Law Commons^™

When Amazon Drivers Kill: Accidents, Agency Law, And The Contractor Economy, Keith Cunningham-Parmeter

William & Mary Law Review

Amazon vans and Uber drivers frequently crash into other cars. Despite the many injuries and deaths that result from these accidents, Amazon and Uber deny responsibility for such claims because they categorize their drivers as “independent contractors.” But this contractor defense distorts the basic rules of agency law. Over a century ago, courts crafted agency standards that forced businesses to pay for the harms that their workers caused. Since that time, American firms have attempted to skirt this rule by labeling their workers as “contractors” rather than as “employees.” Aware of this age-old tactic to avoid liability, courts historically built …

Privatization Of Employment Claims: Perhaps A Hybrid Approach Will Free American Society From The Epic Trap The Supreme Court Has Sprung Without Forfeiting All Advantages Of Arbitration, Weyman Johnson, Kailyn G. Coots, Alexander Edmonds

William & Mary Business Law Review

Mandatory individual arbitration, as a condition of employment, binds many U.S. employees after the Supreme Court’s 2018 decision in Epic Systems Corp. v. Lewis. In effect, fundamental employment protections—such as relief under current anti-discrimination statutes—are privatized. Now, only a legislative fix will break those bonds. Congress and state legislatures have ventured into the fray, though preemption problems plague the latter, and both seem fixated on either excessively narrow categories (harassment claims in employment) or politically distasteful, broad solutions (no individual arbitration allowed in employment or consumer contracts). This Article acknowledges the quandary that the Epic decision, and the Court’s …

Tackling Discrimination In The Nfl: How The Recent Cte Race-Norming Agreement Highlights The Need To Provide Broader Anti-Discrimination Protections For Nfl Players Through Collective Bargaining Agreements, Victoria Nauman

William & Mary Business Law Review

Chronic traumatic encephalopathy (CTE) is becoming a commonly known consequence of playing football. Many have become stunned at the effects of CTE among some of the National Football League’s (NFL) most popular players. While the NFL agreed to compensate players who have suffered the effects of CTE, they did not do so fairly. The NFL employed practices of racial-baselining cognitive brain evaluations to systemically provide Black players with lower CTE settlement payouts than their white counterparts. Though shocking, this is but one instance of the NFL discriminating against their players of color in a majority-minority league. However, settling out of …

Given Equal Weight Under The Law: Expanding Title Vii Protections To Prohibit Weight Discrimination, Chelsea L. Yedinak

William & Mary Journal of Race, Gender, and Social Justice

Approximately half of Americans have an overweight or obese body mass index (BMI), yet weight discrimination is legal in nearly every jurisdiction. This means employers can set BMI limits, maximum weights, waist sizes, and more with no legal consequences. This Note examines the history of anti-fat bias and weight discrimination and how that motivates weight discrimination in employment and in the law generally. It then discusses possible solutions. Currently, most scholars propose prohibiting weight discrimination on a state level through legislation similar to Michigan’s Elliott-Larsen Civil Rights Act or on a federal level by recognizing obesity as a disability protected …

The Time Is Now: A Call For Federal Elimination Of Non-Competes Against Low-Wage And Hourly Workers In The Wake Of The Pandemic, Lori N. Ross

William & Mary Business Law Review

The COVID-19 pandemic has greatly impacted the United States’ labor market and has led to an economic recession. Millions of Americans lost their jobs as a result of the pandemic and were forced to apply for unemployment benefits. Consequently, many of these workers were confronted with the question of whether their existing non-compete agreements were enforceable. Not surprisingly, courts across the nation started seeing more pandemic-related litigation surfacing during the second part of 2020, related to employees seeking a declaration that these agreements were unenforceable.

Prior to the pandemic, there was a rise in the use of noncompete agreements at …

Who Owns The Meme?: Establishing A Definitive Framework To Resolve Disputes In Social Media Account Ownership Between Employers And Employees, Tom Galvin

William & Mary Business Law Review

The pervasive nature of social media and its growing impact on every aspect of society has created a novel issue: who owns a social media account, an employer or an employee, following the termination of the employment relationship? Courts thus far have produced an inconsistent and confusing legal terrain that will only continue to breed uncertainty amongst parties involved in disputes over social media account ownership. This Note examines the current jurisprudence, analyzes its strengths and weaknesses, proposes a definitive framework to determine ownership between the parties, and demonstrates that framework using the facts of an ongoing case. This framework …

A Title Vii Dead End? Machine Learning And Employee Monitoring, Kayla Burris

William & Mary Law Review Online

This Note will argue that Title VII, as courts currently apply the law, does not adequately protect employees from algorithmic discrimination when companies use machine learning to monitor their employees' computers. Part I will provide an introduction to how employee monitoring tools work, how employers are using machine learning in their monitoring programs, and how these programs can discriminate. Because scholars have already done significant work in this area, this Note will not try to replicate this research but will provide an overview of how this discrimination can occur. Parts II and III will then analyze how an employee might …

The Coddling Of The American Worker's Mind: The Anti-Free Speech Nature Of Popular Labor Law Reforms, Daniel V. Johns

William & Mary Bill of Rights Journal

As the nation enters an era in which a new presidential administration will likely push such labor law reforms, it is worth considering whether transparently anti-free speech reform measures make sense for the future of labor policy and law. This Article argues that they do not. Because employee free choice is furthered, not diminished, by hearing both sides of an issue, American workers should have the opportunity to hear and evaluate employer speech in the course of union campaigns. Only then can employees make an informed decision about their workplace future. In the end, freedom of speech furthers employee freedom …

Franchisees, Consumers, And Employees: Choice And Arbitration, Robert W. Emerson, Zachary R. Hunt

William & Mary Business Law Review

Commentators and lawmakers have called attention to the rising frequency of contractual arbitration as a non-negotiable condition of many relationships. Indeed, it is a rare individual who is not subject to at least one pre-dispute, binding arbitration agreement.

This Article studies common concerns associated with binding, pre-dispute arbitration agreements and evaluates their use in consumer-vendor, employee-employer, and franchisee-franchisor relationships. Having introduced concepts relevant throughout the Article, the Article in Part I studies contractual arbitration as a form of alternative dispute resolution for transactional disputes between consumers and vendors. It examines industry self-regulation, due process, consumer salience, and forum accessibility including …

To Bar Or Not To Bar: Title I Of The Ada And After-Acquired Evidence Of A Plaintiff's Failure To Satisfy Job Prerequisites, Kathryn Johnson-Monfort

William & Mary Business Law Review

Through enactment of Title I of the Americans with Disabilities Act (ADA) in 1990, Congress unequivocally resolved to prohibit discrimination on the basis of disability in the workplace. However, distortions have since created loopholes through which disability-based employment discrimination may freely slip. An enforcement regulation promulgated by the Equal Employment Opportunity Commission (EEOC) enables such circumvention of the ADA by creating an additional prima facie requirement: a plaintiff must not only be able to perform the essential functions of the position as required by the statute, but must also satisfy all job-related requirements of the position as demanded by the …

Working On The Other Side Of The Fence: Relief For Incarcerated Individuals After Employment Discrimination, Hannah C. Merrill

William & Mary Journal of Race, Gender, and Social Justice

One of America’s largest workforces, comprised of 1.5 million incarcerated workers, remains unprotected by employment discrimination statutes and vulnerable to abuse from a system designed to exploit their labor. This Note highlights the effects of the lack of protection against employment discrimination for incarcerated workers. This Note will analyze the circuit split regarding the application of employment discrimination statutes to prisoners based on varying understandings of the term “employee” and explain why both approaches fail incarcerated workers. Although one approach bars suit from incarcerated employees altogether, the other only allows suit when the incarcerated individual is working in an “optional” …

Stifling Nascent Concerted Activity: The Nlrb And The Alstate Decision, Melanie R. Allen

William & Mary Journal of Race, Gender, and Social Justice

The National Labor Relations Board (NLRB) made a number of significant changes to the interpretation and enforcement of the National Labor Relations Act (NLRA or the Act) under the Trump administration. The collective impact of these changes may make it more difficult for workers to bring successful unfair labor practice charges against their employers. Although NLRB case decisions and rulemaking affect a large proportion of American workers, the significance of these policy changes is often not widely recognized. This Note will examine one such change—the Board’s 2019 Alstate Maintenance decision that overturned its 2011 decision in WorldMark by Wyndham.

Twenty-First Century Labor Law: Striking The Right Balance Between Workplace Civility Rules That Accommodate Equal Employment Opportunity Obligations And The Loss Of Protection For Concerted Activities Under The National Labor Relations Act, Christine Neylon O'Brien

William & Mary Business Law Review

Employees who engage in protected concerted activities relating to work generally are shielded from discipline by Section 7 of the National Labor Relations Act (NLRA). Where otherwise protected work-related activity involves profanity or offensive speech or actions, whether in or out of the workplace, on a picket line, or on social media, such may violate employer civility rules and/or equal employment opportunity laws. Important interests are at stake, including for employers to maintain a safe, discrimination-free workplace; and for employees to exercise their right to communicate about workplace matters. This Article analyzes recent cases on the question when offensive employee …

Using The Abc Test To Classify Workers: End Of The Platform-Based Business Model Or Status Quo Ante?, Robert Sprague

William & Mary Business Law Review

In light of California’s recent adoption of the ABC employee/ independent contractor classification test, this Article provides a comprehensive analysis of the ABC test’s application in the platformbased (gig) economy. After first reviewing the current state of precarious work arrangements, particularly through gig work, and reviewing more traditional classification tests (the common law control test, the economic realities test, and the IRS test) as well as more recent Market Platform legislation, this Article provides a thorough examination of the factors necessary to satisfy the three parts of the ABC test. Since there are almost no reported decisions applying the ABC …

Janus And The Future Of Collective Bargaining: Rhetorically Predicting A First Amendment Right To Negotiation, Thomas J. Freeman, Aaron Mckain, Destynie J.L. Sewell

William & Mary Business Law Review

The importance of the U.S. Supreme Court ruling in Janus v. American Federation of State, County, and Municipal Employees has been widely recognized for its effect on reducing the power and influence of public unions. A close reading of the majority opinion provides a clue that compulsory collective bargaining itself may be settling into the court’s crosshairs. Collective bargaining is an important tool, by which labor can reduce the often-inherent power imbalance it has with ownership and management. Yet as this Article outlines, the interests of individual workers can often be at odds with those other workers workers, particularly those …

Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball

William & Mary Bill of Rights Journal

This Article argues that the expressive components of gender-stereotyping theory serve to delink the equality protections afforded by that theory from fixed and predetermined identity categories in helpful and positive ways. Many have viewed American antidiscrimination law as being normatively grounded in the notion that there are certain identities that, because of their stable and immutable characteristics, deserve equality-based protections. Gender-stereotyping theory can help make the normative case for a more pluralistic understanding of equality, one that is grounded in the need to protect the fluid and multiple ways in which gender is performed or expressed rather than focusing, as …

Workplace Wellness Programs: Empirical Doubt, Legal Ambiguity, And Conceptual Confusion, Camila Strassle, Benjamin E. Berkman

William & Mary Law Review

Federal laws that protect workers from insurance discrimination and infringement of health privacy include exceptions for wellness programs that are “voluntary” and “reasonably designed” to improve health. Initially, these exceptions were intended to give employers the flexibility to create innovative wellness programs that would appeal to workers, increase productivity, and protect the workforce from preventable health conditions.

Yet a detailed look at the scientific literature reveals that wellness program efficacy is quite disputed, and even highly touted examples of program success have been shown to be unreliable. Meanwhile, the latest administrative regulations on wellness programs were vacated by a district …

Disaggregated Discrimination And The Rise Of Identity Politics, George Rutherglen

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

University Inventions Reconsidered: Debunking The Myth Of University Ownership, Patricia E. Campbell

William & Mary Business Law Review

Most universities today assert ownership rights over all patentable inventions (and many other types of intellectual property) created by members of the university community, including faculty, staff, students, visitors, and others. Universities then attempt to license that intellectual property (IP) to third parties, in order to generate revenue for the university and to give the public the benefit of innovations developed by the institution, often with the use of federal funds. This Article provides an evaluation of the technology transfer policies and practices of U.S. universities. Part I surveys the IP policies of a representative group of universities, showing that …

Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

A Reasonable Solution For Working Parents: Expanding Reasonable Accommodation Under The Americans With Disabilities Act To Parents Of Children With Disabilities, Katherine Lease

William & Mary Journal of Race, Gender, and Social Justice

There is a growing intersection between a woman’s child-rearing and work responsibilities, but federal law inadequately addresses this issue. For mothers who have a child with a disability, they face increased parenting demands, which often lead to detrimental changes in their employment status and negative perceptions of their work ability and commitment. Many women face expectations to simultaneously be the perfect mother and the ideal worker, but this is largely unattainable when faced with the demands of raising a child with a disability.

This Note will explore the development and inadequacy of the current protection against association discrimination, that is, …

Graduate Student Employees Or Employee Graduate Students? The National Labor Relations Board And The Unionization Of Graduate Student Workers In Postsecondary Education, Leslie Crudele

William & Mary Business Law Review

This Note concerns the ongoing debate over the unionization of graduate student employees at private universities. An issue that the National Labor Relations Board (the Board) has historically been inconsistent on, graduate student unionization remains a contentious topic as university administrators continue to try to oppose student unionization efforts while graduate student employees seek to assert their collective bargaining rights under the National Labor Relations Act (the NLRA or the Act).

This Note will propose two considerations that the Board should take into account concerning issues of graduate student employee unionization: the appropriate bargaining unit and bargainable issues in academia. …

#Metoo Meets The Ministerial Exception: Sexual Harassment Claims By Clergy And The First Amendment's Religion Clauses, Ira C. Lupu, Robert W. Tuttle

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Black Hair(Tage): Career Liability Or Civil Rights Issue?, Kaili Moss

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Chronic Harm, Ann Kennedy

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Salary History Should Be Her Story: Upholding Regulations Of Salary History Through A Commercial Speech Analysis, Elizabeth Lester-Abdalla

William & Mary Law Review

No abstract provided.

Pregnancy As A Normal Condition Of Employment: Comparative And Role-Based Accounts Of Discrimination, Reva B. Siegel

William & Mary Law Review

As the Pregnancy Discrimination Act of 1978 (PDA) turns forty, it is time to consider how we define pregnancy discrimination.

In recent years, courts have come to define pregnancy discrimination almost exclusively through comparison. Yet our understanding of discrimination, inside and outside the pregnancy context, depends on judgments about social roles as well as comparison. Both Congress and the Court appealed to social roles in defining the wrongs of pregnancy discrimination. In enacting the PDA, Congress repudiated employment practices premised on the view that motherhood is the end of women’s labor force participation, and affirmed a world in which women …

Motion To Dismiss For Failure To Succeed On The Merits: The Eeoc And Rule 12(B)(6), Perry F. Austin

William & Mary Law Review

No abstract provided.

Bringing Up Baby Under The Fmla: How The Federal Unpaid Maternity Leave System In The United States Will Not Carry To Term, Samantha Jean Quan Forsyth

William & Mary Journal of Race, Gender, and Social Justice

This Note will examine current maternity leave laws both within the United States and internationally, and argues that there are major issues with the existing federal law in the United States that render such legislation ineffective. This Note will further argue that because paid maternity leave remains almost exclusively as a benefit employers can choose to provide, the federal government should not only adopt a paid maternity leave program, but also ensure that it is broader and more encompassing than current legislation.

A Return On Investment: How The Breastfeeding Promotion Act Can Change The Make-Up Of The Private Workforce, Krishna Jani

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.