Law Commons^™

The Great Recession And The Pressure On Workplace Rights, Katherine S. Newman

Chicago-Kent Law Review

This paper explores the impact of the Great Recession on the rights of workers in the U.S. and overseas. While secular trends in play before the economic downturn began had already eroded employment benefits and workers’ right, recent economic conditions have exacerbated conditions for workers. With the Great Recession have come record levels of long term unemployment, a rise in the number of involuntary part-time workers, and a growth in the already high rates of youth unemployment. All of these conditions, along with the decline of union representation, have placed downward pressure on wages and forced workers to give back …

Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes, Ernest Caldwell

Chicago-Kent Law Review

Western academics who criticize Chinese constitutionalism often focus on the inability of the Supreme People's Court to effectively enforce the rights of Chinese citizens enshrined within the Constitution of the People's Republic of China. Such criticism, I argue, is the result of analytical methods too invested in Anglo-American constitutional discourse. These approaches tend to focus only on those Chinese political issues that impede the institution of western-style judicial review mechanisms, and often construe a 'right' as merely having vertical effect (i.e., as individual rights held against the State). Drawing on recent scholarship that studies Chinese constitutionalism using its own categories …

Beyond The Courts, Beyond The State: Reflections On Caldwell's "Horizontal Rights And Chinese Constitutionalism", Victor V. Ramraj

Chicago-Kent Law Review

This article provides a critical response to Ernest Caldwell's article, Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes. According to Caldwell, those looking for an emerging constitutional culture in China should be looking not in the higher courts (as the American paradigm of constitutional law suggests), but in the lower courts that settle day-to-day disputes. Moreover, the constitutional discourse in those lower courts is not about limiting state power, but about the need for "horizontal" protections of citizens—specifically laborers—from their powerful employers in furtherance of constitutional values. This article offers three responses to Caldwell's thesis. First, while acknowledging and …

The Unity Of Constitutional Values: A Comment On Ernest Caldwell's "Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes", Arif A. Jamal

Chicago-Kent Law Review

Ernest Caldwell wants to defend Chinese constitutionalism from criticism, mainly from Western constitutional scholars or scholars who hold up Western constitutional patterns as an ideal. Caldwell makes both a 'comparative' claim and a 'value' claim. The comparative claim is that Chinese constitutional law must be understood on its own terms and that on these terms it does protect rights, even if it does not do so in the same way as Western constitutional law. The value claim is that the procedures in China's legal system satisfy value concerns captured in the term 'constitutionalism' because they show how that system respects …

Electronic Privacy And Employee Speech, Pauline T. Kim

Chicago-Kent Law Review

The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees' privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments—weak protection of employee privacy and increased protection for …

Defined (Yet Uncertain) Benefit Pension Plans In America, Travis Bayer

Chicago-Kent Law Review

Despite playing a central role in many public and private employees' retirements, defined benefit pension plans are woefully underfunded. Moreover, the combination of a Baby Boomer retirement bulge and a struggling economy are putting even more pressure on defined benefit plans. This Note examines relevant background information regarding defined benefit pension plans and demographic data of the Baby Boomer generation. This Note then explores how and to what extent states and private employers have created contractual obligations through defined benefit plans and addresses what happens when those contractual obligations are breached. Finally, this Note suggests that litigation cannot provide a …

An Industry Missing Minorities: The Disparate Impact Of The Securities And Exchange Commission's Fingerprinting Rule, Kelly Noonan

Chicago-Kent Law Review

The Equal Employment Opportunity Commission ("EEOC") recently asserted that the use of criminal background checks as an employment screening tool may have a disparate impact on African Americans and Hispanics, in violation of Title VII of the Civil Rights Act of 1964. The EEOC and some private claimants have even filed lawsuits against employers claiming disparate impact violations based on statistics that show African Americans and Hispanics are considerably more likely to have criminal records than other racial groups. Yet, certain federal regulatory agencies require participants in their industries to subject employees to criminal background checks as a condition of …

"Mancession" Or "Momcession"?: Good Providers, A Bad Economy, And Gender Discrimination, Joan C. Williams, Allison Tait

Chicago-Kent Law Review

In the aftermath of the 2008 economic downturn, two of the hardest hit industries were manufacturing and construction. As a result, men became unemployed at a higher rate than women, and consequently, women—for the first time ever—became over fifty percent of the employment. This "mancession" gave rise to great debate over the place of women in the workforce and the important role that employment plays in shaping male identity. An intervening critique came in the form of the "momcession" discourse that focused on the impact of the recession on mothers, who were often responsible for caretaking, homemaking, and providing the …

Defiling The Retaliation Doctrine: Kasten V. Saint-Gobain And The Anti-Retaliation Provision Of The Fair Labor Standards Act, Madeline Engel

Chicago-Kent Law Review

The anti-retaliation provision of the Fair Labor Standards Act makes it unlawful for an employer to retaliate against an employee who has "filed any complaint" under the FLSA. In Kasten v. Saint-Gobain Performance Plastics Corp., the Seventh Circuit declared its position in a growing circuit split as to whether an employee can "file" a verbal complaint of an alleged FLSA violation. Kasten answered the question in the negative, holding that verbal complaints are not protected activity under the Act. This note analyzes relevant Supreme Court precedent and the evolution of the circuit split, as well as principles of statutory …

Discrimination Outside Of The Office: Where To Draw The Walls Of The Workplace For A "Hostile Work Environment" Claim Under Title Vii, Douglas R. Garmager

Chicago-Kent Law Review

Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual" on the basis of sex. Accordingly, in Meritor Savings Bank, FSB v. Vinson, the Supreme Court recognized that sex discrimination in employment can give rise to a hostile work environment claim under Title VII. The scope of a hostile work environment claim has not been interpreted uniformly by the lower courts, however, as a circuit split exists today over whether conduct occurring outside the workplace is relevant to a hostile work environment claim. …

Closing The Gap Legislatively: Consequences Of The Lilly Ledbetter Fair Pay Act, Carolyn E. Sorock

Chicago-Kent Law Review

With the Lilly Ledbetter Fair Pay Act of 2009, Congress both reversed the result of the widely criticized Ledbetter Supreme Court case and expanded the statute of limitations for all employment discrimination claims relating to compensation. Under the Act, a compensation-based employment discrimination claim's statute of limitations period of three hundred days begins to run whenever an employee is "affected" by a discriminatory practice. The language of the Act is far-reaching, but just five months after the Act was signed into law, the Supreme Court stepped in again to narrow the Act's application to pension benefits in AT&T Corp. v. …

Reforming The United States' Economic Model After The Failure Of Unfettered Financial Capitalism, Richard B. Freeman

Chicago-Kent Law Review

This Article is based on the 2009 Kenneth M. Piper Lecture at the Chicago-Kent College of Law. The 2008–2009 financial meltdown and ensuing economic developments have shown three things about modern capitalism: First, that unfettered financial markets remain the Achilles heel of capitalism with the capability of destroying economic stability and bringing misery to all. Second, that high-powered incentives paid to "talent" in finance are a fundamental cause of the excessive risk-taking, chicanery, and financial fraud that contributes to instability. Without a new compensation system that rewards banking and finance for contributing to sustainable economic progress rather than for economic …

The Transformation Of The Professional Workforce, Marion Crain

Chicago-Kent Law Review

For professionals, work is not a commodity to be sold on the market, but a calling that constitutes personal identity while simultaneously conferring a relatively privileged class status. Historically, the professions avoided commodification through a social bargain in which they exchanged their professional expertise and dedication to public service for autonomy, the ability to self-regulate through peer review, and monopoly power over their knowledge base. Over the last twenty-five years, market instability and technological development have fundamentally altered the conditions under which this social bargain was formed, and the professional class has been transformed from self-employed to salaried employee status. …

Recovering Retirement Security: An Analysis Of The Lockdown Claims Under Erisa, As Illustrated By The Enron Litigation, Margo Eberlein

Chicago-Kent Law Review

This Note discusses Enron's lockdown of its 401(k) plan, the effect this decision had on Enron employees' pension funds, and the legal implications of this decision under the current statutory framework, ERISA. It describes the lawsuit filed by Enron employees in an attempt to recover some of the lost funds, as well as the probability of success for that action specifically and similar actions under ERISA in the future.

Commentary: Organized Professionals Can Be Effective Producers, Robert M. Tobias

Chicago-Kent Law Review

No abstract provided.

The Changing World Of Employee Benefits, Maria O'Brien Hylton

Chicago-Kent Law Review

The employee benefits picture, at least for many plan participants and some plan sponsors, is a scary and bleak one. The number of workers with pension coverage is declining, health insurance rates are rising much faster than the rate of inflation, and the number of uninsured continues to rise as well. The decline in union density, the recent boost given by the U.S. Supreme Court to Any Willing Provider ("AWP") laws, and the deluge of recent benefits-related scandals are also all part of this landscape. This Article examines each of these issues, with a focus on reforms that would increase …

Commentary: Is It Time To Take The Broom And Really Clean House? A New Paradigm For Employee Benefits, Mary Ellen Signorille

Chicago-Kent Law Review

No abstract provided.

Reasonable Accommodation Under The Ada: Are Employers Required To Participate In The Interactive Process? The Courts Say "Yes" But The Law Says "No", John R. Autry

Chicago-Kent Law Review

The Americans with Disabilities Act ("ADA") generally requires employers to "reasonably accommodate" a "qualified" employee's disability. Unfortunately, the ADA is silent as to the appropriate method for fashioning reasonable accommodations. The Equal Employment Opportunity Commission ("EEOC") issued regulations endorsing an "interactive process" by which an employer and its "qualified" disabled employee work together to devise the proper accommodation. However, the Supreme Court has yet to determine whether courts must defer to these regulations, leaving the circuit courts of appeals to issue differing opinions on whether the EEOC's interactive process is best characterized as a requirement or merely a suggestion.

Thus, …

State Employers Are Not Sovereign: By Analogy, Transfer The Market Participant Exception To The Dormant Commerce Clause To States As Employers, Lara Gardner

Chicago-Kent Law Review

States should be treated as market participants and not be given sovereign immunity under the Eleventh Amendment when they are acting as private employers. Through an expansive reading of the Eleventh Amendment, the Supreme Court has restricted the right of state employees to sue under federal statutes intended to protect employees when the state is the employer and claims sovereign immunity. Under the market participant exception to the dormant Commerce Clause, if a state is acting as a market participant, rather than as a market regulator, it is no longer bound by the restraints of the Commerce Clause. The reasons …