Law Commons^™

The Nil Glass Ceiling, Tan Boston

University of Richmond Law Review

Name, image, and likeness (“NIL”) produced nearly $1 billion in earnings for intercollegiate athletes in its inaugural year. Analysts argue that the shockingly high totals result from disproportionate
institutional support for revenue-generating sports.

Although NIL earnings have soared upwards of eight figures to date, first-year data reveals that significant gender disparities exist. Such disparities raise Title IX concerns, which this Article illustrates using a hypothetical university and NIL collective. As such, this Article reveals how schools can facilitate gender discrimination through NIL collectives, contrary to Title IX. Although plainly applicable to NIL transactions in which schools are involved, Title IX’s …

Executive Order 14036: Promoting Competition?, Holly E. Fredericksen

University of Richmond Law Review

Four million Americans left their jobs in July 2021. By the end of that month, the number of open jobs reached an all-time high: 10.9 million. Employees are walking out the door in record numbers as part of a trend so remarkable, we even gave it a name: the Great Resignation. With 4.3 million Americans quitting their jobs in January 2022 and 11.3 million job openings, the Great Resignation is only gaining momentum and showing no signs of slowing down.

And as a consequence of employees exiting in droves, employers are hurting. According to The Work Institute, turnover costs employers …

Banning Noncompetes In Virginia, Christopher J. Sullivan, Justin A. Ritter

University of Richmond Law Review

The past decade has seen a nationwide wave of reform in noncompete law, specifically the limitation of noncompete agreements. Since 2016, ten states—including Virginia in 2020— banned the use of noncompete agreements against certain “lowwage” employees. In order to stay ahead of this curve and ensure Virginia remains and grows as one of the top states to do business, this Article suggests that Virginia—like its neighbor, the District of Columbia, initially did in 2021—pass a complete ban of all noncompete agreements in the employment context. Such a ban would make Virginia a lucrative destination for entrepreneurs and startups by maximizing …

Employment Law, D. Paul Holdsworth

University of Richmond Law Review

Against the backdrop of a year that saw the COVID-19 pandemic alter the American workplace in an unprecedented way, the employment law landscape in Virginia also underwent a recent sea change. Historically considered an employer-friendly state, the General Assembly shifted away from tradition by enacting several significant pieces of employee-friendly legislation, which will surely have a long-lasting impact on Virginia employees, businesses, and Virginia’s economy at large. This Article highlights these critical developments in Virginia employment law. It does not provide an in-depth analysis of every development but highlights the most significant changes affecting employers and employees in the Commonwealth. …

Dead Hand Vogue, Anthony Michael Kreis

University of Richmond Law Review

For decades, courts read employment antidiscrimination laws’ prohibition of sex discrimination to exclude gay, lesbian, bisexual, and transgender workers’ sexual orientation and gender identity discrimination claims—purportedly because the claims were not linked to employees’ status as a man or a woman. And while significant doctrinal developments have afforded some gender-nonconforming persons critical workplace safeguards under sex antidiscrimination laws, many older decisions that deemed sexual orientation and transgender discrimination claims to be outside the ambit of sex discrimination still control. These decades-old precedents all suffer from the same analytical error: a failure to adhere to the principle that antidiscrimination law does …

Employment Law, Bret G. Daniel, Erin B. Edwards

University of Richmond Law Review

Virginia has historically been regarded as an employer-friendly jurisdiction. However, in recent years, the Fourth Circuit Court of Appeals has issued an increasing number of opinions that tend to favor employees. With a state legislature largely reluctant to interfere in the employer-employee relationship, developments in employment law generally occur via Fourth Circuit jurisprudence. Given the predominance of federal employment law in Virginia, the following discussion regarding developments in this practice area focuses less on state statutes and courts, and more on decisions handed down from the federal bench. This Article provides an update on recent developments in employment law in …

An Analysis Of Intentional Infliction Of Emotional Distress Claims In The Virginia Workplace, Stephen Allred

University of Richmond Law Review

This Article first traces the development of the tort of intentional infliction of emotional distress as applied to the workplace in the Commonwealth of Virginia in Part I, and offers some observations about the significant hurdles a plaintiff may face in trying to successfully hold an employer accountable for conduct that many in our society would deem unacceptable. After reviewing the evolution of the doctrine since it was first recognized in Virginia nearly fifty years ago in Part II, Part III returns to the incident described above involving Linda Bodewig and her employer, and offers an analysis of how her …

The Invisible Minority: Discrimination Against Bisexuals In The Workplace, Elizabeth Childress Burneson

University of Richmond Law Review

The Lesbian, Gay, Bisexual, Transgender, and Queer (“LGBTQ+”) community has won major legal victories in the last twenty years, but at least one group remains left behind in those victories. The bisexual population is often ignored, erased, and discriminated against by both homosexual and heterosexual individuals and communities. This is true despite the fact that bisexuals outnumber both lesbian women and gay men. This erasure and discrimination affects bisexuals in different areas of life and the law, including the employment context. Title VII of the Civil Rights Act of 1964 (“Title VII”), which protects against employment discrimination on the basis …

Waging The War Against Unpaid Labor: A Call To Revoke Fact Sheet #71 In Light Of Recent Unpaid Internship Litigation, Rachel P. Willer

University of Richmond Law Review

Part I of this comment provides an overview of prevailing agency and judicial interpretations of unpaid internships. Part II describes recent internship litigation and the trend towards courts abandoning the Wage and Hour Division's six-factor test in favor of a more expansive primary beneficiary test. Part III suggests that Fact Sheet #71 is an outdated model that is inapplicable to contemporary internships. The Wage and Hour Division's six-factor test lacks the "force of law" and should not warrant un- due judicial deference. Alternatively, the primary beneficiary test, articulated in the Second Circuit's holding in Glatt v. Fox Searchlight Pictures, Inc." …

This Is Just Not Working For Us: Why After Ten Years On The Job- It Is Time To Fire Garcetti, Jason Zenor

Richmond Journal of Law and the Public Interest

In Lane v. Franks, the U.S. Supreme Court held that public employees who give truthful testimony in court are protected so long as it was outside their ordinary job duties. This issue arose after ten years of the Garcetti rule which does not protect employee speech pursuant to their job duties- a nebulous topic in the digital era. In applying Garcetti, lower courts have extended it to include any speech that is a product of job duties, even if it would serve the public interest. In Lane v. Franks, the Court amended the employee speech doctrine to protect …

This Is Just Not Working For Us: Why After Ten Years On The Job It Is Time To Fire Garcetti, Jason Zenor

Richmond Public Interest Law Review

In Lane v. Franks, the U.S. Supreme Court held that public employees who give truthful testimony in court are protected so long as it was outside their ordinary job duties. This issue arose after ten years of the Garcetti rule which does not protect employee speech pursuant to their job duties- a nebulous topic in the digital era. In applying Garcetti, lower courts have extended it to include any speech that is a product of job duties, even if it would serve the public interest. In Lane v. Franks, the Court amended the employee speech doctrine to protect …

Addressing Employee Use Of Personal Clouds, Philip Favro

Richmond Journal of Law & Technology

Cloud computing is one of the most useful innovations in the digital age. While much of the attention on recent advances has focused on smartphones, tablet computers, and wearable technology, the cloud is perhaps unrivaled in its utility for organizations. From simplified data storage to innovative software platforms, enterprise-grade cloud solutions provide cost-effective alternatives to acquiring expensive computer hardware and software. Enterprise clouds also offer a collaborative work environment for a mobile and widespread work force, enabling businesses to maximize worker productivity.

Chinese "Workers Without Benefits", Ron Brown

Richmond Journal of Global Law & Business

Millions of workers in China are not afforded the rights and benefits of its labor and employment laws and thus are not "workers with benefits." China's labor reforms and worker "safety net" have come so far in the past 30 years, producing "workers with benefits." Why are there still millions of workers in the urban sector who do not have the protections of these labor and employment law reforms, who are the "workers without benefits," falling outside the labor safety net?

The Restorative Workplace: An Organizational Learning Approach To Discrimination, Deborah Thompson Eisenberg

University of Richmond Law Review

No abstract provided.

There's No Place Like Work: How Modern Technology Is Changing The Judiciary's Approach To Work-At-Home Arrangements As An Ada Accommodation, Benjamin D. Johnson

University of Richmond Law Review

No abstract provided.

Utilizing Credit Reports For Employment Purposes: A Legal Bait And Switch Tactic, James D. Phillips, David D. Schein

Richmond Public Interest Law Review

In our previous article, "Holding Credit Reporting Agencies Accountable: How the Financial Crisis May be Contributing to Improving Accuracy in Credit Reporting" we reviewed the legal history of the Fair Credit Reporting Act (FCRA), its amendments, and the federal case law by circuit. We suggested that the ability of consumers to ensure the accuracy and security of their credit reports might lead to an expansion of the litigation surrounding accurate credit reporting. This article takes the discussion further by exploring the ever-expanding use of credit reports in the employment law arena. We review the state legislation limiting the use of …

Utilizing Credit Reports For Employment Purposes: A Legal Bait And Switch Tactic, James D. Phillips, David D. Schein

Richmond Journal of Law and the Public Interest

In our previous article, "Holding Credit Reporting Agencies Accountable: How the Financial Crisis May be Contributing to Improving Accuracy in Credit Reporting" we reviewed the legal history of the Fair Credit Reporting Act (FCRA), its amendments, and the federal case law by circuit. We suggested that the ability of consumers to ensure the accuracy and security of their credit reports might lead to an expansion of the litigation surrounding accurate credit reporting. This article takes the discussion further by exploring the ever-expanding use of credit reports in the employment law arena. We review the state legislation limiting the use of …

Rivera V. Nibco:A Tentative Limitation Of The Supreme Court's Decision Inhoffman Plastic Compounds, Inc. V. Nlrb, Rebecca L. Ennis

Richmond Journal of Law and the Public Interest

In 2002, the United States Supreme Court handed down its decision in Hoffman Plastic Compounds, Inc. v. NLRB. This landmark decision seemingly eliminated any chance illegal immigrant employees had to obtain awards of backpay after being discharged in violation of the National Labor Relations Act (NLRA). More importantly, however, the decision sent a message to the country that illegal entry into the United States was a violation that was to be taken more seriously by the courts than grossly unfair employment practices. The Court of Appeals for the Ninth Circuit recently handed down a decision in Rivera v. NIBCO, Inc. …

Non-Competition Agreements In Virginia In The Aftermath Of Home Paramount Pest Control V. Shaffer, Kevin E. Martingayle

University of Richmond Law Review

No abstract provided.

Labor And Employment Law, Vijay K. Mago, Elizabeth E. Clarke, Eric Wallace

University of Richmond Law Review

No abstract provided.

Osha Enforcement Of The "As Effective As" Standard For State Plans: Serving Process Or People?, Courtney M. Malveaux

University of Richmond Law Review

No abstract provided.

Curb Your Enthusiasm: A Note On Employment Discrimination Lawsuits In China, Jiefeng Lu

Richmond Journal of Global Law & Business

No abstract provided.

"No Man Can Be Worth $1,000,000 A Year": The Fight Over Executive Compensation In 1930s America, Harwell Wells

University of Richmond Law Review

No abstract provided.

Labor And Employment Law, Vijay K. Mago, Nancy B. Sasser, Allison M. Perry

University of Richmond Law Review

No abstract provided.

Managers' Obligations To Employees With Eldercare Responsibilities, John A. Pearce Iii, Dennis R. Kuhn

University of Richmond Law Review

No abstract provided.

Human Dignity And American Employment Law, David C. Yamada

University of Richmond Law Review

No abstract provided.

Labor And Employment Law, Anne Richardson Smith

University of Richmond Law Review

No abstract provided.

Whistling While You Work: Expanding Whistleblower Laws To Include Non-Workplace-Related Retaliation After Burlington Northern V. White, Robert Johnson

University of Richmond Law Review

This comment will not attempt to harmonize the different standards or predict a future course of interpretation. Instead, it will address the existing disparity as an opportunity to amend whistleblower laws to provide meaningful protection against alltypes of retaliation, not just those that affect the whistleblower's terms or conditions ofemployment. With this broad goal as a basis, this comment will specifically advocate amending all federal whistleblower statutes' retaliation provisions to conform to Title VII's retaliation provision. This would eliminate the requirement that the retaliation affect the terms or conditions of employment and incorporate the public policy rationale outlined in Burlington …

Close To Crucial: The H-2b Visa Program Must Evolve, But Must Endure, Lindsay M. Pickral

University of Richmond Law Review

No abstract provided.

Help Wanted: Looking For A Visa System The Promotes The U.S. Economy And National Security, Jonathan G. Goodrich

University of Richmond Law Review

No abstract provided.