Who Can Be Employed? Children in the Workplace

Child Labor Laws Why Limit Work for Children? Interferes with health, well-being. Interferes with education. Wage competition with adults. Counterarguments? Rights or responsibilities of parents?

Child Labor Categories: Restricted v. Absolutely Barred Under 14: Unlawful, except by parents (or in agriculture) : Unlawful except as allowed by DOL rules limiting hours and nature of work : Lawful except in work of nature barred by DOL. Possible state laws. Check the hours. Check the work.

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 labor a thing of the past?

Reich v. Shiloh True Light Church of Christ Trainee? Volunteer? Or employee?

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!)

Child Labor Loose Ends: Lawful 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 child’s contract and the problem of capacity.

Unauthorized Aliens

Employer Duties in Hiring: (IRCA) 8 U.S.C. §1324a Verify eligibility (actual status of worker irrelevant). Don’t knowingly hire or continue employment of person you learn is unauthorized. Good faith verification supports presumption you did not “know.” Don’t discriminate based on citizenship or national origin.

Collins Food Int’l v. INS Did the employer hire with constructive knowledge?

Collins Food International How 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 didn’t prove constructive knowledge. The document check: How careful must employer be?

Employee Status and Rights Of Undocumented Workers Must an Employer Obey Rules of the Road For Unauthorized Alien Workers?

Hoffman Plastic Compounds v. NLRB What happens when undocumented aliens vote for a union?

Balancing Immigration Versus Policy Employment Prevent Illegal Immigration and Work Prevent Unlawful Employment Practices

IRCA v. Employment Laws Searching 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

Majority in Hoffman Plastics: Leaning 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 employer’s labor law violations. Justice Rehnquist

Dissent in Hoffman Plastics: Leaning in Favor of NLRA Other limited remedies will not deter employer violations of NLRA (what’s the remedy here?) Awarding backpay unlikely to encourage workers to cross border illegally. Denying remedy might increase illegal employment! Justice Breyer

What Is Effect of Hoffman On 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.

Who’s the Employer? And Who’s Responsible for Violations of the Law?

Employer Functions As a Pie: Is the “Employer” Divisible? Payroll function. Supervision of work. Use/benefit of the work. Selecting employees. Compliance with laws. Responsibility for insurance and other benefits.

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?

Employee Leasing Services (aka “Professional Employers”) Delegation of some employer duties; retention of benefits of employee service. Temporary, episodic needs? Efficiencies of scale in maintaining HR services. Efficiencies of scale for employee benefit plans. Leased labor: Revolving door employees?

Amanare v. Merrill, Lynch Joint Employer Theory Borrowed servant precedent. Same control test as for 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. Who’s the “employer?” If the employee sues, who’s the target?

Black v. Employee Solutions, Inc. Who Pays Wages Owed By a Bankrupt Employer?

Black v. Employee Solutions Where Did the Wages Go? Reason for CSX / ESI contract? Why does contract name ESI the “employer?” Why doesn’t ESI owe wages under contract? Under wage statute? Right result? Changes in facts reversing outcome? A shell game for employee wages?

Zheng v. Liberty Apparel Is ignorance an “employer’s” bliss?

Liberty As a Putative Employer In Zheng v. Liberty Apparel Contract v. statutory claim. Does usual joint employer theory work here? Economic realities? Is Liberty one enterprise with contractors? Potential effect of statutory suffer or permit rule? Liberty: “We’re shocked! Shocked!!”

Joint Employer Theory on Steroids For Outsourcing of Work? PE’s 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

Papa v. Katy Industries, Inc. Mom and Pop business? Or Corporate Empire?

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?

Single Employer Theory The Traditional 4-Factor Test Interrelation of operations Common management Common ownership Centralized control of labor relations. A few of Walsh’s “siblings”

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?

Posner’s Revised Test* In 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.

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.

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