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Employment Law Outline

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Employment Law Outline

I. Boundaries of Gov't Regulation (Liberty of K vs. State Justification)
a. Earlier cases: Lochner, Adair, Adkins  Cts struck down regulation in favor of liberty of K;
suspicious of state justifications.
b. Later cases: West Coast Hotel, Holden v. Hardy, Laughlin Steel  Cts defer to legislature; State justification only needs to be rational (unless suspect classification under Carolene Products fn.
i. WCH (wages)  protection of health and safety of workers and barring injurious competition > liberty of K.
ii. Holden v. Hardy (hours)  protection of health and safety and ensuring that tax payers do not subsidize poor business practices > liberty of K.
iii. Laughlin Steel (existence of K/EAW)  protection of fundamental workers' rights,
pursuit of labor peace, 13th Amendment concerns > liberty of K.
c. *Appears as there is no possible health and safety justification for wage-setting laws.

II. Who is an employee?
a. Employee vs. Independent Contractor i. No protection for ICs under certain statutes (FLSA, Title VII, FMLA, ERISA, OSHA,
Worker's Comp., unemployment benefits)
ii. *children and undocumented workers are not employees either iii. Tests:

1. Common law [gap-filler] test (M/S - agency law)  Does the employer have control over the means and manner of the work?
Skill required
Source of
Location of work
Duration of the instrumentalities and relationship between tools parties
Whether the hiring
Extent of hired party's Method of payment
Hired party's role in party has right to assign discretion of when and (Remuneration hiring and paying
Employer's right to control
Worker's opportunity for profit Worker's investment in equipment additional projects how long to work required under assistants manner of work or loss depending on or materials required/employment
O'Connor v. Davis)
managerial skill of helpers
Whether hiring party
Employee benefits
Tax treatment
Whether the work is part of theservice regularrequires a is inDegree the business
Whether of permanence of
Whether the service rendered is an businessskill of hiring party special working relationship integral part of the alleged
(Seasonal workers?)
employer's business

2. Economic reality test  Is the worker economically dependent on the business to which he renders service or is, as a matter of economic reality, in business for himself?
Dynamex/ABC Test  To prove the worker is an IC, hiring entity has burden of proving:

1. Work is free from control and direction of hiring entity in connection with performance of the work,
both under the K for the performance of the work and in fact; and

2. Worker performs work that is outside usual course of hiring entity's business; and

3. Work is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed

3. 4.

1 Cases/Class Examples:
a. O'Connor v. Davis  Student intern, under work study, as a requirement to graduate her program is NOT an employee because she was not being paid by the hospital.
b. Unpaid internships  NOT employees because no remuneration c. Graduate students/TAs/RAs  Seems to go back and forth with the administrations.
i. FOR  They are paid for their work; they are under the control of a professor. ii. AGAINST  The relationship between professor and student is mostly academic; the work is part of training and education.
d. Div I football players  NOT employees even though there is remuneration and considerable control over students' lives because cts seem to be hesitant in disrupting competition e. Uber drivers  Depends on each state but seems to be NOT employees in most i. FOR  Uber places many rules on drivers ii. AGAINST  drivers are in complete control of their schedules, use their own car, can turn off Uber app and use a different one/can use multiple apps at the same time
(entrepreneurial opportunity)
iii. Cts. look at the actual relationship, not just label in K.
f. FedEx drivers  ARE employees because of extent of control over details of the work, supplies, length of work, location, intent of parties.

III. Employment Discrimination Law a. Disparate Treatment Claims  McDonnell Douglas Framework
Step 1: P must bring a PF case
Step 2: Er must provide a
Step 3: P must prove Er's reason was by proving:
legitimate, non-discriminatory pretextual and that discrimination

1. P is a member of a reason.
was a motivating factor.
protected class.

2. P applied for and was
*If believed, no discrimination 
Burden of proof by direct or indirect qualified for the burden of production to raise a
(circumstantial) evidence - ex. track position.
question of fact.
record, statements, statistics, compare

3. P was rejected.
with others similarly situated

4. Er continued to seek or Even if no one believes Er, any hired someone else reason is enough to get to Step 3
*Under a mixed motive case, Er may
(not within P's because P has the ultimate burden refute BAPE that Er would've made protected class).
of proving discrimination. (Hicks)
the same decision. (Pricewater House)
Presumption of discrimination established.
i. Mixed Motive Cases:

1. Pricewater House 
a. If Ee can provide it was a "motivating factor," it may be enough b. BUT Er may refute if it can prove BAPE, that Er would have made the same decision.
ii. Title VII:

1. P can prevail if prove discrimination was a "motivating factor"

2. D can get a complete/partial defense if Er can prove would have made the same decision

3. Damages are prospective only; declaratory relief or injunctive relief

4. *did not originally include women (Pricewater House)
iii. Defenses:

1. BFOQ (Bona Fide Occupation Qualification)
a. *Can never be used for color or race b. Cts. upheld exclusion of women as prison guards in a maximum security facility.
c. Johnson Controls  NO BFOQ defense for exclusion of women who cannot prove they are infertile i. Fetal safety is not the business of the employer.
ii. Cost difference in hiring is not an excuse (would open themselves up to possible litigation)

2 d.


Southwest Airlines  NO BFOQ defense for exclusion of men flight attendants.
i. You cannot create your own BFOQ.
ii. Customer preference is not an excuse.
Hooters? Strip Clubs?
i. Strip club is probably closer to actual business than Hooters.
ii. Ct. seems to be more willing when the business involves intimate bodily contact.

b. Disparate Impact Claims
Step 1: P must bring a PF case by showing the facially neutral requirement has a disparate impact.

Step 2: Er must show that the challenged practice is job-related for the position and consistent with business necessity.

Step 3: P can win if P can show that there is an alternative with less of a disparate impact.

Must be significant (statistics,
magnitude, EEOC's 4/5s rule)


i. Cases:

1. Griggs v. Duke Power Co.  No evidence that strong performance on exams led to better workers; disparate impact on black workers.

2. Ricci  Cancelling tests may violate Title VII; Er must have known about an alternative BEFORE the administration of the tests.
Harassment (Sexual, Sexual Orientation, Gender Identity)
i. Discriminatory harassment as disparate treatment

Step 1: Adverse treatment in T&C of employment:

1. Tangible  vicarious liability

2. Intangible  top official - yes; supervisor - affirm. Defense, coworker -
Severe or pervasive enough that it creates a hostile or abusive work environment.
Must be obj./reason. hostile.

Step 2:
"because of sex"/sex is a motivating factor.

Step 3:
for which Er is liable

ii. Cases:

1. Step 1: Tangible/Intangible Job Action a. Tangible job action = hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits (Suders)
b. Intangible job action i. P being pressuring into having sex with VP as a condition of her employment counts as sufficiently severe/pervasive
ii. Do not need to show psychological injury; adequate claim where P showed President made many sexual comments that could add up to being severe/pervasive (Harris)
iii. Comments about appearance/attire, indicating compliance would advance position at firm  not a tangible job action but potentially severe/pervasive enough (Eller)
c. Tangible vs. intangible i. If Ee refuses sexual demands and is denied a promotion =
tangible job action ii. If submitted to sexual demands and gets a promotion = P must show that it was severe/pervasive enough to show intangible.
d. Billings  no tangible job actions but possibly intangible?
i. Must be both obj. and subj.

3 2.

3. 4.

4 ii. No tangible job action in this case but P gets to SJ because a jury could find that a combo of the circumstances was severe/
pervasive enough.

1. *Cts. don't seem to follow this standard  "stray comments"
iii. What would she do next? She must show that it was because of sex. How?

1. Only happened with women? Would coworkers testify against their boss?

2. Credibility = Will the jury believe her?
Step 2: "Because of sex"
a. Oncale  Why was P harassed?
i. Words/conduct being sexual =/= harassment because of sex.
ii. Case was remanded for P to show he was exposed to something women weren't because ct. takes the view that sex is binary.
iii. Theories:

1. Homosexual attackers theory  if the attacks were homosexual, then they were motivated by gender.

2. Sex/gender stereotyping theory  he was targeted because he wasn't man enough and didn't fit the stereotype for this manly job. (Pricewater House vibes)
a. *Applies to Fabian (transgender case)
b. Sex as a whole package of gender norms and gender stereotypes we get assigned to;
"properties and characteristics by which individuals may be classified as male or female."

3. Subjected to conditions other sex isn't (would not apply in Oncale)

4. Workplace was hostile to mere presence of men
(would not apply in Oncale)
Er Liability a. Mid-level manager hypo:
i. With tangible job action (ex. failure to promote), there is vicarious liability because Er is in principal-agent relationship with mid-level manager.
ii. Would not need to prove severe/pervasive enough to alter conditions of employment.
iii. Use disparate treatment standard to prove motivating factor was sex.
Constructive Discharge  Were the conditions severe enough to create a hostile environment and was it reasonably severe enough that P felt compelled to quit?
a. Whenever it's unlawful to fire Ee, it's also unlawful to drive Ee to quit
(under NLRA and Title VII).
b. Constructive discharge is not a tangible action that would automatically attach vicarious liability unless accompanied by an official act of a supervisor.
i. Er gets affirmative defense.
ii. If there was a tangible employment action, liability is automatic.
iii. Was it bad enough that it would deter others from opposing/participating?
c. Affirmative Defense (Faragher/Ellerth - Procedures!!): d.


5 i. Er shows that there was a reasonable policy and procedure that was calculated to prevent harassment or the employer exercised reasonable care to prevent and promptly correct the harassing behavior.
ii. Ee unreasonably failed to avail herself of the procedures made available by the Er.
iii. *Not available for very high-level employees (CEO/VP),
available for supervisors iv. Nonavailability of such a procedure may be used to prove negligence (for lower level employees). If negligence is found,
Er may not use affirmative defense.
Retaliation (more common than discrim. claims)
i. 42 USC 2000e3  It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment […] because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

1. Opposition Clause

2. Participation Clause ii. 42 USC 2000e2  The workplace environment must be bad enough to alter the conditions of employment; (lower than constructive discharge - RP would feel compelled to quit).

1. Constructive Discharge > Hostile Environment > Retaliation (Burlington)
iii. GF belief that what you are opposing/participating in investigation against is legally discriminatory is enough.
Job Security i. Due Process (before Deprivation/Termination)

1. 5A/14A - liberty interests/reputational harm.

2. Do you have a property interest in continued employment?
a. "rules and understandings" grounded in legislation, regulation,
employer rules, or express/implied K.

3. What would DP give you?
a. A hearing to determine whether the conditions on the employment have been met.

4. How much process is due?
a. Depends on what the state prescribes; State law might not be enough pursuant to federal law. (Laudermill)
b. Matthews v. Eldridge balancing test:
i. Interests of the individual in retaining their property and the injury threatened by the official action ii. Risk of error through the procedures used and probable value,
if any, of additional or substitute procedural safeguards iii. Costs and administrative burden of additional process, and the interests of the gov't in efficient adjudication ii. Payne Default Rule prevails  If there is no definite term, the presumption is EAW.

1. Savage v. Spur Distributing Co.  EAW/no protection when Ee quit a good job and moved to work for Er.
iii. Just Cause:

1. Substantive  job-related reason; ex. misconduct, inadequate work

2. Procedural  multi-stage grievance process, ex. arbitration, adequate investigation, notice of rules/standards

3. Burdens:
a. Union K  Employer b. Ordinary employment K  Ee iv. Under K law:

1. Promissory Estoppel (Goff-Hamel) a.

2. 3.

4. 5.


6 A promise one might expect someone would reasonably rely on, to their detriment.
b. Goff-Hamel  A promise of a job is a promise you won't be fired on day 1. Although she could have been fired on day 1, she deserved an opportunity to prove herself.
c. Reliance damages
Implied-in-fact K (Pugh)
a. A K does not have to be express (but very difficult to prove now)
b. Pugh  Implied-in-fact K because: (1) promises from higher-ups, (2)
dishwater to VP, (3) 32 years of employment, (4) no criticism of his work [evaluations], (5) policies [Er can put in express EAW provision],
(6) assurances
Implied Covenant of Good Faith and Fair Dealing (breach of K claim)
a. Implied promise not to fire based on conduct expressly required or expressly permitted in K/job ("in aid of K")
i. Used as a backstop for really unfair discharges that don't fit other established categories of wrongful discharge b. Murphy (NY)  No breach of ICGFFD for Ee fired for doing what he was required to do. NY cts reluctant to constrain EAW because it is understood and bargained-for between the parties.
i. Go to the legislature if you want something different but the presumption is that EAW has been around for so long that it has essentially been ratified.
ii. NY cts reluctant to carve out more exceptions to EAW
because it'll be harder to apply than the easy EAW rule.
iii. *We still don't know if there is an ICGFFD in NY.
c. Fortune  Breach of ICGFFD because he essentially finished the sale;
remedy was benefits already earned, not reinstatement.
d. Agis  Breach of ICGFFD in alphabetical firing case.
e. Guz  CA court acknowledges an Ee may be able to recover via
ICGFFD in a Pugh-like situation (not likely in Murphy); does not simply require a good reason but must shock the ct's conscious.
i. Expressly EAW in K but may be able to overcome the presumption with length of work; ct characterizes as "mere passage of time." No unwritten policy or practices.
ii. Ers can just disclaim via K or manuals/handbooks.
iii. Factors:

1. Longevity  CA court only says it helps with assurances of JS; "mere passage of time"; reward in itself to work there for so long

2. Unwritten policy practices  no evidence they were assured + disclaimer

3. Written policy  express EAW disclaimer
*Long-term employees and early sacrifices seem to win more. Mid-career employees seem to have the least protection.
Employment Manual and Handbooks:

Q1: Does the manual make an enforceable promise of JS?
Wooley: "No category set forth for discharge without cause."
"Reasonably clear constraints on reasons for discharge

Q2: How can Er disclaim the promise?
Wooley: "No promise of any kind, Er retains absolute power…"
Anderson: "not intended to create any K

Q3: How can Er modify/withdraw the promise?
Same language as Q2 Form/Manner

Anderson: directives, detailed and definite, no alterable at will by Er.
Offer, Acceptance, Consideration

Wooley: very prominent disclaimer

**It doesn't matter that employee did not read it if all employees got it. Everyone shares understanding.

Anderson: no special requirement of prominence (but no less prominent than everything else)

Asmus: OK after reasonable time with reasonable notice, acceptance,
and consideration by employee's continued employment.
Demasse: requires more = offer,
acceptance, consideration


Under tort law:
i. Why sue under tort?

1. More damages

2. Longer SoL

3. Jury ii. Public Policy

1. Basic K theory: A K that is contrary to public policy is void but under tort, it must implicated third party public policy interests.

Step 1: 4 Categories of Public

1. Refusing to violate
PP (ex. refusing to commit perjury)

2. Exercising a right
(ex. filing a worker's comp. claim)

3. Performing a duty
(ex. serving on a jury)

4. Disclosing illegality
(ex. whistleblowing)

Step 2: PP must be clearly established by:

1. State statute (crim best)

2. Constitution (state or fed)

3. CL

4. Federal law

5. Professional ethics codes

Step 4: Would PP be undermined by discharge?

*Does the statute provide an exclusive, adequate remedy?
Federal preemption?

*Some cts only want statutes as sources.


7 Step 3: Did EE advance important public interests?

i. Hayes  No PP claim because the disclosure of embezzlement implicated private interests, not public.
ii. Gantt  PP claim because he was fired for refusing to violate PP/exercising a right/disclosing illegality; state statute prohibited interference with an agency's investigation.
iii. Kirk  PP because she was fired for performing a duty; nursing ethics codes.
iv. Balla  No PP for GC who reported conduct because he had to, under PR rules.
Cts say the attorney-client privilege is too important. *PR rule also lets clients fire attorney for any reason.
v. tort if the statute provides an exclusive,
adequate remedy.
i. BUT Cts may believe that it's still important to define the boundaries of CL.

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