Essential Employment Law and Contract Principles

Basic Principles of a Contract

Canons of Interpretation

• As an integrated whole
• Most strictly against the party that drafted the document in the case of an ambiguity
• Perspective of the worst-case scenario

Fundamental Aspects of a Contract

• Agreement
• Consideration
• Capacity
• Legality

Legal Remedies and Damages

• Compensatory damages
• Specific performance
• Restitution
• Penalty provision
• Rescission

Types of Authority

• Actual authority
• Apparent authority

Defamation

Tort theories and employment.

Public Policy Protections

• Employment discrimination
• Whistleblowing
• Cooperation in an investigation against the company
• Submission of unfair labor practice charges
• Complaints about safety hazards and violations

Vicarious Liability

• Respondeat superior (let the master respond)
• Employee actions must be within the "scope of employment"

Hiring, Supervising, and Retention

• Negligence in employment-related decisions
• Develop and follow protocols for hiring employees, even when a candidate is known
• Train managers to supervise and discipline employees appropriately
• Develop a no-tolerance policy regarding workplace violence and inappropriate behavior, and train employees to resolve disputes

Independent Contractors

• Status is determined by a variety of factors
• Employer avoids the prospect of vicarious liability based on the independent contractor's actions

Competitive Advantage Strategies

Develop and follow protocols for hiring employees, even when a candidate is known.

Independent Contractors

• Develop a list of necessary credentials for independent contractors and hire only those who meet the criteria.
• Require a list of references and check them carefully.

Volunteers

• Screen and select volunteers with the same care that you use for employees in the same capacities.
• Use particular care when screening volunteers who will be in positions of authority and trust with minors.

Title VII of the Civil Rights Act

Protected classes:

• Race
• Color
• Religion
• Sex
• National origin

• Applies to employers with 15 or more full-time employees.
• Does not apply to independent contractors or to private membership clubs.

Disparate Treatment vs. Disparate Impact

Disparate Treatment

Claim requires a finding of intentional discrimination:

• Direct evidence of intent
• Inference from circumstantial evidence relating to the way the employer has treated others
• Evidentiary burdens:
  • Burden of production
  • Burden of proof

Disparate Impact

Used when a plaintiff has appropriate statistical evidence that a "neutral" employment practice has had an impact on members of a protected class.

Successful claims are rare:

• Difficult to establish that a workforce pool has been negatively impacted.

Burden-Shifting Analysis (McDonnell Douglas)