Employee Rights And Responsibilities

1
Who Can Be Employed? Children in the Workplace
2
Child Labor LawsWhy Limit Work for Children?

• Interferes with health, well-being.
• Interferes with education.
• Wage competition with adults.
• Counterarguments? Rights or responsibilities of
  parents?

3
Child Labor CategoriesRestricted v. Absolutely
Barred

• Under 14 Unlawful, except by parents (or in
  agriculture).
• 14 - 15 Unlawful except as allowed by DOL rules
  limiting hours and nature of work.
• 16 - 17 Lawful except in work of nature barred
  by DOL.
• Possible state laws.

Check the hours. Check the work.
4
Persistent Child Labor Problems in the U.S.

• Exemptions, e.g., for families, and agriculture.
• Management carelessness, induced by employer
  goals, expectations.
• Burger King Why is clear corporate policy not
  enough?
• Have we exported the problem?

Is child labora thing of the past?
5
Reich v. Shiloh True Light Church of Christ
Trainee? Volunteer? Or employee?
6
Are the Children Trainees? Or Are They Being
Employed?

• What if children worked under parents
  direction?
• FLSA definition of employ to suffer or permit
  work.
• Are they trainees?
• Who is primary beneficiary?
• Wage-like inducements?
• Might they be volunteers?

Construction trainees (and you thought law school
was hard!)
7
Child Labor Loose EndsLawful and Unlawful Work

• Independent contractors? The suffer or permit
  rule.
• Workers compensation for illegally employed
  child? Or common law remedies?
• Effect of parental consent in common law actions?
• A childs contract and the problem of capacity.

8
Unauthorized Aliens
9
Employer Duties in Hiring (IRCA) 8 U.S.C. 1324a

• Verify eligibility (actual status of worker
  irrelevant).
• Dont knowingly hire or continue employment of
  person you learn is unauthorized.
• Good faith verification supports presumption you
  did not know.
• Dont discriminate based on citizenship or
  national origin.

IRCA
10
Collins Food Intl v. INS
Did the employer hire with constructive
knowledge?
11
Collins Food InternationalHow Closely Must You
Look?

• Post-hiring verification lawful?
• Did document reasonably appear to be valid?
• Good faith verification shifted BOP to prove
  knowing hiring of unauthorized worker.
• Flaws in card didnt prove constructive knowledge.

The document check How careful must employer be?
12
Employee Status and RightsOf Undocumented Workers
Must an Employer Obey Rules of the RoadFor
Unauthorized Alien Workers?
13
Hoffman Plastic Compounds v. NLRB
What happens when undocumented aliens vote for a
union?
14
Balancing Immigration Versus Policy Employment
Prevent Unlawful Employment Practices
Prevent Illegal Immigration and Work
15
IRCA v. Employment LawsSearching for the Right
Balance

• How did Hoffman violate law?
• Issue of violation v. remedy.
• How was status discovered?
• ALJ Castro gets nothing.
• NLRB Backpay until date employer knew of status.

Waiting for the backpay check
16
Majority in Hoffman PlasticsLeaning in Favor of
IRCA

• To employ or be employed is now illegal (IRCA).
• Awarding back pay condones and encourages illegal
  behavior.
• Castro unable to mitigate damages by lawful
  U.S. work.
• There are other remedies for employers labor
  law violations.

Justice Rehnquist
17
Dissent in Hoffman PlasticsLeaning in Favor of
NLRA

• Other limited remedies will not deter employer
  violations of NLRA (whats the remedy here?)
• Awarding backpay unlikely to encourage workers
  to cross border illegally.
• Denying remedy might increase illegal employment!

Justice Breyer
18
What Is Effect of HoffmanOn Other Employment
Laws?

• Rivera (under Title VII, courts may have more
  discretion than NLRB to interpret, reconcile
  statutes.
• Contractual rights?
• Minimum wage/overtime?
• Workers compensation Medical costs? Disability?

Courthouse security Now screening for work
authorization too.
19
Whos the Employer?
And Whos Responsible for Violations of the Law?
20
Employer Functions As a PieIs the Employer
Divisible?

• Payroll function.
• Supervision of work.
• Use/benefit of the work.
• Selecting employees.
• Compliance with laws.
• Responsibility for insurance and other benefits.

21
Methods of Sharing Employer Functions with Other
Parties

• Traditional sub-contracting.
• Payroll service.
• Personnel agency.
• Temp. employment agency.
• Associations purchasing and managing benefits.
• Professional employer or leasing agency.

Seeing double? Or working for joint employers?
22
Employee Leasing Services(aka Professional
Employers)

• Delegation of some employer duties retention of
  benefits of employee service.
• Temporary, episodic needs?
• Efficiencies of scale inmaintaining HR services.
• Efficiencies of scale for employee benefit plans.

Leased labor Revolving door employees?
23
Amanare v. Merrill, LynchJoint Employer Theory

• Borrowed servant precedent.
• Same control test asfor employee status?
• Not all duties need be vested in one employer.
• Is each employer liable for every breach of duty?
  
• Some employer duties might be non-delegable.

Whos the employer?
If the employee sues, whos the target?
24
Black v. Employee Solutions, Inc.
Who Pays Wages Owed By a Bankrupt Employer?
25
Black v. Employee SolutionsWhere Did the Wages
Go?

• Reason for CSX / ESI contract?
• Why does contract name ESI the employer?
• Why doesnt ESI owewages under contract?Under
  wage statute?
• Right result? Changes in facts reversing outcome?

A shell game for employee wages?
26
Zheng v. Liberty Apparel
Is ignorance an employers bliss?
27
Liberty As a Putative EmployerIn Zheng v.
Liberty Apparel

• Contract v. statutory claim.
• Does usual joint employer theory work here?
• Economic realities?
• Is Liberty one enterprisewith contractors?
• Potential effect of statutory suffer or permit
  rule?

Liberty Were shocked! Shocked!!
28
Joint Employer Theory on SteroidsFor Outsourcing
of Work?

• PEs premises/equipment?
• Could IE shift business from one client to
  another?
• Work integral to PE business?
• Could work shift from one IE to another without
  material change?
• Supervision and control of work?
• Portion of work devoted to PE?

Putative Employer-PE
Intermediate Employer-IE
Employees
29
Papa v. Katy Industries, Inc.
Mom and Pop business? Or Corporate Empire?
30
What Is a Single Employer?Comparison with
Joint Employer

• Usually linked by common ownership.
• Related entities treated as one for some labor
  law purposes.
• Does not necessarily pierce corporate veil for
  all purposes.

One turtle or two?
31
Single Employer TheoryThe Traditional 4-Factor
Test

• Interrelation of operations
• Common management
• Common ownership
• Centralized control of labor relations.

A few of Walshs siblings
32
Possible Uses of Single Employer (Integrated
Enterprise) Theory

• One employer for purposes of collective
  bargaining.
• Combined assets and workforces for purposes of
  jurisdiction.
• Combined for purposes of applying statutory
  damages caps?
• One entity for judicial process, judgment, or
  collection of damages?

33
Posners Revised TestIn Papa v. Katy
Industries, Inc.

• Would it be appropriate to pierce to corporate
  veil?
• Was corporate organization intended to evade
  employment laws?
• Did one entity direct the unlawful act of the
  other.

Judge Posner Not a fan of single entity theory
Would still apply classic form of the test
in collective bargaining cases.
34
Joint v. Single Employer Exercises

• Farmer engages labor contractors to supply
  workers to harvest crop. Employees complain of
  wage law violations.
• Same as above, but one worker alleges Farmer
  sexually harassed her, in violation of Title VII.
• Same as above, but farmer is 50 shareholder in
  labor contractor corporation, which is now
  insolvent. Workers allege failure to pay wages
  due.

35
Hypothetical Value Shop

• Is Value-Shop liable for the labor law
  violations of its maintenance contractor, CSI?
  (See p. 97).