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| Defining the Employment Relationship | |
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| Who Is an Employee? | |
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| The Employee Versus the Independent Contractor | |
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| What Is at Stake? | |
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| Determining a Worker's Status | |
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| The Common Law Test | |
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| The Economic Reality Test | |
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| The Hybrid Test | |
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| Critical Appraisals of the Employee/Independent Contractor Distinction | |
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| Individuals Who Cannot Be Employed | |
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| Children | |
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| Undocumented Workers | |
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| Who Is an Employer? | |
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| The Employee/Employer Distinction | |
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| Multiple Potential Employers | |
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| Job Security | |
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| The Employment-at-Will Doctrine | |
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| Statutory Protections | |
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| Common Law Protections | |
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| Is Employment at Will the Default Rule? | |
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| Contract Based Modifications to Employment at Will | |
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| Express Contract Modifications | |
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| Just-Cause Contracts | |
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| Specific Duration Contracts | |
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| What Is Just Cause? | |
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| Implied Contract Modifications | |
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| The Case of Employee Handbooks | |
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| Legal Standard | |
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| Disclaimers | |
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| Handbook Modifications | |
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| Implied-in-Fact Contracts | |
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| Promissory Estoppel | |
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| Covenant of Good Faith and Fair Dealing | |
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| Tort Based Modifications to Employment at Will | |
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| Discharge in Violation of Public Policy | |
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| What Is Public Policy? | |
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| Public Versus Private Concerns | |
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| Elements of a Successful Claim | |
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| Activities Protected by the Tort | |
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| Refusing to Engage in Illegal Conduct | |
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| Performing a Public Obligation | |
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| Exercising a Legal Right or Privilege | |
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| Reporting a Statutory Violation | |
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| Preclusion | |
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| Exclusivity Concerns | |
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| Preemption Concerns | |
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| In-House Attorneys and the Tort of Wrongful Discharge | |
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| Intentional Infliction of Emotional Distress | |
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| Intentional Interference With Contractual Relations | |
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| Reform Efforts and the at-Will Doctrine | |
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| The Montana Wrongful Discharge From Employment Act | |
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| The Model Employment Termination Act | |
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| The American Law Institute's Proposed Restatement of the Law Third, Employment Law | |
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| Privacy, Autonomy and Dignity in the Workplace | |
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| Protections Regarding Speech and Association | |
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| Constitutional Protection for Speech | |
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| Constitutional Protection for Association | |
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| Statutory Protection | |
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| Private Sector Labor Law | |
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| Public Sector Labor Laws | |
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| Other State Laws | |
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| Protection From Instrusive Employment Practices | |
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| Background Investigations | |
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| Interrogation | |
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| Statutory Restrictions | |
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| Constitutional Restrictions | |
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| Searches | |
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| Constitutional Limitations | |
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| Protection From Intrusive Employment Practices-Continued | |
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| Invasion of Privacy and Other Tort Claims | |
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| Statutory Restrictions | |
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| Surveillance and Monitoring | |
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| Constitutional Restrictions | |
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| Invasion of Privacy and Other Tort Claims | |
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| Statutory Restrictions | |
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| A Duty to Monitor? | |
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| Pre-Employment and Employment Testing | |
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| Polygraph Examinations | |
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| Honesty Tests | |
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| Psychological and Personality Tests | |
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| Medical Tests | |
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| Genetic Testing | |
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| Drug Testing | |
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| Constitutional Restrictions | |
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| Statutory Restrictions | |
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| Common Law Claims | |
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| Regulation of Off-Work Activity | |
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| Constitutional Protections | |
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| Common Law Claims | |
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| Statutory Claims | |
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| Contractual Claims | |
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| Grooming and Dress Restrictions | |
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| Constitutional Claims | |
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| Statutory Causes of Action | |
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| Negligent Hiring, Supervision and Retention | |
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| Employee Obligations to Employers | |
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| Implied Duty of Loyalty | |
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| Soliciting Customers or Co-Workers | |
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| Assisting a Competitor | |
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| Remedies | |
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| Trade Secrets | |
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| Definition of Trade Secrets | |
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| Misappropriation of Trade Secrets | |
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| Employee Inventions | |
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| The Shop Right Doctrine | |
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| "Holdover" Provisions | |
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| Statutory Protections | |
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| Noncompetition Covenants | |
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| Enforceability | |
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| Remedies | |
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| Noncompetition Agreements and Lawyers | |
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| Mandated Terms and Conditions of Employment | |
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| Wages and Hours | |
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| Introduction | |
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| Fair Labor Standards Act | |
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| Overview | |
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| Substantive Obligations | |
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| Minimum Wage | |
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| Overtime Pay | |
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| Child Labor Restrictions | |
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| Coverage | |
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| The Employer-Employee Relationship | |
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| Individual or Enterprise Coverage | |
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| Exempt and Nonexempt Employees | |
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| Implementation Problems | |
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| Defining Compensable Time | |
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| Determining the Base Rate | |
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| Enforcement Issues | |
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| Living Wage Ordinances | |
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| State Wage Payments Laws | |
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| Equal Pay Act | |
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| Overview | |
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| Elements of a Violation | |
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| Employer's Defenses | |
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| Remedies | |
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| Family and Medical Leave Act | |
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| Overview | |
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| Typically Litigated Issues | |
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| What is a Serious Health Condition? | |
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| Notice Questions | |
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| Employee's Reinstatement to the Same or Equivalent Position | |
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| Employee Retirement Income Security Act | |
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| Overview | |
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| Coverage of ERISA | |
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| What Is a Plan? | |
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| Who Is an Employee? | |
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| Reporting and Disclosure Obligations | |
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| Pension Plans | |
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| Types of Pension Plans | |
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| Minimum Plan Design Features | |
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| Employee Retirement Income Security Act-Continued | |
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| Code Limitations and Nondiscrimination Rules | |
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| Plan Termination and Insurance | |
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| Amendment of Pension Plans | |
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| Welfare Plans | |
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| Types of Welfare Benefit Plans | |
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| Regulation of Health Plans | |
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| Amendment of Welfare Plans | |
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| Fiduciary Regulation | |
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| Who Is a Fiduciary? | |
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| Fiduciary Standards | |
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| Prohibited Transactions | |
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| Special Issues Regarding 401(k) Plans | |
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| Enforcement | |
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| Causes of Action Under ERISA | |
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| Remedies | |
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| Preemption | |
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| Unemployment Compensation | |
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| Overview of the Program | |
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| Coverage | |
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| Taxes | |
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| Benefits | |
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| Qualifying Requirements | |
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| Amount of Benefits | |
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| Duration of Benefits | |
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| Disqualification for Benefits | |
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| Administration | |
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| Preclusion of Other Claims | |
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| Eligibility | |
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| Circumstances of Separation | |
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| Voluntary Quit | |
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| Termination | |
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| Unemployment Resulting From a Labor Dispute | |
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| Continuing Eligibility | |
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| Critical Perspectives | |
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| Worker Adjustment and Retraining Notification Act | |
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| Coverage | |
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| Notice Required | |
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| Employer Defenses to the Failure to Give Required Notice | |
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| Enforcement | |
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| The Regulation of Workplace Health and Safety | |
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| Workers' Compensation | |
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| |
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| Overview | |
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| |
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| The Exclusivity Principle | |
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| |
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| Intentional Conduct | |
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| |
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| The Dual Capacity & Dual Persona Doctrines | |
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| Injuries and Occupational Diseases | |
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| The Course of Employment | |
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| |
| The Personal Comfort Doctrine | |
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| |
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| The Horseplay Rule | |
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| Recreational and Social Events | |
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| The Going and Coming Rule | |
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| The Special Mission Exception | |
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| Premise Line Exception | |
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| |
| Employer Conveyance Exception | |
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| Travelling Employee Exception | |
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| Arising Out of Employment | |
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| Increased Risk Test | |
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| Actual Risk Test | |
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| Positional Risk Test | |
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| |
| The Statutory Defense of Willful Misconduct | |
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| |
| |
| Occupational Safety and Health Act | |
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| |
| |
| Coverage | |
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| |
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| Procedural Overview | |
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| Employer Duties | |
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| |
| Standards Promulgation | |
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| |
| |
| Establishing a Violation of an OSHA Standard | |
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| |
| |
| Specific Duty Clause Violation | |
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| |
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| General Duty Clause Violation | |
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| |
| |
| Employer Defenses | |
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| |
| Unpreventable Employee Misconduct | |
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| Infeasibility | |
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| Greater Hazard | |
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| Employee Rights and Responsibilities | |
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| Overview of Rights | |
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| The Right To Be Free from Retaliation | |
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| Employee Responsibilities | |
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| Table of Cases | |
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| Index | |