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Employment Law Outline

Employment Law Outline

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Published by Eli Rosenberg
Outline of basic principles of employment law
Outline of basic principles of employment law

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Published by: Eli Rosenberg on Sep 10, 2011
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07/11/2013

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Employment Law Outline Spring 2008Moskowitz Working CopyI.Introduction
a.Who is an employee?
i.
 Lemmerman v. A.T. Williams Oil Co.
(N.C. 1986)ii.Issue/Holding: was the 8 yr old son of a gas station attendant also an employee of the gas station? Yes.iii.Facts: boy came to gas station routinely after school, did his homework, etc. andperformed odd jobs: picking up trash, taking out garbage, stocking drinksiv.Rationale: didn’t matter that he was illegally employed (too young, didn’twithhold taxes, etc.); boy took direction and payment from gas station
1.
Rule:
failure to comply with procedural formalities of employment isnot determinative on whether someone is an employee
b.
KS Compare: same facts at
 Lemmerman
, different result
i.
 Hadley v. Security Elevator Co.
Kan. 1953ii.13 yr old boy killed while working illegally in a grain elevator-iii.Issue/Holding: Was he an employee? No, so not covered by Worker’s Complaws and his father can bring a wrongful death action against the owners of theelevator
c.
 Donovan v. Dial America Marketing
(3d Cir. 1985)i.Issues/Holdings: were home-researchers, who found phone numbers of customers with soon-to-expire magazine subscriptions, employees of DialAmerica, thus requiring the company to pay minimum wage and keeprecords under FLSA? Yes. How about the distributors, who took the telephone-research cards to the home researchers? They were independent contractors.ii.The Court found that the distributors were independent contractors, primarilybecause their opportunity for profit or loss was based on their skill in recruitingand retaining their own home researchers.
iii.
Rationale: court applied
Sureway Cleaners
six factor test
 1.employer’s right to control the manner in which the work is to beperformed2.employee’s opportunity for profit or loss depending upon his managerialskill3.employee’s investment in equipment or materials required for his task 4.whether the services requires a special skill5.degree of permanence of the working relationship6.whether the service is an integral part of the employer’s business
d.
Common Law Answers:
Employee or Independent Contractor?i.IRS handout is helpful for making determination
1.Behavior Control
a.Instructions the business gives the worker
b.
Training the business gives the worker (IC’s use their ownmethods)c.The key consideration is whether the business has retained theright to control the details of a worker’s performance or insteadhas given up that right.
2.Financial control
1
 
a.
The extent to which the worker has un-reimbursed businessexpenses (IC are more likely to have unreimbursed expenses)b.The extent of the worker’s investment
c.
The extent to which the worker makes services available to therelevant marketd.How the business pays the workere.The extent to which the worker can realize gain or profit
3.Type of Relationship
a.Written contracts describing the relationshipb.Whether the business provides the worker with employee-typebenefitsc.The permanency of the relationshipd.The extent to which services performed by the worker area keyaspect of the regular business of the company
4.Advantages to hiring an independent contractor
a.Don’t have to withhold pay, taxes (SS, medicare,unemployment)
I.Hiringe.Legal Restrictions on Access to Jobs
i.
Immigration Reform and Control Act of 1986 (IRCA), pp. 368
i.
Overview of IRCA
.
1.
Under the IRCA it is unlawful for an E to knowingly recruit, hire, orcontinue to employ illegal immigrants
.2.E’s must complete an INS form I-9 for each new EE and retain those formsfor three years. INS is responsible for enforcing IRCA.3.Covers all E; even if only 1 EE.
4.
It is unlawful to
knowingly
hire or recruit for a fee an unauthorized alien.§1324a(a)(1)(A)
5.
Unlawful to
continue to employ
a person after it knows the alien isunauthorized. §1324a(a)(2)
ii.Record keeping requirement.
1.E must verify EE is not an alien by examining either 1 document listed in (B)or a document from (C) and one from (D). §1324a(b)(1)(A)(i) & (ii)
2.
Documents must
reasonably appear on their face to be genuine
. Actualknowledge of forgery would trump this
.
§1324a(b)(1)(A)
iii.
Affirmative Defense
. E who can show it complied in good faith with therequirements in (b) has a defense. §1324a(a)(3)
1.§1324A(b)– Employment Verification System
a.
employer must attest that it has verified that his employee is notan alien, by
examining certain documents
(passport, residentalien card, social security card, drivers license, etc.), employeemust attest to his legal status, and the employer must keep theverification form for three years, or a year after employee’sterminationb.*see statute, photocopy pp. 16 – some documents are goodenough by themselves, for others you need a combination of two
2
House Natural ResourcesCommittee
: Northern MarianIslands will be covered by USimmigration laws to deal withguest workers and failingpublic employee pensionsystem; concerns aboutsecurity including humantrafficking, abuse of foreignworkers, and forcedrostitution
 
ii.Sanctions – Administrative & Monetary
1.§1324A(e)(4)(A) Cease and desist order with civil $ penalties2.§1324A(f)(1) Criminal penalties and injunctions for pattern or practiceviolationsa.and $3,000 for each unauthorized alien; 6 month imprisonment3.§1324A(f)(2) Attorney General can bring a civil action for an injunction4.§ 1324c – Penalties for document frauda.activities prohibited: both making, using, and assisting forgery
iii.
Illegal Aliens Can Lose Rights to Recover from Employer’s Misdeeds
1.
 Hoffman Plastic Compounds, Inc. v. NLRB
(U.S. 2002)
2.
Issue/Holding: can an illegal alien, who was fired in violation of theNLRA (i.e., he attempted to unionize) receive back-pay ordered by theNLRB? No. Relief is foreclosed by the federal immigration policy inIRCA.
a.No backpayb.No reinstatementc.Can’t mitigate damages without further IRCA violation
3.Facts: Jose Castro worked in Hoffman’s factory. When hired, hepresented a friend’s social security card. Jose got fired for trying tounionize. Three years later, the NLRB discovered the violation andordered Hoffman to give Jose back-pay for what he would have beenearning all this time. A year later, Jose slipped up and mentioned that hewas an illegal alien.4.Rationale: although Hoffman had seriously violated the NLRA, theNLRB had no discretion to remedy those violations by awardingreinstatement and back-pay to someone who himself had committedserious criminal acts.5.Class Notes:a.NLRB held that the back-pay ended at the time Hoffman learnedthat Castro was undocumentedb.IRCA makes it illegal for people to use fraudulent papers to gainemploymentc.Court doesn’t want to “trivialize” the statute by allowing Castroto get ANY back-pay… doesn’t want to encourage people likeCastro,d.BUT it encourages the employers to play dumb
iv.“Knowing” Violators of IRCA Have No Protection Against Suits
1.
Williams . Mohawk Industries, Inc.
11 Cir. 20062.Holding: current and former employees of Mohawk may proceed withtheir suit alleging that the company violated RICO by conspiring withlabor recruiters to hire illegal workers with the aim of depressing wagesfor legal workers3.Facts: Alleged that the company “fired” illegal workers and encouragedthem to come back with different names, gave fake social security cards,destroyed documents, helped them evade gov’t authorities, made themagree not to file worker’s comp claims…. All with the goal of depressingwages and avoiding
v.
Singh v. Jutla,
N.D. Cal. 2002
3
post-Hoffman cases
 
seeHandoutFLSA: immigration statusirrelevant for claims for timeactually worked (Cal., NY)Worker’s comp:undocumented workersentitled to benefits (all orsome) (Cal., Minn., Ga., andOK (only med – not voc.rehab)Workplace safety laws:immigration status does notbar claims (NY)

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