This course explores the rapidly expanding body of law governing the workplace. The Employment Law course goes beyond the traditional employment fields of Labor Law (union/management relations) and Employment Discrimination to focus on a number of recurring workplace issues. Topics include medical and drug screening, workplace privacy, the emerging exceptions to the employment-at-will doctrine, wage and hour regulation, and occupational safety and health.
Assignments for Weeks 1 & 2
Tuesday, September 8 - Course Mechanics & Introduction to Employment Law
1. Read 2-11; 17-19 in the Rothstein casebook. This class will consist of an overview of course coverage and mechanics and a brief lecture on the historical origins of U.S. Employment Law.
Wednesday, September 9 - “Employment” and the Contingent Workforce
1. Read pages 19-20, 61-65, & 444-51 in the casebook.
2. The casebook describes various changes in technology and workforce demographics. In what ways are these changes likely to impact the dynamics of the employment relationship?
Mrs. Doubtfire to come into their home each school day from 3:00 p.m. to 7:00 p.m. to take care of their children and to prepare dinner for the Boomer family. The Boomers take care of the grocery shopping but leave daily menu planning to Doubtfire. Doubtfire also provides day care for two other families in her own home during morning hours.
a. Is Doubtfire an “employee” of the Boomers or an independent contractor? How can you tell?
b. What is the practical importance of the answer to a? What are the policy pro's and con's of finding the existence of an employment relationship?
c. What advice would you give to the Boomers if they tell you that they would prefer to structure this as an independent contractor arrangement?
4. In DialAmerica, why does the court find that the telephone researchers are employees, but that the telephone distributors are not?
5. Who are we talking about when we use the term “contingent workforce?” Make a list of the reasons behind the tremendous growth in this sector of the workforce?
6. Should the law dictate that contingent workers receive pay and benefits equivalent to
that of regular employees? Should the law bar gender and race discrimination with respect to non-employee workers?
Monday, September 14 - The At Will Rule and the Union/Just Cause Alternative
1. Read 26-30, 47-50, & 859-65 in the casebook.
2. The Company has employed Murray as a truck driver for the past ten years. He was discharged because of an accident that severely damaged the truck he was driving. Murray claims that the accident, the first in his employment history, was wholly caused by the driver of the other vehicle and requests an opportunity to prove that he was not at fault. The Company has refused this request. What recourse, if any, does Murray have under the traditional employment at will rule?
3. The holding in Adair (p. 29) is based upon the premise that “the employer and the employee have equality of right” which may not be abridged by Congress. What exactly are the respective rights of the employer and the employee under the employment at will doctrine?
4. Mary has received an offer for a new job. She would prefer not to work on an at-will basis. As her attorney, what steps would you recommend to enhance her legal position?
5. What are the policy pro's and con's of the employment at will doctrine? What factors are likely causes of the doctrine's recent, relative decline?
6. How would Murray's case (#2 above) be handled under a collective bargaining agreement that predicates discharge upon a "just cause" standard?
7. In Marcy, the Montana court holds that a termination made upon a good faith, but mistaken interpretation of facts is not consistent with a good cause standard.
a. What exactly does “just cause” mean?
b. Is the dissent correct in asserting that this approach empowers courts to second-guess routine personnel decisions?
8. The percentage of unionized workers has steadily declined over the past 30 years. Make a list of the factors contributing to this decline. Is the decline likely to continue? How does the decline affect the legal contours of nonunion employment?
Tuesday, September 15 - The Public Policy Exception
1. Read 1-6 in the Supplement; 915-21, 11-15 in the casebook.
2. In Phipps, the MN Sup Ct recognized an exception to the at-will rule based upon notions of "public policy." What is the policy at stake in Phipps? Where does it come from?
3. Reconsider problem 2 from the last class. If Murray is correct as to his claims, has the Company violated the public policy exception? Why or why not?
4. Make a list of the types of terminations prohibited on public policy grounds. See note 1 on 921. Are some of these grounds more worthy of protection than others?
5. What exactly is the public policy that the Gantt court is seeking to enforce? What does the Gantt court say about the source of this policy? Also, since Gantt quit his job, how can he maintain a wrongful “discharge” action?
6. Is a discharge for a reason violative of public policy a tort, a breach of implied contract, or both? What is the appropriate remedy for a public policy violation?
7. Why did the Wisconsin court in Bammert decline to apply the public policy exception to the facts of that case?
Wednesday, September 16 - Whistleblower Statutes
1. Read 846-50 in the casebook; 7-15 in the Supplement.
2. Why did the plaintiff’s whistleblowing claim fail in Bard? What evidence should the plaintiff have submitted in order to establish a viable claim?
3. An employee who had been told by his supervisor that he would be terminated if he continued to play video games on the internet is fired after telling the FDA that her employer was about to sell a medical device that fails to meet FDA requirements. Is this conduct protected under the Minnesota statute?
4. In Kratzer, the MN Supreme Court held that while a mistake of facts does not doom a whistleblower claim, a mistake of law does. Why the difference? Is this a wise policy?
5. Should the Minnesota statute apply to all purported violations of law, including matters primarily internal to the employer firm, or only to those violations that implicate broader public policy concerns?
6. Consider the appropriate recipient(s) of whistleblowing information. Are there any bases for distinguishing among the following recipients in providing legal protection for whistleblowing?
--reporting violations to the employer.
--reporting violations to the news media.
--reporting violations to governmental agency with enforcement authority.
How do the Maine and Minnesota statutes respectively handle this issue?
7. An employee in Minnesota is fired after filing a workers' compensation claim. Can she pursue a claim under the MN statute? Or a common law public policy claim? Or both?
(see course description, above)
(see course description, above)