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Articles 1 - 30 of 63
Full-Text Articles in Law
The Workers' Constitution, Luke Norris
The Workers' Constitution, Luke Norris
Law Faculty Publications
This Article argues that the National Labor Relations Act of 1935, Social Security Act of 1935, and Fair Labor Standards Act of 1938 should be understood as a “workers’ constitution.” The Article tells the history of how a connected wave of social movements responded to the insecurity that wage earners faced after the Industrial Revolution and Great Depression by working with government officials to bring about federal collective bargaining rights, wage and hour legislation, and social security legislation. It argues that the statutes are tied together as a set of “small c” constitutional commitments in both their histories and theory. …
Employee Voice In Arbitration, Ann C. Hodges
Employee Voice In Arbitration, Ann C. Hodges
Law Faculty Publications
The Supreme Court’s 2018 decision in Epic Systems v. Lewis allows employers to force employees to agree to individual arbitration of any claims against the employer, removing their ability to bring class and collective actions. These unilaterally imposed arbitration agreements deprive employees of any voice in this important term of employment.
If arbitration is to serve its intended function of a mutually agreeable forum to resolve disputes, Congress should require employers who desire to use arbitration to negotiate the terms of the agreement with a representative of their affected employees. Such a requirement would reduce some of the adverse effects …
Modernizing Disability Income For Cancer Survivors, Ann C. Hodges
Modernizing Disability Income For Cancer Survivors, Ann C. Hodges
Law Faculty Publications
The medical progress in cancer treatment is worthy of celebration, as survivors of many cancers are living longer. This good news, however, comes with challenges for those survivors. Empirical evidence from researchers at cancer centers demonstrates the devastating impact that cancer has on employment, resulting in serious financial stress for survivors and their families. My previous research used this empirical data to recommend changes in employment laws to meet the need of survivors to maintain employment. This article builds on the prior research by using the empirical evidence of the employment effects of cancer to recommend changes in the disability …
Crossing The Thin Blue Line: Protecting Law Enforcement Officers Who Blow The Whistle, Ann C. Hodges
Crossing The Thin Blue Line: Protecting Law Enforcement Officers Who Blow The Whistle, Ann C. Hodges
Law Faculty Publications
Law enforcement makes headline news for shootings of unarmed civilians, departmental corruption, and abuse of suspects and witnesses. Also well-documented is the code of silence, the thin blue line, which discourages officers from reporting improper and unlawful conduct by fellow officers. Accordingly, accountability is challenging and mistrust of law enforcement abounds. There is much work to be done in changing the culture of police departments and many recommendations for change. One barrier to transparency that has been largely ignored could be eliminated by reversal of the Supreme Court’s 2006 decision in Garcetti v. Ceballos. Criticism of the decision has …
The Parity Principle, Luke P. Norris
The Parity Principle, Luke P. Norris
Law Faculty Publications
The Supreme Court has interpreted the Federal Arbitration Act of 1925 (FAA) in a broad way that has allowed firms to widely privatize disputes with workers and consumers. The resulting expansive growth of American arbitration law has left commentators both concerned about the structural inequalities that permeate the regime and in search of an effective limiting principle. This Article develops such a limiting principle from the text and history of the FAA itself. The Article reinterprets the text and history of section 1 of the statute, which, correctly read, excludes individual employee-employer disputes from the statute’s coverage. The Article argues …
Labor And The Origins Of Civil Procedure, Luke P. Norris
Labor And The Origins Of Civil Procedure, Luke P. Norris
Law Faculty Publications
A series of changes within civil procedure over the past few decades—including the rise of private arbitration, the accompanying decline of public adjudication, and the erection of barriers to class actions—have diminished the economic power of workers, consumers, and diffuse economic actors. This Article demonstrates that avoiding these economic consequences was a central goal of those who crafted American federal civil procedure in the first place. Driven to action by the procedural issues involved in labor injunction cases, leading procedural reformers behind the modern regime strove to make American federal civil procedure sensitive to questions of political economy and designed …
Analyzing The Virginia Workers' Compensation Act's Governance Of Employer Non-Compliance, D. Paul Holdsworth
Analyzing The Virginia Workers' Compensation Act's Governance Of Employer Non-Compliance, D. Paul Holdsworth
Law Student Publications
This essay attempts to resolve the current disconnect in the state judiciary‘s application of section 65.2-805(A) by analyzing the language of the statute as well as the various policy implications that undergird its establishment and accompany each interpretation. Part I provides a brief background of workers‘ compensation law generally, the Virginia Workers‘ Compensation Act (including section 65.2-805(A)), and the relevant case law involving section 65.2-805(A). Part II proceeds with the essay‘s argument, i.e., that section 65.2-805(A) should not be interpreted as imposing strict liability on non-compliant employers and thereby eliminating the obligation for a plaintiff-employee to plead a prima facie …
Waging The War Against Unpaid Labor: A Call To Revoke Fact Sheet #71 In Light Of Recent Unpaid Internship Litigation, Rachel P. Willer
Waging The War Against Unpaid Labor: A Call To Revoke Fact Sheet #71 In Light Of Recent Unpaid Internship Litigation, Rachel P. Willer
Law Student Publications
Part I of this comment provides an overview of prevailing agency and judicial interpretations of unpaid internships. Part II describes recent internship litigation and the trend towards courts abandoning the Wage and Hour Division's six-factor test in favor of a more expansive primary beneficiary test. Part III suggests that Fact Sheet #71 is an outdated model that is inapplicable to contemporary internships. The Wage and Hour Division's six-factor test lacks the "force of law" and should not warrant undue judicial deference. Alternatively, the primary beneficiary test, articulated in the Second Circuit's holding in Glatt v. Fox Searchlight Pictures, Inc. …
Union Representation In Employment Arbitration, Ann C. Hodges
Union Representation In Employment Arbitration, Ann C. Hodges
Law Faculty Publications
Employers in recent years have promulgated arbitration programs to resolve disputes with their present and former employees. Arbitration may in many cases provide a lower-cost forum than litigation for resolving such disputes. But the problem of representation of Americans of modest incomes still remains. Ann Hodges explores in this chapter whether labor unions can help address that representation gap.
Imagining U.S. Labor Relations Without Union Security, Ann C. Hodges
Imagining U.S. Labor Relations Without Union Security, Ann C. Hodges
Law Faculty Publications
Attacks on union finances are intensifying. These assaults, which come in various forms, have the potential to jeopardize the current systems of labor relations in the United States in both private and public sectors. This essay analyzes what might happen if the challenges are successful. Unions may shrink further in size or power, or alternatively, respond to new conditions in ways that strengthen them. Removal of union security might prompt legal change such as elimination of the duty of fair representation, elimination of the system of exclusive representation, or permitting the union to charge nonmembers for actual representation. These changes, …
Constitutional Economics, Luke P. Norris
Constitutional Economics, Luke P. Norris
Law Faculty Publications
This Article argues that the conventional narrative about the decline of Lochnerism and the rise of mid-century substantive due process jurisprudence is incomplete. That narrative focuses initially on how the premises underlying Lochner’s conception of economic freedom were rejected. The Article instead focuses on how the labor movement articulated an alternative conception of freedom that was adopted by Congress, the Executive, and the Supreme Court. While Lochnerism was premised on a negative view of freedom, the labor movement articulated a positive view of freedom and analogized it to republican freedom of association in the political sphere. By reframing the terms …
Derivative Racial Discrimination, Kevin Woodson
Derivative Racial Discrimination, Kevin Woodson
Law Faculty Publications
This Article introduces the concept of derivative racial discrimination, a process of institutional discrimination in which certain social and cultural dynamics impede the careers of minority workers in predominantly white firms even in the absence of racial biases and stereotypes. Derivative racial discrimination is a manifestation of cultural homophily, the universal tendency of people to gravitate toward others with similar cultural interests and backgrounds. Although not intrinsically racial, cultural homophily disadvantages minority workers in predominantly white work settings due to various race-related social and cultural differences. Seemingly inconsequential in isolation, these differences produce racial disparities in the accrual of valuable …
Rejecting The Tattooed Applicant, Disciplining The Tattooed Employee: What Are The Risks?, Stephen Allred
Rejecting The Tattooed Applicant, Disciplining The Tattooed Employee: What Are The Risks?, Stephen Allred
Law Faculty Publications
In the last twenty years, there has been a significant rise in the popularity of tattoos. Once relegated to the marginal realm of sailors, motorcycle gang members, or dock workers, tattoos are now proudly displayed by NBA stars, rock artists, and film actors. Perhaps not surprisingly, American workers, particularly younger workers, have emulated their idols and obtained tattoos too—at a remarkable rate. In fact, a 2012 Harris Poll found that one in five American adults had at least one tattoo. And while increasing percentages of Americans view tattoos as acceptable (indeed, even as art), tattoos still carry a persistent stigma …
The Problems Inherent In Litigating Employer Free Exercise Rights, Henry L. Chambers Jr.
The Problems Inherent In Litigating Employer Free Exercise Rights, Henry L. Chambers Jr.
Law Faculty Publications
This brief Article proceeds in four parts. Part I discusses the Supreme Court's recent cases that address employer free exercise rights. Part II notes problems that accompany providing free exercise rights to employers. Part III explores the expansion of employer prerogative in the context of providing employers additional free exercise rights. Part IV considers problems that arise when employee rights are not deemed central to litigation regarding employer free exercise rights. The Article concludes by proposing a refraining of the free exercise issue that will consider how to account for the interests of the employer, its stakeholders, and its employees …
Friedrichs V. California Teachers Association: The American Labor Relations System In Jeopardy, Ann C. Hodges
Friedrichs V. California Teachers Association: The American Labor Relations System In Jeopardy, Ann C. Hodges
Law Faculty Publications
The petitioners in Friedrichs v. California Teachers Association seek to overturn longstanding law relating to union security in the public sector. A decision in favor of the petitioners will invalidate provisions in thousands of collective bargaining agreements covering millions of workers. Additionally, it has the potential to upend the labor relations system in the United States. To understand how this might be the case, this Issue Brief will review the history of union security and the Supreme Court decisions that upheld union security agreements in the public sector. The Issue Brief will then look at the Friedrichs case itself, engaging …
Working With Cancer: How The Law Can Help Survivors Maintain Employment, Ann C. Hodges
Working With Cancer: How The Law Can Help Survivors Maintain Employment, Ann C. Hodges
Law Faculty Publications
Advances in cancer treatment are saving lives, but along with the benefits come challenges. Millions of cancer survivors of working age need to support themselves and their families. This Article looks at the impact of cancer on employment starting with the empirical evidence gathered by researchers affiliated with medical centers. This empirical research provides a base, not previously explored in the legal literature, for assessing the existing laws dealing with cancer and employment (or unemployment). Viewing the law through this lens, which reveals the complex relationship between cancer and employment, exposes both the promise and the weakness of existing laws …
There’S No Place Like Work: How Modern Technology Is Changing The Judiciary’S Approach To Work-At-Home Arrangements, As An Ada Accommodation,, Benjamin D. Johnson
There’S No Place Like Work: How Modern Technology Is Changing The Judiciary’S Approach To Work-At-Home Arrangements, As An Ada Accommodation,, Benjamin D. Johnson
Law Student Publications
This comment addresses the extent to which the evolving definition of the "workplace" has upset the courts' traditional approach to teleworking as a reasonable accommodation for disabled employees under the ADA and ultimately necessitated changes in the reasonable accommodation framework.
Reading Amendments And Expansions Of Title Vii Narrowly, Henry L. Chambers, Jr.
Reading Amendments And Expansions Of Title Vii Narrowly, Henry L. Chambers, Jr.
Law Faculty Publications
Throughout Title VII’s history, Congress has amended and expanded Title VII. Often, the Supreme Court has read such amendments and expansions narrowly, even as it generally reads Title VII broadly or narrowly depending on the case before it. The Court’s approach to Title VII expansions may merely indicate that the Court believes that such statutory alterations should be read only as broadly as necessary to effectuate their purposes. However, regardless of why the Court has interpreted these expansions narrowly, that the Court has done so suggests that Congress ought to consider carefully how it amends or expands Title VII in …
Trilogy Redux: Using Arbitration To Rebuild The Labor Movement, Ann C. Hodges
Trilogy Redux: Using Arbitration To Rebuild The Labor Movement, Ann C. Hodges
Law Faculty Publications
This Article analyzes the possibility of creating a program to provide representation to workers bound to arbitrate their legal disputes with their employers, while at the same time building a movement to challenge the practice of compulsory arbitration and its impact on workers' rights. First, I briefly review the Supreme Court's recent arbitration jurisprudence and its impact on workers, with a particular focus on the limitations on class actions. Then I move to a discussion of the advantages and challenges to the creation of such a program. Finally, I examine some alternative visions of what such a program might look …
Not My Job: Determining The Bounds Of Public Employee Protected Speech, Stephen Allred
Not My Job: Determining The Bounds Of Public Employee Protected Speech, Stephen Allred
Law Faculty Publications
This article reviews the Supreme Court’s rulings in public employee free speech cases, discusses the significant departure from precedent that Garcetti made to those cases, summarizes the Court’s most recent ruling in Lane, and argues that the Court should return to the broader standard the Court originally announced in Pickering.
Cultural Determinants Of Workplace Arbitration In The U.S. And Italy, Ann C. Hodges
Cultural Determinants Of Workplace Arbitration In The U.S. And Italy, Ann C. Hodges
Law Faculty Publications
Although Italy and the United States are both advanced industrial economies, the law and practice of workplace arbitration differs significantly in the two countries. This Article explores those variations and analyzes the reasons lbr the divergent evolution of arbitration. The Article concludes that histon'cal and cultural differences in legal systems and labor and employment relations are explanatory forces. While the United States could provide a more balanced system of arbitration by learning from the Italian systems greater protection of workers, given the current reality neither system seems likely to undergo significant change in the near fiiture.
Union Dues In The Public Sector: Legislative Changes And Legal Challenges, Ann C. Hodges
Union Dues In The Public Sector: Legislative Changes And Legal Challenges, Ann C. Hodges
Law Faculty Publications
The economic crisis that began in 2008 led many states and localities to look for ways to reduce labor costs, which form a substantial portion of government budgets. Some state legislatures focused on collective bargaining laws, with Wisconsin being the most high profile example. Along with the restrictions on bargaining, a number of states moved to limit the collection of union dues. The limitations were not across the board, but primarily directed at either political expenditures of unions or at particular unions, most commonly education unions. Not surprisingly, the laws enacted were immediately subjected to legal challenge sinceunions, like every …
From Coolidge To Christie: Historical Antecedents Of Current Government Officials Dealing With Public Sector Labor Unions, Bryan J. Soukup
From Coolidge To Christie: Historical Antecedents Of Current Government Officials Dealing With Public Sector Labor Unions, Bryan J. Soukup
Law Student Publications
One might ask: what do Calvin Coolidge, Ronald Reagan, Scott Walker and Chris Christie have in common? The most obvious answer is that they all are (or were) Republican Governors, but these four men have something much deeper in common. All four have faced-off against powerful public sector labor unions and won. This paper will address and examine the similarities between the anti-union actions taken by these men— Coolidge and the Boston Police Strike of 1919, Reagan and the Professional Air Traffic Controllers (“PATCO”) Strike of 1981, and Walker and Christie’s recent dealings with public employee unions. In the end, …
The Cost Of Non-Compensable Workplace Harm, Henry L. Chambers, Jr.
The Cost Of Non-Compensable Workplace Harm, Henry L. Chambers, Jr.
Law Faculty Publications
This essay briefly addresses the limited fashion in which Title VII remedies sex discrimination in the workplace. Those limitations fall into three broad categories. The first encompasses how courts have applied procedural rules to Title VII claims. The second involves Title VII's explicit limitation on its coverage. The third includes substantive limitations that courts have placed on causes of action that are clearly covered by Title VII. This essay addresses those categories in turn.
Labor And Employment Law, Eric Wallace
Labor And Employment Law, Eric Wallace
Law Student Publications
During the past two years, there have been several significant developments in labor and employment law, both on the state and federal levels. Because developments in both state and federal law likely will have a profound impact on employers and employees throughout Virginia, they warrant significant discussion in this survey. In addition to examining notable decisions from the Supreme Court of the United States, the United States Court of Appeals for the Fourth Circuit, and the United States District Courts for the Eastern District and Western District of Virginia, this survey also discusses decisions of the Supreme Court of Virginia …
The Sheathed Sword: Union Efficacy In Nonbargaining States, Ann C. Hodges
The Sheathed Sword: Union Efficacy In Nonbargaining States, Ann C. Hodges
Law Faculty Publications
Section I of this article briefly reviews the law in Virginia and North Carolina. Section II examines, in detail, many of the strategies and tactics unions have utilized, both successfully and unsuccessfully, in Virginia and North Carolina. Section III discusses the overwhelming challenges that public-sector unions, despite their success, still face under the laws and political climate in hostile states. Finally, section IV offers a brief analysis of how unions in other states that prohibit or severely limit collective bargaining can emulate their successes and learn from their failures.
The Sheathed Sword: Public-Sector Union Efficacy In Non-Bargaining States, William Warwick
The Sheathed Sword: Public-Sector Union Efficacy In Non-Bargaining States, William Warwick
Law Student Publications
Section I of this article briefly reviews the law in Virginia and North Carolina. Section II examines, in detail, many of the strategies and tactics unions have utilized, both successfully and unsuccessfully, in Virginia and North Carolina. Section III discusses the overwhelming challenges that public-sector unions, despite their success, still face under the laws and political climate in hostile states. Finally, *277 section IV offers a brief analysis of how unions in other states that prohibit or severely limit collective bargaining can emulate their successes and learn from their failures.
Maintaining Union Resources In An Era Of Public Sector Bargaining Retrenchment, Ann C. Hodges
Maintaining Union Resources In An Era Of Public Sector Bargaining Retrenchment, Ann C. Hodges
Law Faculty Publications
This article will look first at the law relating to payroll deduction of dues in Virginia and North Carolina and in several of the . states that have newly restrictive bargaining laws. The article will then discuss the significance of payroll ,deduction of union dues for effective representation of unionized employees. Next the article will analyze the existing law relating to constitutional challenges to statutory limitations on payroll deduction, along with the current legal challenge to the Wisconsin statute. Finally the article will consider how unions might maintain payroll deduction of union dues. The article concludes that while in some …
Avoiding Legal Seduction: Reinvigorating The Labor Movement To Balance Corporate Power, Ann C. Hodges
Avoiding Legal Seduction: Reinvigorating The Labor Movement To Balance Corporate Power, Ann C. Hodges
Law Faculty Publications
This Article begins by briefly describing how legal and political action has come to be a central strategy for labor unions. Next, it analyzes the ways in which the law has failed the labor movement, reviewing various laws that have been enacted to protect employees, often at the behest of unions, and how those laws have been perversely twisted to the detriment of workers. The Article, then, looks at unions and employee movements that have succeeded in the face of unfavorable laws and analyzes the determinants of those union successes. Finally, based on these strategies, the Article provides suggestions about …
Mancession Or Momcession? Good Providers, A Bad Economy, And Gender Discrimination, Allison Anna Tait
Mancession Or Momcession? Good Providers, A Bad Economy, And Gender Discrimination, Allison Anna Tait
Law Faculty Publications
Against this backdrop of precarious and disappearing work, two new elements became important: who was out of work, and how those still employed were navigating bad jobs. These questions laid the foundation for a flood of stories concerning unemployment and bad employment. Unsurprisingly, gender played a leading role in the debates. This article will discuss these two concerns--employment and workplace discrimination-as they intersect with gender and gender stereotypes.