Employment Discrimination - Jacobson - Fall 2004

Employment Discrimination - Jacobson - Fall 2004 -...

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Employment Discrimination Outline Fall 2004 Professor Jacobson (This outline is from the 3 credit employment discrimination class, this year employment law was divided into two semesters) Chapter 1. Defining Employee Status 1- 41 9 – nationwide mutual insurance company v. Darden (1992) S. Ct. Darden – promised to sell only nationwide insurance policies, in exchange nationwide was going to give him commissions and enroll him in a retirement plan – he violated a noncompete and the company refused to give him benefits from the plan defining employee within the context of ERISA ERISA defines employee to include any individual employed by an employer o FLSA uses a broader definition and uses employ to mean suffer or permit to work Because congress used employee without defining it congress intended to describe the conventional master-servant relationship as understood by common- law agency doctrine ERISA uses a balancing test - hiring party’s right to control manner and means by which product is accomplished – derived from respondeat superior – from torts s skill required s instrumentalities and tools s location of work s duration of relationship s does hiring party has right to assign additional projects s extent of hired party’s discretion over when and how long to work s method of payment s hired party’s role in hiring and paying assistants s is work part of regular business of the hiring party s provision of employee benefits s tax treatment 12 – Secretary of Labor v. Lauritzen (7 th Cir. 1987) are migrant farm workers employees under the FLSA seasonal work, housing and equipment supplied, employer directs where attention should be directed consider following factors: o nature and degree of employers control o opportunity for profit or loss of employee dependent on his skill o employees investment in equipment or materials o do the services require a special skill o degree of permanency and duration of relationship o extend to which service is an integral part of employers business migrant workers are considered empoloyees because they depend on the employers land, crops, agricultural expertise, equipment and marketing skills
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FLSA looks to economic realities 23- Clackamas Gastroenterology Associates v. Wells do shareholder directors of a professional corporation count as employees under the ADA congress excluded very small firms from coverage to avoid the potentially crushing expense of mastering antidiscrimination laws congress intended to describe the conventional master-servant relationship as understood by common law agency doctrine common law element of control is the principal guidepost o holding is based on control in fact – who is really running the show 6 factors relevant to inquiry if shareholder-director is an employee o can organization hire or fire individual or set rules and regulations of individuals work o extent individual is supervised o extent individual can influence organization
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This note was uploaded on 02/14/2008 for the course LAW 7547 taught by Professor Jacobson during the Fall '04 term at Yeshiva.

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Employment Discrimination - Jacobson - Fall 2004 -...

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