Employment Law

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  • Created by: Andre
  • Created on: 03-10-11 08:53

Employment Law – Revision

Employment Law Principles

Employment Law is built up of Constitutional Law

Doctrine of Judicial Review gives courts the power to determine whether a law is constitutional.

Federal Government has power to regulate employment is based on the commerce claim.

The need to regulate commerce cause from a time where overseas products were cheaper than domestic products.

Equal Protection Clause found in the 14th Amendment may also affect employment.

Employees are nearly always AGENTS of their EMPLOYERS

Agents can bind their principals for all acts within their authority especially for NEGLIGENT acts.

Agents can only bind their principals for acts within their authority. Authority = what they are hired to do.

Tort Law is often involved in employment dispute.

Tort law governs harmful or offensive behavior.

The following torts can come up in employment:


False Imprisonment


Intentional infliction of emotional distress

Alternative Dispute Resolution

Increasingly disputes are settled outside court. Referred to as ADR

There are different forms of ADR – Meditation, Arbitration and Negotiation

The ENFORCEABILITY of arbitration is often litigated. The issue is that is a ADHESION contract where one side has all the bargaining power and uses it to write the contract.

Today many employment agreements include an ARBITRATION CLAUSE.

The scope of authority given to the arbitration is often an issue

The arbitrator has potentially unlimited power as the courts will never be able to review the arbitration

Ways to go to Arbitration:


Parties may agree to arbitrate at TIME OF CONTRACT

Court may ORDER parties to arbitration

Arbitration is generally a binding procedure

Arbitration should be conducted in front of 3rd party arbitrators

Meditation uses a neutral third party dispute resolution contains several advantages:

Mediation is a private, confidential and inexpensive process

In a mediation the parties control their fate

A mediation may be enforced by the courts

Mediation has a disadvantage

Relies on each party having a good faith desire to settle the case.

Mediation does not provide an independent means for the discovery of evidence

Enforcement of mediation requires legal enforcement

Private resolution of disputes prevents the growth of common law.

Agent Principal Theory

The servant had to obey all legal orders/duties. This concept led to the concept of respondent/superior.

An employer is one who uses others to do work for them

Under Title 7 an employee means an individual employed by an employer

National Labor Reforms Act is an individual who is not an independent contractor.

Workers usually prefer to be referred to as Employees as then they may be entitled to benefits.

Employees are entitled to workers comp if they get injured on the job but they won’t be able to sue.

Employers would usually prefer workers to be classified as Independent contractors.

Incorrect Employee Classification may lead to the employer being liable for federal and state statutes such as:

Employer Payroll Deductions

Discrimination Claims

Liability Claims

IRS Test for Employee/Independent Contractor

Level of instruction. If the


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