Law Commons^™

Brief In Opposition. City Of Houston V. Zamora, 136 S.Ct. 2009 (2016) (No. 15-868), 2016 U.S. S. Ct. Briefs Lexis 1615, 2016 Wl 1445907, Eric Schnapper, Kim Ogg, Scott Poerschke, Randall L. Kallinen, Robert Mcknight, Jr.

Court Briefs

QUESTIONS PRESENTED (1) Does the liability standard in Staub v. Proctor Hospital, 562 U.S. 411 (2011), apply to retaliation claims under Title VII? (2) Under Staub, where a supervisor for an unlawful purpose has engaged in conduct that was intended to and did in fact cause an adverse employment action, the existence of an independent investigation by other officials does not limit liability unless that investigation reveals a new basis for that adverse action that is “unrelated” to the conduct of the supervisor. The second question presented is: Should the Court overturn the decision in Staub, and hold that ...

Just Jobs, Anita Bernstein

Faculty Scholarship

No abstract provided.

Understanding Noncompetition Agreements: The 2014 Noncompete Survey Project, J. J. Prescott, Norman D. Bishara, Evan Starr

Articles

In recent years, scholars and policymakers have devoted considerable attention to the potential consequences of employment noncompetition agreements and to whether legislatures ought to reform the laws that govern the enforcement of these controversial contractual provisions. Unfortunately, much of this interest—and the content of proposed reforms—derives from anecdotal tales of burdensome noncompetes among low-wage workers and from scholarship that is either limited to slivers of the population (across all studies, less than 1%) or relies on strong assumptions about the incidence of noncompetition agreements. Better understanding of the use of noncompetes and effective noncompetition law reform requires a ...

An Uberdilemma: Employees And Independent Contractors In The Sharing Economy, Grant E. Brown

Maryland Law Review Online

No abstract provided.

Supreme Court Tie In Teacher Case Delivers A Crucial Victory To Unions, Angela B. Cornell

Cornell Law Faculty Publications

No abstract provided.

Petition For A Writ Of Certiorari. Flowers V. Troup County School District, 136 S.Ct. 2510 (2016) (No. 15-1144), 2016 Wl 1042969, Eric Schnapper, Ruth W. Woodling

Court Briefs

QUESTION PRESENTED Reeves v. Sanderson Plumbing Products, Inc., held in an action under the Age Discrimination in Employment Act, that a plaintiff may ordinarily prove the existence of an unlawful motive by establishing a prima facie case and demonstrating the falsity of the employer’s proffered explanation for the disputed employment, and that a plaintiff who does so need not also offer some other additional evidence of discrimination. The Eleventh Circuit held in this Title VII action that the existence of an unlawful motive may not be established in that manner; a plaintiff who establishes a prima facie case and ...

The Law Of The Platform, Orly Lobel

School of Law: Faculty Scholarship

New digital platform companies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. Unsurprisingly then, the platform economy defies conventional regulatory theory. Millions of people are becoming part-time entrepreneurs, disrupting established business models and entrenched market interests, challenging regulated industries, and turning ideas about consumption, work, risk, and ownership on their head. Paradoxically, as the digital platform economy becomes more established, we are also at an all-time high in regulatory permitting, licensing, and protection. The battle over law in the platform is therefore both conceptual and highly practical ...

Goodwin V. Jones, 132 Nev. Adv. Op. 12 (Mar. 03, 2016), Rob Schmidt

Nevada Supreme Court Summaries

The Court of Appeals held that because the employee did not provide sufficient evidence to demonstrate she made a reasonable, good-faith attempt to maintain her certification, the employee’s failure to maintain certification required by her employer constituted misconduct within the meaning of NRS 612.385.

Bhasin V. Hrynew: A New Era For Good Faith In Canadian Employment Law, Or Just Tinkering At The Margins?, Claire Mummé

Law Publications

In Commonwealth Bank Australia v Barker the High Court of Australia refused to impose an implied duty of mutual trust and confidence into the employment contract, reasoning that doing so would take the Court beyond its legitimate authority.[1] Issued a bare two months later, the Supreme Court of Canada went in a different direction. In Bhasin v. Hrynew, the Court acknowledged good faith as a central organizing principle of contract law, and announced a new duty of honest performance applicable to all contracts. A few months later the Court applied the new organizing principle of good faith to circumscribe ...

Angry Employees: Revisiting Insubordination In Title Vii Cases, Susan Carle, Susan D. Carle

Faculty Collected Scholarship and Works

In too many Title VII cases, employees find themselves thrown out of court because they reacted angrily to reasonable perceptions of employer discrimination. In the race context, supervisors repeatedly call employees the n-word and use other racial epithets, order African American employees to perform work others in the same job classification do not have to do, and impose discipline white employees do not face for the comparable conduct. In the gender context, courts throw out plaintiffs’ cases even where supervisors engage in egregious sexual harassment. Employees who react angrily to such demeaning treatment—by cursing, shouting, refusing an order or ...

Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 9) (2016), Roger Williams University School Of Law

RWU Law

No abstract provided.

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.

A Law Of Just Transitions?: Putting Labor Law To Work On Climate Change, David J. Doorey

Osgoode Legal Studies Research Paper Series

Climate change will dramatically affect labor markets, but labor law scholars have mostly ignored it. Environmental law scholars are concerned with climate change, but they lack expertise in the complexities of regulating the labor relationship. Neither legal field is equipped to deal adequately with the challenge of governing the effects of climate change on labor markets, employers, and workers. This essay argues that a legal field organized around the concept of a 'just transition' to a lower carbon economy could bring together environmental law, labor law, and environment justice scholars in interesting and valuable ways. "Just transitions" is a concept ...

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 ...

Employment Standards Enforcement: A Scan Of Employment Standards Complaints And Workplace Inspections And Their Resolution Under The Employment Standards Act, 2000, Leah F. Vosko, Andrea M. Noack, Eric Tucker

All Papers

No abstract provided.

Maximizing Opportunity, Minimizing Risk: Aligning Law, Policy And Practice To Strengthen Work-Integrated Learning In Ontario, Joseph F. Turcotte, Leslie Nichols, Lisa Philipps

All Papers

A broad consensus is emerging in Ontario and at the federal level in favour of expanding postsecondary students’ access to experiential or “work-integrated learning” (WIL) opportunities. One of the challenges in implementing this vision is navigating the complex legal status of students as they leave campus and enter workplaces in a wide range of industries and roles. This study aims to support these efforts by mapping the current legal landscape for WIL to identify both risks and opportunities for students, post-secondary institutions (PSIs) and placement hosts alike (referred to collectively in this study as “WIL participants”). It makes recommendations to ...

The Restorative Workplace: An Organizational Learning Approach To Discrimination, Deborah Thompson Eisenberg

Faculty Scholarship

On the fiftieth anniversary of Title VII of the Civil Rights Act, many employers continue to search for ways to implement the law’s antidiscrimination and equal opportunity mandates into the workplace. The current litigation-based approach to employment discrimination under Title VII and similar laws focuses on weeding out “bad apples” who are explicitly prejudiced. This “victim-villain” paradigm may fail to correct the complex, nuanced causes of workplace discrimination, or exacerbate the problem. This article explores an alternative approach—restorative practices—that may integrate the policy goals of antidiscrimination laws into the practical realities of managing an organization. Restorative practices ...

Mike Zimmer, Mcdonnell Douglas And "A Gift That Keeps Giving", William Corbett

Journal Articles

No abstract provided.

Something To Talk About, Joni Hersch, Jennifer Bennett Shinall

Vanderbilt Law School Faculty Publications

To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, both Equal Employment Opportunity Commission (EEOC) guidance and a common misunderstanding of the law have resulted in little or no information about family status being provided in pre-employment interviews. To investigate whether concealing family information actually improves women’s employment prospects, we conduct an original experimental study fielded on more than 3,000 subjects. Our study provides the first ever evidence that concealing personal information lowers female applicants’ hiring prospects. Subjects overwhelmingly preferred to hire candidates who provided information, regardless of content. Any ...

Report To The Legislature And To The Governor, Fy 2015-2016, Agricultural Labor Relations Board

California Agencies

No abstract provided.

The Three Phases Of The Supreme Court’S Arbitration Jurisprudence: Empowering The Already Empowered, Martin Malin

All Faculty Scholarship

No abstract provided.

Creative Capitalism And Human Trafficking: A Business Approach To Eliminate Forced Labor And Human Trafficking From Global Supply Chains, Dana Raigrodski

Articles

A great amount of revenue generated by businesses in the global economy can be linked to the trafficking and enslavement of human beings. Yet, the current discourse on human trafficking fails to recognize the magnitude of benefit consumers, businesses, and economies gain from the work of forced and trafficked labor. Moreover, the limited efforts that seek to address this situation have focused on ways to encourage businesses to voluntarily adopt more socially responsible practices. These measures have had only limited success, and are generally believed to be in tension with the for-profit purposes of businesses.

Hence, the task of convincing ...

Reasons For Counseling Reasonableness In Deploying Covenants-Not-To-Compete In Technology Firms, Robert W. Gomulkiewicz

Articles

Some states ban the enforcement of employee covenants-not-to-compete (“non-competes”) but most enforce them to the extent they are reasonable. As such, “reasonableness” provides the touchstone for enforceability analysis. The academic literature commenting on the reasonableness of non-competes is large and growing. Scholars usually direct their comments to judges, legislators, and other scholars.

Rarely do they address practicing lawyers. That omission is particularly unfortunate because practicing lawyers, more than judges, legislators, and scholars, can affect whether non-competes work both fairly and effectively. This Article fills that void by providing reasons, directed to practicing lawyers, for deploying non-competes in a reasonable manner ...

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 ...

Expanding The Core: Pregnancy Discrimination Law As It Approaches Full Term, Joanna L. Grossman

Faculty Scholarship

The advocates behind the Pregnancy Discrimination Act (PDA) of 1978 had one very specific mission: to override the Supreme Court’s 1976 decision in General Electric v. Gilbert, in which it had curiously held that pregnancy discrimination had nothing to do with gender and was thus not a form of actionable sex discrimination under Title VII of the Civil Rights Act of 1964. The Court was not acting on a blank slate; it had used the same reasoning two years earlier to hold, in Geduldig v. Aiello, that pregnancy discrimination was not sex discrimination for equal protection purposes and therefore ...

Religious Discrimination Based On Employer Misperception, Dallan F. Flake

Law Faculty Scholarship

This Article addresses the circuit split over whether Title VII prohibits discrimination based on an employer's misperception of an employee's religion. This is an especially critical issue because misperception-based religious discrimination is likely to increase as the United States continues to experience unprecedented religious diversification. Some courts read Title VII narrowly to preclude such claims, reasoning that the statutory text only prohibits discrimination based on an individual's actual religion. Other courts interpret the statute more expansively in concluding such claims are cognizable because the employer's intent is equally malicious in misperception and conventional discrimination cases. I ...

Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss

Articles

No abstract provided.

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 ...

The Knowledge Gap In Workplace Retirement Investing And The Role Of Professional Advisors, Jill E. Fisch, Tess Wilkinson-Ryan, Kristin Firth

Faculty Scholarship at Penn Law

The dramatic shift from traditional pension plans to participant-directed 401(k) plans has increased the decision-making responsibility of individual investors for their own retirement planning. With this shift comes increasing evidence that investors are making poor decisions in choosing how much to save for retirement and in selecting among their investment options. Studies question the value of efforts to improve these decisions through regulatory reforms or investor education.

This article posits that deficiencies in workplace retirement savings cannot be adequately addressed until the reasons for poor investment decisions are better understood. We report the results of a study designed to ...

The Future Of The Cadillac Tax, Kathryn L. Moore

Law Faculty Scholarly Articles

The Affordable Care Act includes a 40 percent excise tax on high-cost employer-sponsored health care coverage. Often referred to as the “Cadillac tax,” this excise tax is one of the most controversial elements of the Affordable Care Act.

Currently scheduled to go into effect in 2020, the Cadillac tax poses serious challenges and uncertainty for employers. On the one hand, recent estimates suggest that the Cadillac tax may hit as many as 20 percent of employers with health care plans in 2020. On the other hand, there is a serious question as to whether the tax will be repealed before ...