Law Commons^™

Accommodating Employees' Sabbaths: Is It The Government's Job?, Neal Devins

Neal E. Devins

No abstract provided.

Broader-Based And Sectoral Bargaining Proposals In Collective Bargaining Law Reform: A Historical Review, Sara Slinn

Sara Slinn

Labour legislation regulating Canada’s private sector has incorporated forms of broader-based or sectoral certification and bargaining (BBB) in varying degrees for decades, particularly in British Columbia and Quebec. However, BBB had not been the subject of significant post-war labour law reform discussion until the 1990s. This decade saw a wave of interest in introducing BBB arise across several jurisdictions. Originating in Ontario in the late 1980s, it spread to British Columbia as a key part of labour law reform discussions in the early and late 1990s and became a minor issue in the federal labour law reform review process later …

Working On Immigration: Three Models Of Labor And Employment Regulation, Rick Su

Rick Su

The desire to tailor our immigration system to the economic interests of our nation is as old as its founding. Yet after more than two centuries of regulatory tinkering, we seem no closer to finding the right balance. Contemporary observers largely ascribe this failure to conflicts over immigration. Shifting the focus, I suggest here that longstanding disagreements in the world of economic regulations — in particular, tensions over the government’s role in regulating labor conditions and employment practices — also explains much of the difficulty behind formulating a policy approach to immigration. In other words, we cannot reach a political …

Working Relationships, Laura A. Rosenbury

Laura A. Rosenbury

In this Essay written for the symposium on "For Love or Money? Defining Relationships in Law and Life," I extend my previous consideration of friendship to the specific context of the workplace, analyzing friendship through the lens of the ties that arise at work instead of those assumed to arise within the home. Many adults spend half or more of their waking hours at work, in the process forming relationships with supervisors, co-workers, subordinates, customers, and other third parties. Although such relationships are at times primarily transactional, at other times they take on intimate qualities similar to those of family …

Unusual Unanimity And The Ongoing Debate On The Meaning Of Words: The Labor And Employment Decisions From The Supreme Court's 2013-14 Term, Michael Z. Green

Michael Z. Green

During its 2013-14 term, the Supreme Court focused on labor relations, wage and hour law, whistleblowing, and employee benefits in several cases. The Court also addressed constitutional issues concerning the First Amendment, the Recess Appointments Clause, and affirmative action. The Court did not decide any employment discrimination cases during the term. Even without employment discrimination cases, the 2013-2014 term provided ten key cases of importance to labor and employment lawyers. Three of these cases involved distinctly different matters of concern for organized labor. Two cases addressed employee whistleblowing matters. Three cases focused on employee benefits. Two cases addressed issues tangentially-related …

Against Employer Dumpster-Diving For Email, Michael Z. Green

Michael Z. Green

Recent attorney client-privilege cases ojfer a modern understanding of reasonable expectations of employee privacy in the digital age. Today employees are sending an increasing number of electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts summarily dispensed with these matters by finding that an employer policy establishing employer ownership of any communications made through employer-provided devices eliminated any employee expectation of privacy in the communications and waived any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving …

Unpaid Furloughs And Four-Day Work Weeks: Employer Sympathy Or A Call For Collective Employee Action, Michael Z. Green

Michael Z. Green

In these tough economic times, employers have responded by pursuing four-day work weeks and other mechanisms that change the components of the standard five-day work week. Although four-day work weeks provide some savings in the form of reduced operating and energy costs and have received recent notice for also being family-friendly and environmentally friendly, current dismal economic prospects have inspired employers to pursue other work week changes to achieve further savings. Furloughs, also referred to as unpaid days off, represent a form of a reduced work week as employees do not work during their furloughed time and receive no income …

Liberty Vs. Equality: In Defense Of Privileged White Males, Nancy E. Dowd

Nancy Dowd

In this book review, Professor Dowd reviews Forbidden Grounds: The Case Against Employment Discrimination Laws, by Richard A. Epstein (1992). First, Professor Dowd sets forth the thesis and arguments of Epstein’s book and explores her general criticisms in more detail. Next, she explores Epstein’s core argument pitting liberty against equality from two perspectives: that of the privileged white male and that of minorities and women. Finally, Professor Dowd argues that Epstein’s position cannot be viewed as an argument that most minorities or women would make, as it fails to take account of their stories.

Maternity Leave: Taking Sex Differences Into Account, Nancy E. Dowd

Nancy Dowd

This Article focuses on restructuring the workplace in the context of maternity leave. Although most women are no longer, and, indeed, generally cannot be required to take maternity leave, many are not guaranteed leave or may be provided only with inadequate leave. A minority of states have addressed this problem by enacting statutes requiring that all employers provide job-protected maternity leave. Two of the statutes, the California and Montana provisions, have been challenged as discriminatory under Title VII of the Civil Rights Act of 1964 and the equal protection clause of the 14th Amendment, and the Supreme Court has recently …

Bringing The Margin To The Center: Comprehensive Strategies For Work/Family Policies, Nancy E. Dowd

Nancy Dowd

The ultimate goal of work/family policy has always seemed deceptively clear: to provide institutional and cultural support to permit a healthy balance between family and work. An implicit assumption of that goal is that it would be achieved without undermining principles of equality. Indeed, the assumed result of work/family balance is that it would help achieve equality: families would be treated equally, caregivers would be supported equally, and children and family members would receive necessary and important care equally. It has long been recognized that work/family balance is especially critical to gender equality. Equality principles require that work/family policy and …

The Metamorphosis Of Comparable Worth, Nancy E. Dowd

Nancy Dowd

The concept of comparable worth has as its factual predicate two typical characteristics of women's employment: occupational concentration or segregation and significantly lower wages compared to those paid to men. What continues to be most troubling about this employment pattern is its stubborn persistence, despite the increased presence of women in the workforce and the existence for over two decades of legislation prohibiting sex discrimination in employment. The concept of comparable worth has provoked an outpouring of emotional rhetoric and scholarly analysis debating the concept’s viability and desirability. Rather than add to that debate, Professor Dowd traces the evolution of …

(Re)Constructing The Framework Of Work/Family, Nancy E. Dowd

Nancy Dowd

When we talk about the connections between work, family, and marriage, what are our assumptions or our implicit model? In this essay, I hope to expose the importance of questioning the framework within which we operate. Marriage continues to be a core focus of the typical family law course. As a matter of public policy, supporting and valuing marriage, and concern about the conflict between work and family because of the strains it imposes on marriage, makes balancing work and family within a marital framework a focus of law and policy. In this essay, I argue that we need to …

Amicus Brief (Certiorari Stage) -- Kalyanaram V. New York Institute Of Technology, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Whistleblowers should not be required to pick their poison. They should not be penalized for following the law, particularly where, as here, the alleged “wrong” relied upon by the Second Circuit Court of Appeals was Petitioner’s compliance with the Act’s sealing provision. See 31 U.S.C. § 3730(b)(2) That provision expressly requires whistleblowers to maintain the confidentiality of qui tam lawsuits during the pendency of a government investigation. Petitioner followed the Act’s express mandate—and suffered the consequences.

Rethinking The Worker Classification Test: Employees, Entrepreneurship, And Empowerment, Griffin Toronjo Pivateau

Griffin Toronjo Pivateau

The structure of the American workplace depends on the ability to distinguish between employees and independent contractors. Unfortunately, the law provides little to guide employers in classifying workers. The legal tests to determine worker status are confusing, yield inconsistent results, and are not suited to the evolving employment relationship. Traditionally, courts examine the amount of control exerted over the putative employee by the employer: The more control exerted by the employer over the work, the more likely it is that the worker will be considered an employee. Control, however, is not the only factor to examine in determining worker status. …

Landing Stable Employment: The Exploratory Study Of A Job Vs. Career, Valencia Tamir Johnson Dr.

Valencia T Johnson

Landing stable employment can be difficult and discouraging. Some employers want applicants that are searching for a “career”, and some employers are looking for applicants that want a “job”. Ask yourself, what is the difference between a job and a career? In simple terms, a job is short-term and a career is long-term. Applicants who seek a job would likely stay less than a year, as with a career, the candidate would likely stay more than a year or longer. This article provides a clear and concise overview of the exploratory study of landing a career or job.

The Gross Confusion Deep In The Heart Of Univ. Of Texas S.W. Med. Center V. Nassar, Brian S. Clarke

Brian S. Clarke

This essay addresses a fundamental issue underlying the Supreme Court’s consideration of Univ. of Texas S.W. Med. Center v. Nassar, namely the parameters of the factual causation standard applicable in disparate treatment cases. This essay also addresses a previously unrecognized area of agreement between the plurality and dissent in Price Waterhouse v. Hopkins that can resolve the factual causation issue underlying Nassar.

The Court’s most recent pronouncement on this issue, in Gross v. FBL Financial Services, has led to confusion as defendants and courts have interpreted Gross to require sole factual causation for the plaintiff to prevail. Yet, sole causation …

The Regulatory Future Of Contingent Employment: An Introduction, Mark H. Grunewald

Mark H. Grunewald

No abstract provided.

Rethinking The Worker Classification Test: Employees, Entrepreneurship, And Empowerment, Griffin Toronjo Pivateau

Griffin Toronjo Pivateau

The structure of the American workplace depends on the ability to distinguish between employees and independent contractors. Unfortunately, while the law recognizes a difference between the types of workers, it provides little to guide employers in making the proper classification. Instead, employers must rely on a variety of legal tests devised by courts and government agencies to determine worker status. The most commonly used test, the common law agency test, requires analysis of many factors. The most important factor is the right of the employer to control the worker's performance. Nevertheless, while the right to control dominates, the test involves …

A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine, Brian S. Clarke

Brian S. Clarke

Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and at, best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.

Focusing first on cause-in-fact, this article seeks to establish causal coherence in disparate treatment doctrine by applying – for the first time – modern cause-in-fact theory, including the necessary element of a sufficient causal-set (“NESS”) standard articulated in the Restatement (Third) of Torts, across …

Whistleblowers And The Obama Presidency: The National Security Dilemma, Richard E. Moberly

Richard E. Moberly

As a candidate for President, Barack Obama promised to protect whistleblowers because they are, in his words, “watchdogs of wrongdoing and partners in performance.” Three years into his Presidency, Obama’s record often demonstrates strong support for employees who disclose government misconduct. He appointed whistleblower-rights supporters to key administrative posts and fought to include robust whistleblower protections in his key legislative accomplishments, such as the economic stimulus package, health care reform and the financial reform bill. However, the Obama Administration’s treatment of national security whistleblowers has been decidedly less emphatic and more nuanced. His Administration aggressively prosecuted unauthorized disclosures related to …

The Supreme Court 1997- 1998 Labor And Employment Law Term (Part Ii): The Nlra, Takings Clause, And Ada Cases, Marley S. Weiss

Marley S. Weiss

No abstract provided.

The Employment Relation And Its Ordering At Century's End: Reflections On Emerging Trends In The United States, Thomas C. Kohler

Thomas C. Kohler

The enormous success of the United States economy in producing new jobs has focused world-wide attention on the flexibility of the American labor market, and on the malleability of the legal order that regulates it. Despite our reputation for sparse public regulation of the employment relationship, however; the past decade has been a period of unprecedented judicial and legislative activity. The United States now has more formal employment regulation than ever before. The following piece places these developments in the context of a decline in the practice of private law-making, and identifies four movements that have emerged and which characterize …

Protecting Whistleblowers By Contract, Richard E. Moberly

Richard E. Moberly

Numerous statutes and the tort of wrongful discharge purport to prohibit companies from retaliating against employee whistleblowers. However, whistleblowers often lose retaliation lawsuits because these statutory and common law tort protections depend upon a variety of nuanced factors, such as the employer for whom the whistleblower works, the kind of wrongdoing reported, the way in which the employee blew the whistle, and, under some laws, the willingness of an administrative agency to investigate the whistleblower’s claim. Given these difficulties, this Article explores an alternate route for whistleblower protection: enforcing the existing contract protections that private employers currently provide employees when …

Religion In The Workplace: Faith, Action, And The Religious Foundations Of American Employment Law, Thomas C. Kohler

Thomas C. Kohler

No abstract provided.

Unfulfilled Expectations: An Empirical Analysis Of Why Sarbanes-Oxley Whistleblowers Rarely Win, Richard E. Moberly

Richard E. Moberly

Scholars praise the whistleblower protections of the Sarbanes-Oxley Act of 2002 as one of the most protective anti-retaliation provisions in the world. Yet, during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process. This Article reports the results of an empirical study of all Department of Labor Sarbanes-Oxley determinations during this time, consisting of over 700 separate decisions from administrative investigations and hearings. The results of this detailed analysis demonstrate that administrative decision-makers strictly construed, and in some cases …

Sarbanes-Oxley's Structural Model To Encourage Corporate Whistleblowers, Richard E. Moberly

Richard E. Moberly

Recent corporate scandals demonstrate that rank-and-file employees often remain silent in the face of significant fraud. This silence is unfortunate because corporate employees have inside knowledge of misconduct that gives them an information advantage over more traditional corporate monitors, such as independent directors and government regulators. To address this problem, the Sarbanes-Oxley Act utilized a new approach that encourages employee whistleblowers to disclose information about corporate wrongdoing. This approach, which Professor Richard Moberly labels the “Structural Model,” requires that corporations provide a standardized channel for employees to report organizational misconduct to official monitors within the corporation. This Article offers an …

The Ada, Respiratory Disabilities And Smoking: Can Smokers At Burger King Really Have It Their Way?, Mary Kate Kearney

Mary Kate Kearney

No abstract provided.

Bonding And Flexibility: Employment Ordering In A Relationless Age, Thomas C. Kohler, Matthew Finkin

Thomas C. Kohler

No abstract provided.

The Context Of Employment Discrimination In Japan, Allen Madison

Allen Madison

This article compares employment practices and laws regarding discrimination in Japan to those in the United States. Then it compares the cultural contexts in which discrimination and related regulation exist in each country. The article concludes that the Japanese laws are effective in the context of Japanese culture and that they are more likely to change Japanese attitudes about age, race, and gender in making hiring and promotion decisions than laws in the United States.

Two Faces Of Disparate Impact Discrimination, Pamela L. Perry

Pamela L Perry

No abstract provided.