Law Commons^™

Culture Matters: Cultural Differences In The Reporting Of Employment Discrimination Claims, Andrew Tae-Hyun Kim

William & Mary Bill of Rights Journal

Why don’t reasonable people complain about discrimination? Behavioral science evidence points to structural barriers, like the fear of retaliation and the lack of sociocultural power in the workplace, that discourage employees from reporting. By not reporting perceived discriminatory or harassing conduct, the employee not only underutilizes Title VII’s administrative scheme—which was created precisely to remedy and deter such conduct—but also incurs a heavy litigative cost in employer liability suits. This Article claims that for certain minority groups, namely Asian Americans, certain cultural differences significantly heighten those structural barriers and consequently leave them underprotected in the legal system. The Article locates …

A "Narrow Exception" Run Amok: How Courts Have Misconstrued Employee-Rights Laws' Exclusion Of "Policymaking" Appointees, And A Proposed Framework For Getting Back On Track, Angela Galloway

Washington Law Review

The civil rights and workplace protections afforded some government workers vary vastly nationwide because federal circuit courts disagree over how to interpret an exemption common to five landmark employment statutes. Each statute defines “employee” for its purposes to exclude politicians and certain categories of politicians’ appointees—including government employees appointed by elected officials to serve at “the policymaking level.” Neither Congress nor the United States Supreme Court has defined who belongs to the “policymaking-level” class. Consequently, lower federal courts across the country have adopted their own standards to fill the gap, creating a wide circuit split. At stake in this employment …

A Critique Of Supplying The Nrlb With Social Science Expertise Through Party/ Amicus Briefs, Xenia Tashlitsky

UC Irvine Law Review

No abstract provided.

Defined (Yet Uncertain) Benefit Pension Plans In America, Travis Bayer

Chicago-Kent Law Review

Despite playing a central role in many public and private employees' retirements, defined benefit pension plans are woefully underfunded. Moreover, the combination of a Baby Boomer retirement bulge and a struggling economy are putting even more pressure on defined benefit plans. This Note examines relevant background information regarding defined benefit pension plans and demographic data of the Baby Boomer generation. This Note then explores how and to what extent states and private employers have created contractual obligations through defined benefit plans and addresses what happens when those contractual obligations are breached. Finally, this Note suggests that litigation cannot provide a …

An Industry Missing Minorities: The Disparate Impact Of The Securities And Exchange Commission's Fingerprinting Rule, Kelly Noonan

Chicago-Kent Law Review

The Equal Employment Opportunity Commission ("EEOC") recently asserted that the use of criminal background checks as an employment screening tool may have a disparate impact on African Americans and Hispanics, in violation of Title VII of the Civil Rights Act of 1964. The EEOC and some private claimants have even filed lawsuits against employers claiming disparate impact violations based on statistics that show African Americans and Hispanics are considerably more likely to have criminal records than other racial groups. Yet, certain federal regulatory agencies require participants in their industries to subject employees to criminal background checks as a condition of …

Labor And Employment Law, W. Melvin Haas Iii, William M. Clifton Iii, W. Jonathan Martin Ii, Alyssa Peters Morris

Mercer Law Review

This Article surveys recent developments in the state statutory and common law that affect labor and employment relations of Georgia employers. Accordingly, it surveys published decisions interpreting Georgia law from June 1, 2010 to May 31, 2011. This Article also includes highlights of certain revisions to the Official Code of Georgia Annotated (O.C.G.A.).

Osha Enforcement Of The "As Effective As" Standard For State Plans: Serving Process Or People?, Courtney M. Malveaux

University of Richmond Law Review

No abstract provided.

Disparate Impact Realism, Amy L. Wax

William & Mary Law Review

No abstract provided.

Providing Environmental Whistleblowers With Twenty-First Century Protections, Richard Condit

Labor & Employment Law Forum

This article examines the strengths and weaknesses of the employee protection provisions contained in the major federal environmental statutes and makes recommendations for needed improvements. With these improvements, the United States can realize the benefits that well-protected employees can contribute to public health and environmental protection.

Whistleblower Law 101: Facing Food Industry Retaliation, Hon. Luis Corchado, Tom Devine, Thad Guyer, Jason Zuckerman

Labor & Employment Law Forum

This Article is an annotated transcript of a panel that occurred on February 11, 2011 at the American University Washington College of Law. The podcast of the event can be found on the American University website at http://media.wcl.american.edu/mediasite/SilverlightPlayer/ Default.aspx?peid=f68cdf9c-6bab-4202-b009-26b50bf563bf. The event was co-sponsored by the Washington College of Law and the Government Accountability Project.

The Criminalization Of Whistleblowing, Jesselyn Radack, Kathleen Mcclellan

Labor & Employment Law Forum

No abstract provided.

Bounty Hunters And Whistleblowers: Constitutional Concerns For False Claims Actions After Passage Of The Patient Protection And Affordable Health Care Act Of 2010, A.G. Harmon

Labor & Employment Law Forum

No abstract provided.

Employee Rights And The Food Safety Modernization Act: Opening Keynote, William Marler

Labor & Employment Law Forum

This Article is an annotated transcript of a panel that occurred on February 11, 2011 at the American University Washington College of Law. The podcast of the event can be found on the American University website at http://media.wcl.american.edu/mediasite/SilverlightPlayer/ Default.aspx?peid=49b34600-ffa6-412c-a0da-e61e47d040f. The event was co-sponsored by the Washington College of Law and The Government Accountability Project.

Unsolicited Internal Complaints: The False Sense Of Protection Against Anti-Retaliation Provided By Section 510 Of Erisa, Tiffany Peterson

Labor & Employment Law Forum

No abstract provided.

Employee Rights And The Food Safety Modernization Act: Luncheon Keynote, Hon. Paul Igasaki

Labor & Employment Law Forum

This Article is an annotated transcript of a panel that occurred on February 11, 2011 at the American University Washington College of Law. The podcast of the event can be found on the American University website at http://media.wcl.american.edu/mediasite/SilverlightPlayer/ Default.aspx?peid=136d32f0-d0a8-4bd1-9630-da0f48041e3b. The event was co-sponsored by the Washington College of Law and The Government Accountability Project.

Beyond Equality? Against The Universal Turn In Workplace Protection, Jessica A. Clarke

Indiana Law Journal

Sexual harassment law and family leave policy originated as feminist reform projects designed to protect women in the workplace. But many academics now ask whether harassment and leave policies have outgrown their gendered roots. The anti-bullying movement advocates taking the “sexual” out of harassment law to prohibit all forms of on-the-job mistreatment. Likewise, the work-life balance movement advocates taking the “family” out of leave policy to require employers to accommodate all types of life pursuits. These proposals are in line with recent cases and scholarship on civil rights that reframe problems once seen as issues of inequality as deprivations of …

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 …

Rethinking Discrimination Law, Sandra F. Sperino

Michigan Law Review

Modern employment discrimination law is defined by an increasingly complex set of frameworks. These frameworks structure the ways that courts, juries, and litigants think about discrimination. This Article challenges whether courts should use the frameworks to conceptualize discrimination. It argues that just as faulty sorting contributes to stereotyping and societal discrimination, courts are using faulty structures to substantively limit discrimination claims. This Article makes three central contributions. First, it demonstrates how discrimination analysis has been reduced to a rote sorting process. It recognizes and makes explicit courts' methodology so that the structure of discrimination analysis and its effects can be …

Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs

Michigan Law Review

Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief "just and proper." To this day a circuit split persists over the correct interpretation of this "just and proper" standard. Some circuits interpret "just and proper" to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret "just and proper" to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board's remedial power This Note examines the …

Employee Free Choice: Amplifying Employee Voice Without Silencing Employers - A Proposal For Reforming The National Labor Relations Act, Amy Livingston

University of Michigan Journal of Law Reform

This Note investigates the effectiveness of the National Labor Relations Act (NLRA) in balancing unions, employers', and employees' rights during the course of union organizing drives. After reviewing case law and commentary, it concludes that the NLRA's certification regime is ineffective and permits pressures that inhibit employees from expressing their real desires about whether or not to be represented by a union. This Note then examines proposed alternatives for certifying unions, and takes note of Canada's federal and ten provincial certification regimes. Finally, it concludes that the NLRA must be amended to protect worker free choice, and proposes reforms including …

Actionable Acts: "Severe" Conduct In Hostile Work Environment Sexual Harassment Cases, James Concannon

Buffalo Journal of Gender, Law & Social Policy

This paper examines the significant weight that courts accord proof of especially "severe" conduct in hostile work environment sexual harassment cases. Such conduct is often found by courts to satisfy the "severe or pervasive" test established by the Supreme Court in Harris v. Forklift Systems, Inc., even if the plaintiff does not present proof that the harassing conduct occurred with great frequency.' Part I provides an introduction to the Supreme Court's hostile work environment jurisprudence and the origins of the severe or pervasive test. Part II begins the exploration into the disjunctive nature of the severe or pervasive test. …

Willfulness, Good Faith, And The Fair Labor Standards Act, Emily Nolan Litzinger

Nevada Law Journal

No abstract provided.

Neoformalism And The Reemergence Of The Right-Privilege Distinction In Public Employment Law, Paul M. Secunda

San Diego Law Review

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, the unconstitutional conditions doctrine has now been increasingly used to rob these employees of their constitutional rights.

Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought--the "subsidy school"--has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the "penalty school." Second, although initially developed in the …

Still In 'The Jungle': Labor, Immigration, And The Search For A New Common Ground In The Wake Of Iowa's Meatpacking Raids, Khari Taustin

University of Miami Business Law Review

No abstract provided.

A View From The Front Lines: Why Protecting Immigrant Workers Is Essential For Immigration Reform And Vital To The Maintenance Of A Healthy American Workforce, Andreas N. Akaras, Sebastian G. Amar

Labor & Employment Law Forum

No abstract provided.

Strength In Numbers: The Question Of Decertification Of Sports Unions In 2011 And The Benefit Of Administrative Oversight, Alexander M. Bard

Labor & Employment Law Forum

No abstract provided.

The Agricultural Worker Protection Act & Florida's Migrant Worker: The Hands That Feed Florida, Fedline Ferjuste

Labor & Employment Law Forum

Since its enactment in 1982, courts have consistently misinterpreted the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”), and the Eleventh Circuit Courts are no exception to this misconstruction. Migrant workers are among the hardest-working and lowest-paid laborers in America, and they do not receive adequate legal protection. Congress, in enacting the AWPA, intended to make farmers and growers liable for abusing and breaching the AWPA. However, the judicial system has allowed them to create loopholes to escape liability. In order to break the cycle of abuse placed upon migrant workers, Florida must pass new legislation to reform and strengthen …

E-Verify: Chamber Of Commerce V. Whiting

Labor & Employment Law Forum

This Article is an annotated transcript of a panel that occurred on February 22, 2011 at the American University Washington College of Law. The podcast of the event can be found on the AMERICAN UNIVERSITY LABOR & EMPLOYMENT LAW FORUM’S website at http://aulaborlawforum.org/events/e-verify/. The event was co-sponsored by the Immigrants’ Rights Coalition.

Immigrant Workers' Rights: Beyond The Scope Of Traditional Labor & Employment Law

Labor & Employment Law Forum

This Article is an annotated transcript of a panel that took place on October 25, 2010 at the American University Washington College of Law. The podcast of the event can be found on the AMERICAN UNIVERSITY LABOR & EMPLOYMENT LAW FORUM’S website at http://aulaborlawforum. org/events/immigrant-workers-rights/. The event was co-sponsored by the Immigrants’ Rights Coalition Labor & Traffi cking Committee as part of Immigrants’ Rights Week.

Volume 1, Book 3

Labor & Employment Law Forum

No abstract provided.