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| Preface | |
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| The Nature of Labor Markets | |
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| The Regulation of Labor Markets | |
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| The Model of Competitive Labor Markets | |
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| Reasons for Regulation of Labor Markets | |
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| Redistribution | |
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| Evolving Social Norms or Preference Transformation | |
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| Correcting "Market Failure" | |
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| Objections to Regulation | |
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| Modes of Regulation | |
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| Taxing and Spending Measures | |
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| "Minimum Terms" Laws or Mandates | |
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| Regulation of the Process of Bargaining | |
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| The Employment Relationship | |
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| What is at Stake? | |
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| The Nature of the Employment Relationship | |
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| Tests for Employee Status | |
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| Common Law or "Right of Control" Test | |
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| The "Economic Realities" or "Economic Dependency" Test | |
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| Areas of Difficulty under the Common Law or "Right of Control" Test | |
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| Laws Distinguishing Among Employees | |
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| Joint Employment | |
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| The Common Law of the Employment Relationship | |
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| Contractual Exceptions to Employment At-Will | |
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| Presumption of At-Will Employment | |
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| Agreements for a Definite Term or for an Indefinite Term Limiting Termination of Employment | |
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| General Principles of Contract | |
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| Agreements for a Definite Term | |
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| Agreements for an Indefinite Term Limiting Termination of Employment | |
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| Constructive Discharge and "Wrongful Demotion" | |
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| Statute of Frauds | |
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| Standard of Cause | |
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| Substantive Dimension | |
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| Procedural Dimension | |
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| Employer Promises Enforceable as a Matter of Promissory Estoppel | |
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| Binding Employer Statements | |
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| Are Statements in Employment Manuals and Handbooks Binding on the Employer? | |
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| Can Employers Modify or Rescind Commitments Made in Previous Unilateral Statements? | |
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| Implied Duty of Good Faith and Fair Dealing | |
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| Employment Torts | |
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| "Bad Faith Breach" | |
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| Discharge or Other Discipline in Violation of Clearly Established Public Policy | |
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| Common Law | |
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| Source of Established Public Policy | |
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| Conflicting Duties | |
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| Clear Adverse Impact on Public Policy | |
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| No Interference with an Alternative Scheme | |
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| Legislation | |
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| Other Tort Theories for Challenging Termination Decisions | |
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| Fraud or Deceit | |
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| Wrongful Interference with Contractual Relations | |
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| Intentional Infliction of Emotional Distress | |
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| Defamation | |
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| Publication | |
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| Privilege | |
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| Absolute Privilege | |
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| Qualified Privilege | |
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| Workplace Privacy | |
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| Constitutional Law | |
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| Physical Privacy | |
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| Self-Incrimination | |
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| Associational Privacy | |
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| State Constitutional Law | |
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| Legislation | |
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| Investigative Techniques | |
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| Polygraphs | |
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| Telephone Monitoring | |
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| Electronic Communication Monitoring | |
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| Investigation of Consumer Credit Reports | |
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| Areas of Special Concern | |
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| Records Privacy | |
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| Identity Privacy | |
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| "Legal Activity" Laws | |
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| Decisional Law | |
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| Information, Mobility and Competition | |
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| Introduction | |
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| Common Law Duty of Loyalty | |
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| Trade Secret Law | |
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| Definition of a Trade Secret | |
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| Improper Acquisition, Use or Disclosure | |
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| Inevitable Misappropriation | |
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| Remedies | |
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| Non-Compete and Other Restrictive Covenants | |
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| Legitimate Interests | |
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| Reasonable Duration and Scope | |
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| Reason for Termination of Employment | |
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| Remedies | |
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| Judicial Modification | |
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| Injunction and Damages | |
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| Choice of Law Clauses | |
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| Employee Inventions | |
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| Statutory Interventions | |
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| Workers' Compensation Law | |
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| Origins of Workers' Compensation Legislation | |
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| Rationale for Regulation | |
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| Covered Employers and Employees | |
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| Covered Injuries | |
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| Express Exclusions | |
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| "Arising out of and in the Course of Employment" | |
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| Potential Escape Routes from the "Exclusive" Remedy of Workers' Compensation | |
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| "Dual Capacity" Employer | |
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| Absence of a Remedy under Workers' Compensation | |
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| Injuries Outside the "Compensation Bargain" | |
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| Challenges | |
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| Unemployment Insurance | |
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| Overview | |
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| Basic Mechanics of UI Programs | |
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| Finance | |
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| Experience Rating | |
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| Procedure | |
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| Coverage | |
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| Eligibility | |
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| Monetary Eligibility | |
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| Nonmonetary Eligibility | |
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| Voluntary Quits and "Good Cause" | |
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| Misconduct | |
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| "Able and Available" | |
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| Refusal of Employment Opportunities | |
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| Collective Organization and Collective Bargaining Law | |
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| Rationale for Regulation | |
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| Basic Premises | |
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| Administrative Procedures | |
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| Protected Concerted Activity | |
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| Selection of Exclusive Bargaining Representative | |
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| The Process of Collective Bargaining | |
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| Administering the Labor Agreement | |
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| Individual Rights and the Collective Agreement | |
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| Union Democracy | |
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| Labor Law and Business Change | |
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| Wage and Hour Regulation | |
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| History | |
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| Basic Requirements of the Statute | |
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| Minimum Wage | |
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| Overtime Premium | |
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| Child Labor Restrictions | |
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| Anti-Retaliation | |
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| Rationale for Regulation | |
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| What Counts as Compensation? | |
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| What Counts as Work or Hours Worked? | |
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| Covered Employers and Employees | |
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| Enterprise Coverage | |
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| Employee Coverage | |
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| Employee vs. Independent Contractor | |
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| Employees Personally Engaged in Interstate Commerce | |
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| Exemptions | |
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| Other Exclusions from Coverage | |
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| Administrative Enforcement | |
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| Private Enforcement | |
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| State Wage Payment Laws | |
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| Employment Discrimination Law | |
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| Rationale for Regulation | |
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| Supply-Side Explanations | |
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| Demand-Side Explanations | |
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| Role of Anti-Discrimination Law | |
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| Title VII | |
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| Gender Discrimination | |
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| Religious Discrimination | |
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| Age Discrimination | |
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| Disability Discrimination | |
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| Retaliation | |
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| Administrative Process and Remedies | |
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| Occupational Safety and Health | |
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| Coverage and Regulatory Scheme | |
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| Covered "Workplace" and "Working Conditions" | |
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| Limited Preemption of State Law | |
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| Exclusive Agency Enforcement | |
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| Rationale for Regulation | |
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| Standards | |
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| Setting the Standard | |
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| Securing Compliance with OSHA Standards | |
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| General Duty Clause | |
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| Inspections | |
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| Protection Against Discrimination | |
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| Conclusion | |
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| Employee Benefits Law | |
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| Overview | |
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| Rationale for Regulation | |
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| Why Do Employers Provide Pensions? | |
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| Why Regulate? | |
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| Implications of the Shift to DC Plans | |
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| Coverage Issues | |
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| Covered "Plans" | |
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| Eligible "Participants" | |
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| Preventing Forfeiture of Pension Benefits | |
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| Vesting Rules | |
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| Minimum Funding Requirements | |
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| Prohibition of Discharge for Attaining or Exercising Pension Rights | |
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| Regulating the Rate of Accrual of Pension Benefits | |
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| No Cut-back of Accrued Benefits | |
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| PBGC Termination Insurance | |
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| Reporting and Disclosure Obligations | |
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| Fiduciary Obligations | |
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| Determining Fiduciary Status | |
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| "Dual Hat" Issues | |
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| Giving Advice to Employee Participants | |
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| Making Benefit Determinations | |
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| Amending the Plan | |
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| Promoting Employer Stock | |
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| Fiduciary Investing: Prudence | |
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| Fiduciary Investing: Duty of Loyalty and "Exclusive Benefit" Rule | |
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| Non-"Interference" Obligations | |
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| Application to Welfare Benefit Plans | |
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| Application to "Basic Organizational Decisions" | |
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| "Specific Intent" Requirement | |
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| Targeted Benefit Plan Changes | |
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| ERISA Preemption of State Law | |
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| State Mandates Not Requiring Ongoing Administration of a Plan | |
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| State Mandates Regulating "Payroll Practices" | |
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| State Regulation of Insurance | |
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| State Regulation of Practices Violative of Federal Discrimination Law | |
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| Arguable Shift Towards Narrower Scope of ERISA Preemption | |
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| Personal Leave Law | |
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| Introduction | |
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| Basic Requirements | |
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| Notice and Designation of Leaves | |
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| Interaction of FMLA with the Americans with Disabilities Act | |
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| Paid Leave and Other Policy Issues | |
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| Table of Cases | |
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| Index | |