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Full-Text Articles in Labor Relations

Dealing With Shifting Labor Employment Sands, David S. Sherwyn Aug 2016

Dealing With Shifting Labor Employment Sands, David S. Sherwyn

Center for Hospitality Research Reports

Changes in regulations and tighter interpretations of existing regulations engaged participants in 14th annual Labor and Employment Roundtable, hosted by the Cornell Institute for Hospitality Labor and Employment Relations. They also reviewed changes in union organizing rules. Two Supreme Court decisions dealt with the challenging application of accommodating workers’ health and religious needs, while a new ruling by the National Labor Relations Board calls into question the supposedly arm’s length relationship of employee leasing firms and their clients, as well as franchisors and franchisees. The NLRB also has shortened the campaign time for union elections. In one Supreme Court ...


Who Are My Employees?, Paul L. Bressan, Ruth L. Seroussi, Buchalternemer Nov 2015

Who Are My Employees?, Paul L. Bressan, Ruth L. Seroussi, Buchalternemer

CIHLER: From Our Members

The legal landscape for employers is changing. Led by the National Labor Relations Board (the “NLRB”), there is a growing trend to hold employers accountable, not only for their own employees, but also for the employees of their contractors, franchisees, and others with whom they do business. This increased accountability results from the expanding definition of “joint employer.”


It Is Time For Something New: A 21st Century Joint-Employer Doctrine For 21st Century Franchising, Steven A. Carvell, David S. Sherwyn Jan 2015

It Is Time For Something New: A 21st Century Joint-Employer Doctrine For 21st Century Franchising, Steven A. Carvell, David S. Sherwyn

Articles and Chapters

[Excerpt] The joint-employer doctrine is perhaps the hottest issue in labor and employment law for 2015 and the foreseeable future. In the September 2015 Browning-Ferris ("BFI”) decision, the National Labor Relations Board (the "NLRB" or the "Board"), the administrative agency that enforces the National Labor Relations Act (the "NLRA" or the "Act"), issued what is expected to be the first of two decisions, expanding the joint-employer doctrine. In the BFI decision, the so-called putative employer (e.g., the lessor of employees or a franchisor) is now considered the employer of individuals who had in the past been considered employees of ...


Arbitration: A Positive Employment Tool And Potential Antidote To Class Actions, Gregg A. Gilman, David Sherwyn J.D. Mar 2014

Arbitration: A Positive Employment Tool And Potential Antidote To Class Actions, Gregg A. Gilman, David Sherwyn J.D.

Center for Innovative Hospitality Labor and Employment Relations Reports

More than two years have elapsed since employers let out a sigh of relief when the Supreme Court overturned the 9th Circuit decision in Wal-Mart v. Dukes and decertified the class of plaintiffs suing Wal-Mart, the nation’s largest employer, for sex discrimination.1 The class consisted of approximately 1.5 million of the retailer’s former and current female employees.2 While the details of the lower and Supreme Court decisions are beyond the scope of this paper, the lesson for many employers was the fear that class actions, regardless of merit, could put an entire company at risk ...


Choosing Union Representation: The Role Of Attitudes And Emotions, Adrienne E. Eaton, Sean Rogers Ph.D., Tracy F. H. Chang, Paula B. Voos Mar 2014

Choosing Union Representation: The Role Of Attitudes And Emotions, Adrienne E. Eaton, Sean Rogers Ph.D., Tracy F. H. Chang, Paula B. Voos

Articles and Chapters

In the United States, most unions are recognized by a majority vote of employees through union representation elections administered by the government. Most empirical studies of individual voting behavior during union representation elections use a rational choice model. Recently, however, some have posited that voting is often influenced by emotions. We evaluate competing hypotheses about the determinants of union voting behavior by using data collected from a 2010 representation election at Delta Air Lines, a US-based company. In addition to the older rational choice framework, multiple regression results provide support for an emotional choice model. Positive feelings toward the employer ...


The National Labor Relations Act Is Not Just For Unionized Employers Anymore, Adam Klauser J.D., Paul Salvatore, David Sherwyn J.D. Nov 2013

The National Labor Relations Act Is Not Just For Unionized Employers Anymore, Adam Klauser J.D., Paul Salvatore, David Sherwyn J.D.

Center for Innovative Hospitality Labor and Employment Relations Reports

The National Labor Relations Act (NLRA) provides employees with the right to engage in “protected concerted activity,” including the right to discuss wages, hours, and terms and conditions of employment. It is often considered the “union law” in that it provides employees with the right to form a union and it regulates the union–management relationship. Because of this strong association with unions, non-union employers’ human resource directors rarely think of the act when making decisions on whom to hire, fire, promote, demote, or discipline. While it was true that in the past the National Labor Relations Board (NLRB, the ...


Effects Of Unionization On Graduate Student Employees: Faculty-Student Relations, Academic Freedom, And Pay, Sean Rogers, Adrienne E. Eaton, Paula B. Voos Apr 2013

Effects Of Unionization On Graduate Student Employees: Faculty-Student Relations, Academic Freedom, And Pay, Sean Rogers, Adrienne E. Eaton, Paula B. Voos

Articles and Chapters

In cases involving unionization of graduate student research and teaching assistants at private U.S. universities, the National Labor Relations Board has, at times, denied collective bargaining rights on the presumption that unionization would harm faculty-student relations and academic freedom. Using survey data collected from PhD students in five academic disciplines across eight public U.S. universities, the authors compare represented and non-represented graduate student employees in terms of faculty-student relations, academic freedom, and pay. Unionization does not have the presumed negative effect on student outcomes, and in some cases has a positive effect. Union-represented graduate student employees report higher ...


How Employment Law Became A Major Issue For Hotel Operators, David Sherwyn Feb 2010

How Employment Law Became A Major Issue For Hotel Operators, David Sherwyn

Articles and Chapters

In the wake of new statutes and case law, issues relating to discrimination have expanded in the past twenty-five years to absorb a substantial amount of management time and attention. The basic law of discrimination is the Civil Rights Act of 1964, which created specific protect classes. That law was revised and expanded in 1991, and other causes of discrimination were added by such laws as the Americans with Disabilities Act and the Age Discrimination in Employment Act. Supreme Court decisions have clarified and expanded certain aspects of the laws, notably the definition of sexual harassment. Perhaps the fastest-growing complaint ...


Roundtable Retrospective 2007: Dealing With Sexual Harassment, David Sherwyn Feb 2008

Roundtable Retrospective 2007: Dealing With Sexual Harassment, David Sherwyn

Articles and Chapters

A review of sexual harassment case law was presented at the 2007 Labor and Employment Roundtable at the Cornell University School of Hotel Administration. The foremost lesson is that employers should take steps to prevent harassment, but failing that, an employer should maintain and follow a strong policy on sexual harassment and immediately make an effective response to a complaint.


You (Don’T) Look Marvelous: Considerations For Employers Regulating Employee Appearance, G. Roger King, Jeffrey D. Winchester, David Sherwyn Nov 2006

You (Don’T) Look Marvelous: Considerations For Employers Regulating Employee Appearance, G. Roger King, Jeffrey D. Winchester, David Sherwyn

Articles and Chapters

Under federal law, employers are generally allowed to set policies regulating employees’ appearance, provided that those policies do not impinge on groups specifically protected under federal statute. State and local laws, however, may preclude employers from implementing such dress and appearance policies. Employers whose workers are unionized must consider the provisions of the bargaining agreement. One trend in connection with regulations relating to employees’ appearance and dress is that creative lawyers have stretched the law to cover certain workers.


The Hotel Industry’S Summer Of 2006: A Watershed Moment For America’S Labor Unions?, David Sherwyn, Zev Eigen, Paul Wagner Nov 2006

The Hotel Industry’S Summer Of 2006: A Watershed Moment For America’S Labor Unions?, David Sherwyn, Zev Eigen, Paul Wagner

Articles and Chapters

Neutrality agreements allow labor unions to organize workers in hotels and other industries without the trouble of a secret-ballot election. UNITE HERE, which represents hotel employees in several major markets, attempted in summer 2006 to extend its reach into the industry via neutrality agreements. The union contracts expired in several markets, which meant that the hotel chains were faced with the possibility of labor strife in their major cities. In exchange for labor peace, the chains agreed to a moderate extension of organizing by neutrality agreement, but not to the extent that the union might have wished.


Retaliation: The Fastest-Growing Discrimination Claim, David Sherwyn, Zev Eigen, Gregg Gilman Nov 2006

Retaliation: The Fastest-Growing Discrimination Claim, David Sherwyn, Zev Eigen, Gregg Gilman

Articles and Chapters

Many employers were shocked and alarmed when the U.S. Supreme Court in June 2006 unanimously established a relatively broad standard regarding employees’ complaints of retaliation by employers when employees have made discrimination complaints. An examination of case law as well as comments made by those attending the 2006 Labor and Employment Law Roundtable at the Cornell University School of Hotel Administration allow us to conclude that although employees who make complaints need to be treated carefully, employers need not panic. Instead, they must thoroughly document any personnel actions and base them on actual performance, making sure that any termination ...


Trying To Make Sense Of Sexual Harassment Law After Oncale, Holman, And Rene, David Sherwyn, Paul Wagner, Gregg Gilman May 2004

Trying To Make Sense Of Sexual Harassment Law After Oncale, Holman, And Rene, David Sherwyn, Paul Wagner, Gregg Gilman

Articles and Chapters

The state of the law governing sexual harassment, which was far from clear, was rendered more turbid by a 1998 U.S. Supreme Court holding that offered examples of specific situations under which such harassment might be actionable. The Court’s ruling in a case of same-sex harassment has muddied the waters by opening the issue of the alleged harasser’s motivation.

This provides a defense for harassers who may rebut the accusation that their actions are motivated by sexual interests. In addition to making same-sex harassment difficult to prove, this holding makes it nearly impossible for an individual to ...


The Mixed Motive Instruction: Did The Supreme Court Make Discrimination Cases Unwinnable For Employers?, David Sherwyn, Paul Wagner, Joe Baumgarten May 2004

The Mixed Motive Instruction: Did The Supreme Court Make Discrimination Cases Unwinnable For Employers?, David Sherwyn, Paul Wagner, Joe Baumgarten

Articles and Chapters

Following a 2003 U.S. Supreme Court decision, employers face the prospect of fighting employment discrimination cases that they cannot afford to win. A decision involving Caesars Palace held that based on a 1991 federal statute, a complaining employee need not give direct evidence of discrimination as part of the complaint. This is a change in the treatment formerly given to the so-called mixed motive concept, in which a personnel decision regarding an employee who is part of a protected class may be motivated by both legitimate business considerations and discrimination. In addition to apparently shifting the burden of proof ...


Arbitration Of Employment-Discrimination Lawsuits: Legalities, Practicalities, And Realities, David Sherwyn Dec 2002

Arbitration Of Employment-Discrimination Lawsuits: Legalities, Practicalities, And Realities, David Sherwyn

Articles and Chapters

Arbitration agreements can be an effective, cost-effective way to settle employment disputes-but not all courts agree about what constitutes an enforceable contract.


Mandatory Arbitration Of Employment Disputes: Implications For Policy And Practice, David Sherwyn, J. Bruce Tracey Oct 2001

Mandatory Arbitration Of Employment Disputes: Implications For Policy And Practice, David Sherwyn, J. Bruce Tracey

Articles and Chapters

In jurisdictions where mandatory-arbitration policies for employment disputes are enforceable, they can be a useful tool for employers and employees alike.


Identifying Uniform Employment-Termination Practices For Multinational Employers, James J. Zueh, David Sherwyn Oct 2001

Identifying Uniform Employment-Termination Practices For Multinational Employers, James J. Zueh, David Sherwyn

Articles and Chapters

Multinational hospitality operators can benefit from developing a uniform termination policy. Here are some of the basic criteria of such a policy, as well as the exceptions.


Same-Sex Sexual Harassment: How The "Equal Opportunity Harasser" Became A Legitimate Defense, David Sherwyn, Ezekiel A. Kaufman, Adam A. Klausner Dec 2000

Same-Sex Sexual Harassment: How The "Equal Opportunity Harasser" Became A Legitimate Defense, David Sherwyn, Ezekiel A. Kaufman, Adam A. Klausner

Articles and Chapters

This article provides a quick history of sexual-harassment law and looks at the appellate-court opinions that came before the U.S. Supreme Court ruling in a same-sex sexual-harassment case. That latter decision has given rise to the relatively novel equal-opportunity-harasser defense, whereby harassing conduct directed at both men and women, no matter how outrageous, may not be unlawful at all. The reason is that the Supreme Court previously established that sexual harassment must be "because of sex," and failure to prove that gender-related component will automatically disqualify claims for quid pro quo or hostile-work-environment sexual harassment, as indicated by the ...


Interpreting The Ada And Civil Rights Law: Five Supreme Court Rulings, David Sherwyn, Zev J. Eigen, Adam A. Klausner Feb 2000

Interpreting The Ada And Civil Rights Law: Five Supreme Court Rulings, David Sherwyn, Zev J. Eigen, Adam A. Klausner

Articles and Chapters

Although one could say that employers found some clarification in human-resources law in 1999, certain complications still remain.


The Good, The Bad, And The Ugly: The Peculiar Discrimination Case Of Joe’S Stone Crabs, David Sherwyn, Melenie J. Lankau Oct 1999

The Good, The Bad, And The Ugly: The Peculiar Discrimination Case Of Joe’S Stone Crabs, David Sherwyn, Melenie J. Lankau

Articles and Chapters

Joe's tried to be good, but the government said it was bad. The result was ugly.


In Defense Of Mandatory Arbitration Of Employment Disputes: Saving The Baby, Tossing Out The Bath Water, And Constructing A New Sink In The Process, David S. Sherwyn, J. Bruce Tracey, Zev J. Eigen Jan 1999

In Defense Of Mandatory Arbitration Of Employment Disputes: Saving The Baby, Tossing Out The Bath Water, And Constructing A New Sink In The Process, David S. Sherwyn, J. Bruce Tracey, Zev J. Eigen

Articles and Chapters

[Excerpt] In its 1991 Gilmer v. Interstate/Johnson Lane Corp.decision, the Supreme Court held that employers could require as a condition of employment that employees agree to arbitrate their Age Discrimination in Employment Act ("ADEA") claims unless the employees could prove that Congress had "evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Subsequently, lower courts extended Gilmer to cover other discrimination claims, including those arising under Title VII of the Civil Rights Act of 1964("Title VII") and the Americans with Disabilities Act("ADA"). In its 1998 Duffield v. Robertson Stephens ...


Sexual-Harassment Liability In 1998: Good News Or Bad News For Employers And Employees?, David Sherwyn, J. Bruce Tracey Oct 1998

Sexual-Harassment Liability In 1998: Good News Or Bad News For Employers And Employees?, David Sherwyn, J. Bruce Tracey

Articles and Chapters

In June 1998 the U.S. Supreme Court issued three separate rulings regarding workplace sexual harassment. In an apparent victory for employers, the court ruled in one case that a victim must actually suffer a tangible loss (i.e., a demotion or unwelcome transfer) to establish a case for quid pro quo harassment. The court affirmed, moreover, that employers can absolve themselves of liability in hostile-environment cases by establishing a meaningful and effective policy against sexual harassment. Absent a meaningful policy, however, employers will be liable for a hostile environment created by supervisors. Thus, in another case, the court found ...