employment law outline
Employment Law Outline
General Theme for Regulating/Not Regulating:
Structure of Legal Responses to Problem
1. Economic Rational
a. Inefficient for government to intervene
b. People best at knowing what they want (rational beings)
2. In balance of information between employer/employee (safety)
3. Power inbalances
a. Employees may have no other options (captive)
b. Employers have more power in general
4. People are irrational, don’t know what is best for them
5. Social cost to society from “rational” choices (third-party effects)
Employees v. Independent Contractor
1. Employees are those who as a matter of economic reality are dependent upon the business to which they render service. (Secretary of Labor v. Lauritzen – FLSA Standard)
a. Control - Nature and degree of the employer’s control as to the manner the work is performed
i. Does employer exhibit pervasive control over operation as a whole
b. Profit and Loss - The alleged employee’s opportunity for profit depending upon his managerial skill
i. Concerned about whether could lose everything from investment, than earning less money b/c chose ot pick pickles in a bad spot
c. Investment - equipment or materials required for task or employment of workers
i. Gloves are not enough (but what about lawyers who are i.c.)
d. Skill - Does the service require a special skill
i. Like all skills, it increases by doing the work, and could be applied in any field (not just pickle field)
e. Permanency - Degree of permanency and duration of working relationship
i. Tend to not find this dispositive, because i.c. can return year after year or work for long time, and employee could work for 3 weeks at McDonalds
f. Integral Part - Service is an integral part of employer’s business (side project is ic)
i. Unless pick pickles, no pickles made (but does this not affect everything the employer hires to do; how distinguish?(E))
g. Dependence of Worker on “Employer” (Key consideration)
i. Ex Post view (maj) – depend on def’s land,
General Theme for Regulating/Not Regulating:
Structure of Legal Responses to Problem
1. Economic Rational
a. Inefficient for government to intervene
b. People best at knowing what they want (rational beings)
2. In balance of information between employer/employee (safety)
3. Power inbalances
a. Employees may have no other options (captive)
b. Employers have more power in general
4. People are irrational, don’t know what is best for them
5. Social cost to society from “rational” choices (third-party effects)
Employees v. Independent Contractor
1. Employees are those who as a matter of economic reality are dependent upon the business to which they render service. (Secretary of Labor v. Lauritzen – FLSA Standard)
a. Control - Nature and degree of the employer’s control as to the manner the work is performed
i. Does employer exhibit pervasive control over operation as a whole
b. Profit and Loss - The alleged employee’s opportunity for profit depending upon his managerial skill
i. Concerned about whether could lose everything from investment, than earning less money b/c chose ot pick pickles in a bad spot
c. Investment - equipment or materials required for task or employment of workers
i. Gloves are not enough (but what about lawyers who are i.c.)
d. Skill - Does the service require a special skill
i. Like all skills, it increases by doing the work, and could be applied in any field (not just pickle field)
e. Permanency - Degree of permanency and duration of working relationship
i. Tend to not find this dispositive, because i.c. can return year after year or work for long time, and employee could work for 3 weeks at McDonalds
f. Integral Part - Service is an integral part of employer’s business (side project is ic)
i. Unless pick pickles, no pickles made (but does this not affect everything the employer hires to do; how distinguish?(E))
g. Dependence of Worker on “Employer” (Key consideration)
i. Ex Post view (maj) – depend on def’s land,