Law Commons^™

Labor Redemption In Work Law, Andrew Elmore

Articles

People with criminal records are not a protected class under Title VII, and many employers fear that hiring people with criminal records invites negligent hiring liability. Ban the Box privacy laws delay but may not deter overbroad criminal background checks. This Article challenges this standard account by shifting focus to the state in imposing arbitrary barriers to work. I expose a dignity interest in the removal of these unnecessary barriers, or "labor redemption." I find foundations of labor redemption in successful constitutional challenges to denials of public employment and occupational licenses. Labor redemption is also, increasingly, a statutory right, in …

The Behavioral Effects Of (Unenforceable) Contracts, Evan Starr, Jj Prescott, Norman Bishara

Articles

Do contracts influence behavior independent of the law governing their enforceability? We explore this question in the context of employment noncompetes using nationally representative data for 11,500 labor force participants. We show that noncompetes are associated with reductions in employee mobility and changes in the direction of that mobility (i.e., toward noncompetitors) in both states that do and do not enforce noncompetes. Decomposing mobility into job offer generation and acceptance, we detect no evidence of differences in job search, recruitment, or offer activity associated with noncompetes. Rather, we find that employees with noncompetes—even in states that do not enforce them—frequently …

Consent, Coercion, And Employment Law, Samuel R. Bagenstos

Articles

The Roberts Court has recently handed several high-profile wins in labor and employment law cases to anti-labor and pro-employer forces. This paper argues that those decisions replicate crucial moves made by some infamous Lochner-era cases — and that those same moves continue to underlie key elements of labor and employment doctrine more generally. In particular, these decisions rest on a contestable understanding of free worker choice. This paper begins by examining the key recent Roberts Court decisions and demonstrates that they appear to invoke at least two distinct and conflicting understandings of employee and employer choice. It then turns to …

Expungement Of Criminal Convictions: An Empirical Study, J.J. Prescott, Sonja B. Starr

Articles

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge in legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to de-identified data that overcome that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable nonrecipients in Michigan. We offer three key sets of empirical findings. First, among those legally …

Making Employment Arbitration Fair And Accessible, Theodore J. St. Antoine

Articles

Mandatory arbitration agreements require employees, as a condition of employment, to agree to arbitrate all employment disputes instead of filing court suits. The Supreme Court has approved such agreements but many labor experts oppose them. The U.S. House of Representatives has passed a bill to prohibit pre-dispute agreements, the common form for mandatory arbitrations. This article argues that the House bill would have the practical effect of virtually eliminating employment arbitration. Instead, proposals are presented for either legislative or judicial steps to ensure that employment arbitration is fair and accessible. Requirements would include: (1) voluntary agreements on the part of …

Exploring The Esports Approach Of America's Three Major Leagues, Peter A. Carfagna

Articles

No abstract provided.

Lumping, Fairness, And Single People, Michael C. Pollack

Articles

This essay explores the distributional impact that three forms of lumping have on single people without children: seat-assignment and seat-bargaining on public transportation, work-hour allocation, and single-family zoning. The first two involve lumps pursued by individuals outside of any legal regime; the last involves lumping by law. In all three, I submit, we tend to choose to devalue—or perhaps do not even perceive—the costs faced by the single person, and to assign relatively juiced-up value to the costs faced by those with families. The result in these arenas is that both society and law routinely externalize (hidden) costs onto single …

The Personal Responsibility Pandemic: Centering Solidarity In Public Health And Employment Law, Lindsay F. Wiley, Samuel R. Bagenstos

Articles

Our nation’s response to the coronavirus pandemic has revealed fundamental flaws in our legal regimes governing both public health and employment. Public health orders have called on individuals to make sacrifices to protect society as a whole. Simple fairness dictates that the burdens should be shared as widely as the benefits. And the case for burden-sharing does not rest on fairness alone. Public health measures are more likely to succeed when those who are subject to them understand them as fair1 and when their cooperation is supported. 2 Predictably, our pandemic response has placed disproportionate burdens on those who are …

Balancing Religious Liberties And Antidiscrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda Bauges

Articles

No abstract provided.

Selling Out, Andrew B. Dawson

Articles

When bankruptcy policy competes with other federal and state regulatory policies, which should take priority? Bankruptcy law, provided it is used to save a struggling business from having to close its doors. Bankruptcy's supremacy, then, can preserve the debtor's going concern value, save jobs, and limit the collateral damage from a business failure. But should this bankruptcy supremacy apply only when the debtor is pursuing a traditional reorganization under chapter 11, or should it also apply when bankruptcy is used to bring about a quick sale of substantially all of the debtor's assets?

This Article addresses this question in the …

The State Qui Tam To Enforce Employment Law, Andrew Elmore

Articles

No abstract provided.