Employment Law || very Flawless.
Employer goals and interests correct answers 1) Keep the cost of labor low, 2) Prevent unilateral
resignation esp. to work for a competitor, 3) Preserve unilateral right to discharge unneeded
workers, 4) Maximize managerial control (disciplinary discharge), and 5) Prevent trade spillover
loss of investment in training.
Employee goals and interests correct answers 1) Maximize wages and benefits, 2) Preserve
unilateral right to resign and to seek other work, 3) Prevent unilateral discharge or ameliorate
consequences, 4) Retain autonomy, especially by limiting disciplinary discharge, 5) Preserve
right to use knowledge, skills, relationships in other jobs.
What are the three models of employment? correct answers Individual contract model, Collective
contract model, and Public employment.
What are the three possible durations of employment? What type is presumed if there's no
express agreement? correct answers 1) To continue indefinitely, terminable at will of either
party, 2) To continue for definite term, renewed on mutual will, and 3) To continue indefinitely,
but one party can terminate only for cause while other can terminate at will. At will employment
is presumed unless there's an express agreement to the contrary.
What is a unilateral promise? correct answers A promise for something other than a promise.
Employer promises to pay rate of pay in return for employee's work. Pay is promised because
payment must be deferred until after work but employee promises nothing (can be used but may
be fired for displeasing employer).
Assent requires __________________ of offer but not of all its details. correct answers
awareness
Suppose Halliburton required each employee to sign an acknowledgement and acceptance of the
arbitration policy. Myers received the policy and acknowledgement form but he refused to sign
it. His supervisor did not press the matter, either because he wished to avoid conflict or he was
simply neglectful. Halliburton did not fire Myers, and Myers continued to work. Is Myers bound
by the arbitration policy? correct answers Yes, by continuing to work he accepted the arbitration
policy. The employer should put a clause in the acknowledgment that the employee agrees to the
terms of the contract if they continue to work.
Employer gave an arbitration and non-competition agreement to Wilma Worker and insisted she
must sign both agreements "right away". Employer also stated it would not issue Worker's next
paycheck until she signed the agreements. Worker reluctantly signed. Do the agreements comply
with the Texas Supreme Court's contract model for change or modification of terms in an
employment relationship? Does contract law provide a solution for Worker? correct answers No,
they cannot deny giving the paycheck because Worker already worked and earned the money so
the employer has a Pre-Existing Duty to pay Worker. If they did not pay Worker, they would be
breaching their promise to pay Worker. Worker may be able to argue duress or coercion under
contract law.
,Assume both agreements between Worker and Company are binding. A year later, Company
rejected Worker's application for a promotion. Worker believed Company discriminated against
her. She was about to submit a claim for arbitration when Company issued a notice amending the
arbitration policy's rules for procedure. If Worker demands arbitration, which rules apply to her
claim: the old set of rules or the new set? correct answers In order for the employer's promise to
be a real one and not an illusory promise, the reservation of the right to modify has to be subject
to the idea of vesting. For vesting, if the dispute has already arisen the old rules apply. Arisen
means either 1) the date the employee files the claim for arbitration or 2) when the employee and
employer is aware of the claim.
What is respondeat superior? correct answers The legal doctrine which states that, in many
circumstances, an employer is responsible for the actions of employees conduct performed
within the scope of their employment.
What does "Sue Generis" mean? correct answers Unique, every employment contract is unique.
What are motivations for employers to call workers non-employees? correct answers Respondeat
superior, workers' compensation, social security taxes, federal unemployment taxes, income tax
withholding, minimum wage, overtime pay, wage law, discrimination laws, ERISA, OSHA,
other safety laws and collective bargaining.
List at least two different sources or authorities for a checklist you would find helpful in
analyzing an issue of employee status. correct answers 1) §220 of the Restatement (Second) of
Agency and 2) IRS 20-point checklist
List at least six factors relevant to whether a worker is an "employee" or an independent
contractor. correct answers 1) the scope and duration of the employment, 2) supervisory control
of the details of the work, 3) parties' comparative investment in tools and equipment, 4) the
worker's opportunity for profit or loss, 5) source of instrumentalities and tools, 6) location of
work, 7) whether work is part of the regular business, 8) is the work an ordinary and integrated
part of "unitary enterprise" that the putative employer dominates? and 9) do workers have a
business able to exist apart from serving principal?
T/F: Federal discrimination laws apply only to employers with at least 25 employees. correct
answers False, applies to employers with at least 15 employees.
Define employer. correct answers A person who has fifteen or more employees in each working
day in each of twenty of more calendar weeks in the current or preceding calendar year.
Does an employee owe a duty of loyalty to the employer? If so, what kind? correct answers Yes,
a duty of loyalty not to engage in competition or to serve a competitor during his employment.
Does an independent contractor owe a duty of loyalty to an employer? correct answers They may
or may not, depending on the nature of his service and the terms of his contract.
,An employee or an independent contract is more likely to retain ownership of what he invents
and creates in the course of his work for the employer. correct answers Independent contractor.
An employer may or may not charge its share of taxes to an employee. correct answers May not.
What are six factors that the EEOC looks at to determine whether the corporation has enough
employees to be a covered employer under the Age Discrimination in Employment Act? correct
answers 1) Whether the organization can hire or fire the individual or set the rules and
regulations of the individual's work,
2) Whether and, if so, to what extent the organization supervises the individual's work,
3) Whether the individual reports to someone higher in the organization,
4) Whether and, if so, to what extent the individual is able to influence the organization,
5) Whether the parties intended that the individual be an employee, as expressed in written
agreements or contract, and
6) Whether the individual shares in the profits, losses, and liabilities of the organization.
When an employer modifies their employee handbook to include an arbitration clause and states
that employees agree to this modification if they continue to work after a specific date. Was there
was sufficient consideration for the promise to be binding or was the promise illusory? (In Re
Halliburton) correct answers The court held that the employer gave sufficient consideration by
providing employment after the date the arbitration provision was to take place.
Are volunteers considered employees? correct answers Yes, for respondeat superior, if the
employer was aware of and accepted their services, and they were subject to the employer's
control. But for not for most statutory purposes.
What is the key test for an employee v. volunteer? correct answers Whether the work serves
mainly as an employer's own interests or a civic or charitable purpose.
What are the six factors to determine whether an intern is NOT an employee? correct answers 1)
The experience is similar to the training provided in an educational environment,
2) The experience is primarily for the intern's benefit,
3) The intern is not a substitute for regular employees,
4) The employer drives no immediate advantage and "on occasion its operations may actually be
impeded",
5) The intern is not guaranteed a job at the end of the internship, and
, 6) The intern and employer understand the intern is not entitled to wages.
Factors to determine whether trainees are employees. correct answers 1) Who derived primary
benefit from the internship?
2) What was the agreement - was some compensation expected?
3) Did training resemble school?
4) Was it integrated with school? And did it displace v. complement the work of regular
employees?
T/F: An employer can be liable for punitive damages related to an employee's action under
respondeat superior. correct answers False.
Can an employee waive FLSA rights? correct answers No, you can settle a dispute later but you
can't waive your right to FLSA rights. Fair Labor Standards Act.
Is a prisoner doing work for the prison an employee? correct answers No, not under the Fair
Labor Standards Act.
What is a "tester"? correct answers An individual who seeks or accepts employment with an
ulterior motive to serve some party or purpose other than the employer.
What is a "salt"? correct answers An individual that is employed and compensated by the union
to accept work with a non-union employer in order to organize the employer's workface from the
inside. Can still be considered an employee.
What are 5 factors for the control analysis? correct answers 1) What is there to manage or
supervise? Who manages or supervises those matters?
2) A designated supervisor?
3) How are contract terms negotiated or dictated?
4) What assets are needed? Who controls the assets?
5) Is pay equivalent to wages (steadier, low risk, less affected by cost management) v.
Entrepreneur's profit?
What is an "economic reality"? correct answers Employer control by economic power apart from
contract matters.
What are other factors of a real business? correct answers 1) Focus on worker's business leads to
more new factors
