Law Commons^™

The Impacts Of Compulsory Prison Labor Ballot Initiatives On Pregnant & Postpartum Incarcerated Women Of Color, Candace Bond-Theriault

Center for Gender & Sexuality Law

The 13th Amendment to the United States Constitution purported to abolish the institution of slavery, but it created an exception for compulsory labor performed by people convicted of crimes. In November 2022, voters in Alabama, Vermont, Louisiana, Tennessee, and Oregon will be asked to vote on ballot initiatives that would strike language from their state constitutions that currently allows states to force incarcerated people to perform labor with minimal or no pay.1 This policy brief examines the legal language of these ballot initiatives and evaluates whether each measure, if approved by voters, will actually close the compulsory labor loophole. In …

No Longer A Second-Class Class Action? Finding Common Ground In The Debate Over Wage Collective Actions With Best Practices For Litigation And Adjudication, Scott A. Moss, Nantiya Ruan

Publications

Rule 23 class actions include all potential members, if granted certification. For wage claims, 29 U.S.C. § 216(b) allows not class but collective actions covering only those opting in. Courts have practiced Rule 23-style gatekeeping in collective actions – requiring certification motions, which they deny if members lack enough commonality. Our 2012 article argued against this practice. No statute or rule grants judges the § 216(b) gatekeeping power early cases assumed, and with good reason: opt-in reduces the agency problems justifying Rule 23 gatekeeping; and Congress passed § 216(b) as not a stricter, opt-in form of class action, but liberalized …

An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias

Articles

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, …

The Case For Tipping And Unrestricted Tip-Pooling: Promoting Intrafirm Cooperation, Samuel Estreicher, Jonathan R. Nash

Faculty Articles

This Article proceeds as follows. Part I presents doctrinal background. It discusses the laws governing tip-pooling, with an emphasis on relevant federal and state laws. Part II analyzes, from a law-and-economics perspective, how tip-pooling arrangements—both voluntary and mandatory—might arise, and what form they might take. Part III shows how governing law limits the ability of restaurateurs to put tip-pooling arrangements in place, and shapes the incentives of employees. It also analyzes the response of restaurants like the Union Square Hospitality Group that have barred all tipping. Part IV suggests revisions to existing law that would free up management’s freedom to …

Petition For A Writ Of Certiorari. Kirk V. Invesco, Limited, 138 S.Ct. 1164 (2018) (No. 17-762), 2017 U.S. S. Ct. Briefs Lexis 4618, 2017 Wl 5665441, Eric Schnapper, Nitin Sud

Court Briefs

QUESTION PRESENTED The Fair Labor Standards Act provides that covered employees who work more than 40 hours in a week must generally be paid overtime at a rate one and one-half times their regular rate. To assure compliance with that overtime rule, the Act and governing regulations require employers to maintain records of all hours worked by covered employees. If an employer has failed to keep the legally required records, the burden on the employee under Anderson v. Mt. Clemens Pottery Co. is simply to "produce[] sufficient evidence to show the amount and extent of that work as a matter …

Social Bargaining In States And Cities: Toward A More Egalitarian And Democratic Workplace Law, Kate Andrias

Articles

A well-documented problem motivates this symposium: The National Labor Relations Act (NLRA) does not effectively protect workers’ rights to organize, bargain, and strike. Though unions once represented a third of American workers, today the vast majority of workers are non-union and employed “at will.” The decline of organization among workers is a key factor contributing to the rise of economic and political inequality in American society. Yet reforming labor law at the federal level—at least in a progressive direction—is currently impossible. Meanwhile, broad preemption doctrine means that states and localities are significantly limited in their ability to address the weaknesses …

Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos

Articles

In this Essay, I hope to do two things: First, I try to put the current labor-disability controversy into that broader context. Second, and perhaps more important, I take a position on how disability rights advocates should approach both the current controversy and labor-disability tensions more broadly. As to the narrow dispute over wage-and-hour protections for personal-assistance workers, I argue both that those workers have a compelling normative claim to full FLSA protection—a claim that disability rights advocates should recognize—and that supporting the claim of those workers is pragmatically in the best interests of the disability rights movement. As to …

Making The Minimum Wage Work: An Examination Of The Economic Impact Of The Minimum Wage, Steve P. Calandrillo, Taylor Halperin

Articles

With the passage of the Fair Labor Standards Act in 1938, Congress mandated a federal “living wage” in order to “maintain the minimum standard of living necessary for the health, efficiency, and general well-being of workers.” Advocates have long insisted that increases in the minimum wage result in a net gain to employees’ standard of living. Critics have countered that those gains come at the expense of higher prices and shrinking overall employment numbers, leaving a new class of potential workers out in the cold.

This Article synthesizes the empirical economic impact data from minimum wage increases over the past …

Agency Law And The New Economy, Mark J. Loewenstein

Publications

This article considers the status of workers in the "new economy," defined as the sharing economy (e.g., Uber, Lyft) and the on-demand economy. The latter refers to the extensive and growing use of staffing companies by established businesses in many different industries to provide all or a portion of their workforce. Workers in both the sharing economy and the on-demand economy are, generally speaking, at a disadvantage in comparison to traditional employees. Uber drivers, for example, are typically considered independent contractors, not employees, and therefore are not covered under federal and state laws that protect or provide benefits to employees. …

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

Law Student Publications

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 undue judicial deference. Alternatively, the primary beneficiary test, articulated in the Second Circuit's holding in Glatt v. Fox Searchlight Pictures, Inc. …

"An Equally Divided Court": Workplace Law In The U.S. Supreme Court 2015-2016, Ruben J. Garcia

Scholarly Works

The 2015-2016 Term of the United States Supreme Court was scarcely halfway over when Justice Antonin Scalia passed away on February 12, 2016. This event and the political gridlock over his successor defined the Term in some ways more than the actual decisions of the Court, particularly when the resulting vacancy led an “equally divided” Supreme Court to affirm the courts below in a one sentence judgment. The most watched of these cases in workplace law was Friedrichs v. California Teachers Association, where the Supreme Court’s 4-4 tie avoided the overruling of decades of precedent upholding the constitutionality of agency …

Summary Of Terry V. Sapphire Gentlemen’S Club, 130 Nev. Adv. Op. 87, Walter Fick

Nevada Supreme Court Summaries

The Court adopted the “economic realities” test of the Fair Labor Standards Act, and held as a matter of law that performers at the Sapphire Gentlemen’s Club were “employees within the meaning of NRS 608.010, and thus entitled to the minimum wages guaranteed by NRS Chapter 608.”

The Fair Labor Standards Act: A Tool For Those Who Represent Employees, Claimants, And Plaintiffs, Joseph A. Schremmer, Sean M. Mcgivern

Faculty Scholarship

The Fair Labor Standards Act (FLSA) of 1938 is a comprehensive federal statute that regulates minimum wages, maximum hours, and child labor. This article is intended to provide background for the general practitioner in an effort to help advance the interests of Kansas Association for Justice clients and workers. The FLSA was created to hold disreputable employers to account for chiseling their workers. The tangle of rules and regulations that followed may have complicated the operation of a basically straightforward law. But as long as lawyers understand and can navigate these highly technical provisions, FDR’s grand vision for fair and …

Internships As Invisible Labor, Melissa Hart

Publications

No abstract provided.

Reply Brief. Sandifer V. United States Steel Corp., 134 S. Ct. 870 (2014) (No. 12-417), 2013 U.S. S. Ct. Briefs Lexis 3416, Eric Schnapper, Aaron B. Maduff, Michael L. Maduff, Walker R. Lawrence, Robert F. Childs, Jr., Abby Morrow Richardson, David L. Kern

Court Briefs

No abstract provided.

Brief For Petitioners. Sandifer V. United States Steel Corp., 134 S. Ct. 870 (2014) (No. 12-417), 2013 U.S. S. Ct. Briefs Lexis 2320, Eric Schnapper, Aaron B. Maduff, Michael L. Maduff, Walker R. Lawrence, Robert F. Childs, Jr., Abby Morrow Richardson, David L. Kern

Court Briefs

No abstract provided.

Christopher V. Smithkline Beecham Corporation: An Unsurprising Loss For Pharmaceutical Sales Representatives And An Erosion Of Power For Administrative Agencies, Anna Johnston

Proxy

No abstract provided.

Regulation By Amicus: The Department Of Labor's Policy Making In The Courts, Deborah Thompson Eisenberg

Faculty Scholarship

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts.

Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the …

Labor And Employment Law, Eric Wallace

Law Student Publications

During the past two years, there have been several significant developments in labor and employment law, both on the state and federal levels. Because developments in both state and federal law likely will have a profound impact on employers and employees throughout Virginia, they warrant significant discussion in this survey. In addition to examining notable decisions from the Supreme Court of the United States, the United States Court of Appeals for the Fourth Circuit, and the United States District Courts for the Eastern District and Western District of Virginia, this survey also discusses decisions of the Supreme Court of Virginia …

Petition For A Writ Of Certiorari. Sandifer V. United States Steel Corp., 134 S. Ct. 870 (2014) (No. 12-417), 2012 U.S. S. Ct. Briefs Lexis 4304, Eric Schnapper, Aaron B. Maduff, Michael L. Maduff, Walker R. Lawrence, Robert F. Childs, Jr., Abby Morrow Richardson, David L. Kern

Court Briefs

QUESTIONS PRESENTED

Under the Fair Labor Standards Act, the period of time during which a covered employee must be paid begins when the worker engages in a principal activity. Donning and doffing safety gear (including protective clothing) required by the employer is a principal activity when it is an integral and indispensable part of the activities for which the worker is employed. Such requirements are common in manufacturing firms. However, under section 203(o) of the Act an employer need not compensate a worker for time spent in “changing clothes” (even if it is a principal activity) if that time is …

Are Pharmaceutical Sales Representatives Exempted From The Overtime-Pay Requirements Of The Fair Labor Standards Act?, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Kasten V. Saint-Gobain Performance Plastics: Protecting Oral Complaints At The Expense Of Workplace Complaints, Shaun O'Donnell

Proxy

No abstract provided.

Secret Class Action Settlements, Rhonda Wasserman

Articles

This Article analyzes the phenomenon of secret class action settlements. To illustrate the practice, Part I undertakes a case study of a class action lawsuit that recently settled under seal. Part II seeks to ascertain the scope of the practice. Part II.A examines newspaper accounts describing class action settlements from around the country. Part II.B focuses on a single federal judicial district – the Western District of Pennsylvania – and seeks to ascertain the percentage of suits filed as class actions that were settled under seal. Having gained some understanding of the scope of the practice, the Article then seeks …

Petition For A Writ Of Certiorari. Dellinger V. Science Applications International Corp. (No. 11-598), 2011 U.S. S. Ct. Briefs Lexis 2153, Eric Schnapper, Zachary A. Kitts, John J. Rigby

Court Briefs

QUESTIONS PRESENTED (1) Does the anti-retaliation provision in section 15(a)(3) of the Fair Labor Standards Act apply to retaliation by an employer against a job applicant? (2) Is the private cause action provided by section 16(b) of the FLSA available to a job applicant who is retaliated against by an employer?

Save The Children: The Legal Abandonment Of American Youth In The Workplace, Seymour Moskowitz

Law Faculty Publications

No abstract provided.

Dickens Redux: How American Child Labor Law Became A Con Game, Seymour Moskowitz

Law Faculty Publications

Millions of American teens are employed today in a variety of workplaces. The jobs they hold typically provide little human capital for their future economic self·sufficiency, and pose substantial immediate and long-term safety, academic, and behavioral risks for this generation. This Article seeks to answer the question of how American law and society reached this situation, which has such disastrous effects for working youth, their families, and society as a whole. Three main themes are developed:

1. Child labor has always been part of the American economy, from colonial times until today. While there have been more than 150 years …

Working For (Virtually) Minimum Wage: Applying The Fair Labor Standards Act In Cyberspace, Miriam A. Cherry

All Faculty Scholarship

As more work enters cyberspace, takes place in virtual worlds, and collapses traditional nation-state barriers, we are entering a new era of “virtual work.” In this article, I use “virtual work” as an umbrella term to encompass work in virtual worlds, crowdsourcing, clickworking, even sweeping in, to some degree, the commonplace telecommuting and “mobile executives” that have become ubiquitous over the past decade.Are such new forms of “work” entitled to the minimum payment standards mandated under the FLSA? As the United States enters another economic crisis, and with advances in technology key to continued economic growth and stability, these questions …

Civil Rights And Related Decisions, Eileen Kaufman

Scholarly Works

This article analyzes two cases from the October 2006 Supreme Court Term, Ledbetter v. Goodyear Tire & Rubber Co. and Gonzales v. Carhart. The cases have much in common, even though Ledbetter concerns pay disparity claims based on gender and Gonzales concerns second trimester abortions. Both are five-four decisions which demonstrate how profoundly the appointment of Justice Samuel Alito to occupy Justice Sandra Day O'Connor's seat has affected the balance of power on the Court. The net result of this shift has been a devastating setback for women's rights. Both decisions prompted Justice Ruth Bader Ginsburg to uncharacteristically read aloud …

Data Note: The Relationship Between Supported Employment Status And Minimum Wage For Vocational Rehabilitation Integrated Employment Closures In 2004, Frank A. Smith, Dana Scott Gilmore

Data Note Series, Institute for Community Inclusion

Some VR customers earn less than minimum wage despite being closed successfully, i.e., exiting Vocational Rehabilitation (VR) services into an integrated employment setting. Section 14(c) of the Fair Labor Standards Act allows employers to pay less than the minimum wage to a person whose disability impairs their capacity to be productive at a particular job. People in supported employment are more likely to have a disability that makes them eligible for Section 14(c) minimum wage exemption. How do wages for customers in supported employment compare to those earned by other customers?

Handling Difficult Issues Under The Family Medical Leave Act, Helen Norton

Publications

No abstract provided.