Law Commons^™

Corporate Social Responsibility And Crowdwashing In The Gig Economy, Miriam A. Cherry

Faculty Publications

(Excerpt)

Within this Article, I elaborate on the term “crowdwashing,” a neologism. Even though many online platforms describe themselves as “communities” that are part of the “sharing economy,” this “sharing” terminology is largely a misnomer when describing the activities of larger commercialized on-demand platforms. Rather than referring to volunteer efforts for collective benefit, many references to “sharing” in the “sharing economy” refer to the concept of commodification of previously underutilized assets. For example, consider receiving money for the rental of a spare bedroom through AirBnB or the sale of small, previously unproductive periods of time to complete tasks on Amazon’s …

Weathering Wal-Mart, Joseph Seiner

Faculty Publications

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). …

Assessing Post-Ada Employment: Some Econometric Evidence And Policy Considerations, John J. Donohue Iii, Michael Ashley Stein, Christopher L. Griffin Jr., Sascha Becker

Faculty Publications

This article explores the relationship between the Americans with Disabilities Act (ADA) and the relative labor market outcomes for people with disabilities. Using individual-level longitudinal data from 1981 to 1996 derived from the previously unexploited Panel Study of Income Dynamics (PSID), we examine the possible effect of the ADA on (1) annual weeks worked; (2) annual earnings; and (3) hourly wages for a sample of 7,120 unique male household heads between the ages of 21 and 65, as well as for a subset of 1,437 individuals appearing every year from 1981 to 1996. Our analysis of the larger sample suggests …

The Global Dimensions Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

Recently, unusual “factories” have appeared in Third World countries; these factories do not manufacture goods, but instead feature computer workers, typing and clicking away, playing video games, collecting coins and swords, and fighting monsters. Known as “gold farmers,” these workers are paid to harvest virtual treasures for online gamers in the developed world. First World gamers want to advance quickly within their online role-paying games of choice and, tired of the repetitive tasks necessary to build a high-level character, would prefer to pay others to do the work. As a result, gold farming operations have appeared in many countries …

Pay Secrecy/ Confidentiality Rules And The National Labor Relations Act, Rafael Gely, Leonard Bierman

Faculty Publications

This article seeks to provide a comprehensive account of doctrinal issues related to the use of pay secrecy/confidentiality rules (“PSC rules”) under the NLRA. In Part II, we describe what pay secrecy/confidentiality is and discuss recent survey evidence of their presence in workplaces across the United States. In Part III, we describe the current legal framework under which PSC rules are evaluated under the NLRA, while in Parts IV and V, we explore various doctrinal issues related to these rules in more detail. This leads us to Part VI, where we ponder the future of PSC rules under the NLRA …

Spouses Need Not Apply: The Legality Of Antinepotism And No-Spouse Rules , Rafael Gely, Timothy D. Chandler, Jack Howard, Robin Cheramie

Faculty Publications

We begin this analysis in Part II with a brief discussion of employment policies that have been adopted to meet the unique needs of working families. Interestingly, these practices often exist contemporaneously with policies that restrict employment opportunities for dual-earner couples, namely antinepotism and no-spouse rules. In Part III, we present the results of our comprehensive analysis of case law in this area to show the nature of legal challenges to antinepotism and no-spouse rules and how they have been decided by the courts. In Part IV, we describe the legislative framework under which MSD claims have been raised and …

A Tale Of Three Statutes . . . (And One Industry): A Case Study On The Competitive Effects Of Regulation, Rafael Gely

Faculty Publications

The comparison of the three labor regulatory regimes raises an interesting counterexample to the traditional model of regulation. Instead of adopting a one-size-fits-all model, could a regulatory model be conceptualized where a menu of regulatory options is made available to the target population? Under such an approach those affected by the regulatory regime will choose among the various regulatory options and adopt those that better fit their particular situations. Part IV.B develops the basic parameters of this proposal. The article ends with a brief conclusion.

Restricting Public Employees' Political Activities: Good Government Or Partisan Politics?, Rafael Gely, Timothy D. Chandler

Faculty Publications

The article starts by reviewing, in Part II, the history of the regulation of political activities by public employees, and in Part III, the regulation of patronage. Part IV develops the argument that both sets of regulations, although justified on different grounds, are better understood as political control mechanisms. Part V provides some empirical evidence for this argument by examining voting patterns on federal legislation restricting public employees' political activities. Part VI discusses the relationship of these laws to public sector unionization. Part VII concludes the article.

Labor Law Access Rules And Stare Decisis: Developing A Planned Parenthood-Based Model Of Reform, Rafael Gely, Leonard Bierman

Faculty Publications

This article deals with labor law access rules, particularly the rights of unions to gain access to employers' private property for organizing purposes. Professors Gely and Bierman provide a comprehensive analysis of the access issue and identify two major problems with the manner in which the Supreme Court has approached this area. First, the Supreme Court has dealt piecemeal with the various aspects of this problem without attempting to develop a coherent framework. Second, the Court has been reluctant to analyze the access issue within the context of today's workplace.Professors Gely and Bierman attribute the Supreme Court's flawed approach to …

Where Are We Now?: Life After Electromation, Rafael Gely

Faculty Publications

Given the expectations that preceded the Board's decisions, and the reactions that followed, it is somewhat surprising how little attention has been given to the decisions the NLRB has issued since Electromation and E.I. du Pont. While in general these recent decisions are consistent with the holdings in Electromation and E.I. du Pont, they provide us with the opportunity to analyze the manner in which the Board is currently dealing with the legality of workplace cooperative efforts. This article explores that issue. Part II of the article provides a brief overview of the workplace cooperative efforts problem. Part III reviews …

"Let's Call It A Draw": Striker Replacements And The Mackay Doctrine, Rafael Gely, Leonard Bierman

Faculty Publications

In a recent article we discuss the issue of the use of permanent replacements for striking employees under the National Labor Relations Act (NLRA) Our discussion focuses on the efficiency aspects of the seminal 1938 case of NLRB v. Mackay Radio and Telegraph Co. In the article, we propose a “negotiations” approach, which we argue is likely to result in a more economically efficient interpretation of the Mackay doctrine. As has been the case with other proposals made with respect to this very contentious issue, our proposal has confronted some criticism. Professor William R. Corbett, in a recent piece in …

Whose Team Are You On? My Team Or My Team?: The Nlra's Section 8(A)(2) And The Team Act, Rafael Gely

Faculty Publications

This article analyzes employee participatory programs from the internal labor markets perspective. Internal Labor Markets (“ILM”) refer to the explicit or implicit agreements between employer and employees incorporating rules governing wages, working hours, promotion opportunities and grievance procedures. In order to function properly, ILMs require employees to learn skills that are valuable to the contracting firm, but are of much lesser value elsewhere. Employees agree to acquire such “firm-specific” skills and employers agree to subsidize the training needed to obtain these new skills. It is a mutually beneficial arrangement: employers expect to observe increases in productivity and efficiency and employees …

Reply: The Need For Real Striker Replacement Reform, Rafael Gely, Leonard Bierman

Faculty Publications

Introduction In a recent article in the North Carolina Law Review, Louisiana State University Law Professor William R. Corbett proposes an innovative solution to the contentious issue of the right of employers to permanently replace economic strikers pursuant to the National Labor Relations Act (“NLRA” or “Act”). Professor Corbett's proposal is based on two arguments. First, he argues that the current legal distinction between “economic” and “unfair labor practice” strikes -- whereby employers are prevented from permanently replacing employees striking over employer unfair labor practices but may permanently replace employees striking over economic issues -- is a useful one and …

Small Numbers, Black Men, Precipitous Responses, Big Problems, Michael A. Middleton

Faculty Publications

Professor Culp has aptly warned us that in our discussion of employment discrimination we should not lose sight of the need to address the spectrum of policies affecting the status of African-Americans. Without serious efforts in all aspects of American life (e.g., housing, education, health care, political and economic empowerment) our chances of significantly improving the future for African-American men are slim.

Challenging Discriminatory Guesswork: Does Impact Analysis Apply, Michael A. Middleton

Faculty Publications

This article initially examines the traditional theories of proof in Title VII cases. It then discusses approaches by lower courts in resolving the competing concerns raised in applying those traditional theories in challenges to subjective selection devices. This article next discusses the Supreme Court's resolution of the problem in Watson and suggests a workable alternative resolution that will not undermine the broad prophylactic purposes of Title VII.