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Articles 1 - 30 of 38
Full-Text Articles in Law
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
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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 …
Using The Iied Tort To Address Discrimination And Retaliation In The Workplace, Alex B. Long
Using The Iied Tort To Address Discrimination And Retaliation In The Workplace, Alex B. Long
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Citing the need to preserve managerial discretion, courts frequently espouse the need to adopt an “especially strict approach” in cases of intentional infliction of emotional distress (IIED) in the workplace. As a result, the IIED tort currently has a limited role to play in the fight against workplace discrimination and harassment. At the same time, a few courts – almost undetected in the literature on the subject - have recognized that one form of employer conduct may merit special treatment when assessing an IIED claim against an employer. According to these courts, the fact that an employer has engaged in …
The Statutification Of Tort Law Involving The Workplace, Alex B. Long
The Statutification Of Tort Law Involving The Workplace, Alex B. Long
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The phenomenon of the "tortification" of employment law involves the consideration and importation of common-law tort principles when interpreting statutory anti-discrimination law. This Article explores the other side of the coin: the “statutification” of tort law as it applies to the workplace. State courts have only infrequently partaken in this enterprise, even in situations in which the two areas of law involve similar issues. This Article suggests that at least some limited form of statutification of tort law as it pertains to the workplace might be useful.
A Tribute To Professor Catherine Mahern, Lawrence Raful
A Tribute To Professor Catherine Mahern, Lawrence Raful
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No abstract provided.
Restoring The Statutory Safety-Valve For Immigrant Crime Victims: Premium Processing For Interim U Visa Benefits, Jason A. Cade, Mary Honeychurch
Restoring The Statutory Safety-Valve For Immigrant Crime Victims: Premium Processing For Interim U Visa Benefits, Jason A. Cade, Mary Honeychurch
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This essay focuses on the U visa, a critical government program that has thus far failed to live up to its significant potential. Congress enacted the U visa to aid undocumented victims of serious crime and incentivize them to assist law enforcement without fear of deportation. The reality, however, is that noncitizens eligible for U status still languish in limbo for many years while remaining vulnerable to deportation and workplace exploitation. This is in large part due to the fact that the agency has never devoted sufficient resources to processing these cases. As a result, the potential benefits of the …
Gina, Big Data, And The Future Of Employee Privacy, Brad Areheart
Gina, Big Data, And The Future Of Employee Privacy, Brad Areheart
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Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. We argue that the Genetic Information Nondiscrimination Act (GINA) offers a blueprint for preventing employers from breaching employee privacy. GINA has faced significant criticism since its enactment in 2008: commentators have dismissed the law as ill-conceived, unnecessary, and ineffective. While we concede that GINA may have failed to alleviate anxieties about medical genetic testing, we assert that it has unappreciated value as an employee-privacy statute. In the era of big data, protections for employee privacy are more pressing than protections against …
Employer-Mandated Vaccination Policies: Different Employers, New Vaccines, And Hidden Risks, Teri Dobbins Baxter
Employer-Mandated Vaccination Policies: Different Employers, New Vaccines, And Hidden Risks, Teri Dobbins Baxter
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Although debates about access to healthcare and healthcare financing have been in the headlines for years, attention has only sporadically been focused on new and resurgent health challenges in the form of outbreaks of contagious diseases. One obvious weapon in the fight against outbreaks is vaccination. Many vaccines have been proven safe and highly effective, but vaccine opponents have been vocal and influential, and even some who work in healthcare facilities distrust vaccines. The tension between employees who distrust vaccines and employers who want to encourage or require vaccination has led many healthcare policy and legal scholars to explore the …
Experiencing Experiential Education: A Faculty-Student Perspective On The University Of Tennessee College Of Law's Adventure In Access To Justice Author, Robert C. Blitt
Experiencing Experiential Education: A Faculty-Student Perspective On The University Of Tennessee College Of Law's Adventure In Access To Justice Author, Robert C. Blitt
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This article functions both as a brief history lesson in experiential education and as a case study of an experiential course entitled “Human Rights Practicum” offered at the University of Tennessee College of Law in 2015. After briefly discussing historical and current trends in law school reform, including the rise of experiential education within the law school curriculum and the role played by technology in this context, the article turns to explore the impetus for the Human Rights Practicum, its development and implementation, as well as the software technology used to develop its final work product, a web-based “guided interview” …
Using The Nfl As A Model? Considering Zero Tolerance In The Workplace For Batterers, Deseriee A. Kennedy
Using The Nfl As A Model? Considering Zero Tolerance In The Workplace For Batterers, Deseriee A. Kennedy
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The impact of domestic violence can increasingly be felt in the workplace, and it can adversely affect the safety and productivity of employees. Legislators and employers have begun to recognize the effect of domestic violence on employment, and many have adopted policies to protect the interests of domestic violence survivors. This article suggests that wider adoption of domestic violence policies are needed and these policies should be broadened to directly address batterers in the workplace. The article argues that employer based sanctions would increase batterer accountability and workplace safety. It uses the newly revised NFL Personal Conduct Policy as a …
Employment Discrimination In Legal Education: Selected Readings Relating To Women, Minorities, And Legal Writing, Lucille Jewel
Employment Discrimination In Legal Education: Selected Readings Relating To Women, Minorities, And Legal Writing, Lucille Jewel
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This bibliography is a collection of selected readings that address discrimination issues and attitudes relating to the employment of women and minorities in legal education.
Getting Paid In The Naked Economy, Meredith R. Miller
Getting Paid In The Naked Economy, Meredith R. Miller
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“It’s the end of work as we know it,” reports consulting firm Accenture in a paper about the “rise of the extended workforce.” (Gartside, Silverstone, Farley & Cantrell, Trends Reshaping the Future of HR: The Rise of the Extended Workforce, at 3 (Accenture 2013). The report predicts that, “[i]n the future, organizations’ competitive success will hinge on...workers who aren’t employees at all.” The legal nature of employment is changing and has been changing for quite some time; fewer and fewer workers are “employees.”
It is not new or novel to recognize that, from a legal perspective, there are many benefits …
The Forgotten Role Of Consent In Defamation And Employment Reference Cases, Alex B. Long
The Forgotten Role Of Consent In Defamation And Employment Reference Cases, Alex B. Long
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As has been well documented, the fear of defamation suits and related claims leads many employers to refuse to provide meaningful employment references. However, an employer who provides a negative reference concerning an employee enjoys a privilege in an ensuing defamation action if the employee has consented to the release of information concerning the employee’s job performance. Thus, many attorneys now advise prospective employers to have applicants sign consent agreements, permitting the prospective employer to conduct an investigation into the applicant’s work history and releasing from liability anyone who provides information about the employee’s work history. The Restatement (Second) of …
Ricci V. Destefano: A Masculinities Theory Analysis, Ann C. Mcginley
Ricci V. Destefano: A Masculinities Theory Analysis, Ann C. Mcginley
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This Article applies masculinity theory to explore the aspects Ricci v. Destefano and its political reverberations. Empirical evidence showed that virtually all written tests have a disparate impact on minorities, that a neighboring city had reached less discriminatory results using a different weighting system, and that other fire departments used assessment centers to judge firefighters' qualifications for promotions. While the black male and all female firefighters were made invisible by the case and the testimony, the fact that Ricci's and Vargas' testimony lionized a particularly traditional form of heterosexual masculinity was also invisible. While the command presence required of a …
Teaching Problem-Solving And Preventive Law Skills Through International Labour And Employment Law, Ruben J. Garcia
Teaching Problem-Solving And Preventive Law Skills Through International Labour And Employment Law, Ruben J. Garcia
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This essay describes how problem-solving and preventive law principles apply in the teaching of international labor and employment law. This is because the subject itself crosses disciplinary and geographical boundaries. Students are taught about the importance of the lawyer's role as a counselor, rather than simply a litigator, which is at the center of the model of the lawyer as a problem solver.
2009 Ethical Considerations In Land Use, Patricia E. Salkin
2009 Ethical Considerations In Land Use, Patricia E. Salkin
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This article is one in a series of annual updates on reported cases and opinions in the area of ethics and land use regulation, A number of themes emerged from the round of litigation in the last year. The most surprising discovery was for a second year in a row, the number of reported cases involving allegations of unethical conduct on the part of land use attorneys. This article reviews these cases, as well as cases involving conflicts based on community involvement, familial relationships, employment and financial interests; and cases involving allegations of bias and prejudgment.
The Troublemaker's Friend: Retaliation Against Third Parties And The Right Of Association In The Workplace, Alex B. Long
The Troublemaker's Friend: Retaliation Against Third Parties And The Right Of Association In The Workplace, Alex B. Long
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Title VII theoretically provides virtually unlimited protection from retaliation for one kind of workplace troublemaker - the employee who files a formal charge of discrimination. However, the protection from retaliation enjoyed by such individuals is significantly less when the troublemaker resorts to an employer's internal process for resolving discrimination complaints prior to the filing of a formal charge of discrimination. And what of the coworker who assists the troublemaker in pursuing such an internal grievance? Or the coworker who simply has some type of relationship with the troublemaker who files a formal charge of discrimination? What protection from retaliation do …
Ethical Considerations In Land Use Decision Making: 2006 Annual Review Of Cases And Opinions, Patricia E. Salkin
Ethical Considerations In Land Use Decision Making: 2006 Annual Review Of Cases And Opinions, Patricia E. Salkin
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This article reviews reported cases and opinions documenting allegations of unethical conduct involved in land use planning and zoning decision making in 2006.
Harassment Of Sex(Y) Workers: Applying Title Vii To Sexualized Industries, Ann C. Mcginley
Harassment Of Sex(Y) Workers: Applying Title Vii To Sexualized Industries, Ann C. Mcginley
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Like the women blackjack dealers at the Hard Rock, cocktail servers, exotic dancers, and prostitutes in legal brothels are vulnerable to sexual harassment by customers. The content of the four jobs reveals the fallacy of the "good girl"/"bad girl" dichotomy, because all four jobs require behavior that falls into both categories if we expand the definition of good and bad girls to include gendered behavior as well as sexual behavior. Once the defense applies to discrimination in sexualized environments, it could logically apply to sexual or racial harassment cases in companies that permit their employees to harbor and act upon …
Bringing Families In: Recommendations Of The Incarceration, Reentry And Family Roundtables, Ann Cammett, Johnna Christian, Nancy Fisherman, Lori Scott-Pickens
Bringing Families In: Recommendations Of The Incarceration, Reentry And Family Roundtables, Ann Cammett, Johnna Christian, Nancy Fisherman, Lori Scott-Pickens
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Building on the findings of the New Jersey Reentry Roundtable and a growing concern around the state about how to improve outcomes for the more than 70,000 individuals expected to return home from prison over the next five years, the roundtable examined the complex role that families – broadly defined – play in the lives of prisoners during incarceration and after their release. This document presents a set of recommendations emerging directly from roundtable sessions and provides a road map for individual and collaborative efforts accepted by a range of key players in New Jersey, including government officials, community and …
If The Train Should Jump The Track ...: Divergent Interpretations Of State And Federal Employment Discrimination Statutes, Alex B. Long
If The Train Should Jump The Track ...: Divergent Interpretations Of State And Federal Employment Discrimination Statutes, Alex B. Long
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As interpretational issues surrounding federal employment discrimination statutes have become more complex and controversial, there have arisen more opportunities for parallel state anti-discrimination law to jump the track and take alternative courses. Not surprisingly, when dealing with their own parallel state statutes, a number of state appellate courts in recent years have chosen this course of action. Even where state and federal employment discrimination have not yet taken different paths, the potential for such divergent interpretations of state and federal anti-discrimination law has increased in recent years to the point where we may enter an era not unlike that of …
Making Work Pay: Promoting Employment And Better Child Support Outcomes For Low-Income And Incarcerated Parents, Ann Cammett
Making Work Pay: Promoting Employment And Better Child Support Outcomes For Low-Income And Incarcerated Parents, Ann Cammett
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The New Jersey Institute for Social Justice prepared this report in response to concerns about child support debt—in particular as it creates a barrier to employment for low-income parents and works at cross-purposes with the goals of the child support program. Drawing on examples from other states, this report identifies a range of policies that inform child support practice in New Jersey and offers administrative, legislative, and programmatic solutions to address child support arrears owed by low-income and incarcerated parents.
In Search Of The Best Procedure For Enforcing Employment Discrimination Laws: A Comparative Analysis, Jean R. Sternlight
In Search Of The Best Procedure For Enforcing Employment Discrimination Laws: A Comparative Analysis, Jean R. Sternlight
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As our world effectively shrinks, many countries are beginning to reach a striking substantive consensus regarding the prohibition of employment discrimination. Yet, and in sharp contrast, nothing approaching consensus has yet emerged regarding the best procedural method with which to resolve individual claims of employment discrimination. Instead, while countries have struggled, individually, to devise processes that meet a variety of needs, none seems to be satisfied with its efforts. Litigation is slow, costly, and impersonal. Informal processes such as conciliation, mediation, arbitration, or administrative processes aim to be faster and cheaper, but may not result in adequate enforcement of discrimination …
Masculinities At Work, Ann C. Mcginley
Masculinities At Work, Ann C. Mcginley
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This article focuses on the study of masculinities, a body of theoretical and empirical work by sociologists, feminist theorists and organization management theorists. This work, much of which employment law scholars have ignored, studies the role of masculinities, which are often invisible, in creating structural barriers to the advancement of many women and some men at work. Masculinities comprise both a structure that reinforces the superiority of men over women and a series of practices, associated with masculine behavior, performed by men or women, that aid men to maintain their superior position over women. In their less visible form, masculinities …
Disparate Impact Theory In Employment Discrimination: What’S Griggs Still Good For? What Not?, Elaine W. Shoben
Disparate Impact Theory In Employment Discrimination: What’S Griggs Still Good For? What Not?, Elaine W. Shoben
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Is disparate impact a dead theory of employment discrimination? Definitely not. The theory itself has a more stable legal status than it did when the Supreme Court embraced it in its 1971 opinion Griggs v. Duke Power Co. But is it thriving in litigation? It appears to be neither thriving nor dead. It has become a relatively less vital tool, compared with theories of intentional discrimination. Despite the heroic effort of Congress to keep the theory from destruction by the Supreme Court through its express codification in 1991, disparate impact litigation is not making a major impact in this …
The Irrational Turn In Employment Discrimination Law: Slouching Toward A Unified Approach To Civil Rights Law, John Valery White
The Irrational Turn In Employment Discrimination Law: Slouching Toward A Unified Approach To Civil Rights Law, John Valery White
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This Article argues that the Supreme Court's recent disparate treatment decisions under Title VII of the Civil Rights Act of 1964 represent a trend toward unifying all civil rights law under an approach most closely akin to traditional equity. This trend explains the curious tension between substance and process in the Court's most recent decisions, St. Mary's Honor Center v. Hicks and Reeves v. Sanderson Plumbing. It also explains the Court's uncommon confidence in its yet undefined notions of what constitutes discrimination on the basis of the several protected categories recognized in Title VII and related statutes. The trend toward …
Introduction: Employment Discrimination And The Problems Of Proof, John Valery White, Gregory Vincent
Introduction: Employment Discrimination And The Problems Of Proof, John Valery White, Gregory Vincent
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This is an introduction to articles presented at a symposium on the U.S. Supreme Court’s decision in Reeves v. Sanderson Plumbing Prods. Co. sponsored by the Louisiana Law Review. Presenting papers were five of the leading scholars on employment discrimination law: Professor Catherine J. Lanctot of the Villanova University Law School, Professor Michael Selmi of the George Washington Law School, Professor Linda Hamilton Krieger, University of California at Berkely School of Law, Professor Rebecca Hanner White of the University of Georgia Law School, and Professor Michael Zimmer of the Seton Hall University School of Law. Respondents were the authors and …
Discrimination Cases In The 2000 Term, Eileen Kaufman
Discrimination Cases In The 2000 Term, Eileen Kaufman
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No abstract provided.
Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin
Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin
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No abstract provided.
Recent Supreme Court Employment Law Developments, Douglas D. Scherer, Olati Johnson
Recent Supreme Court Employment Law Developments, Douglas D. Scherer, Olati Johnson
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No abstract provided.
Discrimination Cases In The Supreme Court’S 1998 Term, Eileen Kaufman
Discrimination Cases In The Supreme Court’S 1998 Term, Eileen Kaufman
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In the Supreme Court's 1997 Term, the Supreme Court had decided a record number of statutory discrimination cases. However, that record was exceeded in the Supreme Court's 1998 Term with the Court addressing issues arising under Title VII, which covers discrimination in employment; Title IX, which covers discrimination in schools; and most significantly, the Americans with Disabilities Act, which prohibits discrimination based on disability. Overall, the term scored significant victories for employers who were given considerable latitude to set their own physical characteristic standards and who were, to a large extent, immunized from liability for punitive damages. There was an …