#16961 - Employment Law Outline

Employment Law Outline

Boundaries of Gov’t Regulation (Liberty of K vs. State Justification)
1. Earlier cases: Lochner, Adair, Adkins Cts struck down regulation in favor of liberty of K; suspicious of state justifications.
2. Later cases: West Coast Hotel, Holden v. Hardy, Laughlin Steel Cts defer to legislature; State justification only needs to be rational (unless suspect classification under Carolene Products fn. 4)
  1. WCH (wages) protection of health and safety of workers and barring injurious competition > liberty of K.
  2. Holden v. Hardy (hours) protection of health and safety and ensuring that tax payers do not subsidize poor business practices > liberty of K.
  3. Laughlin Steel (existence of K/EAW) protection of fundamental workers’ rights, pursuit of labor peace, 13th Amendment concerns > liberty of K.
3. *Appears as there is no possible health and safety justification for wage-setting laws.
Who is an employee?
1. Employee vs. Independent Contractor
  1. No protection for ICs under certain statutes (FLSA, Title VII, FMLA, ERISA, OSHA, Worker’s Comp., unemployment benefits)
  2. *children and undocumented workers are not employees either
  3. Tests:
    1. Common law [gap-filler] test (M/S – agency law) Does the employer have control over the means and manner of the work?

Skill required	Source of instrumentalities and tools	Location of work	Duration of the relationship between parties
Whether the hiring party has right to assign additional projects	Extent of hired party’s discretion of when and how long to work	Method of payment (Remuneration required under O’Connor v. Davis)	Hired party’s role in hiring and paying assistants
Whether the work is part of the regular business of hiring party	Whether hiring party is in the business	Employee benefits	Tax treatment

Employer’s right to control manner of work	Worker’s opportunity for profit or loss depending on managerial skill	Worker’s investment in equipment or materials required/employment of helpers
Whether service requires a special skill	Degree of permanence of working relationship (Seasonal workers?)	Whether the service rendered is an integral part of the alleged employer’s business

Economic reality test Is the worker economically dependent on the business to which he renders service or is, as a matter of economic reality, in business for himself?
Dynamex/ABC Test To prove the worker is an IC, hiring entity has burden of proving:

1. Work is free from control and direction of hiring entity in connection with performance of the work, both under the K for the performance of the work and in fact; and
2. Worker performs work that is outside usual course of hiring entity’s business; and
3. Work is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed

Cases/Class Examples:
1. O’Connor v. Davis Student intern, under work study, as a requirement to graduate her program is NOT an employee because she was not being paid by the hospital.
2. Unpaid internships NOT employees because no remuneration
3. Graduate students/TAs/RAs Seems to go back and forth with the administrations.
  1. FOR They are paid for their work; they are under the control of a professor.
  2. AGAINST The relationship between professor and student is mostly academic; the work is part of training and education.
4. Div I football players NOT employees even though there is remuneration and considerable control over students’ lives because cts seem to be hesitant in disrupting competition
5. Uber drivers Depends on each state but seems to be NOT employees in most
  1. FOR Uber places many rules on drivers
  2. AGAINST drivers are in complete control of their schedules, use their own car, can turn off Uber app and use a different one/can use multiple apps at the same time (entrepreneurial opportunity)
  3. Cts. look at the actual relationship, not just label in K.
6. FedEx drivers ARE employees because of extent of control over details of the work, supplies, length of work, location, intent of parties.

Employment Discrimination Law
1. Disparate Treatment Claims McDonnell Douglas Framework

Step 1: P must bring a PF case by proving:

P is a member of a protected class.
P applied for and was qualified for the position.
P was rejected.
Er continued to seek or hired someone else (not within P’s protected class).

Presumption of discrimination established.

Step 2: Er must provide a legitimate, non-discriminatory reason.

*If believed, no discrimination burden of production to raise a question of fact.

Even if no one believes Er, any reason is enough to get to Step 3 because P has the ultimate burden of proving discrimination. (Hicks)

Step 3: P must prove Er’s reason was pretextual and that discrimination was a motivating factor.

Burden of proof by direct or indirect (circumstantial) evidence – ex. track record, statements, statistics, compare with others similarly situated

*Under a mixed motive case, Er may refute BAPE that Er would’ve made the same decision. (Pricewater House)
*BFOQ

Mixed Motive Cases:
1. Pricewater House
  1. If Ee can provide it was a “motivating factor,” it may be enough
  2. BUT Er may refute if it can prove BAPE, that Er would have made the same decision.
Title VII:
1. P can prevail if prove discrimination was a “motivating factor”
2. D can get a complete/partial defense if Er can prove would have made the same decision
3. Damages are prospective only; declaratory relief or injunctive relief
4. *did not originally include women (Pricewater House)
Defenses:
1. BFOQ (Bona Fide Occupation Qualification)
  1. *Can never be used for color or race
  2. Cts. upheld exclusion of women as prison guards in a maximum security facility.
  3. Johnson Controls NO BFOQ defense for exclusion of women who cannot prove they are infertile
    1. Fetal safety is not the business of the employer.
    2. Cost difference in hiring is not an excuse (would open themselves up to possible litigation)
  4. Southwest Airlines NO BFOQ defense for exclusion of men flight attendants.
    1. You cannot create your own BFOQ.
    2. Customer preference is not an excuse.
  5. Hooters? Strip Clubs?
    1. Strip club is probably closer to actual business than Hooters.
    2. Ct. seems to be more willing when the business involves intimate bodily contact.

Disparate Impact Claims

Step 1: P must bring a PF case by showing the facially neutral requirement has a disparate impact. Must be significant (statistics, magnitude, EEOC’s 4/5s rule)	Step 2: Er must show that the challenged practice is job-related for the position and consistent with business necessity.	Step 3: P can win if P can show that there is an alternative with less of a disparate impact.

Cases:
1. Griggs v. Duke Power Co. No evidence that strong performance on exams led to better workers; disparate impact on black workers.
2. Ricci Cancelling tests may violate Title VII; Er must have known about an alternative BEFORE the administration of the tests.

Harassment (Sexual, Sexual Orientation, Gender Identity)
1. Discriminatory harassment as disparate treatment

Step 1: Adverse treatment in T&C of employment:

1. Tangible vicarious liability

2. Intangible top official – yes; supervisor – affirm. Defense, coworker – negligence
Severe or pervasive enough that it creates a hostile or abusive work environment.

Must be obj./reason. hostile.

Step 2: “because of sex”/sex is a motivating factor.

Step 3: for which Er is liable

Cases:
1. Step 1: Tangible/Intangible Job Action
  1. Tangible job action = hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits (Suders)
  2. Intangible job action
    1. P being pressuring into having sex with VP as a condition of her employment counts as sufficiently severe/pervasive (Meritor)
    2. Do not need to show psychological injury; adequate claim where P showed President made many sexual comments that could add up to being severe/pervasive (Harris)
    3. Comments about appearance/attire, indicating compliance would advance position at firm not a tangible job action but potentially severe/pervasive enough (Eller)
  3. Tangible vs. intangible
    1. If Ee refuses sexual demands and is denied a promotion = tangible job action
    2. If submitted to sexual demands and gets a promotion = P must show that it was severe/pervasive enough to show intangible.
  4. Billings no tangible job actions but possibly intangible?
    1. Must be both obj. and subj.
    2. No tangible job action in this case but P gets to SJ because a jury could find that a combo of the circumstances was severe/pervasive enough.
      1. *Cts. don't seem to follow this standard “stray comments”
    3. What would she do next? She must show that it was because of sex. How?
      1. Only happened with women? Would coworkers testify against their boss?
      2. Credibility = Will the jury believe her?
2. Step 2: “Because of sex”
  1. Oncale Why was P harassed?
    1. Words/conduct being sexual =/= harassment because of sex.
    2. Case was remanded for P to show he was exposed to something women weren’t because ct. takes the view that sex is binary.
    3. Theories:
      1. Homosexual attackers theory if the attacks were homosexual, then they were motivated by gender.
      2. Sex/gender stereotyping theory he was targeted because he wasn’t man enough and didn’t fit the stereotype for this manly job. (Pricewater House vibes)
        
        *Applies to Fabian (transgender case)
        
        Sex as a whole package of gender norms and gender stereotypes we get assigned to; “properties and characteristics by which individuals may be classified as male...

#16961 - Employment Law Outline - Employment Law

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