Law Commons^™

Wait! Don't Fire That Blogger! What Limits Does Labor Law Impose On Employer Regulation Of Employee Blogs?, Carson Strege-Flora

Washington Journal of Law, Technology & Arts

The Ninth Circuit Court of Appeals recently issued a decision protecting the right of an employee to post critical comments about his employer on a website. The court found that the employer’s discipline was an unfair labor practice prohibited by federal labor law because it was “concerted activity” protected by the National Labor Relations Act (NLRA). Employers wishing to discipline employees for their public blogging activity should be familiar with the protections provided by the NLRA. This Article explores the consequences for violating the Act and addresses what employers should consider when attempting to limit employee blogging.

Proposed Federal Definition Of "Internet Job Applicant" Suggests Need For Revised Human Resource Policies, Carson Strege-Flora

Washington Journal of Law, Technology & Arts

After several years of discussion, the Equal Employment Opportunity Commission, along with several other federal agencies, has proposed a new definition of “Internet job applicant” to help employers understand how to treat such applicants. The explosion over the past decade of Internet recruiting prompted the need for clarification of how employers must treat applicants for purposes of federal antidiscrimination law and recordkeeping requirements. The new guidelines suggest that employers engaged in Internet recruiting should review their hiring policies to ensure that their treatment of Internet job applicants complies with the proposed guidelines. This Article suggests that employers avoid violating federal …

Risky Business: What Must Employers Do To Shield Against Liability For Employee Wrongdoings In The Internet Age?, Nicole J. Nyman

Washington Journal of Law, Technology & Arts

Recent suits filed by the recording industry have raised the issue of employer liability for copyright infringement by employees. In fact, legal consequences for an employer do not end with copyright infringement liability, but extend into many other areas. This Article discusses several legal concerns raised by employee Internet use and examines steps an employer should take to minimize or avoid liability for inappropriate employee actions, including a discussion of benefits and drawbacks to various approaches.

The Character Of Discrimination Law: The Incompatibility Of Rule 404 And Employment Discrimination Suits, Lisa Marshall Manheim

Articles

This Note illustrates how violations of Rule 404 of the Federal Rules of Evidence (which prohibits litigants from relying on certain propensity proofs) occur routinely. It demonstrates that the ineffectiveness of the ban in the context of discrimination suits cannot be blamed on clever lawyers or negligent judges, but rather is a predictable consequence of the dearth of evidence available to discrimination plaintiffs. This Note concludes by arguing that this subtle but problematic incongruity justifies a reform of the Rule.

Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo

Articles

The federal courts have issued two important decisions regarding non-discriminatory insurance coverage of conditions and treatments associated with sex, disability or both, such as prescription contraception and infertility treatment. Cases like Erickson and Saks are important because, as ERISA scholars know, state law mandates regarding coverage are unlikely to lead to uniform results due to the structure of ERISA's preemption provisions, and none of the federal proposals addressing infertility treatment or prescription contraception have been enacted to date.

What I would like to do is outline the impact of ERISA in this area, and offer some thoughts on one of …

By Any Other Name?: On Being "Regarded As" Black, And Why Title Vii Should Apply Even If Lakisha And Jamal Are White, Angela Onwuachi-Willig, Mario L. Barnes

Articles

Applying theories concerning the social construction of race, this Article borrows from the definition of disability under the Americans with Disabilities Act of 1990 (ADA) and the courts' analyses of disability discrimination cases under the "regarded as" disabled provision of the ADA, which allows a plaintiff to bring a claim against an employer who regards the plaintiff as having an impairment that substantially limits a major life activity. Using the "regarded as" provision as a model, this Article proposes a new method for recognizing discrimination claims based on the use of proxies for race-even when those proxies have been used …