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Articles 1 - 30 of 51
Full-Text Articles in Law
Raising The Floor From The Back Door: Shareholder Proposals As A Mechanism For Raising Minimum Wage, Laura Carrier
Raising The Floor From The Back Door: Shareholder Proposals As A Mechanism For Raising Minimum Wage, Laura Carrier
Washington and Lee Law Review
When adjusted to reflect inflation, the federal minimum wage is almost 40 percent lower than it was in 1970. The Biden Administration tried and failed to legislatively raise the minimum wage, and political deadlock will continue to kill legislative change. The shareholder proposal, a nonbinding recommendation to management that shareholders can submit for a vote at a public corporation’s annual meeting, presents a path for improving the wages of many workers in the absence of federal legislation. This Note analyzes the best approach to crafting a shareholder proposal on minimum wage that will prompt an effective increase in the minimum …
We Are Never Getting Back Together: A Statutory Framework For Reconciling Artist/Label Relationships, Harrison Simons
We Are Never Getting Back Together: A Statutory Framework For Reconciling Artist/Label Relationships, Harrison Simons
Washington Law Review Online
Taylor Swift could tell you a thing or two about record label drama. Artists like Swift who want to break into the big leagues and top the charts must rely on record labels’ deep pockets and institutional knowledge to do so. But artists, especially young ones, are often asked to sign deals with labels that leave them with little control over their careers. For many, the risk is worth the reward. However, many others come to regret their decision, with careers that languish or sputter out in label purgatory. Anyone with an ear for the music industry knows that artist-label …
You Guys Are Getting Paid? Time For Interns To Cash In On The Flsa, Lauren Hand
You Guys Are Getting Paid? Time For Interns To Cash In On The Flsa, Lauren Hand
Dickinson Law Review (2017-Present)
Under the Fair Labor Standards Act (“FLSA”), individuals who qualify as employees are entitled to the federal minimum wage. Because the statute itself gives little guidance about who meets the FLSA definition of an employee, courts generally determine employee status by applying the economic reality test, which assesses the economic circumstances of the relationship and tends toward broad inclusivity. The Supreme Court, however, created a caveat in 1947 in Walling v. Portland Terminal, holding that trainees might be uniquely excluded from FLSA employee status and its attending benefits. The trainee exception, as it has since become known, has expanded in …
Comment: Unpaid Internships And The Rural-Urban Divide, Susan D. Carle
Comment: Unpaid Internships And The Rural-Urban Divide, Susan D. Carle
Washington and Lee Law Review
In this Comment, I first note how much the existing literature on unpaid internships under the FLSA focuses on urban contexts. Next, I briefly sketch some of the literature on the rural-urban divide, a topic I argue needs much more analysis from legal scholars in coming years. Third, I show how Morris’s work brings together these two literatures, which to this point have not been in conversation with each other. Finally, I note a few questions Morris’s work raises for future attention.
Time’S Up: Against Shortening Statutes Of Limitation By Employment Contract, Meredith R. Miller
Time’S Up: Against Shortening Statutes Of Limitation By Employment Contract, Meredith R. Miller
Scholarly Works
Employers are increasingly adding clauses to contracts with employees that purport to shorten the statutes of limitation for employees to pursue claims against their employers (“SOL Clauses”). SOL Clauses are being imposed on employees in various stages of the contracting process. They have turned up in job applications, offer letters, arbitration clauses, employment agreements and employee handbooks. Where they have been enforced by the courts, the justification has been a prioritization of “freedom of contract” over any other policy concerns. This Article argues that, in the employment context, “freedom of contract” should not be prioritized over other competing concerns, which …
Looking A Gift Horse In The Mouth: Working Students Under The Fair Labor Standards Act, Lara Morris
Looking A Gift Horse In The Mouth: Working Students Under The Fair Labor Standards Act, Lara Morris
Washington and Lee Law Review
Internships have skyrocketed in popularity as they become the new entry-level position for professional careers across the country. Despite their popularity, the legality of internships falls in a gray area created by a vague statute and a flexible, factor-based judicial test. The Fair Labor Standards Act (FLSA), which regulates employment relationships and importantly mandates a minimum wage and hour requirements, was written long before internships became commonplace and provides little direction for how to regulate these positions. In this void, both the Department of Labor and federal courts have developed guidance, the ultimate culmination of which is the modern primary …
Comments On Worker Classification Proposed Rule For Flsa Purposes Rin 1235-Aa43, Samantha J. Prince, Taylor Haberle, Lauren E. Stahl
Comments On Worker Classification Proposed Rule For Flsa Purposes Rin 1235-Aa43, Samantha J. Prince, Taylor Haberle, Lauren E. Stahl
Faculty Scholarly Works
No abstract provided.
Employment Law—Just Let Them Handle It Amongst Themselves: An Argument In Favor Of Abandoning The Application Of The Lynn's Food Stores Standard To Flsa Settlement Agreements, Matthew C. Lewis
University of Arkansas at Little Rock Law Review
No abstract provided.
The Motor Carrier Excuse, David M. Cole
The Motor Carrier Excuse, David M. Cole
University of Arkansas at Little Rock Law Review
No abstract provided.
Blurring The Line Between Student And Employee: Exploitation Of For-Profit College Students, Michele Abatangelo
Blurring The Line Between Student And Employee: Exploitation Of For-Profit College Students, Michele Abatangelo
Touro Law Review
For decades, for-profit colleges throughout the United States have exploited their students through a predatory business model. In February 2022, the Education Department approved $415 million in borrower defense claims for nearly 16,000 students who attended for-profit schools finding that these schools misrepresented post-graduation employment prospects. For-profit colleges also use manipulative recruitment tactics such as targeted advertising of low-income and minority students and providing false information to prospective students about loan repayment obligations post-graduation. Some for-profit institutions also rely on student labor in their facilities rather than hiring paid employees. This review discusses why it is imperative that courts scrutinize …
The Deadly Cost Of Unregulated Labor: How The United States Fair Labor Standards Act Violates The International Labour Organization’S Ilo Convention No. 182 In Failing To Provide Protections For Children Working In Agriculture, Sara Salinas
Upper Level Writing Requirement Research Papers
The Fair Labor Standards Act of 1938 (FLSA) was the first successful comprehensive legislation addressing child labor laws in the United States. While important, the FLSA left a lot to be desired for agricultural child workers as it provides less protections for them than for non-agricultural child workers. This disparity has left child agricultural workers legally allowed to work in hazardous conditions at a young age, and work nearly unlimited hours. For the most part, child labor laws were at a stalemate until 1999 when the United States ratified the International Labor Organization (ILO) Convention No. 182, also known as …
Lean Weeks And Fat Weeks: A Commissioned Employee's Regular Rate Of Overtime Pay, Colt Burnett
Lean Weeks And Fat Weeks: A Commissioned Employee's Regular Rate Of Overtime Pay, Colt Burnett
Georgia State University Law Review
This Note focuses on the uncertainty inherent in overtime calculations for certain categories of employees who earn commission in addition to hourly wages. Part I of this Note gives the relevant history behind overtime and “regular rate” calculation. Part II analyzes the different methods of determining an employee’s regular rate of pay in the Seventh and Eleventh United States Circuit Courts of Appeals. Part III proposes for a uniform approach to deferred commission allocation in overtime calculation, advocating the Eleventh Circuit’s method because it more closely follows the aims of the FLSA and because the Department of Labor favors the …
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
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 …
Employment Law—Mandatory-Workplace Donning And Doffing—All In A Day's Work: A Review Of Gerber Products Company V. Hewitt, 2016 Ark. 222, 492 S.W.3d 856., Liz Harris
University of Arkansas at Little Rock Law Review
No abstract provided.
Agency Law And The New Economy, Mark J. Loewenstein
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. …
Show Me The Money: On Whether Car Dealership Service Advisors Are Entitled To Or Exempt From Overtime Pay Under The Flsa, Seth Andrew Yarkony
Show Me The Money: On Whether Car Dealership Service Advisors Are Entitled To Or Exempt From Overtime Pay Under The Flsa, Seth Andrew Yarkony
Notre Dame Law Review
This Note analyzes the merits of the Encino Motorcars, Deel Motors, and Greenbrier Ford decisions in light of the text and legislative history of the Dealership Employee Exemption and Christopher v. SmithKline Beecham Corp. Part I summarizes the Exemption, the DOL Dealership Regulation interpreting the Exemption, and the decisions whether to defer to the DOL Dealership Regulation by the Encino Motorcars, Deel Motors, and Greenbrier Ford courts. Part II analyzes the text and legislative history of the Exemption, and concludes that the DOL Dealership Regulation should not be afforded Chevron deference because it is manifestly contrary …
Waging The War Against Unpaid Labor: A Call To Revoke Fact Sheet #71 In Light Of Recent Unpaid Internship Litigation, Rachel P. Willer
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." …
Waging The War Against Unpaid Labor: A Call To Revoke Fact Sheet #71 In Light Of Recent Unpaid Internship Litigation, Rachel P. Willer
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. …
Joint Employers: The Nevada Casino Operator's Role In Regulating Labor Conditions Of Venue Employees, Mary Tran
Joint Employers: The Nevada Casino Operator's Role In Regulating Labor Conditions Of Venue Employees, Mary Tran
UNLV Gaming Law Journal
No abstract provided.
Wage Theft As Public Larceny, Elizabeth J. Kennedy
Wage Theft As Public Larceny, Elizabeth J. Kennedy
Brooklyn Law Review
Home care for the elderly and disabled is a rapidly expanding industry in which structural and regulatory factors contribute to worker vulnerability and exploitation. Systemic exclusion from core federal employment and labor laws, as well as many state and local regulations, results in minimal consequences for employers who violate standards. Despite recent movement at the federal level to create a “new mindset” of rights and regulations, home care workers must be equipped with creative ways to enforce these new rights and to challenge existing gaps in enforcement. With the understanding that two-thirds of the home care industry is financed by …
Will Work For Free: The Legality Of Unpaid Internships, Nicole M. Klinger
Will Work For Free: The Legality Of Unpaid Internships, Nicole M. Klinger
Brooklyn Journal of Corporate, Financial & Commercial Law
This Note addresses the current ambiguity in the law regarding if unpaid interns are employees under the Fair Labor Standards Act. The Note explores relevant case law throughout the circuit courts, but primarily focuses on the Second Circuit’s recent decision in Glatt v. Fox Searchlight Pictures. It argues that the primary benefits test created by the Second Circuit in Glatt does not adequately protect unpaid interns nor does it inform employers of the standards they need to meet in order to adopt legal unpaid internship programs. Instead, courts should adopt a clearer, more rigid test that finds an intern not …
Food Stamps, Unjust Enrichment And Minimum Wage, Candace Kovacic-Fleischer
Food Stamps, Unjust Enrichment And Minimum Wage, Candace Kovacic-Fleischer
Articles in Law Reviews & Other Academic Journals
A number of large retail chains with monopsony power, such as Walmart, pay their low level employees so little that these employees are eligible for food stamps and other governmental benefits. In addition to paying low wages, these chains often have hourly restrictions so that their employees are not eligible for overtime pay. At times the chains violate the wage and hour provisions of the Fair Labor Standards Act (FLSA) by making hourly employees work “off the clock,” a practice known as wage theft.
One of the reasons these low wage retailers can pay so little is because their employees …
Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos
Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos
Indiana Law Journal
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 contro-versy 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 …
Protecting Society From Teenage Greed: A Proposal For Revising The Ages, Hours And Nature Of Child Labor In America, Andrea Giampetro-Meyer, Timothy S. Brown S.J.
Protecting Society From Teenage Greed: A Proposal For Revising The Ages, Hours And Nature Of Child Labor In America, Andrea Giampetro-Meyer, Timothy S. Brown S.J.
Akron Law Review
The first section of this Article presents a picture of child labor throughout American history. It looks at child labor from the turn of the century to date. This section helps the reader understand the extent of changes in child labor over time. The second section presents a summary of federal and state child labor laws. This section shows that attempt to control employers who exploit children have changed only marginally. The third section of this Article explores social science data on the pros and cons of teenage employment.
This section focuses on the issue of teenage greed. First, the …
No Pay, No Gain? The Plus Side Of Unpaid Internships, Chad A. Pasternack
No Pay, No Gain? The Plus Side Of Unpaid Internships, Chad A. Pasternack
The Journal of Business, Entrepreneurship & the Law
Recent cases out of the Southern District of New York have shined a spotlight on the phenomenon that is the unpaid internship with for-profit companies. These rulings, awaiting scrutiny by the Second Circuit, have opened the floodgates for countless interns to challenge their “employers” for the minimum wage they may be owed under the Fair Labor Standards Act (FLSA). This article examines the evolution of testing for employment under the FLSA, which varies greatly among the circuits. It then argues for a limited exception to the FLSA inspired by the “small business exception” to the Affordable Care Act.
Glatt V. Fox Searchlight Pictures Inc., Zachary Edelman
Glatt V. Fox Searchlight Pictures Inc., Zachary Edelman
NYLS Law Review
No abstract provided.
Summary Of Terry V. Sapphire Gentlemen’S Club, 130 Nev. Adv. Op. 87, Walter Fick
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.”
Subminimum Or Subpar? A Note In Favor Of Repealing The Fair Labor Standards Act's Subminimum Wage Program, Melia Preedy
Subminimum Or Subpar? A Note In Favor Of Repealing The Fair Labor Standards Act's Subminimum Wage Program, Melia Preedy
Seattle University Law Review
This Note argues for the repeal of Section 14(c) of the Fair Labor Standards Act (FLSA), which continues to perpetuate a system allowing employers to pay less than minimum, or “subminimum,” wage to certain employees with disabilities. The Section 14(c) program is a relic of policy leftover from the 1930s and does not help the disabled community, but rather rests on the presumption that persons with disabilities never progress. In light of recent House Resolution 3086, Congress went against the current trend of encouraging maximum independence and equal opportunities for persons with disabilities and instead upheld the subminimum wage program; …
Breastfeeding And A New Type Of Employment Law, Marcy Karin, Robin Runge
Breastfeeding And A New Type Of Employment Law, Marcy Karin, Robin Runge
Catholic University Law Review
No abstract provided.
Preserving The Sanctity Of Collective Bargaining: The Compensability Of Travel Time Following Flsa Section 203(O) Donning And Doffing Activity, Nicholas Hart
Catholic University Law Review
No abstract provided.