Law Commons^™

Privacy, Poverty, And Big Data: A Matrix Of Vulnerabilities For Poor Americans, Mary Madden, Michele E. Gilman, Karen Levy, Alice Marwick

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This Article examines the matrix of vulnerabilities that low-income people face as a result of the collection and aggregation of big data and the application of predictive analytics. On one hand, big data systems could reverse growing economic inequality by expanding access to opportunities for low-income people. On the other hand, big data could widen economic gaps by making it possible to prey on low-income people or to exclude them from opportunities due to biases entrenched in algorithmic decision-making tools. New kinds of “networked privacy” harms, in which users are simultaneously held liable for their own behavior and the actions …

Causation In Whistleblowing Claims, Nancy M. Modesitt

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Whistleblowing cases have continued to increase in number in recent years as state and federal legislatures have added protections for employees who disclose illegal or wrongful activity by their employers. But even as the number of cases continues to climb, cohesive and coherent doctrines applicable in whistleblowing litigation have failed to emerge. A significant reason for this is that much of whistleblower protection is statutory in nature, and federal statutes vary greatly from state statutes, even as state statutes differ. A second reason is that courts have drawn upon doctrines developed under Title VII of the Civil Rights Act of …

En-Gendering Economic Inequality, Michele E. Gilman

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We live in an era of growing economic inequality. Luminaries ranging from the President to the Pope to economist Thomas Piketty in his bestselling book Capital in the Twenty- First Century have raised alarms about the disparity between the haves and the have-nots. Overlooked, however, in these important discussions is the reality that economic inequality is not a uniform experience; rather, its effects fall more harshly on women and minorities. With regard to gender, American women have higher rates of poverty and get paid less than comparable men, and their workplace participation rates are falling. Yet economic inequality is neither …

The Jocks And The Justice: How Sotomayor Restrained College Athletes, Phillip J. Closius

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Two judicial opinions have shaped the modem college athletic world. NCAA v. Board of Regents of the University of Oklahoma declared the NCAA's exclusive control over the media rights to college football violated the Sherman Act. That decision allowed universities and conferences to control their own media revenue and laid the foundation for the explosion of coverage and income in college football today. Clarett v. NFL held that the provision then in the National Football League's (NFL) Constitution and By-Laws that prohibited players from being eligible for the NFL draft until three years from the date of their high school …

The Surety's Exposure For Wages And Related Liabilities, Lisa D. Sparks, Marc A. Campsen

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A surety faces potential exposure to a multitude of liabilities under payment and performance bonds issued for state and federally funded bonded projects as well as from the express obligations imposed by private common law performance and payment bonds. This paper, however, focuses only on a surety’s potential exposure for wage and related liabilities.

Under federal law, a surety faces possible liability under a Miller Act Payment Bond to laborers for the bonded principal’s failure to pay wages. Union trusts may also recover against a surety under a Miller Act Payment Bond for the bonded principal’s failure to remit union …

Why Whistleblowers Lose: An Empirical And Qualitative Analysis Of State Court Cases, Nancy M. Modesitt

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This Article was originally intended to be an analysis of the propriety, or impropriety, of the doctrines most commonly used by courts to decide employees’ whistleblowing retaliation claims against employers. However, upon conducting initial research, it quickly became apparent that there was very little data available on whistleblowing cases. Unlike employment discrimination cases, where several empirical studies have been conducted, there is only one empirical analysis of whistleblower claims, which focused solely on outcomes in the federal administrative process for claims brought under the Sarbanes-Oxley Act (SOX). That study revealed that whistleblowers fare poorly for a number of reasons, but …

The Garcetti Virus, Nancy M. Modesitt

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In an era where corporate malfeasance has imposed staggering costs on society, ranging from the largest oil spill in recorded history to the largest government bailout of Wall Street, one would think that those who uncover corporate wrongdoing before it causes significant harm should receive awards. Employees are particularly well-placed to uncover such wrongdoing within companies. However, rather than reward these employees, employers tend to fire or marginalize them. While there are statutory protections for whistleblowers, a disturbing new trend appears to be developing: courts are excluding from the protection of whistleblowing statutes employees who report wrongdoing as part of …

Reinventing The Eeoc, Nancy M. Modesitt

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The Equal Employment Opportunity Commission (EEOC) has struggled to be a meaningful force in eradicating employment discrimination since its inception. The primary reasons for this are structural in nature. The EEOC was designed to react to discrimination complaints by investigating and conciliating all of the thousands of complaints filed annually. The EEOC has never been able to investigate all these complaints despite using the vast majority of its resources attempting to do so. The devotion of resources to managing and investigating the huge volume of complaints prevents the EEOC from taking more effective steps to eliminate discrimination. This article proposes …

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt

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Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left …

Leaving Maryland Workers Behind: A Comparison Of State Employee Leave Statutes, Michael Hayes

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Maryland law is not quite a blank slate for employee leave rights-but it is close. While the state forbids employers from terminating employees for job time lost for jury service or attending a court proceeding in response to a subpoena or pursuant to victim's rights laws, Maryland is one of a "select few" that does not require any breaks for adult workers, including time off for meals. Maryland law does not require family or medical leave for private sector workers. In fact, the state's most generous leave law stems from repealing antiquated "blue laws" that required businesses to be closed …

Foreword Symposium: Having It Our Way: Women In Maryland's Workplace Circa 2027, Margaret E. Johnson

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On November 14, 2007, the University of Baltimore School of Law, the University of Maryland School of Law and the Women's Law Center of Maryland co-sponsored a symposium entitled "Having it Our Way: Women in Maryland's Workplace Circa 2027." The insightful collection of papers in this volume of the University of Maryland Law Journal of Race, Religion, Gender and Class represents the work of employment law scholars, public policy specialists, and activists who presented on the current state of Maryland employment law and discussed Maryland's future. This distinguished group of experts and scholars present several themes: the hope of new …

Casa Of Maryland And The Battle Regarding Human Trafficking And Domestic Worker Rights, Elizabeth Keyes

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At the November 2006 symposium presented by the University of Maryland Law Journal of Race, Religion, Gender and Class, the panelists discussed various issues regarding human trafficking. One entity at the forefront of the fight against human trafficking is CASA of Maryland. This article contains remarks originally made by the author that focused the topic of human trafficking on one particular group of workers: domestic workers. That particular group provides an interesting study because of the many race and gender issues that are wrapped up in the treatment of domestic workers under the law.

Avoiding Harm Otherwise: Reframing Women Employees' Responses To The Harms Of Sexual Harassment, Margaret E. Johnson

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This article concerns the concepts of employee harm and harm avoidance within the liability framework for hostile work environment sexual harassment by a supervisor. Whether an employer is liable for supervisor sexual harassment depends in part on whether or not the employee avoids her harm or mitigates her damages resulting from the sexual harassment. Despite the law's interest in employee's harm avoidance, courts have failed to fully explore the vast array of harms resulting from sexual harassment and the variety of ways in which an employee avoids these multiple harms. This article reframes the legal discussion of an employee's actions …

Wrongful Discharge: The Use Of Federal Law As A Source Of Public Policy, Nancy M. Modesitt

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Wrongful discharge in violation of public policy circumscribes the employment at-will doctrine by prohibiting employers from firing employees who engage in conduct that is deemed to be protected by state or federal public policy. While much has been written about the pros and cons of such wrongful discharge claims, to date no scholarship has focused on the problems that arise when the source of public policy is a federal rather than state statute. This article analyzes the historical and current approaches to the use of federal statutes as a source of public policy to protect employees against discharge, concluding that …

That Pernicious Pop-Up, The Prima Facie Case, Michael Hayes

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This article first explains the role the prima facie case has played in discrimination cases, from its creation in McDonnell Douglas through the Supreme Court's decisions in Aikens and Reeves, up to the application of Reeves by lower courts in the past several years. Next, this article focuses on Reeve's identification of "strength of the prima facie case" as a factor to be considered on summary judgment, and discusses why it would be unwise and unworkable to interpret the words "prima facie case" in that factor as having the same meaning as the "prima facie case" proved in the first …

Preserving The Exceptional Republic: Political Economy, Race, And The Federalization Of American Immigration Law, Matthew Lindsay

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Between 1882 and 1891, the U.S. Congress enacted a spate of immigration laws though which the federal government assumed virtually exclusive control over a regulatory sphere that historically had been the province of the states. This Article argues that this federalization of immigration regulation represented an attempt to reconcile the nation’s most cherished ideological commitment - the notion that the U.S. would forever remain an exceptional, “free labor” republic - with the unprecedented social and economic convulsions of the 1870s and 1880s.

The meaning of both immigrants and immigration was fundamentally transformed during the Gilded Age due to two successive …

Let Unions Be Unions: Allowing Grants Of Benefits During Representation Campaigns, Michael Hayes

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Unions exist to provide assistance to employees; this is their reason for being. Yet once a union begins a campaign to represent a group of employees, it is legally barred from extending tangible assistance to the workers. The National Labor Relations Board ("NLRB" or the "Board") and courts deem a union grant of benefits to employees during or prior to a representation campaign objectionable conduct that requires setting aside the results of the representation election and holding another election.

This article's proposal to open the door to unconditional union benefits during an organizing campaign will likely be controversial. Part of …

After "Hiding The Ball" Is Over: How The Nlrb Must Change Its Approach To Decision-Making, Michael Hayes

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Is the National Labor Relations Board (the NLRB or the Board), the agency that oversees federal labor law, still relevant? When this question is considered, as it frequently is by scholars, lawyers and officials of the NLRB itself, the focus typically is on whether changes in the workplace, the economy and society are diminishing the relevance of the Board. But there is a new and more immediate threat to the relevance of the Board that so far has been mostly ignored - that the Board is in danger of being rendered a superfluous legal institution in the scheme of American …

Letting Federal Unions Protest Improper Contracting-Out, Charles Tiefer

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In 2000 - 2001, a judicial and General Accounting Office (GAO) ruling precluded federal employee unions from protesting the government's alleged violation of the rules governing the contracting-out procedure because the parties lacked standing. These rulings illustrate how outdated procedures have insulated the government from challenge, and have become matters of particular importance as the government increases its practice of contracting-out. Although these rulings have not closed the tribunal doors to federal employee unions, they have made protests much more difficult, leaving federal employee unions without a forum to protest violations. To better serve the needs of contractors - and …

Has Wright Line Gone Wrong? Why Pretext Can Be Sufficient To Prove Discrimination Under The National Labor Relations Act,, Michael Hayes

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Every year in the United States, thousands of employees are illegally fired for joining or supporting unions. These employees must bring their claims to the National Labor Relations Board (the “Board”), which applies its famous Wright Line standard to decide thousands of discrimination cases each year.

Probably the most common issue in labor discrimination cases is “pretext.” In virtually every case, an employer claims that it fired an employee not for an illegal anti-union motive, but for a legitimate business reason. The pretext issue arises when the evidence shows that the legitimate reason asserted by the employer was most likely …

Employer Liability For Supervisors' Intentional Torts: The Uncertain Scope Of The "Alter Ego" Exception, Michael Hayes, Quinn Broverman

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When Illinois employees are the victims of intentional torts by supervisors, can they bring common law tort suits against their employers for these injuries, or are they limited to bringing a claim under the workers' compensation system? This question, which arises with unfortunate reguIarity, lacks a clear answer because both state and federal courts in Illinois are divided over the scope of the "alter ego" exception to the exclusivity of workers' compensation as the remedy for intentionally inflicted workplace injuries.

The Illinois Workers' Compensation Act ("IWCA") contains exclusivity provisions that mandate that workers' compensation is the sole remedy available to …

Labor Is Losing Ground In The Workplace, Kenneth Lasson

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No abstract provided.

A Unified Approach To Causation In Disparate Treatment Cases: Using Sexual Harassment By Supervisors As The Causal Nexus For The Discriminatory Motivating Factor In Mixed Motive Cases, Margaret E. Johnson

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This Comment examines a unified approach for disparate treatment mixed motives claims paired with sexual harassment claims under Title VII. The Author argues that because of the policy for nondiscriminatory and desegregated work environments embodied in Title VII, and because of the documented harm resulting from sexual harassment, courts should allow the burden of proof to shift to the defendant if the plaintiff demonstrates that her supervisor sexually harassed her, or condoned the harassment, and that the harassing supervisor made an employment decision that was adverse to her.

More Lessons From Japan: End Industrywide Collective Bargaining?, Robert H. Lande, Richard O. Zerbe Jr.

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The number of books and articles discussing Japanese management techniques with an eye to transplanting them to the United States is staggering. Americans understandably are impressed by Japanese efficiency and like to think the adoption of some of their techniques will aid our own industries. Often these proposals seem fanciful and fail to recognize the many differences between the two countries, their economic systems and cultures.

Involuntary Servitude: The Current Enforcement Of Employee Covenants Not To Compete – A Proposal For Reform, Phillip J. Closius, Henry M. Schaffer

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A covenant not to compete is a contractual restriction upon an individual's ability to compete with another person or entity following the termination of some transaction or relationship between the two. Because of the increasing emphasis in the American economy on technically skilled employees and service oriented businesses, the covenant not to compete has become a standard addition to employment contracts. Moreover, the number of litigated and reported cases may represent only a small percentage of the actual number of employment restrictions currently in force. Regardless of their validity and enforceability, covenants not to compete chill the free movement of …

Two Workers, Kenneth Lasson

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This article profiles two individuals who were workers in two distinct industries. The first profile is of Dotty Neal, who at the time of this article's writing, worked for the Chesapeake & Potomac Telephone Company, in Maryland. The nature of her job and work are described, often in her own words. The second profile is of Ray Murdock, who worked as a sanitary worker, or "garbageman," in Boston, MA. Again, the nature of this kind of work is described, often in Murdock's own words. The article shows how much technology has changed in the telecommunications industry, and perhaps how much …

Punitive Damages: Punishment Of An Insured Defendant?, Carroway V. Johnson, Kenneth Lasson

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The plaintiff sued the defendant for injuries sustained in an automobile collision and was awarded a judgment in the amount of $5,000 actual damages and $1,500 punitive damages. The defendant's insurance company had refused to defend her in that action or to pay the judgment obtained, relying upon an employee exclusion clause in the policy. The plaintiff thereupon sued the defendant on the judgment, this time joining the insurer as a co-defendant, and won a verdict to recover against the insurer the aforesaid amount. The insurance company appealed, questioning its liability for punitive damages.