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Articles 1 - 30 of 107
Full-Text Articles in Law
When Amazon Drivers Kill: Accidents, Agency Law, And The Contractor Economy, Keith Cunningham-Parmeter
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 …
Workplace Wellness Programs: Empirical Doubt, Legal Ambiguity, And Conceptual Confusion, Camila Strassle, Benjamin E. Berkman
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 …
Salary History Should Be Her Story: Upholding Regulations Of Salary History Through A Commercial Speech Analysis, Elizabeth Lester-Abdalla
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
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
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.
Data-Driven Discrimination At Work, Pauline T. Kim
Data-Driven Discrimination At Work, Pauline T. Kim
William & Mary Law Review
A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback …
Leave And Marriage: The Flawed Progress Of Paternity Leave In The U.S. Military, T. J. Keefe
Leave And Marriage: The Flawed Progress Of Paternity Leave In The U.S. Military, T. J. Keefe
William & Mary Law Review
No abstract provided.
The Unwelcome Requirement In Sexual Harassment: Choosing A Perspective And Incorporating The Effect Of Supervisor-Subordinate Relations, Larsa K. Ramsini
The Unwelcome Requirement In Sexual Harassment: Choosing A Perspective And Incorporating The Effect Of Supervisor-Subordinate Relations, Larsa K. Ramsini
William & Mary Law Review
No abstract provided.
Applying Equitable Estoppel To Erisa Pension Benefit Claims, Adam S. Mcgonigle
Applying Equitable Estoppel To Erisa Pension Benefit Claims, Adam S. Mcgonigle
William & Mary Law Review
No abstract provided.
Disability Cause Lawyers, Michael E. Waterstone, Michael Ashley Stein, David B. Wilkins
Disability Cause Lawyers, Michael E. Waterstone, Michael Ashley Stein, David B. Wilkins
William & Mary Law Review
There is a vast and growing cause lawyering literature demonstrating how attorneys and their relationship to social justice movements matter greatly for law’s ability to engender progress. But to date, there has been no examination of the work of ADA disability cause lawyers as cause lawyers. Similarly, despite an extensive literature focused on the ADA’s revolutionary civil rights aspects and the manner in which the Supreme Court’s interpretation of that statute has stymied potential transformation of American society, no academic accounts of disability law have focused on the lawyers who bring these cases. This Article responds to these scholarly voids. …
Negligent Hiring And The Information Age: How State Legislatures Can Save Employers From Inevitable Liability, Katherine A. Peebles
Negligent Hiring And The Information Age: How State Legislatures Can Save Employers From Inevitable Liability, Katherine A. Peebles
William & Mary Law Review
No abstract provided.
Disparate Impact Realism, Amy L. Wax
Citizens, United And Citizens United: The Future Of Labor Speech Rights?, Charlotte Garden
Citizens, United And Citizens United: The Future Of Labor Speech Rights?, Charlotte Garden
William & Mary Law Review
Within hours of its announcement, the Supreme Court’s decision in Citizens United v. FEC came under attack from progressive groups. Among these groups were some of America’s largest laborunions—even though the decision applies equally to unions and for profit corporations. The reason is clear: there exist both practical andstructural impediments that will prevent unions from benefittingfrom Citizens United to the same extent as corporations. Therefore,Citizens United stands to unleash a torrent of corporate electioneering that could drown out the countervailing voice of organized labor.
This Article, however, takes a broader view of Citizens United to explore a possible silver lining …
The Importance Of Immutability In Employment Discrimination Law, Sharona Hoffman
The Importance Of Immutability In Employment Discrimination Law, Sharona Hoffman
William & Mary Law Review
This Article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 2009, two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.
The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment …
Rehabilitative Employees And The National Labor Relations Act, Justin C. Sorrell
Rehabilitative Employees And The National Labor Relations Act, Justin C. Sorrell
William & Mary Law Review
No abstract provided.
Occupational Safety And Health Standards As Federal Law: The Hazards Of Haste, Robert D. Moran
Occupational Safety And Health Standards As Federal Law: The Hazards Of Haste, Robert D. Moran
William & Mary Law Review
No abstract provided.
How The New Economics Can Improve Employment Discrimination Law, And How Economics Can Survive The Demise Of The "Rational Actor", Scott A. Moss, Peter H. Huang
How The New Economics Can Improve Employment Discrimination Law, And How Economics Can Survive The Demise Of The "Rational Actor", Scott A. Moss, Peter H. Huang
William & Mary Law Review
Much employment discrimination law is premised on a purely money-focused "reasonable" employee, the sort who can be made whole with damages equal to lost wages, and who does not hesitate to challenge workplace discrimination. This type of "rational" actor populated older economic models but has been since modified by behavioral economics and research on happiness. Behavioral and traditional economists alike have analyzed broad employment policies, such as the wisdom of discrimination statutes, but the devil is in the details of employment law. On the critical damages-and liability issues the Supreme Court and litigators face regularly, the law essentially ignores the …
Diversity And Discrimination: A Look At Complex Bias, Minna J. Kotkin
Diversity And Discrimination: A Look At Complex Bias, Minna J. Kotkin
William & Mary Law Review
Multiple claims have become a fixture of employment discrimination litigation. It is common, if not ubiquitous, for court opinions to begin with a version of the following litany: 'Plaintiff brings this action under Title VII and the ADEA for race, age, and gender discrimination. "Equal Employment Opportunity Commission (EEOC) statistics show exponential growth in multiple claims in part because its intake procedures lead claimants to describe their multiple identities, at a time when they have little basis upon which to parse a specific category of bias. But increased diversity in workplace demographics suggests that frequently, disparate treatment may in fact …
The Failure Of Punitive Damages In Employment Discrimination Cases: A Call For Change, Joseph A. Seiner
The Failure Of Punitive Damages In Employment Discrimination Cases: A Call For Change, Joseph A. Seiner
William & Mary Law Review
Punitive damages were described by one early court as "an unsightly and an unhealthy excrescence." Although views toward punitive relief have changed over the years, the debate over the availability of exemplary damages in the judicial system has remained controversial. No place is that controversy more aptly demonstrated than in employment discrimination law, where punitive damages first became available in an amendment to Title VII of the Civil Rights Act of 1964 after a bitter congressional debate. Almost a decade ago, in Kolstad v. American Dental Association, the Supreme Court provided guidance on how punitive damages should be applied in …
Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman
Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman
William & Mary Law Review
An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants-upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, …
The New Massachusetts Health Law: Preemption And Experimentation, Edward A. Zelinsky
The New Massachusetts Health Law: Preemption And Experimentation, Edward A. Zelinsky
William & Mary Law Review
The Employee Retirement Income Security Act of 1974 (ERISA) preempts major features of the new Massachusetts health law. Although regrettable, this conclusion is mandated by ERISA's statutory terminology and the controlling case law. Other states, in fashioning their health care policies, are looking at elements of the new Massachusetts law. Just as ERISA preempts the individual and business contribution mandates of the Massachusetts statute, ERISA will preempt any similar provisions adopted by other states.
Because state experimentation with health care is particularly desirable today, Congress should, at a minimum, amend ERISA to validate the new Massachusetts health law. More comprehensively, …
Eliminating The Intent Requirement In Constructive Discharge Cases: Pennsylvania State Police V. Suders, Crystal L. Norrick
Eliminating The Intent Requirement In Constructive Discharge Cases: Pennsylvania State Police V. Suders, Crystal L. Norrick
William & Mary Law Review
No abstract provided.
A Union Of Formalism And Flexibility: Allowing Employers To Set Their Own Liability Under Federal Employment Discrimination Laws, Darren M. Creasy
A Union Of Formalism And Flexibility: Allowing Employers To Set Their Own Liability Under Federal Employment Discrimination Laws, Darren M. Creasy
William & Mary Law Review
No abstract provided.
Reasonable Accommodation Of Workplace Disabilities, Stewart J. Schwab, Steven L. Willborn
Reasonable Accommodation Of Workplace Disabilities, Stewart J. Schwab, Steven L. Willborn
William & Mary Law Review
No abstract provided.
Labor Force Participation And Income Of Individuals With Disabilities In Sheltered And Competitive Employment: Cross-Sectional And Longitudinal Analyses Of Seven States During The 1980s And 1990s, Peter Blanck, Helen A. Schartz, Kevin M. Schartz
Labor Force Participation And Income Of Individuals With Disabilities In Sheltered And Competitive Employment: Cross-Sectional And Longitudinal Analyses Of Seven States During The 1980s And 1990s, Peter Blanck, Helen A. Schartz, Kevin M. Schartz
William & Mary Law Review
The purpose of this investigation was to examine the labor force participation and wages of individuals with disabilities who have transitioned from facility-based (i.e., sheltered) work to employment in integrated and competitive settings. The investigators had access to data from seven states on the labor force participation and wages of more than 3000 individuals with disabilities who have moved from institutional to community placements over the past two decades.
Among the findings: the majority of individuals in these geographically diverse samples were unemployed over time; sheltered employment prepared some individuals for entry into employment in integrated settings and resulted in …
Identity And Disability In The Workplace, Susanne M. Bruyere, William A. Erickson, Joshua T. Ferrentino
Identity And Disability In The Workplace, Susanne M. Bruyere, William A. Erickson, Joshua T. Ferrentino
William & Mary Law Review
No abstract provided.
Disabiling The Ada: Essences, Better Angels, And Unprincipled Neutrality Claims, Aviam Soifer
Disabiling The Ada: Essences, Better Angels, And Unprincipled Neutrality Claims, Aviam Soifer
William & Mary Law Review
No abstract provided.
The Little Guy Myth: The Fair Act's Victimization Of Small Business, Melissa A. Peters
The Little Guy Myth: The Fair Act's Victimization Of Small Business, Melissa A. Peters
William & Mary Law Review
No abstract provided.
Bridging The Gap Between Work And Family: Accomplishing The Goals Of The Family And Medical Leave Act Of 1993, Emily A. Hayes
Bridging The Gap Between Work And Family: Accomplishing The Goals Of The Family And Medical Leave Act Of 1993, Emily A. Hayes
William & Mary Law Review
No abstract provided.
Are You Breaking Some Sort Of Law?: Protecting An Employee's Informal Complaints Under The Fair Labor Standards Act's Anti-Retaliation Provision, Jennifer Lynne Redmond
Are You Breaking Some Sort Of Law?: Protecting An Employee's Informal Complaints Under The Fair Labor Standards Act's Anti-Retaliation Provision, Jennifer Lynne Redmond
William & Mary Law Review
No abstract provided.