused in part by work related asbestos exposure should be apportioned or reduced by the amount of that disability attributed to a concurring developing non occupational disease specifically cigarette smoke related emphysema. Testimony that disability (25% disability to both lungs) due 1⁄4 to asbestosis and 3⁄4 to emphysema and there is a "synergistic effect." Alternatives: (1) WC Commissioner: job injury is a "substantial and contributing factor" therefore compensate, ER takes EE as he finds him, or (2) D argues apportion, only caused 1⁄4 of disability and smoked at same time working therefore EE not partially disabled when the ER took him. ER takes EE as he finds him where concurrent injuries? No. We conclude that apportionment or proportional reduction of benefits is appropriate when a respondent ER is able to prove that disability has resulted from the combination of two concurrently developing disease processes, one that is occupational and one that is non occupational, and to the conditions of the claimants occupation of no influence on the development of the non-occupational disease.

Specific Anti-Retaliation Laws (Federal)

There are over 20 federal laws that forbid ERs from discharging or disciplining EEs for exercising rights guaranteed under them. Examples include filing for bankruptcy; serving on a federal jury; complaining of motor vehicle, railroad, mine, or atomic energy safety; and so on. Most don't include causes of actions but instead allow the EE to seek to persuade an administrative agency to pursue the complaint.

What is the employee status for chain store managers?

There has been a good deal of litigation on the status of persons given the title of Manager or Assistant Manager of chain stores who often work hours well in excess of 40/week, perform much the same duties as other store clerks or associates most of the time, but who are ineligible for overtime pay.

What is the problem with inaccurate drug tests?

They result in a disproportionate number of false positives among low drug use populations such as customs agents

Structure of ERISA: ERISA was organized into 4 titles, 3 of them codified into Title 29, the labor title of the USC and 1 in the Tax Code 26 USC.

Title I: Responsibilities in the plan - set standards about what information must be maintained and disclosed to EEs and the secretary of Labor, what rules the plan may have about who is entitled to participate in about when EE's rights to benefits vest, funding of plans particularly pension plans, responsibilities of fiduciaries, circumstances in which a former ER must be allowed to continue to participate in an ERs group health plan, and coverage provisions for group health plans. Title II: Requirements to have a "Qualified Plan" that is eligible for tax deductions - set up of plan; financing; vesting; benefits can't be assigned to creditors; "anti-discrimination" (equity in plans); integrity of fund Title III: Administration - devoted to additional provisions related to the jurisdiction, administration, and enforcement of ERISA. Title IV: Pension Benefit Guaranty Corporation (PBGC)

What is the definition of total disability under the social security act?

Total disability under the Social Security act means inability, due to physical or mental impairment that is demonstrable by medically acceptable clinical and laboratory diagnosis techniques to engage, considering the workers age, education and work experience, in any kind of substantially gainful work that exists anywhere in the nation. The disability must be long term which is defined to mean that it is lasted or is expected to last at least 12 months. Finally there is a five month waiting period for filing claims. Four step administrative process of application review, then possible appeal to courts.

Course of Employment Test: Kolomiets v. Syncor International Corporation

Truck driver gets into accident when he goes home quickly to pick up his driver's license. Question over whether his injuries arose out of and in the course of employment for purposes of worker's comp. The claimant has the burden of proving that the accident giving rise to the injury took place (a) within the period of the employment; (b) at a place the EE may reasonably have been; and (c) while the EE was reasonably fulfilling the duties of the employment or doing something incidental to it. Question of whether this run home was a minor deviation (course of employment) or personal frolic and detour (not in course of employment). Here the injuries did arise in the course of employment.

Trade Secrets and Confidential Business

Two Elements to Trade Secret: (1) item derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Examples of Protectable Trade Secrets: Customer lists, recipes and formulas, production methods, and software systems.

What are the Vesting Rules under ERISA

Two are so commonsensical they are easy to remember: 1. Any contribution made by the EE vest immediately. This does not mean the value may not change, of course. Suppose in the case of the defined contribution plan for example the EE directs a plan to invest all contributions in the stock of X. The ERs contribution will then go up and down with the value of the stock. 2. All accrued benefits vest at the plans normal retirement age. All defined plans must have such an age. If a plan does not specify a normal retirement age, then it is the later of the time the participant turned 65 or the 50th anniversary of the time when the EE became a plan participant.

Criminal Histories - Overview

US highest incarceration rate in the developed world (disproportionately Black, Hispanic, male and poor) Why? (a) Reasons: "War" on drugs; Deindustrialization hit males and Black males hardest; recent increases in criminal penalties, recent increase in criminalization of activities; deindustrialization. (b) "Collateral" legal implications of criminal convictions have increased (more laws limiting participation of convicted criminals in certain activities or professions)

The Implied Covenant of Good Faith and Fair Dealing Uniform Commercial Code

Uniform Commercial Code § 1-304 Obligation of Good Faith: every contract or duty within the UCC imposes an obligation of good faith in its performance and enforcement. Uniform Commercial Code § 1-201 General Definitions - "Good faith:" except as otherwise provided in Art 5, means honestly in fact and the observance of reasonable commercial standards of fair dealing.

Glatt v. Fox Searchlight Picture, Inc. (employee status: interns)

Unpaid interns working on the Black Swan film. The district court evaluated their employment using a version of the DOL's six-factor test. However, the district court did not explicitly require that all six factors be present to establish that the intern is not an EE and instead balanced the factors. Because the DOL test attempts to fit Portland Terminal's particular facts to all workplaces, and because the test is too rigid for our precedent to withstand, we do not find it persuasive, and we will not defer to it. We agree with defendants that the proper question is whether the intern or the ER is the primary beneficiary of the relationship. Court makes a list of factors and says applying these considerations requires weighing and balancing all of the circumstances. No one factor is dispositive and every factor need not point in the same direction for the court to conclude that the intern is not an EE entitled to the minimum wage.

Enforceability of a prohibition on group participation in arbitrations? Epic Systems Corp. v. Lewis, 584 US _ (2018).

Updated 2018 Case: In Epic Systems Corp. v. Lewis, Supreme court decided how the NLRA and FAA relate to whether employment contracts can legally bar EEs from collective arbitration. The court ruled that arbitration agreements requiring individual arbitration are enforceable under the FAA, regardless of allowances set out within the NLRA. The board's interpretation of the FAA is not entitled to Chevron deference.

Are volunteers considered employees?

Volunteers pose similar problems. The definition of "employee" in the FLSA expressly excludes people who volunteer services to state & interstate agencies if the work is unrelated to the work they are employed to perform. It also excludes "individuals who volunteer their services solely for humanitarian purposes to private non-profit food banks and who receive from the food banks groceries. Examples: SC upheld a decision finding the Tony and Susan Alamo Foundation guilty of violating the FLSA. SC ruled that the Act does not exclude commercial activities of religious institutions and held that an EE's characterization of his activities as "voluntary" is not controlling. The test of employment under the Act is economic reality. Therefore, reasoned the court, the fact-finder could properly conclude that the in-kind benefits were received in exchange for services and constituted wages.

What does workers comp cover?

WC covers injuries and illnesses 1. "arise out of" (causal connection to job, risk that gave rise to injury arose out of job), and 2. "in the course of" employment (injury occurs at a time and place where EE engaged in the course of employment)

What are exceptions to the exclusive remedy of workers comp?

WC is exclusive remedy, narrow exception where ER commits intentional tort (specific intent, desires to bring about harm caused), or ER engages in willful/serious misconduct that is substantially certain to result in harm. "Intent" includes both specific intent (where the actor desires to bring about the harm they cause) and intentional act that actor believes is substantially certain to result in harm.

What is the difference between a frolic/detour and a minor deviation?

What is a minor deviation vs frolic of one's own for an EE hired to travel or sent on an errand depends in part on the nature of the job or errand. For those performing purely local tasks and going home each night, it is the risks of the road that matter. Other workers may travel for weeks or even months at a time on business. For them, the risks associated with transportation or covered certainly but also the hazards associated with hotels and other accommodations are certainly employment risks. Since the traveling worker must eat routine meals are often thought to be part of the employment risk. The line drawing can become quite fine.

Termination with Sufficient Funds

When a plan terminates with sufficient assets to satisfy its pension obligations to the EEs, the plan takes the funds and buys the beneficiaries annuities to cover vested benefits (or gives them equivalent lump sum). The employer (or her creditors) can keep any residual (minus taxes).

Scope of the "Exclusive Remedy" Defense: Wanting ER Status

Whether a firm wishes to be characterized as an ER can clearly depend on whether, in the absence of the exclusive remedy defense, it would likely be held liable in tort for substantial damages. Otherwise, the firm is likely to prefer not to be considered an ER, since ER status creates other liabilities.

Involuntary Terminations (factors):

While the PBGC must institute termination proceedings whenever it determines that a plan does not have assets available to pay benefits currently due. It has discretion to institute termination proceedings in other circumstances whenever it determines that certain factors indicate a termination is appropriate. Such factors include: (1) the plan has not met the minimum funding standard required under § 412 of Title 26 [Tax Code]; (2) the plan will be unable to pay benefits when due; (3) the reportable event described in § 1343(c)(7) has occurred; or (4) the possible long-run loss of the corporation with respect to the plan may reasonably be expected to increase unreasonably if the plan is not terminated.

Central Laborers' Pension Fund v. Heinz

With few exceptions, the anti-cutback rule of the EE retirement income Security Act prohibits any amendment of a pension plan that would reduce a participant's accrued benefits. The question is whether the rule prohibits an amendment expanding the categories of post retirement employment that trigger suspension of payment of early retirement benefits already accrued. We hold such an amendment is prohibited. It is a cut-back if you had a justified expectation of the money.

Horseplay: Coleman v. Armour Swift-Eckrich

Women is injured when she has her feet up on a table and a co-worker is horseplaying and hits her chair. Stewart rule is that recovery should be available only if the injured worker proved that: (1) the coworker injured him in sport; (2) the coworker had a habit of being involved in such dangerous play; and (3) their superiors were aware of the coworker's habits. The Larson's rule is that the non-participating victim of horseplay may recover compensation. (majority rule). Some jurisdictions compensate even participants in horseplay. The court decides to follow the Larson rule and allow her to recover.

Attack in the course of employment: Wait v. Travelers Indemnity Co. of Illinois

Women works from home and is injured when her neighbor comes over during lunch and assaults her. For the attack to arise out of employment, need causal connection to work. There are 3 types of assaults: (1) inherent connection to employment like disputes over performance (compensable), (2) inherently private disputes (like ex showing up) (not compensate), and (3) neutral like random assaults on EES by individuals outside the employment relationship. Here, this was a neutral attack so it is compensable if it arose from a street risk that the employment created. Here the assault was not peculiar to the employment & job did not take EE into the street. Therefore inadequate causal connection and can't compensate.

Workers' Compensation: Administrative Efficiency

Workers' Comp should be system of simple rules (no fault, scheduled benefits, etc) and procedures (administrative procedures, insured, etc) that quickly and efficiently provides benefits to workers.

Workers' Compensation: Compensation Principle (commonly in legislative history)

Workers' Comp should fairly and efficiently compensate workers for losses (prevent them from becoming wards of the state). Workers' comp should give ERs incentives to make workplace safe (ERs with high injury and death rates should have high workers comp costs). (Also deductibles and partial wage comp to give EEs incentive to avoid accidents.) The price of the good should bear the costs of the accidents that went into making it (give consumers incentive to change to safer products).

What about recreational activities (workers comp)?

Workers' comp benefits for resulting injuries are more likely to be provided if there is proof that the activity occurred at facilities provided by the ER which were made available during the course of the work schedule (e.g., during meal breaks) or that the ER urged participating (e.g., weighted participating in evaluating EEs) or that the ER gained a significantly enhanced reputation or other benefit beyond the improvement or EE health or morale. Look for ER benefit and control. Basketball hoop at loading dock, ER softball team, Alaskan Pole Climb, Guam necking case (not on ER premises per se but in remote place for benefit of ER).

What happens when an employee quits without it being accepted by employer?

if an EE under a contract of stated duration quits without having his resignation accepted or, as it is sometimes said, abandons his employment, the EE may be liable for breach, the remedy for which is the ER's cost of replacing her.

Inter-Modal Rail Employees Assoc. v. Archison, Topeka & Santa Fe Railroad Co.

§ 510 of ERISA makes it unlawful to discharge, etc. a participant or beneficiary of an EE benefit plan for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan. The Court of Appeals held that § 510 only prohibits interference with the attainment of rights that are capable of vesting, as that term is defined in ERISA. We disagree. Workers who continued their employment with ITS lost their Railroad Retirement Act benefits and suffered a substantial reduction in Teamsters benefits. Petitioners allege that respondents violated § 510 by discharging them for the purpose of interfering with the attainment of rights to which they would have become entitled under the ERISA pension & welfare plans adopted pursuant to the SFTS-Teamsters collective bargaining agreement. § 510 applies to both vested and non-vested benefits if they are capable of vesting.

What are KDS's thoughts on § 6 of OSHA?

§ 6(a) . . . Upheld as const, seems a little sketchy even to pro-EE KDS § 6(b) (ordinary OSHA standards) Fairly long, sets up a traditional notice to promulgate a rule and publish the final rule ... likely takes into account comments during comment period or hearing, Typically ppl try to make it look like they are accommodating the comments § 6(c)(1) Talk that they should have done COVID under this, Only about 58 standards promulgated not under § 6(a). Emergency ones usually get struck down ... hard to prove that these standards rise to the level that is required by law