American Employment Law
Professor Kenneth G. Dau-Schmidt
Indiana University—Bloomington

General Description

This course will present an overview of the common law and statutes governing employment contracts in the United States. The course will cover: a brief history of the employment relationship in the United States; the legal definition of “employee”; pre-employment background checks and drug testing; contract formation including the employment at-will doctrine and unilateral offer and acceptance; termination including the exceptions to the employment at-will doctrine for discharges in violation of public policy and the implied covenant of good faith and fair dealing; obligations of employees including the duty of loyalty, covenants not to compete and creative work; monitoring and control of employees including personal relationships, political speech and workplace speech.

Course Text: K. Dau-Schmidt, et al, Legal Protection of the Individual Employee (5th ed. 2016)

Lecture 1
A brief history of the employment relationship in the United States.
The Definition of Employee
Readings: Text pages 1-44
The Problem of “Misclassification” or How to define who is an “Employee” Under Protective Legislation in the Information Age, in THE CAMBRIDGE HANDBOOK OF U.S. LABOR LAW: REVIVING AMERICAN LABOR FOR A 21ST CENTURY ECONOMY (Cambridge University Press, Richard Bales & Charlotte Garden, eds., publication anticipated spring 2019).


Lecture 2
Job Screening
Background Checks
Drug Testing
Readings: Text p. 71-101

Lecture 3
The common law of the employment contract
Employment at-will
Unilateral offer and acceptance
The formation of the employment contract.
Readings: Text p. 113-147

Lecture 4
Termination of Employment
Application of the At-will Rule
Exceptions to the At-will Rule
Discharge in Violation of Public Policy
Breach of the Implied Covenant of Good Faith and Fair Dealing
Readings: Text p. 351-397, 407-418


Lecture 5
Obligations of Employees
The Duty of Loyalty
Trade Secrets
Covenants not to Compete
Employee Creative Work
Readings: Text p. 181-208

Lecture 6
Monitoring and Control
Video
Electronic Monitoring
Control of Employees
Personal Relationships
Political Speech
Workplace Speech
Readings: Text p. 219-263