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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 | |