Chapter 1
The Stakes of “Employment”
Page 15, add after Driscoll Strawberry cite in Note 7, Defining “Employee” for Statutory Purposes:
See generally Keith Cunningham-Parmeter, From Amazon to Uber: Defining Employment in the Modern Economy, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2761577 (forthcoming B.U.L. Rev.) (using the FLSA’s original broad definition of “employment” as a lens to urge a refocused notion of control for it and other statutes to look not merely to daily, direct supervision but the numerous ways in which firms may control workers).
Page 21, add at end of carryover Note 1, Conflicting Legal Incentives and Trying to Have It Both Ways:
See also, McFeeley v. Jackson St. Entm’t, LLC, No. 15-1583, 2016 WL 3191896, at *4 (4th Cir. June 8, 2016) (applying “economic realities” test to determine that exotic dancers were employees of the clubs they performed in because (1) the clubs exercised significant control over all aspects of the dancer’s work and (2) the dancers’ profit of loss depended far more on the clubs’ management and decision making then on their own).
Page 23, add at end of first paragraph of Note 5, Other Costs of Employment for Potential Employers:
The tax laws provide some disincentives for misclassification and other underreporting of wages, although they have rarely been used to date by employees. See Cuellar-Aguilar v. Deggeller Attractions, Inc., 812 F.3d 614 (8th Cir. Dec. 15, 2015) (workers who received incorrect W-2 forms had a cause of action against their employer under 20 U.S.C. 7434, which creates a cause of action against those willfully filing a fraudulent information return, with liability being $ 5,000 or actual damages, if higher).
Page 29, add before last full sentence on the page:
Stephanie A. Pisko, Comment, Great Expectations, Grim Reality: Unpaid Interns and the Dubious Benefits of the DOL Pro Bono Exception, 45 Seton Hall L. Rev. 613 (2015).
Page 30, add at end of discussion concerning Glatt v. Fox Searchlight Pictures, Inc.:
Glatt was overturned on appeal. Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015). In reversing the district court, the Second Circuit declined to follow the DOL guidance and instead adopted a three-factor test to determine whether the intern or the employer is the “primary beneficiary” of the relationship: (1) what the intern receives in exchange for his work, (2) the economic reality between the intern and employer, and (3) the intern’s expectation of receiving educational or vocational benefits not expected with all forms of employment. Id. at 536. The Eleventh Circuit has recently adopted a similar test. See Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199, 1209-10 (11th Cir. 2015).
Page 31, update citation at end of first full paragraph:
Steven Willborn, College Athletes as Employees: An Overflowing Quiver, 69 U. Miami L. Rev. 65 (2014).
Page 31, add after first full paragraph:
The full NLRB board unanimously punted (pun intended) by declining to assert jurisdiction in the matter. The board reasoned that ruling on the employment status of a single team would not promote the stability of the NCAA and the Big Ten. Northwestern University and College Athletes Players Association, 362 N.L.R.B. No.167 (2015). In another case involving the employment status of college athletes, the U.S District Court for the South District of Indiana held that track-and-field participants at the University of Pennsylvania are not employees under the Fair Labor Standards Act. Berger v. NCAA, No. 1:14-cv-1710-WTL-MJD (S.D. Ind. 2016), https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?12014cv1710-238. Berger is currently pending on appeal before Seventh Circuit.
Page 31, add new heading after “Prison Work”:
The “On-Demand Economy”
The rise of businesses such as Uber and Lyft that use new technological information to connect consumers with workers providing services has created new problems in employee classification. See generally, Benjamin Means & Joseph Seiner, Navigating the Uber Economy, 29 U.C. Davis L. Rev. 1511 (2016); Brishen Rogers, Employment Rights in the Platform Economy: Getting Back to Basics, 10 Harv. L. & Pol’y Rev. 479 (2016). Both Uber and Lyft classify their drivers as independent contractors, but significant exercise control over certain aspects of the driver/customer interaction. Drivers around the country have brought suits against the companies alleging they are employees and, hence, entitled to various protections – including wages and hours – they have been denied. The companies have settled a number of the cases, at least in part to avoid resolution of the employment status issue. See, e.g., O’Connor v. Uber Techs., Inc., No. C-13-3826-EMC, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015); Mike Isaac & Noam Scheiber, Uber Settles Cases with Concessions, but Drivers Say Freelancers, N.Y. Times, Apr. 22, 2016, at B1. Nevertheless, as of the date of this update, many suits that turn on the status question are still pending in courts around the country. See, Doe v. Uber Technologies, Inc., No. 15-cv-04670-SI, 2016 WL 2348296 (N.D. Cal. May 4, 2016) (alleging vicarious liability for sexual assaults by Uber drivers); Heather Kelly, Uber and Lyft Drivers in Austin Sue the Companies, CNN Money (June 10, 2016, 5:54 P.M.), http://money.cnn.com/2016/06/10/technology/austin-lawsuits-uber-lyft (discussing suits alleging violations of the Worker Adjustment and Retraining Notification Act). State administrative agencies that have reached the question of the drivers’ status have reached differing conclusions. Compare Mike Isaac & Natasha Singer, California Says Uber Driver is Employee, Not a Contractor, N.Y. Times, June 18, 2016, at B1, with Michael Auslen, State Job Chief: Uber Drivers are Contractors, Not Employees, Miami Herald (Dec. 3, 2015), http://www.miamiherald.com/news/business/article47843400.html.
Page 45, add before last paragraph in carryover Note 3, “Joint Employer” Liability:
The NLRB has recently rearticulated its test for determining whether two or more entities are joint employers:
Two or more entities are joint employers of a single work force if [(1)] they are both employers within the meaning of the common law, and [(2)] if they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating the allocation and exercise of control in the workplace, we will consider the various ways in which joint employers may “share” control over terms and conditions of employment or “codetermine” them.
Browning-Ferris Indus of Cal., Inc., 362 N.L.R.B. No. 186 (2015). The reach of the BFI test is currently being tested in unfair labor practice proceedings brought against several franchisees of McDonald’s and the franchisor – McDonald’s USA, as a putative joint employer. Cf. McDonald’s USA, LLC, 362 N.L.R.B. No. 168 (2015) (by vote of three-to-two affirming the Administrative Law Judge’s denial of McDonald’s motion for a bill of particulars).
Page 63, add after last sentence at end of carryover paragraph at top of page:
But see, Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 366 (7th Cir. 2016) (declining to extend the NLRB test to the ADEA).
Chapter 2
The At-Will Default Rule and Its Limitations
Page 73, add after Forrer cite in carryover Note 2, The Express Term Exception:
Professor Bodie views cases such as these and even more permissive decisions as evidence that at will is a “sticky default” rule, that is, one that is difficult to contract out from under. Matthew T. Bodie, The Best Way Out Is Always Through: Changing the Employment At-Will Default to Protect Personal Autonomy, 2017 U. Ill. L. Rev. (forthcoming). Cf. Burford v. Accounting Practice Sales, Inc., 786F.3d582 (7th Cir. 2015) (while Illinois law would generally require a contract for an indefinite term to be terminable at will and a perpetually-renewing agreement would so qualify, a clause in the agreement that permitted the employer to terminate upon the employee’s violation of its terms provided the necessary clear statement that took the agreement out of that category).
Page 91, add at the end of Note 7:
But see Brueck v. John Maneely Co., 131 F. Supp. 3d 774 (N.D. Ind. 2015) (finding prospective employee alleged valid promissory estoppel claim by relying on job offer, even though offer was rescinded based on falsehoods in job application).
Page 114, add after extract in carryover Note 2, The Decline of Long-Term Employment:
See also Rachel Arnow-Richman, Modifying At-Will Employment Contracts, 57 B.C. L. Rev. 427 (2016) (formal consideration doctrine applied to midterm modifications of employment contracts, including revising employer handbooks and adding arbitration and noncompete clauses, is inadequate; the better approach would be a universal reasonable notice rule for enforceability, which would mean the “amount of time necessary for the employee to assess the significance of the change and consider alternatives, in particular the possibility of finding alternate employment”); Rachel Arnow-Richman, Mainstreaming Employment Contract Law: The Common Law Case for Reasonable Notice of Termination, 66 Fla. L. Rev. 1513 (2014). But see Johnston v. William E. Wood & Assocs., 2016 Va. LEXIS 67 (June 2, 2016) (no duty to give a terminated employee “reasonable notice”; requiring more would be inconsistent with the at-will doctrine).
Page 124, add at the end of Note 4:
Compare Langenkamp v. Olson, 628 F. App'x 50 (2d Cir. 2015) (finding employee stated a claim for breach of contract where she alleged termination procedures were set forth in the employer’s handbook, the employer’s offer of employment required employee to agree to abide by employer’s policies as a condition of employment, and the employer did not follow those procedures).
Page 132, add to end of carryover Note 3, Advising the Employer:
For a recent discussion of modifications to employee manuals, see Rachel S. Arnow-Richman, Modifying At-Will Employment Contracts, 57 B.C. L. Rev. 427 (2016) (calling for enforcement of mid-term modifications only where worker received reasonable advance notice of the change).
Chapter 3
Written Contracts and Expressly Negotiated Terms of Employment
Page 177, at the end of carryover Note 1, Cause in the Absence of a Contractual Definition:
See also Gilman v. Marsh & McLennan Cos., No. 15-0603-cv(L), 2016 U.S. App. LEXIS 10937, at *7-8 (2d Cir. June 16, 2016) (an employer had good cause to discharge employees for refusal to cooperate with an internal investigation when they “had been implicated in an alleged criminal conspiracy for acts that were within is the scope of employment and that imperiled the company” even though those employees were in the “tough position of choosing between employment and [possible] incrimination”)
Page 190, add after Hess cite in second line of Note 1, A Bird’s Eye View:
aff’d, Hess v. Bresney, 784F.3d1154 (7th Cir. 2015).
Chapter 4
The Public Policy Exception to the At-Will Rule
Page 207, add at end of first full paragraph:
See also Swindol v. Aurora Flight Scis. Corp., 2016 Miss. LEXIS 131 (Mar. 24, 2016) (interpreting state statutes to create a public policy exception to the at-will rule that bars employers from discharging a worker for having a firearm inside his locked vehicle on company property); Moore v. Warr Acres Nursing Ctr., LLC, 2016 OK 28 (Mar. 8, 2016) (terminating a licensed practical nurse for missing work in a nursing center when sick with influenza would violate public policy” due to public health concerns).
Page 221, at end of first full paragraph:
See also Kathleen Clark & Nancy J. Moore, Buying Voice: Financial Rewards for Whistleblowing Lawyers, 56 B.C. L. Rev. 1697 (2015) (considering whether attorneys can ethically seek whistleblower awards under the FCA or other federal statutes).
Page 235, last sentence and associated citations at end of first full paragraph; replace with:
The six-year statute of limitations for causes of action under a statute applied to a whistleblower action rather than the two-year period for torts resulting in personal injury because the claim was created by statute before it was recognized at common law. Ford v. Minneapolis Pub. Sch., 857N.W.2d725 (Minn. Ct. App. 2014).
Page 236, add at end of Note 3, Reasonable Belief:
Should an employee be able to sue even when the violation has not yet occurred? See Pace v. Edel-Harrelson, 2016 Mich. LEXIS 59 (Feb. 1, 2016) (Michigan's Whistleblowers' Protection Act, which protects an employee who reports "a violation or a suspected violation of a law" to a public body, did not reach a whistleblower who reported a planned violation rather than an existing one).
Shifting gears somewhat what if the employee is in pari delicto in the violation of public policy? Should she be permitted to bring suit? Galle v. Isle of Capri Casinos, Inc., 180 So. 3d 619, 620 (Miss. 2015) (plaintiff who willingly participated in the allegedly illegal activity may not bring a public policy claim).
Page 238, add at end of carryover Note 7, A Job Duties Exception?:
Although decided as a matter of federal law in the retaliation context, the job duties exception or “manager rule” has taken somewhat of a beating in recent decisions. DeMasters v. Carilion Clinic, 796 F.3d 409, 413 (4th Cir. 2015) (finding that the manager rule “has no place in Title VII jurisprudence”); Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) (while merely reporting or investigating other workers’ complaints is not by itself protected activity, an employee is protected, even if her job responsibilities involve investigating complaints of discrimination, when she actively ‘supports other employees in asserting their Title VII rights or personally complains or is critical about discriminatory practices).
Page 257, add at end of Note 1, Protected Conduct Under SOX:
See generally Samuel C. Leifer, Note, Protecting Whistleblower Protections in the Dodd-Frank Act, 113 Mich. L. Rev. 121 (2014) (exploring competing textual arguments as to whether protection extends only to those who report suspected violations to the SEC or whether it also reaches internal reporting).
Page 257, add before Neilsen cite in Note 2, Objectively and Subjectively Reasonable:
Rhinehimer v. U.S. Bancorp Invs., Inc., 787 F.3d 797, 811 (6th Cir. 2015) (“Objective reasonableness is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee"; specific knowledge relating to particular elements of a claim was not necessary for a belief to be objectively reasonable) (citations and internal quotations omitted);