Law Commons^™

Workplace Dispute Resolution In Ireland At A Crossroads: Challenges And Opportunities, Brian M. Barry Dr

Articles

The Workplace Relations Act 2015 fundamentally reformed the workplace dispute resolution system in Ireland–the centrepiece being the Workplace Relations Commission, the new body for first-instance dispute resolution. While the overall system is an improvement on its overly-complex and confusing predecessor, the Supreme Court’s decision in Zalewski v An Adjudication Officer declaring aspects of adjudication at the WRC unconstitutional, coupled with user representatives’ persistent concerns about how adjudication is conducted, present ongoing challenges.

This article describes the results of a survey undertaken in 2019 by the author of over one hundred representatives’ views on the system, and contextualises them in light …

Regulating Mobility Limitations In The Franchise Relationship As Dependency In The Joint Employment Doctrine, Andrew Elmore

Articles

Franchisors often impose exhaustive operational standards on franchisees, and enforce those standards by restricting the mobility of their franchisees and their franchisees' employees. But courts often ignore mobility limits when applying joint employer doctrine. This Article argues that courts and agencies should be more likely to find, and presume, that franchisors and their franchisees are joint employers under federal and state employment law based on proof that a franchisor restricts the mobility of franchisees or their employees. In so doing, this Article traces how the Chicago School's efficiency arguments in favor of relaxing antitrust law enforcement of vertical restraints developed …

A Strategy Model For Workplace Mediation Success, Brian M. Barry Dr

Articles

The article proposes a three-step model to help workplace mediators decide on the optimum strategy for mediating workplace disputes. The model uses a grid – the Workplace Mediation Strategy Grid – which is based on a modified version of a grid Professor Leonard Riskin developed for categorising mediation orientations (Riskin 1994; Riskin 1996). The model asks the mediator to first consider the nature of the workplace dispute based on three facets of the dispute. This guides the mediator to plot a position on the Grid which represents two fundamental aspects of strategy for mediating that dispute: (1) how broadly the …

How Serving Jobless Workers During The Pandemic’S Economic Recession Grounded Students: A Reflection From Michigan’S Workers’ Rights Clinic, Rachael Kohl, Nancy Vettorello

Articles

The COVID-19 pandemic drastically changed the delivery of legal education. Many courses switched to remote instruction, and that change was particularly complicated for clinical courses. For Michigan's Workers' Right Clinic (WRC), however, the pandemic brought more than a change in course delivery - it brought a huge influx of new cases and community need with rapidly and continually changing laws. This article describes how the WRC navigated and thrived, despite the rapid changes brought about by the pandemic, and how the clinic provided an opportunity for students to engage in more complex work that benefited students both academically and mentally. …

Rural Social Safety Nets For Migrant Farmworkers In Michigan, 1942–1971, Emily A. Prifogle

Articles

In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. From the 1940s through the 1960s, federal, …

Noncompete Agreements In The U.S. Labor Force, Evan P. Starr, J.J. Prescott, Norman D. Bishara

Articles

Using nationally representative survey data on 11,505 labor force participants, we examine the use and implementation of noncompete agreements and the employee outcomes associated with these provisions. Approximately 18 percent of labor force participants are bound by noncompetes, with 38 percent having agreed to at least one in the past. Noncompetes are more likely to be found in high-skill, high-paying jobs, but they are also common in low-skill, low-paying jobs and in states where noncompetes are unenforceable. Only 10 percent of employees negotiate over their noncompetes, and about one-third of employees are presented with noncompetes after having already accepted job …

Labor’S New Localism, Andrew Elmore

Articles

Millions of workers in the United States, disproportionately women, immigrants, and people of color, perform low-paid, precarious work. Few of these workers can improve their workplace standards because the National Labor Relations Act ("NLRA") does not sufficiently protect their right to form unions and collectively bargain. Lacking sufficient influence in federal and state government to strengthen labor and employment law, unions and worker centers have increasingly sought to build power in cities. The shift to local labor lawmaking has delivered local minimum wage, paid sick leave, and fair scheduling ordinances covering millions of low-wage workers, as well as groundbreaking unionization …

Defining Who Is An Employee After A.B.5: Trading Uniformity And Simplicity For Expanded Coverage, Edward A. Zelinsky

Articles

My assessment of California’s A.B.5 differs from the evaluation advanced by the advocates and opponents of that legislation: I conclude that A.B.5 made a significant but limited expansion of the coverage of California labor law but at a notable cost. Even as A.B.5 broadened the reach of the Golden State’s labor protections, A.B.5 also made the definition of "employee” more complex and less uniform. Those seeking federal or state legislation like A.B.5 confront the same trade-off under which greater coverage is achieved at the expense of more complexity and less uniformity in the definition of who is an employee. The …

How Can A Departing Employee Misappropriate Their Own Creative Outputs?, Timothy Murphy

Articles

Partially due to the widespread use of employee confidentiality and invention assignment agreements, employers routinely take ownership of employee creative outputs and use trade secrets law to enforce those rights post-employment. This Article proposes that, with respect to employee creative outputs, the current status of trade secrets law is inconsistent with the modern workplace, including as significantly altered, maybe permanently, by the COVID-19 pandemic. Accordingly, the goal of this Article is to establish a mode of recognizing employee rights in their own creative outputs through a modification to the existing general skills and knowledge exclusion to explicitly recognize an employee's …

Work And Employment For Daca Recipients, Geoffrey Heeren

Articles

No abstract provided.

Labor Organization In Ride-Sharing: Unionization Or Cartelization?, Mark Anderson

Articles

The sharing economy brings together the constituent parts of a business enterprise into a structure that, on its surface, resembles a business firm, but in crucial ways is nothing like the traditional firm. This includes the ownership of the primary capital assets used in the business, as well as one of the most fundamental features of a firm-the relationship with its labor force. Sharing economy workers are formally contractors, running small businesses as sole entrepreneurs, with the effect that they are excluded from many of the protections made available to workers across the economy. The result is a seeming disparity …

Pandemic Surveillance Discrimination, Christian Sundquist

Articles

The COVID-19 pandemic has laid bare the abiding tension between surveillance and privacy. Public health epidemiology has long utilized a variety of surveillance methods—such as contact tracing, quarantines, and mandatory reporting laws—to control the spread of disease during past epidemics and pandemics. Officials have typically justified the resulting intrusions on privacy as necessary for the greater public good by helping to stave off larger health crisis. The nature and scope of public health surveillance in the battle against COVID-19, however, has significantly changed with the advent of new technologies. Digital surveillance tools, often embedded in wearable technology, have greatly increased …

Restorative Approaches To Intimate Partner Violence And Sexual Harm, Donna Coker (Ed.)

Articles

No abstract provided.

Franchisor Power As Employment Control, Andrew Elmore, Kati L. Griffith

Articles

Labor and employment laws are systematically underenforced in low-wage, franchised workplaces. Union contracts, and the benefits and protections they provide, are nonexistent. The Fight for Fifteen movement has brought attention to the low wages, systemic violations of workers' rights, and lack of collective representation in fast-food franchises. Given that franchisees can be judgment-proof and cannot set industry standards, the deterrence, remedial, and collective bargaining goals of labor and employment laws can depend on holding the franchisor (the brand) responsible under the joint employer doctrine. In a series of cases, however, a dominant approach has emerged that essentially foreclosed the possibility …

Race, Dignity, And Commerce, Lu-In Wang

Articles

This Essay was written at the invitation of the Journal of Law and Commerce to contribute a piece on racism and commerce—an invitation that was welcome and well timed. It arrived as renewed attention was focused on racialized policing following the killing of George Floyd and in the midst of the worsening pandemic that highlighted unrelenting racial, social, and economic inequities in our society.

The connections between racism and commerce are potentially numerous, but the relationship between discriminatory policing and commerce might not be apparent. This Essay links them through the concept of dignity. Legal scholar John Felipe Acevedo has …

Hiding Sexual Harassment: Myths And Realities, Pat K. Chew

Articles

Hiding Sexual Harassment: Myths and Realities

Nevada Law Journal, Vol. 21, p. 1223, 2021

Sexual harassment and gender disparities in the workplace continue, but we are not paying enough attention. The heralded me-too movement and the publicized downfalls of Harvey Weinstein, Bill Cosby, and other former luminaries might give the impression that the lid is blown off the indignities of harassment in the workplace and that American society’s collective disdain and abhorrence of harassment has quickly put an end to these incivilities. But these headline cases are just the tip of the sexual harassment iceberg; they may even give us …