Employment Law Generally

Question 1

six things to consider when determining employee or IC

Answer 1

1. nature and degree of alleged employer’s control of the he manner in which the work is performed;
2. the alleged employee’s opportunity for profit or loss depending upon his managerial skill [did they share in the actual loss? or just loss of opportunity? Real loss and opportunity loss are weighed different];
3. the alleged employee’s investment in equipment/materials required for his task, or his employment of workers;
4. whether the service rendered requires a special skill;
5. the degree of permanency and duration of the working relationship;
6. the extent to which the service rendered is an integral part of the alleged employer’s business.

Question 2

6 Factors to consider with joint employees (Zheng)

Answer 2

1. Whether Liberty’s premises and equipment were used for plaintiff’s work
2. Whether the Contractors had a business that could or did shift as a unit from one employer to another
3. The extent to which plaintiff performed discrete jobs that were integral to Liberty’s process of production
4. Whether responsibility under the contracts could pass from one subcontractor to another without material change
5. The degree to which Liberty supervised the plaintiff’s work
6. Whether plaintiffs worked exclusively or predominately for Liberty.

Question 3

When can you be fired with an At-will contract?

Answer 3

i. Can be fired at any time for any reason and can quit at any time for any reason
ii. Unless it violates public policy
iii. Or it’s become an indefinite term contract through reliance, implied in-fact, employee manual

Question 4

statute of frauds

Answer 4

The primary holding in this case is that Statute of Frauds only bars a contract that cannot be performed within one year. This does not mean that a contract with a duration of greater than one year is barred by the SOF – what matters is whether it could be completely executed within one year under any set of conceivable circumstances.

Question 5

Reliance/promissory estoppel (four part test)

Answer 5

(1) promise, (2) which the promisor should reasonably expect to induce action or forbearance, (3) which does induce action or forbearance, and (4) which results in injustice.

Question 6

Parole evidence rule in terms of written contracts (2 considerations)

Answer 6

i. Parole evidence rule says we can’t change a contract after the fact (four corners rule)
ii. parole evidence rule only applies to terms made before you created a contract.

Question 7

Amendments to employment manuals

Answer 7

i. If you are removing protection, continued employment cannot constitute consideration.
ii. If you adding protections, continued employment can considered the consideration.

Question 8

Three types of employment agreement?

Answer 8

(1) employment at will
(2) indefinite term
(3) definite term contract

Question 9

How do you create employment

Answer 9

1. written contract,

2. oral contract

Question 10

Three ways to modify employment agreement

Answer 10

(1) Reliance
(2) Implied-in-fact
(3) employment manual

Question 11

The four public policy exceptions

Answer 11

(1) refusing to commit unlawful acts
(2) exercising a statutory right
(3) fulfilling a public obligation
(4) whistleblowing

Question 12

Four torts of employment Law

Answer 12

1. Invasion of privacy (don’t necessarily need to be fired).
2. negligent hiring and respondeat inferior (traditionally brought by a third party)
3. defamation
4. intentional infliction of emotional distress

Question 13

Three elements of Invasion of Privacy

Answer 13

1. Legally protected privacy interest
2. reasonable expectation of privacy
3. Was the act a serious invasion of privacy

Question 14

Three statutes related to invasion of privacy

Answer 14

(1) wiretap act
(2) Electronic Communication and Privacy Act
(3) Stored Communications Act

Question 15

Elements of negligent hiring

Answer 15

1. Employers must have known, or should have known, about past violence on the employee’s part and
2. hired or retained him anyway.
3. The more likely the employee will come in contact with customers, the closer employers should look.

Question 16

Elements of Respondeat Superior: three considerations

Answer 16

(1) Was the act committed within the time and space limits of the agency? (2) Was the offense incidental to, or of the same general nature as, the responsibilities the agent is authorized to perform? And (3) Was the agent motivated to any degree to benefit the principal by committing the act?

Question 17

four elements of defamation

Answer 17

1. a false and defamatory statement concerning another,
2. an unprivileged publication to a third party
3. fault amounting to at least negligence on the part of the publisher, and
4. the existence of special harm caused by the publication.

Question 18

Two elements of when an employee should know information is a trade secret

Answer 18

A trade secret means (1) that the information is not publicly available and
(2) it was clear to the employee, or should have been, that the employer wanted to keep it secret (i.e., they took step to ensure it stayed secret – safes, password protected, etc).

Question 19

Three sources of employee invention law

Answer 19

(1) common law
(2) contractual agreement
(3) statutory law

Question 20

The enforceability of noncompete clauses depend on four elements

Answer 20

1. a. whether the employer is seeking to protect a legitimate business interest through employment restraint,
2. the restraint is reasonable in duration
3. The restraint is reasonable in geographic limitations, and
4. the restraint supported by adequate consideration.