Labor and Employment Law Foundations
This domain tests whether you can identify the source of a workplace obligation, pick the forum that hears it, and route a claim to the correct statute before you argue the merits. Most marks are lost here by candidates who analyze facts before asking "which law governs?"
The default rule and its exception layers
Except in Montana, employment is at will: either party may end it at any time for any lawful reason. Every other doctrine in this exam is an exception stacked on that rule - contract, tort, statute, regulation, and preemption.
- Common law: express and implied contracts (handbooks, offer letters), torts (defamation, negligent hiring), the employee's duty of loyalty.
- Statutes: FLSA, NLRA, Title VII, ADEA, ADA, FMLA, ERISA, OSH Act, WARN, USERRA, plus state wage, leave, and whistleblower acts.
- Preemption: Garmon and Machinists for conduct touching NLRA jurisdiction; ERISA §514 preempts state laws that "relate to" benefit plans; LMRA §301 channels contract disputes to federal court.
- Who counts as an employee: common-law agency factors (Darden), economic realities under the FLSA, the ABC test in several states, and joint-employment analysis for staffing and franchise structures.
Worked example
A warehouse associate in Illinois is discharged two days after reporting a back injury and filing a workers' compensation claim. She has no contract and her handbook is expressly discretionary. At-will status defeats a contract claim, but Illinois recognizes the tort of retaliatory discharge for exercising a statutory right; she must plead employment, exercise of the right, causation, and discharge. She may also file an OSH Act §11(c) retaliation complaint if she reported a hazard, but that deadline is 30 days. The tort claim goes to state court; the federal claim goes to OSHA. The employer's "no reason needed" defense fails because the two-day gap plus a supervisor's recorded comment supports causation.
Traps that cost marks
- Treating at-will as a bar to all claims; it is only a bar to claims requiring a contract or a prohibited reason.
- Missing short administrative deadlines (OSHA 30 days; EEOC 180/300 days) before filing suit.
- Assuming a handbook disclaimer automatically defeats an implied-contract theory.
- Forgetting that preemption can move an apparently state-law claim into a federal forum.