What this course is. This course surveys American employment law, with an emphasis on California law. We will not take a chronological, cradle to grave (i.e., hiring to firing) approach. Instead, we will address the subject as practicing lawyers typically view it, starting with major definitional questions like “who is an employee,” and what distinguishes employees from independent contractors (and why this matters so much to Uber drivers and others in the gig economy). We will then explore the major themes in employment law: the “at-will” doctrine and the right to terminate employment, the rights of whistleblowers, statutory guarantees for fair pay and decent working conditions, the common law duty of loyalty, employee rights to workplace privacy, and post-employment restrictive covenants such as no-compete agreements and trade secret disclosure limitations. Throughout, we will try to keep an eye on how these doctrines differ between the public and private sectors, and whether enforcement is available to private parties or limited to government agencies.
In studying these issues, we will explore the history of our employment law system, try to identify winners and losers, and consider how general economic developments impact the structure of workplace regulation. We will also discuss how practicing employment lawyers negotiate through the tangled network of employment regulation when devising litigation strategies.
What this course is not. We will not cover – except tangentially – traditional “labor law,” which involves labor unions and collective bargaining, anti-discrimination law, and arbitration law, all of which are covered by other courses.