Law Commons^™

Individual Home-Work Assignments For State Taxes, Hayes R. Holderness

Washington Law Review

The surge in work-from-home arrangements brought on by the COVID-19 pandemic threatens serious disruptions to state tax systems. Billions of dollars are at stake at this pivotal moment as states grapple with where to assign income earned through these remote work arrangements for tax purposes: the worker’s home or the employer’s location? Some states—intent on modernizing their income tax laws—have assigned such income to the employer’s location, but have faced persistent challenges on both constitutional and policy grounds in response.

This Article provides a vigorous defense against such challenges. The Supreme Court has long interpreted the Constitution to be deferential …

Beyond Title Vii: Litigating Harassment By Nonemployees Under The Ada And Adea, Kate Bradley

Washington Law Review

Employees in the United States are protected from unlawful harassment that rises to the level of a “hostile work environment.” Federal circuits recognize that employers could be liable under Title VII when their employees experience hostile work environments because of harassment from nonemployees. However, outside of Title VII, not all federal circuits have recognized that the Americans with Disabilities Act of 1990 (ADA) and Age Discrimination in Employment Act of 1967 (ADEA) protect employees from hostile work environments.

As a result, employees are vulnerable with respect to age and disability-based harassment. This Comment argues that all federal circuits should allow …

Sex Trait Discrimination: Intersex People And Title Vii After Bostock V. Clayton County, Sam Parry

Washington Law Review

Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination and harassment on account of sex. Courts have historically failed to extend Title VII protections to LGBTQ+ people. However, in 2020, the U.S. Supreme Court decision in Bostock v. Clayton County changed this. Bostock explicitly extended Title VII’s protections against workplace discrimination to “homosexual” and “transgender” people, reasoning that it is impossible to discriminate against an employee for being gay or transgender without taking the employee’s sex into account. While Bostock is a win for LGBTQ+ rights, the opinion leaves several questions unanswered. The reasoning in …

Qualified Sovereignty, Kate Sablosky Elengold, Jonathan D. Glater

Washington Law Review

Sometimes acts of the federal government cause harm; sometimes acts of contractors hired by the federal government cause harm. In cases involving the latter, federal contractors often invoke the sovereign’s constitutionally granted and doctrinally expanded supremacy to restrict avenues for the injured to recover even from private actors. In prior work, we analyzed how federal contractors exploit three “sovereign shield” defenses—preemption, derivative sovereign immunity, and derivative intergovernmental immunity—to evade liability, accountability, and oversight.

This Article considers whether, when, and how private federal contractors should be held accountable in a court of law. We argue that a contractor should be required …

Protecting Protected Activity, Daiquiri J. Steele

Washington Law Review

The United States Supreme Court recently rolled back protections in employment retaliation cases by requiring plaintiffs to prove that their protected activity was the but-for cause of adverse actions by their employers. As a result, employers may escape liability even though the employee-plaintiffs have proven that employers had an impermissible motive in taking adverse actions. In doing so, the Court undermined the underlying statutes’ retaliation provisions created to help enforce the underlying statute, leading to a court-instituted failure to protect activity that Congress sought to protect.

While legal scholars have paid much attention to the establishment of a but-for causation …

Restoring Reasonableness To Workplace Religious Accommodations, Dallan F. Flake

Washington Law Review

When Congress amended Title VII of the Civil Rights Act in 1972 to require employers to reasonably accommodate employees’ religious practices absent undue hardship to their business, it intended to protect employees from being forced to choose between their jobs and their religious beliefs. Yet in the decades since, courts have cut away at this right to the point it is practically nonexistent. Particularly concerning is the growing tendency of courts to read reasonableness out of the accommodation requirement, either by conflating reasonableness and undue hardship so that an accommodation’s reasonableness depends solely on whether it would cause the employer …

License To Offend: How The Nlra Shields Perpetrators Of Discrimination In The Workplace, Molly Gibbons

Washington Law Review

Congress established the National Labor Relations Board (NLRB or the Board) to enforce the National Labor Relations Act (NLRA or the Act) and ensure fair labor practices in workplaces across the United States. The NLRA protects employees from discipline while engaging in union activity. Under the NLRA, employers and unions must collectively bargain in good faith. Either party may only walk away from the table when another party’s conduct makes good faith bargaining impossible. However, the NLRB’s determination of what conduct constitutes bad faith bargaining and protected union speech is inconsistent with federal anti- discrimination laws. This discrepancy means employers …

Platform Pleading: Analyzing Employment Disputes In The Technology Sector, Joseph A. Seiner

Washington Law Review

The technology sector has created thousands of new jobs for workers across the country in an emerging multi-billion dollar industry. Many companies in this platform-based sector are attempting to characterize their workers as independent contractors rather than employees, thus stripping them of both federal and state workplace protections—including the right to bargain collectively, receive fair compensation, and avoid discrimination. The federal courts, which have always grappled with the question of worker classification, are now struggling to define employment with respect to these gig sector jobs. The result has been scattered court decisions with inconsistent and conflicting analyses. This Essay seeks …

The Return Of The Technical Mcdonnell Douglas Paradigm, Katie Eyer

Washington Law Review

For many anti-discrimination plaintiffs, the McDonnell Douglas paradigm will determine the success or failure of their claims. And yet, for decades, most lower courts have applied a technical version of McDonnell Douglas—under which plaintiffs invariably lose. Thus, instead of asking the factual question of whether the defendant’s action was “because of” protected class status, the lower courts rely on a host of technical rules to dismiss even factually strong anti-discrimination claims. This is not the first time the lower courts have attempted to adopt a technical version of the McDonnell Douglas paradigm. In the 1970s and 1980s, the lower courts …

Regulating Wage Theft, Jennifer J. Lee, Annie Smith

Washington Law Review

Wage theft costs workers billions of dollars each year. During a time when the federal government is rolling back workers’ rights, it is essential to consider how state and local laws can address the problem. As this Article explains, the pernicious practice of wage theft seemingly continues unabated, despite a recent wave of state and local laws to curtail it. This Article provides the first comprehensive analysis of state and local anti-wage theft laws. Through a compilation of 141 state and local anti-wage theft laws enacted over the past decade, this Article offers an original typology of the most common …

An Empirical Study Of Fast-Food Franchsing Contracts: Towards A New "Intermediary" Theory Of Joint Employment, Kati L. Griffith

Washington Law Review

The “Fight for Fifteen and a Union” movement among fast-food workers and their allies has raised awareness about wage inequality in the United States. Rather than negotiating for better wages and working conditions with economically weak restaurant-level franchisees, the movement aims to affect the practices of what they view as the all-powerful brands—the franchisors. Few would dispute the notion that the franchisor brands, not their franchisees, set industry-wide standards and, thus, have the ability to offset rising wage inequality and improve working conditions. And yet, the movement has raised controversial law and policy questions about the legal responsibilities of these …

The Multiple Justifications Of Occupational Licensing, Nick Robinson

Washington Law Review

Nearly a quarter of all workers in the United States are currently in a job that requires an occupational license. As the prevalence of occupational licensing has grown, so have claims that its overuse is causing increased consumer costs and impairing labor mobility and economic freedom. To address these concerns, many policymakers and academics argue that licensing restrictions should be more closely tailored to the goal of protecting the public from harm and that, to guard against capture, practitioners should not regulate their own licensing. Federal courts, in turn, have drawn on this vision of the proper role of occupational …

A Stute Observation: Re-Examining Washington's Enforcement Of Workplace Safety Regulations, Ben Moore

Washington Law Review

In 1973, the Washington State Legislature enacted the Washington Industrial Safety and Health Act. The stated purpose of the Act was to ensure safe working conditions for the working men and women of Washington. Seventeen years later, the Washington State Supreme Court held that general contractors are per se liable for the WISHA violations of their subcontractors. However, the Washington Department of Labor and Industries has adopted a policy of citing general contractors for subcontractor violations only in limited circumstances. This Comment first outlines the development of worker safety laws in Washington, then examines the effects of the Department’s policy …

Retaliation Backlash, Alex B. Long

Washington Law Review

Until fairly recently, the narrative regarding employment retaliation plaintiffs has been that the federal courts—and the Supreme Court in particular—are generally sympathetic to employees claiming illegal workplace retaliation. This narrative has changed drastically over the past few years, to the point that there has been a backlash among courts to the initial wave of plaintiff success. In this respect, the evolution of retaliation law largely tracks the evolution of disability law. This Article argues that the evolution of these areas of the law illustrates a simple but fundamental point about the interpretation of statutes regulating the workplace at present: unless …

Employee, Volunteer, Or Neither? Proposing A Tax-Based Exception To Flsa Wage Requirements For Nonprofit Interns After Glatt V. Fox Searchlight, Jane Pryjmak

Washington Law Review

The Fair Labor Standards Act (FLSA) mandates compliance with various requirements, including minimum wages, for individuals classified as “employees.” But courts have grappled with the definition of “employee” for decades. They have struggled to determine whether individuals who are not classified as employees by their employer and are instead labeled “trainees,” “interns,” “externs,” or otherwise must be paid fair wages under the FLSA. This question became more pronounced amid the rise of unpaid internships for students and recent graduates in the post-2008 recession years. In Glatt v. Fox Searchlight, the Second Circuit became the first federal court of appeals …

The Law Of Intimate Work, Naomi Schoenbaum

Washington Law Review

This Article introduces the concept of intimate work—intimate services provided by paid workers to a range of consumers—and seeks to unify its treatment in law. The concept explains multiple exceptions to work law that have previously been viewed as random and even contradictory. From the daycare worker to the divorce lawyer, the nurse to the hairstylist, intimate work introduces an intimate party—the consumer—into the arm’s-length employer-employee dyad on which work law is premised. This disruption leads to limited enforcement of non-compete agreements, the waiver or imposition of fiduciary duties, and exceptions to wage-and-hour and antidiscrimination law, among other consequences. The …

Working With Cancer: How The Law Can Help Survivors Maintain Employment, Ann C. Hodges

Washington Law Review

Advances in cancer treatment are saving lives, but along with the benefits come challenges. Millions of cancer survivors of working age need to support themselves and their families. This Article looks at the impact of cancer on employment starting with the empirical evidence gathered by researchers affiliated with medical centers. This empirical research provides a base, not previously explored in the legal literature, for assessing the existing laws dealing with cancer and employment (or unemployment). Viewing the law through this lens, which reveals the complex relationship between cancer and employment, exposes both the promise and the weakness of existing laws …

"Without Good Cause": The Case For A Standard-Based Approach To Determining Worker Qualification For Unemployment Benefits, Emily Toler

Washington Law Review

Under Washington’s Employment Security Act, workers who voluntarily quit their jobs are qualified to receive unemployment benefits only if they establish “good cause” for leaving work. For forty years, the agency that administers the statute and the courts had substantial discretion to find good cause under the statute’s flexible, standard-based approach. However, beginning in 1977, the legislature began to restrict the scope of that discretion by moving toward a rule-based approach. This trend reached its apex in 2009, when the legislature stripped the agency and the courts of all discretion and limited good cause to eleven reasons enumerated in the …

"Without Good Cause": The Case For A Standard-Based Approach To Determining Worker Qualification For Unemployment Benefits, Emily Toler

Washington Law Review

Under Washington’s Employment Security Act, workers who voluntarily quit their jobs are qualified to receive unemployment benefits only if they establish “good cause” for leaving work. For forty years, the agency that administers the statute and the courts had substantial discretion to find good cause under the statute’s flexible, standard-based approach. However, beginning in 1977, the legislature began to restrict the scope of that discretion by moving toward a rule-based approach. This trend reached its apex in 2009, when the legislature stripped the agency and the courts of all discretion and limited good cause to eleven reasons enumerated in the …

The Lesson Of The 2011 Nfl And Nba Lockouts: Why Courts Should Not Immediately Recognize Players' Union Disclaimers Of Representation, Ross Siler

Washington Law Review

The NFL and NBA lockouts of 2011 challenged the limits of the balance courts have struck between collective bargaining protections and antitrust liability. In each lockout, the respective players’ union argued that the bargaining relationship with team owners ended once the union disclaimed interest in continuing as its players’ bargaining representative. The players further argued that with the bargaining relationship terminated, the nonstatutory labor exemption no longer shielded owners from antitrust liability for their cooperative agreements and activity. Ultimately, both lockouts settled without courts deciding whether a disclaimer of representation marks what the Supreme Court has described as an “extreme …

Talking Drugs: The Burden Of Proof In Post-Garcetti Speech Retaliation Claims, Thomas E. Hudson

Washington Law Review

Law Enforcement agencies fire their employees for speaking out in favor of drug legalization, which leads the employees to sue their former employers for violating their First Amendment Free Speech rights. These employee claims fall under the U.S. Supreme Court’s complex speech retaliation test, most recently articulated in Garcetti v. Ceballos. The analysis reveals that circuit courts are inconsistent as to who bears the burden of proving that they prevail under “Pickering balancing,” and how they should construct that burden. This Comment argues that U.S. Supreme Court precedent demands that the employer bears the “Pickering balancing” burden, and that …

High-Tech Harassment: Employer Liability Under Title Vii For Employee Social Media Misconduct, Jeremy Gelms

Washington Law Review

Workplace harassment has traditionally occurred within the “four walls” of the workplace. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth the U.S. Supreme Court recognized that employers are liable under Title VII of the 1964 Civil Rights Act for harassment that is sufficiently severe or pervasive to alter the employee’s work environment. The rise in social media, however, has created a new medium through which harassment occurs. Courts are just beginning to confront the issue of if and when to consider social media harassment as part of the totality of the circumstances of a Title …

A "Narrow Exception" Run Amok: How Courts Have Misconstrued Employee-Rights Laws' Exclusion Of "Policymaking" Appointees, And A Proposed Framework For Getting Back On Track, Angela Galloway

Washington Law Review

The civil rights and workplace protections afforded some government workers vary vastly nationwide because federal circuit courts disagree over how to interpret an exemption common to five landmark employment statutes. Each statute defines “employee” for its purposes to exclude politicians and certain categories of politicians’ appointees—including government employees appointed by elected officials to serve at “the policymaking level.” Neither Congress nor the United States Supreme Court has defined who belongs to the “policymaking-level” class. Consequently, lower federal courts across the country have adopted their own standards to fill the gap, creating a wide circuit split. At stake in this employment …

Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan

Washington Law Review

The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, …

Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan

Washington Law Review

The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, …

Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan

Washington Law Review

The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, …

Preempting State E-Verify Regulations: A Case Study Of Arizona's Improper Legislation In The Field Of "Immigration-Related Employment Practices", Rachel Feller

Washington Law Review

In 1996, Congress established E-Verify, a program that allows employers to confirm the employment eligibility of new hires by using a federal electronic database. Although the federal government makes the program voluntary for employers, some states and municipalities have enacted legislation requiring the program’s use to prevent the employment of undocumented workers. Some of these state laws have been challenged in federal court on the grounds that they are preempted by federal law, particularly the Immigration Reform and Control Act of 1986 (IRCA). Courts have divided on this issue. This Comment explains the boundaries of preemption in the context of …

Reading Too Much Into What The Court Doesn't Write: How Some Federal Courts Have Limited Title Vii's Participation Clause's Protections After Clark County School District V. Breeden, Lawrence D. Rosenthal

Washington Law Review

In 2001, the Supreme Court issued its opinion in Clark County School District v. Breeden, in which it refused to determine what a plaintiff must prove to demonstrate that she engaged in “protected activity” under Title VII’s anti-retaliation provision’s opposition clause. Although the Court declined to answer this question, courts have interpreted Breeden as requiring an opposition-clause plaintiff to prove a good-faith, objectively reasonable belief of an unlawful employment practice. Although Breeden involved Title VII’s opposition clause, some courts are now applying Breeden to cases involving Title VII’s participation clause. This is baffling for two reasons. First, Breeden involved …

Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote

Washington Law Review

Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects …

Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote

Washington Law Review

Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects …