Law Commons^™

Collective Bargaining Or "Collective Begging"?: Reflections On Antistrikebreaker Legislation, Samuel Estreicher

Michigan Law Review

The strike is a necessary part of collective bargaining. Workers should not ordinarily lose their jobs by pressing their disputes in this manner. But neither should strikes be viewed as a risk-free means of empowering unions to lock employers into uncompetitive contracts.

Rethinking Financial Information Disclosure Under The National Labor Relations Act, Brent Robbins

Vanderbilt Law Review

The National Labor Relations Act's ("NLRA") central purpose is to reduce industrial strife and stimulate economic growth by promoting collective bargaining between employers and unions.' The 1947 amendments to the Act make clear that collective bargaining must be conducted in good faith. Under the Act, as interpreted by the National Labor Relations Board ("NLRB") and the courts, labor and management must bargain collectively in good faith over the "mandatory" subjects of "wages, hours, and other terms and conditions of employment." From its earliest days, the NLRB has interpreted the duty to bargain collectively as requiring companies to bargain collectively with …

Employment Discrimination Testing: Theories Of Standing And A Reply To Professor Yelnosky, Leroy D. Clark

University of Michigan Journal of Law Reform

In this Article, Professor Clark addresses the legal issues surrounding the use of testers-individuals who deliberately apply for employment to detect sex and race discrimination. He surveys three theoretical justifications for granting standing to organizations that run testing programs. Professor Clark then responds to a previous article by Professor Yelnosky, disputing some of his conclusions. Professor Clark indicates that testing is just as necessary in higher-level employment as lower-level employment; shows that testers can obtain meaningful relief from the courts; analyzes the impact of the 1991 Civil Rights Act amendments; and encourages Congress to authorize the EEOC to run tester …

Salvaging The Opportunity: A Response To Professor Clark, Michael J. Yelnosky

University of Michigan Journal of Law Reform

In this Article, Professor Yelnosky responds to Professor Clark's critique of his previous article, Filling an Enforcement Void: Using Testers to Uncover and Remedy Discrimination in Hiring for Lower-Skilled, Entry-Level Jobs. Professor Yelnosky first clarifies that Professor Clark has adopted several of the points Professor Yelnosky originally made in his earlier article. He then responds to the portions of Professor Clark's article that challenge his prior conclusions. He builds on and defends his previous arguments that: (1) testing is best suited to uncover hiring discrimination for lower-skilled jobs; (2) disincentives to bringing tester lawsuits make it unwise to rely …

Employment Discrimination Claims Under Erisa Section 510: Should Courts Require Exhaustion Of Arbitral And Plan Remedies?, Jared A. Goldstein

Michigan Law Review

This Note examines whether courts should require section 510 claimants to exhaust either plan-based or arbitral remedies before seeking judicial relief. It begins by comparing the basis for an exhaustion requirement with respect to benefits claims with the basis for such a requirement with respect to statutory claims - like those under section 510. Part I examines the rationale courts have offered for requiring exhaustion of plan remedies for benefits claims. Part I concludes that federal courts have correctly determined that Congress intended individuals bringing benefits claims to exhaust the remedies provided by the plan before seeking judicial relief. Part …

Can Osha Survive In The New International Economic Order? New Constraints On The Promulgation Of Permanent Health Standards, Richard Braden

In the Public Interest

No abstract provided.

The Religious Employer Exemption Under Title Vii: Should A Church Define Its Own Activities?

BYU Law Review

No abstract provided.

Employment Discrimination Law In Perspective: Three Concepts Of Equality, John J. Donohue Iii

Michigan Law Review

The essay begins with a discussion of which groups deserve the protection of employment discrimination law. With the protected categories of Title VII of the 1964 Civil Rights Act etched into the American consciousness, many might consider the appropriate categories to be fully self-evident. But of course, they are not, and many jurisdictions continue to struggle over whether certain dispreferred groups merit the law's solicitude.

Structuralist And Cultural Domination Theories Meet Title Vii: Some Contemporary Influences, Martha Chamallas

Michigan Law Review

This essay first looks at three important theoretical approaches - motivational, structural, and cultural - that mark the scholarly discourses on workplace equality since 1965. The motivational or individual choice theory is well established and has dominated legal discourse throughout this period. I concentrate in this essay on the other two visions, dating structuralist accounts from the mid1970s and cultural domination theories from the mid-1980s.

Title Vii And The Complex Female Subject, Kathryn Abrams

Michigan Law Review

One strength of Title VII has been its capacity to accommodate the changing conceptions of discrimination and the self-conceptions of subject groups. In the first decades of its enforcement, advocates have raised - and courts have endorsed - a range of contrasting conceptions in order to broaden the employment opportunities of protected groups. This flexibility is particularly evident with respect to women.

After exploring recent doctrinal efforts to respond to complex claimants, I address these questions and assess the prospects of change. Although the unitary or categorical notions of group identity under which Title VII has historically been enforced might …

Only Girls Wear Barrettes: Dress And Appearance Standards, Community Norms, And Workplace Equality, Katharine T. Bartlett

Michigan Law Review

In this essay I study both the judicial rationales and the scholarly criticisms thereof, agreeing with critics that community norms are too discriminatory to provide a satisfactory benchmark for defining workplace equality, but also questioning the usual implications of this critique. Critics assume that it is possible, and desirable, to evaluate dress and appearance rules without regard to the norms and expectations of the community - that is, according to stable or universal versions of equality that are uninfected by community norms. I question this assumption, arguing that equality, no less than other legal concepts, cannot transcend the norms of …

Checking The "Trigger-Happy" Congress: The Extraterritorial Extension Of Federal Employment Laws Requires Prudence, Derek G. Barella

Indiana Law Journal

No abstract provided.

Dynamic Statutory Interpretation: Occupational Safety And Health Act Preemption And State Environmental Regulation, José Fernandez

Florida State University Law Review

No abstract provided.

Prison Labor Under State Direction: Do Inmates Have The Right To Flsa Coverage And Minimum Wage?, James K. Haslam

BYU Law Review

No abstract provided.

The Making Of The Model Employment Termination Act, Theodore J. St. Antoine

Washington Law Review

Courts in about 45 states have ameliorated the harshness of employment at will, but the common-law modifications still exhibit serious deficiencies. Legislation is needed. The Model Employment Termination Act proposes a balanced compromise. It would protect most employees against discharge without good cause and it would relieve employers of the risk of devastating financial losses When liability is imposed. Arbitration procedures under the Model Act would also be simpler, faster, and cheaper than existing court proceedings.

Extending Excelsior, Leonard Bierman

Indiana Law Journal

No abstract provided.

Walkaround Rights For Miners' Representative Under Msha: A Compatible Statutory Scheme, Robert H. Stropp Jr.

West Virginia Law Review

No abstract provided.

A Guide To Self-Insurance Under The West Virginia Workers' Compensation System, Timothy E. Huffman

West Virginia Law Review

No abstract provided.

The Worker Participation Conundrum: Does Prohibiting Employer-Assisted Labor Organizations Prevent Labor-Management Cooperation?, Robert B. Moberly

Washington Law Review

Worker participation and labor-management cooperation have been important concepts in labor relations for more than a decade. Recently, some proponents of labor management cooperation have argued that the statutory prohibition against employer assistance to labor organizations contained in section 8(a)(2) of the National Labor Relations Act has hampered the development of worker participation programs and ought to be repealed or modified. Others are opposed both to repealing the prohibition and to labor-management cooperation in general. This Article argues that worker participation and labor-management cooperation are beneficial and ought to be encouraged; nonetheless, the prohibition against employer-assisted labor organizations is important …

Law And Union Power: Thoughts On The United States And Canada, James B. Atleson

Buffalo Law Review

No abstract provided.

Mine Safety And Health: A Formula For Continued Success, J. Davitt Mcateer

West Virginia Law Review

No abstract provided.

Restoring Balance To Collective Bargaining: Prohibiting Discrimination Against Economic Strikers, William D. Turner

West Virginia Law Review

No abstract provided.

Meeting The Challenge At The Mines: The Americans With Disabilities Act, Susan E. Chetlin, Mark E. Baker

West Virginia Law Review

No abstract provided.

Paying The Price Of Judicial Activism Under The Wage Payment And Collection Act, Elizabeth D. Harter

West Virginia Law Review

No abstract provided.

Sullivan V. Scoular Grain Co.: Apportioning The Fault Of Immune Employers, Dale T. Hansen

BYU Law Review

No abstract provided.

The Dubious Title Vii Cause Of Action For Sexual Favoritism, Michael J. Phillips

Washington and Lee Law Review

No abstract provided.

The Race To The Courthouse: Conflicting Views Toward The Judicial Review Of Osha Standards, David R. Cherrington

BYU Law Review

No abstract provided.

The Public Policy Exclusion And Insurance For Intentional Employment Discrimination, Sean W. Gallagher

Michigan Law Review

This Note argues that courts choosing to apply the public policy exclusion to insurance for intentional employment discrimination liability should nevertheless permit employers to enforce insurance covering negligent supervision liability and liability imputed to an employer as a result of the intentional discrimination committed by its employees. Part I establishes a framework for understanding the cases in which courts have invoked public policy to refuse enforcement of insurance contracts, arguing that the rationale behind the public policy exclusion is utilitarian and that courts refuse to enforce insurance for liability arising out of intentional wrongdoing on the grounds that such insurance …

Rekindling Labor Law Successorship In An Era Of Decline, Wilson Mcleod

Hofstra Labor & Employment Law Journal

No abstract provided.

Union Organizing After Lechmere, Inc. V. Nlrb - A Time To Reexamine The Rule Of Babcock & Wilcox, Alan L. Zmija

Hofstra Labor & Employment Law Journal

No abstract provided.