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:
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:
May have an AGREEMENT TO ARBITRATE
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
IRS Test for Employee/Independent Contractor
Level of instruction. If the…