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Articles 1 - 30 of 55
Full-Text Articles in Law
Giving Employers Guidance: The Proper Response To No-Match Letters Under Aramark Facility Services V. Service Employees International Union, Local 1877, Steffanie Bevington
Giving Employers Guidance: The Proper Response To No-Match Letters Under Aramark Facility Services V. Service Employees International Union, Local 1877, Steffanie Bevington
Golden Gate University Law Review
In Aramark Facility Services v. Service Employees International Union, Local 1877, the United States Court of Appeals for the Ninth Circuit provided some guidance to employers in receipt of a no-match letter. Finding that receipt of a no-match letter does not give an employer "constructive knowledge" that an employee is unauthorized to work in the United States, the Ninth Circuit upheld an arbitration award reinstating employees who were terminated after their employer received a no-match letter. The Ninth Circuit held that termination of the employees was unwarranted under the circumstances because the company did not have sufficient information that it …
The Extension Of Privacy Rights To Workplace Text Messages Under Quon V. Arch Wireless, Heather Wolnick
The Extension Of Privacy Rights To Workplace Text Messages Under Quon V. Arch Wireless, Heather Wolnick
Golden Gate University Law Review
In Quon v. Arch Wireless Operating Co., a panel of the United States Court of Appeals for the Ninth Circuit held that a public employer violated the Fourth Amendment by searching the contents of text messages sent and received on a public employee's work-issued pager. In so holding, the Ninth Circuit found that the public employee had a reasonable expectation of privacy in the contents of the text messages, despite a formal Internet and computer policy stating otherwise. Relying on the two-part O'Connor test for public-employer searches, the court found that the search was more intrusive than necessary to determine …
When Does Discrimination "Occur?": The Supreme Court's Limitation On An Employee's Ability To Challenge Discriminatory Pay Under Title Vii, Kara M. Farina
When Does Discrimination "Occur?": The Supreme Court's Limitation On An Employee's Ability To Challenge Discriminatory Pay Under Title Vii, Kara M. Farina
Golden Gate University Law Review
This Comment contends that the Court's holding in Ledbetter marks a substantial deviation from the purpose of Title VII - to rectify past and prevent future workplace discrimination and provide a remedy for economically injured employees-and thereby weakens the prohibition against discrimination in the workplace. The Court's failure to consider the hidden nature of discriminatory pay claims significantly limits employees' ability to challenge disparate pay under Title VII. This comment asserts that discrimination "occurs" with each paycheck that delivers discriminatorily low pay.
Why Fight Fought?: A Missed Erisa Opportunity In The Ninth Circuit, Jill V. Cartwright
Why Fight Fought?: A Missed Erisa Opportunity In The Ninth Circuit, Jill V. Cartwright
Golden Gate University Law Review
This Note analyzes the United States Court of Appeals for the Ninth Circuit's standard of review in cases in which a conflicted administrator has denied benefits. Part I of this Note examines early standards of review prior to ERISA. Part II sets forth the split among the circuits in evaluating a conflicted administrator's denial of benefits and explains the Ninth Circuit's former standard. Part ill compares the Ninth Circuit's prior standard of finding such denials presumptively void with its recent holding in Abatie v. Alta Health & Life Insurance Company, in which the court effectively adopted a unique standard similar …
Making-Up Conditions Of Employment: The Unequal Burdens Test As A Flawed Mode Of Analysis In Jespersen V. Harrah's Operating Co., Megan Kelly
Golden Gate University Law Review
Part I of this Note reviews Title VII and foundational caselaw, including cases regarding sex discrimination and appearance standards. Part II examines the Ninth Circuit's Jespersen opinion. Part III compares the Supreme Court decision in Price Waterhouse v. Hopkins, which expanded Title VII protection to include gender stereotyping, with the Jespersen holding. Part III also explores a Seventh Circuit case, Carroll v. Talman Federal Savings and Loan Association of Chicago, and Judge Thomas's dissent in Jespersen, which both argue for inclusion of less tangible factors such as gender stereotyping in the unequal burdens test. Part III finally contends that the …
To Be Or Not To Be A Penalty: Defining The Recovery Under California's Meal And Rest Period Provisions, Scott Edward Cole, Matthew R. Bainer
To Be Or Not To Be A Penalty: Defining The Recovery Under California's Meal And Rest Period Provisions, Scott Edward Cole, Matthew R. Bainer
Golden Gate University Law Review
This article argues that the DLSE's proposed regulations are in fact a redefinition of the pay provided for under Section 226.7. California Labor Code Section 226.7 was intended to, was explicitly drafted to, and in fact does, provide for a premium wage rather than a penalty. Parts I and II provide a review of mandatory meal and rest periods. Part III discusses the nature of the Section 226.7 pay provision, the DLSE's proposed regulations, and the DLSE's accompanying statement of reasons supporting these regulations. Parts IV analyzes Labor Code Section 226.7 under the axioms of statutory interpretation, demonstrating that the …
Customizing The Reasonable-Woman Standard To Fit Emotionally And Financially Disabled Plaintiffs Is Outside The Scope Of The Civil Rights Act's Prohibition On Sex-Based Discrimination: Holly D. V. California Institute Of Technology, Amanda M. Jarratt
Golden Gate University Law Review
Tailoring the reasonable-woman standard to include select disabilities is problematic because employer liability would improperly depend upon the effect that the victim's disability had on the victim's perception, instead of on the agency relationship between the supervisor and the employer. Furthermore, these subjective standards would prevent employers from successfully invoking the reasonable care defense. Using these tailored standards would also result in discriminatory treatment under the law for women who did not qualify for one of these customized standards. Finally, customized standards would sterilize American workplaces. In support of this Comment's assertions against factoring the emotional and financial difficulties of …
Toward A Future Of Enforcement: A Critique Of The Ninth Circuit's Invalidation Of Mandatory Arbitration Agreements In Employment Contracts, Kerri Bandics
Golden Gate University Law Review
This Comment focuses on mandatory pre-dispute arbitration agreements that prospective employees must sign in order to be hired, or even considered, for a given position. Growing numbers of employers are implementing mandatory arbitration programs to resolve workplace disputes in response to recent case law upholding the enforceability of arbitration agreements. Employers may present arbitration agreements in employment contracts, employment handbooks, or in job applications. This Comment posits that while arbitration is an efficient method of adjudicating many claims, mandatory arbitration agreements in employment contracts are potentially unfair to employees for three reasons. These three concerns arise because employers typically control …
Expert Testimony And "Subtle Discrimination" In The Workplace: Do We Now Need A Weatherman To Know Which Way The Wind Blows?, Deborah Dyson
Expert Testimony And "Subtle Discrimination" In The Workplace: Do We Now Need A Weatherman To Know Which Way The Wind Blows?, Deborah Dyson
Golden Gate University Law Review
This Comment studies Elsayed in order to investigate these questions. The Background discussion traces the two great lines of cases whose trajectories cross in Elsayed, the Daubert v. Merrell Dow expert testimony jurisprudence under the Federal Rules of Evidence and the McDonnell Douglas v. Green line of cases establishing the "pretext" model of proof for individual employment discrimination claims under Title VII of the 1964 Civil Rights Act. Then, turning to the opinion proper, the Analysis considers Elsayed under the following headings: (A) The Crux: The Court's Harmless-Error Determination, (B) Decoding in the Pretext Context, (C) Substituting the Mixed-Motives Regime …
Employee Benefits - Friedrich V. Intel Corp., Cynthia O'Brien
Employee Benefits - Friedrich V. Intel Corp., Cynthia O'Brien
Golden Gate University Law Review
In Friedrich v. Intel Corporation, the United States Court of Appeals for the Ninth Circuit upheld the district court's holding that Intel, by denying an employee's claim for long term disability benefits, failed to comply with the Employee Retirement Income Security Act of 1974 ("ERISA"). In applying a two-part test to determine whether Intel acted in apparent conflict with its obligations as a fiduciary to its employee, the Ninth Circuit held that the district court properly reviewed the claim for long term disability benefits de novo and did not err in finding that the employee was entitled to benefits under …
Employment Discrimination - Gotthardt V. National Railroad Passenger Corp, Jennifer T. Dewitt
Employment Discrimination - Gotthardt V. National Railroad Passenger Corp, Jennifer T. Dewitt
Golden Gate University Law Review
In Gotthardt v. National Railroad Passenger Corp. the United States Court of Appeals for the Ninth Circuit held that front pay awards in Title VII cases are not subject to the compensatory damages caps stated in 42 U.S.C. § 1981a (b)(3). This was an issue of first impression in the Ninth Circuit. Other circuits had decided the issue and were split. The Ninth Circuit joined the majority of the federal circuits in holding that front pay awards are not subject to the section 1981a caps.
Undocumented Workers Are Entitled To Vote In Union Elections - But Are They "Employees" Under The Law?, Beth Wolf Mora
Undocumented Workers Are Entitled To Vote In Union Elections - But Are They "Employees" Under The Law?, Beth Wolf Mora
Golden Gate University Law Review
This note discusses the facts and procedural history of Kolkka. Part III provides a detailed legal and historical analysis of the applicable statutes, case law, and debates surrounding undocumented workers rights. Part IV describes the Ninth Circuit's analysis in Kolkka. Part V critiques the Ninth Circuit's holding in Kolkka asserting that undocumented workers have the right to vote in union elections. Finally, Part VI concludes that judicial decisions supporting undocumented workers rights as an "employees," outweighs the political opposition to rights for undocumented workers. Therefore, to protect undocumented workers, statutory language should expressly state that they are "employees."
Employment Law - Norman-Bloodsaw V. Lawrence Berkeley Laboratory, Cristina E. Echevarria
Employment Law - Norman-Bloodsaw V. Lawrence Berkeley Laboratory, Cristina E. Echevarria
Golden Gate University Law Review
In Norman-Bloodsaw v. Lawrence Berkeley Laboratory, the United States Court of Appeals for the Ninth Circuit held that employers who conduct nonconsensual medical testing may be liable for invasion of privacy under the United States and California Constitutions. In addition, the court held that Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from nonconsensual medical testing that has a disparate impact on a protected group. The Ninth Circuit held, however, that the American's with Disabilities Act of 1990 (ADA), does not limit the scope of the employee testing when the tests are administered after a …
Employment Law - Johnson V. State Of Oregon, Beryl Slavov
Employment Law - Johnson V. State Of Oregon, Beryl Slavov
Golden Gate University Law Review
The Americans with Disabilities Act of 1990 (ADA) requires employers to provide reasonable accommodations to its disabled employees to enable them to perform the essential functions of their position} In Johnson v. State of Oregon, the United States Court of Appeals for the Ninth Circuit determined the circumstances in which the doctrine of judicial estoppel could bar a claim under the ADA when the litigant has sought or received disability benefits. Because this was an issue of first impression, the court relied upon Federal Guidelines and case law from other circuits to conclude that the pursuit or receipt of disability …
Employment Law - Duffield V. Robertson Stephens & Co., Kate S. Langer
Employment Law - Duffield V. Robertson Stephens & Co., Kate S. Langer
Golden Gate University Law Review
In Duffield v. Robertson Stephens & Company, the United States Court of Appeals for the Ninth Circuit held that the Civil Rights Act of 1991 prohibited an employer from requiring, as a condition of employment, that prospective or current employees agree in advance to arbitrate Title VII claims arising out of the employment relationship. Relying on the purposes and legislative history of the 1991 Act, the Ninth Circuit became the only circuit to find that the Act barred these mandatory arbitration agreements.
Defining Employer Liability: Toward A Precise Application Of Agency Principles In Title Vii Sexual Harassment Cases, Jennifer T. Dewitt
Defining Employer Liability: Toward A Precise Application Of Agency Principles In Title Vii Sexual Harassment Cases, Jennifer T. Dewitt
Golden Gate University Law Review
This note discusses applicable principles and law in sexual harassment cases, including Title VII, Equal Employment Opportunity Commission Guidelines, agency principles, and case law that illustrate two primary approaches taken by the courts in determining the standard for employer liability. This section also discusses relevant portions of the first Supreme Court case to address sexual harassment under Title VII. Section III discusses the facts that gave rise to EIlerth's sexual harassment claims. Section IV discusses the procedural history of Ellerth's case, including the district court's decision, the decision of the Seventh Circuit panel that heard Ellerth's appeal and the en …
Eastern Men, Western Women: Coping With The Effects Of Japanese Culture In The United States Workplace, Becky Kukuk
Eastern Men, Western Women: Coping With The Effects Of Japanese Culture In The United States Workplace, Becky Kukuk
Golden Gate University Law Review
This article examines the kaigaitenkinsha's effects on women employees in the U.S. workplace and recommends solutions to mitigate their potentially discriminatory impact. Part II, Section A, surveys the kinds of sex discrimination that women encountered at Japanese companies aside from those alleged at Mitsubishi. Section B reviews U.S. equal employment opportunity laws to provide a framework from which to understand U.S. women's employment rights and to compare the Japanese employment laws outlined in the next section. Section C seeks to explain why the kaigaitenkinsha discriminate against women by reviewing the history of women's employment in Japan and Japan's equal employment …
Considering Hybrid Sex And Age Discrimination Claims By Women: Examining Approaches To Pleading And Analysis - A Pragmatic Model, Sabina F. Crocette
Considering Hybrid Sex And Age Discrimination Claims By Women: Examining Approaches To Pleading And Analysis - A Pragmatic Model, Sabina F. Crocette
Golden Gate University Law Review
This Comment examines two ways in which the legal system does not adequately consider older women's claims of discrimination. The issues are presented in two conceptual groupings. The first grouping discusses how barriers to the recognition of hybrid age and sex discrimination claims are created when courts do not analyze the evidence of discrimination together as evidence of discrimination against "older women." Often, courts analyze hybrid claims of age and sex discrimination separately under Title VII and the ADEA, even when the evidence of discrimination points to a hybrid claim involving discrimination directed at a subset of a protected group, …
Radtke V. Everett: An Analysis Of The Michigan Supreme Court's Rejection Of The Reasonable Woman/Victim Standard: Treating Perspectives That Are Different As Though They Were Exactly Alike, Paul P. Dumont
Golden Gate University Law Review
This comment will discuss both the history of sexual harassment and the evolution of the reasonable woman standard in order to illustrate society's progress toward defining appropriate conduct in the work environment. Parts III- IV will present the Radtke court's argument rejecting the reasonable woman standard in favor of the reasonable person standard. Part V invokes feminist theory to critique the premises upon which the Radtke rationale is based.
Employer Discrimination On The Basis Of Pregnancy: Righting The Power Imbalance, Victoria R. Riede
Employer Discrimination On The Basis Of Pregnancy: Righting The Power Imbalance, Victoria R. Riede
Golden Gate University Law Review
First, this comment will examine the problems with the position-elimination defense as illustrated by Smith v. F. W. Morse & Co. Since some reorganization is necessary when an employee takes leave, allowing an employer to offer this reorganization effort as evidence of non-discriminatory intent creates a gap in Title VII protections. Next, the author will compare existing American federal family leave laws and European leave laws. The comment will then use California's landlord-tenant law as a prototype for proposing an amendment to existing maternity leave law that remedies the power distribution between dominant and subordinate individuals in a legal relationship.
Turner V. Anheuser-Busch, Inc.: California Supreme Court Provides Employers With A More Favorable Constructive Discharge Standard, Joseph A. Meckes
Turner V. Anheuser-Busch, Inc.: California Supreme Court Provides Employers With A More Favorable Constructive Discharge Standard, Joseph A. Meckes
Golden Gate University Law Review
In Turner v. Anheuser Busch, Inc. the California Supreme Court held that James Turner's claim for constructive wrongful discharge in violation of public policy failed as a matter of law. The court held Turner could not show either objectively intolerable aggravated conditions on the job or that his employer violated public policy. Because Turner did not state a cognizable claim, the court reinstated the trial court's grant of summary judgment in favor of Turner's employer AnheuserBusch, Incorporated (hereinafter "ABI"). In reaching this conclusion, the court significantly modified the constructive discharge test by no longer allowing a plaintiff to use the …
Employment Law - The Limits Of Deference: The Ninth Circuit Rejects Eeoc Guidelines On English-Only Rules In The Workplace - Garcia V. Spun Steak, Dan Cooperider, Stephen Wiss
Employment Law - The Limits Of Deference: The Ninth Circuit Rejects Eeoc Guidelines On English-Only Rules In The Workplace - Garcia V. Spun Steak, Dan Cooperider, Stephen Wiss
Golden Gate University Law Review
This comment will show that the court's holding in Spun Steak, while consistent with Congressional intent and prior judicial policy, failed to provide the most compelling reason for rejecting the EEOC guideline, namely that the guideline violates both judicial policy and the plain language of the Civil Rights Act of 1991, both of which require a plaintiff to establish a prima facie case. This comment will then show that the court's decision in Spun Steak failed to provide the necessary guidance to lower courts. Finally, this comment will show that by adopting an alternative approach that classifies English-only rules as …
Cassista V. Community Foods, Inc.: Drawing The Line At Obesity?, Kimberly B. Dunworth
Cassista V. Community Foods, Inc.: Drawing The Line At Obesity?, Kimberly B. Dunworth
Golden Gate University Law Review
This Note will discuss the background of the Fair Employment and Housing Act, and give a brief overview of the federal statutes upon which the FEHA is modeled, the policy of the FEHA, and obesity discrimination. The overview will be followed by an analysis of the California Supreme Court's application of the law to the facts in Cassista, and a critique of the court's reasoning.
Three Perspectives On Workplace Harassment Of Women Of Color, Maria L. Ontiveros
Three Perspectives On Workplace Harassment Of Women Of Color, Maria L. Ontiveros
Golden Gate University Law Review
In this address, I suggest a framework for understanding the ways in which issues of race and culture play a pivotal role in what we have thought of as "sexual harassment." This framework views an incident of workplace harassment from the perspectives of the three key players: the harasser, the victim and the judicial system. From the viewpoint of the harasser, women of color appear to be less powerful, less likely to complain, and the embodiment of particular notions of sexuality. From the perspective of the women, attitudes in their community and lessons learned in their culture may make it …
Women's Work: Finding New Meaning Through A Feminist Concept Of Unionization, Janelle M. Rettler
Women's Work: Finding New Meaning Through A Feminist Concept Of Unionization, Janelle M. Rettler
Golden Gate University Law Review
In the first section I examine the traditional structures used to change the workplace to adapt to changing societal demands. I address what these structures have accomplished and the limitations of these structures in dealing with the problems endemic in women's work. Secondly I address why women's needs in the workforce should be confronted differently than they have been in the past. And lastly, I assert that by combining traditional structures with a clearer focus on women's needs, new concepts of reform will emerge to legitimate women's work experiences.
The Flip Side Of Fetal Protection Policies: Compensating Children Injured Through Parental Exposure To Reproductive Hazards In The Workplace, Valarie Mark
Golden Gate University Law Review
The controversy over fetal protection policies has so far centered on the relative rights and responsibilities of the worker, the employer, and the state. This article examines reproductive workplace hazards from the injured child's point of view, advocating compensation for injuries resulting from parental exposure. Part I introduces four policy goals that should be implemented in any compensation system in order to produce an appropriate balance of interests. These goals are: an adequate remedy for injury, equal treatment of male and female workers, incentives for workplace safety, and fairness to employers' economic interests. Part II examines current tort and workers' …
Employment Law - Interpreting The Fair Labor Standards Act: Dirty Deeds Done Dirt Cheap In Mccune V. Oregon Senior Services, Stephen K. Lightfoot Ii
Employment Law - Interpreting The Fair Labor Standards Act: Dirty Deeds Done Dirt Cheap In Mccune V. Oregon Senior Services, Stephen K. Lightfoot Ii
Golden Gate University Law Review
In McCune v. Oregon Senior Services the Ninth Circuit held that a group of domestic service employees were excluded from minimum wage coverage under the Fair Labor Standards Act of 1938 (FLSA) as they performed companionship services for the elderly and infirm. The employees would have been entitled to minimum wage if the services they performed fell within an exception to the FLSA's companionship services exemption. The Ninth Circuit based its decision on the Secretary of Labor's interpretation of the 1974 amendments to the FLSA. The court found that these domestic service workers were not trained personnel and were merely …
Employment Discrimination Summary, Tatiana Roodkowsky
Employment Discrimination Summary, Tatiana Roodkowsky
Golden Gate University Law Review
No abstract provided.
Legislators Should Not Have Feared Title Vii Pre-Emption Of California's Temporary Transfer Alternative To Discriminatory Fetal Protection Policies, Constance Norton
Legislators Should Not Have Feared Title Vii Pre-Emption Of California's Temporary Transfer Alternative To Discriminatory Fetal Protection Policies, Constance Norton
Golden Gate University Law Review
This comment will argue that Congress did not intend to prohibit statutory accommodation of an individual pregnant employee's right to temporarily transfer from a hazardous work environment as an alternative to discriminatory fetal protection policies. Additionally, this comment argues that the California legislature's fear of pre-emption was premature. The legislature should amend the statute to require compliance by title VII employers in order to conform with public policy articulated in California Federal and to fulfill the original legislative intent. This comment recognizes that both male and female workers have a right to work in a toxin-free environment. There are environments …
Labor Law, Melvin P. Anderson