Digital Commons Network^™

Caregivers In The Courtroom: The Growing Trend Of Family Responsibilities Discrimination, Joan C. Williams, Stephanie Bornstein

UF Law Faculty Publications

When people think of sex discrimination, they tend to think of glass-ceiling discrimination and sexual harassment. This article describes and documents a rapidly expanding area of employment discrimination law: family responsibilities discrimination, or "FRD." FRD is employment discrimination against people based on their caregiving responsibilities, whether for children, elderly parents, or ill partners. FRD includes both "maternal wall" discrimination -- the equivalent of the glass ceiling for mothers -- and discrimination against men who participate in childcare or provide care for other family members.

Re Canada Post Corp And Cupw, Innis Christie

Innis Christie Collection

The Union grieved that the Employer has not provided sunglasses to outside workers. The Union wishes a declaration that there was a breach of the Collective Agreement and the "Canada Labour Code" and also wants the Employer ordered to provide an allowance for the sunglasses. The Employer does not accept the Union's position.

The Rise And Fall Of Private Sector Unionism: What Next For The Nlra?, Jeffrey M. Hirsch, Barry T. Hirsch

ExpressO

In this Article, we ask whether the National Labor Relations Act, enacted over 70 years ago, can remain relevant in a competitive economy where nonunion employer discretion is the dominant form of workplace governance. The best opportunity for the NLRA’s continued relevance is the modification of its language and interpretation to enhance worker voice and participation in the nonunion private sector, without imposing undue costs on employers. Examples of such reforms include narrowing the NLRA’s company union prohibition; implementing a conditional deregulation system that relies on consent by an independent employee association; changing the labor law default to some form …

A Vague And Subjective Standard With Impractical Effects: The Need For Congressional Intervention After Burlington Northern & Santa Fe Railway Co. V. White, Lisa Durham Taylor

ExpressO

The anti-retaliation provision of Title VII of the Civil Rights Act of 1964 protects employees who report perceived workplace discrimination or who otherwise participate in the investigative or enforcement process of alleged Title VII discrimination. The statute provides little guidance, however, as to the scope of this protection. Thus, disagreement abounded among the lower federal courts, not only as to whether the anti-retaliation provision prohibited employer acts outside the workplace as well as within, but also as to the level of severity to which an alleged retaliatory act must rise in order to support a claim. The Supreme Court sought …

Form And Substance: Standards For Promotion And Retention Of Legal Writing Faculty On Clinical Tenure Track, Melissa H. Weresh

ExpressO

This article compares standards for promotion and retention of legal writing faculty on a clinical tenure track. The article provides a brief history of legal writing professionals and examines specific employment criteria such as teaching, service, and scholarship. The article makes recommendations regarding those criteria based upon an assessment of institutional realities and the historical development of the profession.

The United Kingdom Flexible Working Act, Georgetown Federal Legislation Clinic

Memos and Fact Sheets

In 2002, the United Kingdom passed new legislation granting employees with young or disabled children the right to request flexible work arrangements from their employers. The law does not guarantee a right to flexible working but seeks to increase flexibility in UK workplaces by requiring a process for negotiation between employees and employers. Stated simply, that process places the initial responsibility on the employee to propose a new work arrangement and explain its potential impact on the employer. The employee and employer must then consider the request together, and the employer may refuse the request only for certain business reasons.

Short Term Time Off: The Current State Of Play, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

Many people think of workplace flexibility as flexibility that is provided on a long term, regular basis — for example, flexibility provided through alternative work schedules, compressed workweeks, or part time positions. Under Workplace Flexibility 2010’s conceptualization, however, workplace flexibility also includes the ability to address day-to-day life needs on a short term basis.

Short term needs for flexibility are numerous: to recover from an illness; take care of a sick child; attend a school conference, funeral or medical appointment; wait for a repair person; or appear in court. Some needs may be anticipated; others will arise unexpectedly.

Flexible Work Arrangements: The Overview Memo, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

Many employees today have ongoing, predictable demands on their time outside of work. These demands may include dependent children, an ill family member, a long commute, a desire for increased education, or a commitment to community or religious activities. To meet these demands, and to get a paying job done, such individuals often need to work at a different time or in a different place than the traditional “9 am to 5 pm, five days/week, face time at the workplace” rubric.

In response to employee and employer needs and preferences, some employers provide what we call “Flexible placethat work gets …

Flexible Work Arrangements: Selected Case Studies, Jean Flatley Mcguire, Phyllis Brashler

Memos and Fact Sheets

Employees have shown a great desire for flexible work arrangements (FWAs). National data reveals that nearly 80% of workers say they would like to have more flexible work options and would use them if there were no negative consequences at work. However, most workers do not have access to flexible work arrangements and barriers to their effective implementation persist in many organizations as the following nationally representative employer-based survey data reveals.

Corporations And Social Costs: The Wal-Mart Case Study, Benedict Sheehy

ExpressO

This article examines the role of the corporate vehicle in the creation of social costs. The article identifies some of the political commitments and philosophies behind the differing notions of corporations. Social costs are those activities which result from business activity and cause uncompensated harm to society. The founding contribution to the law and economics discussion by Ronald Coase is given a thorough treatment. The paper next, turns to the dominant explanation of corporate structure, namely the law and economics model developed expounded by Easterbrook and Fischel. It then applies the theoretical discussion in a case study of the world’s …

Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice

ExpressO

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested to some that without a …

The "American Rule" That Swallows The Exception, Joseph E. Slater

ExpressO

The “American” rule of employment at-will cripples the effectiveness of the two most important exceptions to that doctrine, the National Labor Relations Act and Title VII. Scholars often cite at-will as an area in which exceptions swallow the rule but ignore the opposite effect the rule has in undermining rights widely viewed as fundamental. This article goes beyond the standard critiques of the NLRA and Title VII and uses two other areas of law to make this case. The impact of at-will on private sector labor rights under the NLRA is shown by comparing public sector employment. Public sector labor …

Revisiting The Scrap Heap: The Decline And Fall Of Smith V. F.W. Morse & Co., Parker B. Potter Jr.

The University of New Hampshire Law Review

[Excerpt] "One of the more difficult tasks facing a federal court is trying to predict how a state’s highest court would rule on a question of law it has not yet addressed. That difficulty is well illustrated by the history of Wenners v. Great State Beverages, Inc., and in particular, the interpretation of that opinion contained in Smith v. F.W. Morse & Co. [ . . . ]

This article begins with a close examination of Wenners and the two opinions on which Wenners relied for its now-canonical statement of the relationship between statutory and common law remedies. I continue …

Bizarro Statutory Stare Decisis, Jamie D. Prenkert

ExpressO

In Smith v. City of Jackson, the Supreme Court applied to the Age Discrimination in Employment Act one of its decisions interpreting Title VII of the 1964 Civil Rights Act, which Congress had overridden with the Civil Rights Act of 1991. It treated Wards Cove Packing Co. v. Atonio, dealing with disparate impact theory and burdens of proof, as a binding interpretation of the ADEA, despite that Congress expressed disapproval of Wards Cove. The Court relied on two interpretive approaches to arrive at this result: the presumption that identical language in the ADEA and Title VII should be interpreted consistently …

The Union Workplace Meets Big Brother: Advising Clients On Employer Conduct With Regard To Hidden Surveillance, Jamila Asha Johnson

Washington Journal of Law, Technology & Arts

Hidden cameras may guide a union employer to find employee misconduct, but at what cost? Since the late 1990s, two federal appeals courts and the National Labor Relations Board (NLRB) have required employers to bargain with unions before using hidden video surveillance to observe employees. Until more recently, however, it was less apparent how lawyers should advise clients when an employer wished to use hidden cameras or had already installed non-disclosed video surveillance. In August 2005, the D.C. Circuit Court of Appeals decided a case surrounding surveillance at an Anheuser-Busch facility, which provided further guidance on these issues. This Article …

Recent Defined Benefit Pension Reform: Reasons And Results, Daniel B. Klaff

ExpressO

In the face of corporate bankruptcies, the Pension Benefit Guaranty Corporation (“PBGC”) assures workers that their defined benefit pensions will be protected. It is this fact which has motivated recent reform of the PBGC and the overarching defined benefit plan system by Congress. This paper explores those reforms by addressing the reasons for and results of the most recent reform which had as its primary aim restoring the fiscal solvency of the PBGC. The paper challenges popular accounts of the reform process while examining the results of such reform for important stakeholders without resorting to an overly technical discussion of …

Judith Johnson Ada Article, Judith Johnson

ExpressO

No abstract provided.

Volunteer Discrimination, Angela Onwuachi-Willig

ExpressO

This Essay analyzes a debate regarding the potential racial motivations behind the new National Basketball Association (NBA) Dress Code. Specifically, this Essay examines whether the defense of the new NBA dress code by some Blacks—as pure business, free from racial discrimination—should be viewed as action negating other Blacks’ claims of improper racial motivation behind the policy. I contend that, rather than negating allegations of racism, the reactions of the policy-defending black NBA athletes and leaders only highlight the immense pressures that Blacks have in our society to perform their identity in a way that is racially palatable. In particular, I …

Charter Schools And Collective Bargaining: Compatible Marriage Or Illegitimate Relationship, Martin H. Malin, Charles Taylor Kerchner

ExpressO

The rapid increase in charter schools has been fueled by the view that traditional public schools have failed because of their monopoly on public education. Charter schools, freed from the bureaucratic regulation that dominates traditional public schools, are viewed as agents of change that will shock traditional public schools out of their complacency. Among the features of the failed status quo are teacher tenure, uniform salary grids and strict work rules, matters that teacher unions hold dear. Yet unions have begun organizing teacher in charter schools. This development prompts the question whether unionization and charter schools are compatible.

In contrast …

Justice On The Job: Perspectives On The Erosion Of Collective Bargaining In The United States, Richard N. Block Editor, Sheldon Friedman Editor, Michelle Kaminski Editor, Andy Levin Editor

Upjohn Press

This volume presents an influential group of researchers who examine the current state of workers’ freedom to form unions and bargain collectively. All of the researchers present empirical evidence to support their innovative ideas for advancing workers' rights.

Re Canada Post Corp And Cupw (Betts), Innis Christie

Innis Christie Collection

The Union claims that the discharge of the Grievor was without sufficient cause. The Union raised a preliminary objection; stating that the letter of termination did not disclose sufficient reason to support dismissal. The Union also believed too much time had lapse between the offense and the discharge letter.

Reasonable Burdens: Resolving The Conflict Between Disabled Employees And Their Co-Workers, Nicole Porter

ExpressO

This Article addresses one of the most difficult issues under the reasonable accommodation provision of the Americans with Disabilities Act (ADA): how to resolve the conflict that arises when accommodating a disabled employee negatively affects or interferes with the rights of other employees. Several scholars and the Supreme Court (in US Airways v. Barnett) have weighed in on this debate but their analyses fall short of the ultimate goal of this Article—to achieve equal opportunity for individuals with disabilities without unnecessarily interfering with the rights of other employees. In order to achieve that goal, this Article proposes a statutory amendment …

Re Izaak Walton Killam Health Centre And Nsgeu (P-05121), Innis Christie

Innis Christie Collection

This is a union policy grievance regarding the Employer's approach to the compensation of employees for time lost on storm days. The Employer was compensating only if the time lost was for less than two hours. The Union believed that the Employer should pay for the first two hours. The Union seeks full redress, including retroactive compensation. The Employer agreed to the requested remedy if the Grievance is successful.

The grievance fails. The Union could not prove its interpretation of the relevant clauses of the Collective Agreement.

If You Work For The Government, Then Shut Your Mouth: Garcetti V. Ceballos And The Future Of Public Employee Speech, Joseph E. Hardgrave

ExpressO

This article dismantles the majority's reasoning in Garcetti v. Ceballos. A theory is proposed to why the Court broke with prior precedence and the sweeping effect of the ambigous holding is examined.

Federal Employment Law: Current Problems And A Call For Reform, Joseph Prud'homme

Journal of Race, Gender, and Ethnicity

No abstract provided.

Data Note: Wia Employment Outcomes, Frank A. Smith

Data Note Series, Institute for Community Inclusion

The Workforce Investment Act (WIA) requires One-Stop system partners who provide employment services funded by the U.S. Department of Labor to report data on performance measures. These data include the rate of customers entering employment, their employment retention rate, and their rate of earning a work credential. WIA tracks a number of funding streams for different audiences. This Data Note focuses on adults in the general population and dislocated workers.

Sox, Statutory Interpretation, And The Seventh Amendment: Sarbanes-Oxley Act Whistleblower Claims And Jury Trials, Jarod S. Gonzalez

ExpressO

Section 806 of the Sarbanes-Oxley Act of 2002 prohibits a publicly-traded company from retaliating against an employee whistleblower who reports suspected corporate fraud to a company supervisor or to a governmental entity. The SOX whistleblower provision is unique in employment discrimination law in that Congress adopted a two-track civil enforcement system for whistleblowers. A complainant must initially pursue a claim in a Department of Labor administrative proceeding. The administrative proceeding involves a trial-like hearing before an administrative law judge and review of the judge's decision by the Administrative Review Board. However, if the Department of Labor does not make a …

As The Enterprise Wheel Turns: New Evidence On The Finality Of Labor Arbitration Awards, Michael H. Leroy

ExpressO

Our study examines 281 federal court decisions from April 2001- May 2006 that ruled on challenges to labor arbitration awards. These award appeals are regulated by the Supreme Court’s Enterprise Wheel decision. District courts confirmed 77.6% of challenged awards, an increase of about 7 percentage points compared to our earlier studies of litigated awards from 1960 - 2001. The result was very similar for appellate cases— a confirmation rate of 76.3%, and nearly the same gain in percentage points.

These results clearly suggest that the Supreme Court’s rebuke of lower courts in Eastern Associated Coal Corp. (2000) and Garvey (2001) …

Don't Mourn --- Reorganize! An Introduction To The Next Wave Organizing Symposium Issue, Seth Harris

ExpressO

On January 27 and 28, 2005, New York Law School’s Labor & Employment Law Program, in cooperation with the Justice Action Center and the Institute for Information Law & Policy, presented the Next Wave Organizing Symposium. The Symposium brought together worker organizers, trade union officials, technologists, students, and scholars in law, industrial relations, economics, public policy, and other fields to tell the story of how, despite all of the forces arrayed against them, workers are organizing.

This article is the introduction to the Next Wave Organizing Symposium issue of the New York Law School Law Review. The purpose of the …

Compulsory Unionism As A Fraternal Conceit?, Harry G. Hutchison

ExpressO

With the publication of Free Choice for Workers: a History of the Right to Work Movement, George Leef reexamines compulsory labor unions and to contest the justification offered in support of America’s labor laws. Leef’s perspective delegitimizes compulsory unionism on ethical and empirical grounds. Demonstrating that statutory compulsion fails to direct society toward progress, the book reveals that the road to serfdom can often be paved by bureaucratic regulation. Carefully examining history and contemporary events, this book contributes to the richly textured debate about the normative role of unions in a putatively free society. George Leef’s reassessment offers an essentially …