Employment Issues Legal Resource Materials

Entrepreneurship Law Editorial Team

Books

Aspatore, Employing International Workers: Leading Lawyers on Navigating Compliance Requirements, Understanding Changing visa restrictions, and Leveraging the Latest Technology (2011).

Abstract (adapted from Amazon): Employing International Workers provides an authoritative, insider's perspective on the challenges facing U.S. companies with international workforces. Chapters include: Advising the Small Business Client: Needs, Expectations, and Reality. Top lawyers reveal strategies for bringing companies into compliance with new regulations and enforcement guidelines, and examine how the focus of the Department of Labor and Department of Homeland Security has changed under the current administration. From leveraging technology such as E-Verify to understanding key forms and filings, the authors also examine how to protect companies from investigations.Karen E. Ford, Kerry E.

James B. Bailey, Health Insurance and the Supply of Entrepreneurs: New Evidence from the Affordable Care Act's Dependent Coverage Mandate (2013), available at http://ssrn.com/abstract=2230099.

Abstract (by author): The difficulty and expense of purchasing health insurance as an individual or small business is claimed to be one major barrier to entrepreneurship in the United States. This paper takes advantage of the natural experiment provided by the Affordable Care Act's dependent coverage mandate, which allowed many19-25 year-olds to acquire health insurance independently of their employment, to estimate the number of potential entrepreneurs discouraged by the current system of employer-based health insurance. A difference-in-difference strategy finds that the dependent coverage mandate led to a 6-9% increase in self-employment among the treated group. The effect is found to be larger for women and for unincorporated businesses. An instrumental variables strategy finds that those actually receiving health insurance coverage as dependents were drastically more likely to start businesses.

Daniel V. Davidson & Lynn M. Forsythe, The Entrepreneur’s Legal Companion (2011).

Abstract:  Contents include supervising workers to reduce risks and complying with employment laws.

Karen E. Ford, Kerry E. Notestine & Richard N. Hill, Fundamentals of Employment Law (2d ed. 2000).

Abstract (from publisher): Last published in 1994, this revised and expanded guide provides an overview of current employment law and serves as an invaluable introduction to a rapidly expanding area of litigation. This book is a reference tool, a resource to point you in the right direction when researching employment law issues. Written by attorneys at a major employment law firm, the book offers a clear, concise look at key topics in the employment law field.

Notestine & Richard N. Hill, Fundamentals of Employment Law (2d ed. 2000).

Abstract (from publisher): Last published in 1994, this revised and expanded guide provides an overview of current employment law and serves as an invaluable introduction to a rapidly expanding area of litigation. This book is a reference tool, a resource to point you in the right direction when researching employment law issues. Written by attorneys at a major employment law firm, the book offers a clear, concise look at key topics in the employment law field.

Mark A. Rothstein, EMPLOYMENT LAW. (3d ed. 2005) (Hornbook).

The Growing Business Handbook:  Inspiration and Advice from Successful Entrepreneurs and Fast Growing UK Companies (Adam Jolly, ed., 3d ed. 2011).

Abstract:  Contents include: people and performance; real performance, real rewards; employment policies; taking on an employee; training for growth; find the best candidates in executive searches; improving workplace performance; the leadership process, and  partnerships and collaborations.

Articles

Robert W. Bednarzik, The Role of Entrepreneurship in U.S. and European Job Growth, 123 Monthly Lab. Rev. 3 (2000).

Abstract:  Entrepreneurial activity, which is higher in the United States than in Europe, is important to job growth, but not as important as job expansions in existing firms.

Marc Cowling & William D. Bygrave, Entrepreneurship, Welfare Provision, and Unemployment: Relationships between Unemployment, Welfare Provisions, and Entrepreneurship in Thirty-Seven Nations Participating in the Global Entrepreneurship Monitor (GEM) 2002, 28 Comp. Lab. L. & Pol'y J. 617 (2006-2007).

Abstract:   This paper studies the relationship between entrepreneurship and unemployment. We focus on Necessity TEA (total entrepreneurial activity for those individuals pushed into entrepreneurship because they have no better alternatives for work). We a priori predict that when unemployment is high, TEA (necessity) will be high as outside alternatives in the labor market diminish. Yet we also predict that this effect will be moderated in nations where unemployment benefits are high. In addition we focus on the composition of the stock of unemployed and how difficult, or easy, it is to start a new business. Both factors have been shown to be important in previous studies. Our findings offer some support for our a priori predictions, but show that the unemployment effect is far more complex than previously believed.

Dorcas R. Gilmore, Expanding Opportunities for Low-Income Youth: Making Space for Youth Entrepreneurship Legal Services, 18 J. Affordable Hous. & Cmty. Dev. L. 321 (2008-2009).

Abstract:   Young people in the United States are on the verge of losing the economic advantages gained by their parents. The loss of wealth resulting from the 2008 foreclosure crisis directly impacts intergenerational transfer of wealth. Parental net worth significantly affects the wealth prospects of children. In addition to parental wealth and income losses, youth are facing greater challenges to entering the labor market. The current economic downturn directly affects the employment prospects of low-income workers and youth workers. The employment rate for teens is at its lowest level in sixty years. Low-income youth are hardest hit by the racial wealth gap. Lack of employment disproportionately affects youth of color. For example, as few as 20 percent of black youth are employed at any one time. Racial economic disparities in employment opportunities, income, and wealth place low-income youth of color in the worst position with few employment options and no transfer of intergenerational wealth upon which to build. 

Mark A. Glumac, The Employee Free Choice Act: The Effect of Compulsory Interest Arbitration on Entrepreneurs, 5 Entrepreneurial Bus. L.J. 177 (2010).

Abstract (adapted from the Introduction): Imagine after all of the hard work and long hours to get a company up and running, your workers decide to unionize and it is time for you to begin negotiations for a collective bargaining agreement. The union decides that they would prefer not to reach an agreement through the traditional bargaining channels, believing instead that the workers would receive better terms if a third party imposed the initial agreement. Therefore, instead of following the typical protocol of using good faith bargaining to reach an agreement, the union stalls for ninety days. At this point, the government sends in an unaccountable third party with little knowledge of your business needs and desires or the needs and desires of the workers. Now both the employer and union are stuck with the terms reached by this arbitrator for a two-year period.  

Think about having the most important decisions about pay, hours, and benefits left in the hands of an unaccountable third party and the end-result is a collective bargaining agreement that neither involved party wants! These are the consequences of the impending passage of section (3) of the Employee Free Choice Act (EFCA). The Employee Free Choice Act has been gaining steam as it moves through the legislative process, and if the employees and employers of America do not make themselves heard soon, it could be too late. The passage of this act would be the first time that Congress updated and amended the NLRA in over a half century. When looking closely at the interest arbitration provision in section (3) of the EFCA, it becomes clear that this provision takes away the freedom to contract, an underlying principal in the economy. Instead, the statute favors a “more-efficient” system that forces the choice upon the employees and employers. Should we allow an unaccountable third party with limited knowledge of the business and workers' demands to make the ultimate decision? Before deciding, this paper will examine the act itself and the common problems that could arise under it.

Jeffrey M. Hirsch, Employee or Entrepreneur? 68 Wash. & Lee L. Rev. 353 (2011).

Abstract (from author): This comment on Micah Jost’s Note, Independent Contractors, Employees, and Entrepreneurialism Under the National Labor Relations Act: A Worker-by-Worker Approach, 66 Wash. & Lee L. Rev. 311 (2011) was part of the Washington and Lee Law Alumni ‚Ä®Association Student Notes Colloquium. In his Note, Jost addresses an increasingly problematic aspect of NLRA law: The ability and willingness of employers to exclude workers from coverage under the statute by classifying them as independent contractors. This problem has existed since the early days of the NLRA, but is worsening as a result of changes in the modern workplace. Adding fuel to this fire, and creating the impetus for Jost’s Note, is the D.C. Circuit’s new test that makes mere entrepreneurial opportunity the cornerstone of the employee/independent contractor analysis. This test defies both well-established precedent and the policies of the NLRA. Moreover, as Jost demonstrates, the common-law analysis - although superior to the D.C. Circuit’s formulation - is in dire need of reform itself. Ideally, this reform would be substantial, either through legislation or a new willingness by the Supreme Court to abandon a strict compliance with the common-law analysis. The result would hopefully produce a more flexible, policy- oriented definition of employee that - especially in combination with increased audits and penalties for misclassification, as well as more attempts to provide workers with the information and tools needed to challenge misclassifications - would better capture the type of employees that the NLRA was intended to cover. Only through such a change will the NLRA maintain relevance for a growing number of workers who look like employees but are now treated as independent contractors by their employers.

Micah Prieb Stoltzfus Jost, Independent Contractors, Employees, and Entrepreneurialism under the National Labor Relations Act: A Worker-By-Worker Approach, 68 Wash. & Lee L. Rev. 311 (2011).

Abstract (adapted from the Introduction): Where legal rights and protections are concerned, the difference between employees and independent contractors in American labor and employment law is monumental … Unfortunately, as a matter of classification, the difference can be elusive. … truckers, construction workers, package deliverers, taxi drivers, freelance artists, engineers, and many other types of workers may exhibit some characteristics associated with employee status, but in other ways resemble independent contractors … Thus the perennial question of how the law should classify workers “in the borderland between what is clearly an employer-employee relationship and what is clearly one of independent entrepreneurial dealing” stubbornly remains unsettled despite decades of debate in the courts, legislatures, and journals.   

… Employee/independent contractor status determinations frequently have been the subject of litigation--and less commonly legislation … In recent decades, the number of workers encompassed by the independent contractor label has steadily grown, as businesses have consciously restructured the work relationship away from the employment model to escape social responsibilities and achieve greater flexibility in a globalized economy. In the present economic downturn, this trend has accelerated significantly.   

This shift to independent contractor status in many cases consists, at the most basic level, of allowing workers to pay for the opportunity to work rather than paying them wages. The janitor who purchases a franchise to clean part of a building or the taxi driver who leases a cab for twelve- or sixteen-hour stretches  looks little different from a full-time employee doing the same work. Yet such arrangements deprive millions of low-skill, low-income workers of important rights and protections that the law grants only to employees. This Note focuses on recent developments and proposals for change regarding one specific statutory right--collective bargaining through a union--which is enjoyed by fewer and fewer American workers.

Seth R. Leech & Emma Greenwood, Keeping America Competitive: A Proposal to Eliminate the Employment-Based Immigrant Visa Quota, 3 Alb. Gov't L. Rev. 322 (2010).

 

Abstract (from authors): This Article advocates for the elimination of immigrant visa caps on the number of employment-based (EB) immigrants admitted as lawful permanent residents (green card holders) on an annual basis. These caps deter talented immigrants from migrating to the United States, making American companies less competitive. The proposed solution would allow the labor market and currently existing statutory provisions, rather than an artificial cap, to dictate the number of EB immigrants. This would ensure that U.S. employers are able to attract and keep the talent they need to compete in the global marketplace while protecting the American labor market from being flooded by unnecessary workers.

Craig S. Morford, Note, H To B Or Not To Be: What Gives Foreigners The Right To Come Here And Create American Jobs?, 6 Entrepren. Bus. L.J. 299 (2011).

Abstract (adapted from journal): Congress, realizing the growing importance of immigrant entrepreneurs, created a permanent allocation of H-1B visas for skilled workers in 1990. Since then, the program has fed skilled workers to top-tier U.S. technology companies and universities. Sponsoring employers are able to secure talented computer programmers and engineers from around the world. In fact, companies often seek foreigners through this program because they are unable to find Americans with the skills they need. However, while the current administration claims to be trying to lower administrative barriers, the reality is that it is harder than ever for companies to hire foreign technologists. As the debate rages on, technology companies must deal with stagnating H-1B cap levels, increasingly restrictive administrative rulings, court cases and attorney's fees. In fact, President Obama recently signed legislation that increases overall application fees, in addition to recently enacted administrative fees. High-tech companies, business leaders and venture capitalists are complaining that the new rules and regulations have made it increasingly difficult to hire the world's top talent and are lobbying Congress to curb fees and loosen restrictions. However, on the other side, proponents of the recently enacted regulations advocate for protecting jobs for American citizens. Politicians and interest groups are seeking more restrictions in response to their concern over displaced U.S. workers. The debate is not a new one--it has existed since the inception of the H-1B program. This article examines both the history of the H-1B program and the impact that recent changes in immigration policy will have on innovation and entrepreneurial business.

Frank H. Stephen et al., The Responsiveness of Entrepreneurs to Working Time Regulations, 32 Small Bus. Ec. 259 (2011), available at http://ssrn.com/abstract=1837240.

Abstract (adapted from authors): In this article, the authors analyse the impact of enforcement practices (proxied by judicial formalism) and the regulation of working time on entrepreneurial activity by opportunity. The authors find that higher enforcement formalism mitigates the negative impact exerted by rigid working time regulations on the number of entrepreneurs. While it is agreed that regulatory rigidities may increase labour transaction costs, the authors show that entrepreneurs are less sensitive to labour regulations the higher the level of enforcement formalism in which they operate. Higher formalism is associated with lower enforcing efficiency and lower probability of being punished for transgressing laws. A policy implication is that encouraging labour flexibility might not improve conditions for entrepreneurial activity in procedurally formalist countries. This is due to the fact that, in those countries, flexibility de facto characterises employment relations, no matter what the law says.

Deborah M. Weiss, Entrepreneurial Employees (2011), available at http://ssrn.com/abstract=1868646.

Abstract (from author): Several states including California restrict the ability of employers and employees to agree to post-employment covenants not to compete. Economic theory generally disfavors such restrictions, which may serve to protect various employer investments, However a number of observers have argued that such restrictions have served to create a climate of innovation in California. This paper examines this claim, arguing that most industries benefit from allowing covenants but there are positive effects to barring covenants in a select few industries where small firms innovate. In a federal system, the efficient legal regime is to have most states allow covenants and a few states restrict them. A clientele effect draws industries where small firms innovate to states that bar non-competes. Preliminary data analysis supports this view of the distribution of industries within the United States

Online Resources

 

International Entrepreneurship, Employment Issues.
http://www.internationalentrepreneurship.com/employment_issues.asp

United States Department of Labor, eLaws, employment laws assistance for workers and small businesses,
http://www.dol.gov/elaws/

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