Before you graduate law school, it is important to know what kind of law you want to practice. However, it can be difficult to figure out the type of law you want to devote yourself to when there are so many options. There are numerous kinds of law, countless claims, and an endless array of clientele. You also only get three years in law school to figure out what you might be good at in the future. This is further complicated when you have to meet certain requirements to graduate and you take certain classes in preparation for the bar. So what is law student supposed to do? Once you are finished learning the basics of the law in your 1L year, you have the chance to get your feet wet in other specific types of law. In your upperclassmen years, you get to choose electives that fit your interests so that you can learn about a type of law that you may want to practice. One of my electives in my 2L year was employment law. Here is a quick overview of this course so you have a general understanding of employment law before you take it.
Employment Law, Generally
Employment law can take various different forms because this branch of law covers a diverse group of subjects. There are specific courses that handle employee discrimination, workers’ compensation, OSHA, etc. Some of these specifics of employment law have shown up on some states’ bar exams. There is also a major distinction within what people commonly believe to be “employment law.” First, there is employment law which deals with the individual employee and their employers. There is also a branch of law called labor law which directly deals with unions, union employees, and employers. It is important to understand that these are distinct divisions of law and different rules may apply depending on the circumstances.
Employment At Will/Employment Contract
The default rule in employment law is for at-will employment. This means that either party (employee or employer) can terminate the employment for good cause, bad cause, or no cause at all. However, this can be be contracted around by the employer/employee. This is most obvious when there is a written contract between the parties, but oral contracts are also applicable as well. The difficulty is when oral promises are viewed as puffery instead of implied in fact contracts but courts look to the totality of the circumstances when assessing if the parties’ conduct gave rise to an implied contract. Sometimes there will be a “termination for cause” provision outside of a contract or oral promise. These cases arise when an employer’s policies or employee manuals have certain language regarding disciplinary action and termination procedures. Contracting around the at-will presumption is not the only way to avoid termination. There is also a tort of wrongful termination in violation of public policy. Originally, this tort only covered specific categories like retaliation for exercise of an employee right (i.e. a Workers’ Comp claim) or refusing to violate public policy (i.e. refusing to commit perjury). Now this doctrine has expanded to protect whistleblowers from retaliation.
Modifications to Employment Contract
Creating a cause termination clause is not the only way that employers and employees can modify their employment relationship. Sometimes employers want to limit employee mobility so they add a “covenant not to compete.” Generally, employees sign a contract stating that they will not act in some sort of economic matter, typically to not work for an employer’s competitors. In order for these to be valid there has to be a legitimate business interest, that the covenant protects, and the restriction is reasonable in scope. Courts tend to scrutinize these agreements while balancing the idea that individuals should have the freedom to labor without influence against the freedom of contract. Another way employers and employees modify the employment contract is by adding a mandatory arbitration agreement. Essentially, the parties agree that instead of taking their grievances to court, they will submit them to arbitration. Court generally uphold arbitration clauses because of the federal pro-arbitration policy via the Federal Arbitration Act (FAA). However, if the arbitration clause can be struck down with traditional contract defenses like fraud or unconscionability.
Wage and Hour Law
Another big section of employment law is called “wage and hour law.” This focuses on employee compensation and work. The main source of law is the Fair Labor Standards Act (FLSA). FLSA establishes the federal minimum wage, overtime provisions, and protections for child labor. The three main issues that are litigated under wage and hour law are employment status, overtime exemptions, and what counts as working time.
This is a quick overview of employment law so some professors or universities may organize the course differently. However, this snapshot should give you a general understanding on what to expect from an employment law class. Armed with this knowledge, you will be able to successfully navigate through this upperclassmen course.
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