Law Commons^™

Neoformalism And The Reemergence Of The Right-Privilege Distinction In Public Employment Law, Paul M. Secunda

San Diego Law Review

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, the unconstitutional conditions doctrine has now been increasingly used to rob these employees of their constitutional rights.

Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought--the "subsidy school"--has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the "penalty school." Second, although initially developed in the …

Spouses Need Not Apply: The Legality Of Antinepotism And No-Spouse Rules, Timothy D. Chandler, Rafael Gely, Jack Howard, Robin Cheramie

San Diego Law Review

Over the last three decades, there have been significant increases in labor force participation by women. Initially, this increase was fueled by the entry of single, childless women into the labor market. Married women primarily dedicated their efforts to home care concerns. However, in recent years, a new trend has emerged as "the levels of market work undertaken by married women have increased relative to those of unmarried women."

Employer Liability For Harassment Under Title Vii: A Functional Rationale For Faragher And Ellerth, Michael C. Harper

San Diego Law Review

In two decisions concerning sexual harassment, Faragher v. City of Boca Raton' and Burlington Industries, Inc. v. Ellerth, The Supreme Court, on the last day of its 1997-1998 term finally articulated coherent vicarious liability rules critical for bounding the scope of the discrimination prohibitions in Title VII of the Civil Rights Act of 1964. The Court did so by explaining the meaning of the inclusion of "any agent" in Title VII's definition of "employer.'" The meaning of "agent" in this definition is critical for establishing employer liability because almost all Title VII-protected employees work for corporations and other legal fictions …

Labor Certification: Six Different Ways And Reasons For Establishing Dissimilarity Between Two Employment Positions, Lorna Rogers Burgess

San Diego Law Review

In alien employment certification and labor condition attestation, a distinction between two jobs must be established if an alien's previous experience with the same employer is to be used as a qualifying credential in labor certification. Two jobs must also be distinguished when challenging a state wage determination. A successful challenge often requires establishing a dissimilarity between the job offered and those to which it is compared. What makes two jobs different in these circumstances is difficult to determine. This Article explores the methodology applied by the Department of Labor in distinguishing between jobs in contexts including utilization of an …

A Misapplication Of The Sherman Act To Rent Control: Fisher V. City Of Berkeley, Robin M. Bernhardt

San Diego Law Review

This Comment analyzes the recent decisions by the California Supreme Court and the U.S. Supreme Court in Fisher v. City of Berkeley, which upheld municipal rent control under the Sherman Act. The author critiques the Court's decision and highlights several flaws in the analysis. Acknowledging the economic problems associated with rent control, the author concludes that municipal rent control ordinances are clearly outside the scope of Sherman Act antitrust analysis.

Section 10(B) And Rule 10b-5 Federal Securities Law Claims: The Need For The Uniform Disposition Of The Arbitration Issue, Audrey V. Nelson

San Diego Law Review

This Comment examines the use of pre-dispute arbitration clauses in investment contracts. The author argues that, while the United States Arbitration Act mandates the enforcement of arbitration agreements, many courts have refused to enforce investment contract arbitration clauses fearing a lack of investor protection. The author reviews the use of arbitration in the securities industry, as well as the judicial decisions that have impacted its use. The author concludes that, with certain changes in the structure of these clauses, securities industry arbitration clauses should be enforced in order to protect investors and provide a more efficient method of resolving securities …

A Modest Proposal: The Statutory No-Cause Alternative To Wrongful Discharge In California, Ellis T. Prince Iii

San Diego Law Review

This Article examines the varied and inconsistent results of California wrongful discharge case law and proposes a statutory alternative to discharge litigation. The author proposes a statute that avoids the question of "just" versus "wrongful" discharge by establishing a "no-cause" discharge option for employers and employees. The author argues that such an option would allow the employer to terminate the employee, without cause, upon payment of a statutorily calculated discharge payment, thereby addressing the interests of the at-will employee as well as the right of the employer to terminate at will.

Habitat Conservation Plans Under The Endangered Species Act, Richard E. Webster

San Diego Law Review

This Comment analyzes the development of Habitat Conservation Plans (HCP) as a means for planners to free themselves from the prohibitions against the taking of endangered species under the Endangered Species Act. The author argues that the use of the HCP has resulted in an increase in the number of parties seeking statutory permission to take endangered species. The author examines the statutory requirements for the development and approval of HCPs under section 10(a) of the Endangered Species Act. The author further critiques the first three HCPs that were developed, and suggests various changes to harmonize section 10(a) with the …

Foreword, Willard Wirtz

San Diego Law Review

The papers in this issue of the San Diego Law Review could be taken as reflecting widespread disarray at the current stage of the always evolving, now rapidly expanding, law of the employment relationship. Dealing with a variety of subject matter areas, the commentators' reactions to what they find range from exasperation to bewilderment to more restrained but nonetheless sharp criticism. If this is partly the custom of legal periodical literature, the general impression is left of more than ordinary confusion, uncertainty, and frustration of purpose in this body of law taken as a whole.

The Problematic Provision And Protection Of Health And Welfare Benefits For Retirees, Donald T. Weckstein

San Diego Law Review

This Article explores the conceptual underpinnings of the law governing health and welfare benefits of retired employees. The author begins by discussing bargaining rights and duties and examining the legal consequences of an employer modification of bargained-for retiree benefits. The author argues that there is no legal prohibition on modification or termination without proof of a contractual commitment that gives the retiree a vested right to benefits. The author concludes that, until Congress changes the law, a presumption against contractual vesting of retiree benefits should be applied and extrinsic evidence should be admitted to rebut this presumption.

The Nlrb In The Dog House--Can An Old Board Learn New Tricks, Charles J. Morris

San Diego Law Review

This Article examines the performance of the NLRB in light of the fiftieth anniversary of the National Labor Relations Act. The author argues that the Board has failed to carry out its statutory mandate, specifically criticizing the Board's record of enforcement of core employee protection provisions. The author demonstrates that the Act's unambiguous statement of policy, encouraging free collective bargaining and employee organizational rights, still governs. The author concludes by urging the Board to invoke its statutory authority and makes specific recommendations for non-legislative procedural reform of the NLRB, arguing that such reform would revitalize the Board and vindicate the …

The Burger Court And Labor Law: The Beat Goes On--Marcato, William B. Gould Iv

San Diego Law Review

This Article analyzes many of the major labor law decisions of the Burger Court and their impact on organized labor. The author compares the Court's methodology with that of the Warren Court and asserts that the Burger Court has, in many instances, simply expanded on themes developed by its predecessor. The author further discusses areas in which the Burger Court has broken new ground and concludes that the Burger Court has accelerated the pendulum against the interests of organized labor.

Cobra: Congress Provides Partial Protection Against Employer Termination Of Retiree Health Insurance, David L. Gregory

San Diego Law Review

This Article examines the Consolidated Omnibus Budget Reconciliation Act (COBRA), which provides protection for employees against the unilateral abrogation of retiree participation in an employer's group health insurance plan. The author argues that, while COBRA provides significant benefits for employees, it is not entirely sufficient. The author examines COBRA, its mechanics, and its shortcomings. The author also analyzes pre-COBRA judicial decisions relating to retiree health benefits in both the unionized and non unionized settings and addresses the public policy considerations that support the need to further strengthen legal protections for America's aging workforce.

The Spring Has Sprung: The Fate Of Plant Relocation As A Mandatory Subject Of Bargaining, Joanne D. Roake

San Diego Law Review

This Comment examines the issue of whether plant relocation decisions are a mandatory subject of bargaining. The author examines the National Labor Relations Act and the potential impact of characterizing plant relocation decisions as a mandatory subject. The author then examines the Milwaukee Spring cases and their failed attempts to resolve the issue of plant relocation in labor-management relations. The author argues that the NLRB and the courts should refocus their analysis on whether plant relocation is a mandatory or permissive subject of bargaining and deemphasize boilerplate waivers. The author concludes that the balancing test set forth by the United …