Law Commons^™

Complex Employment Issues In Elder Care, Marci Seville, Hina Shah

Publications

While lawyers often associate estate planning with aging parents, there are, in fact, a host of employment law issues related to elder care that can leave one's head spinning. This article addresses obligations that arise under California law when you or your family members hire caregivers. When hiring a caregiver — either at home or when additional individual care is needed in a facility such as assisted living — you must comply with a complex patchwork of laws and regulations governing wages and working conditions.

Broadening Low-Wage Workers' Access To Justice: Guaranteeing Unpaid Wages In Targeted Industries, Hina Shah

Publications

The need to restructure the limited liability rule as it applies to low-wage workers' wages is more compelling than ever. As the Wins case illustrates, a simpler and more straightforward mechanism is needed to ensuring that low-wage workers recover the wages they earned. This article offers an in-depth analysis on the problems faced by wage creditors and sets forth recommendations for reform that would guarantee low-wage workers' wages, thus exempting them from the limited liability rule. Part II traces the history of the limited liability rule. Particular attention is paid to the justifications for the limited liability rule, the effect …

Chinese Soup, Good Horses, And Other Narratives: Practicing Cross-Cultural Competence Before We Preach, Marci Seville

Publications

Before we undertake teaching our students about cross-cultural competence, we need to examine carefully our own practices, and those of our colleagues and institutions, to ensure that we are not complicit in the very practices of cross-cultural “incompetence” that we hope to train our students to avoid. While there is a substantial body of scholarship on teaching this competence to our students, there is less written about practicing it ourselves as teachers and members of academic institutions. This essay will examine the latter subject and will hopefully provide some productive suggestions on ways to expand cross-cultural competence for our law …

Civil Rights And Systemic Wrongs, Melissa Hart

Publications

Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court's decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs' claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court's opinion--its rejection of statistical modeling for remedial determinations--has received little attention. This article …

How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux

Publications

No abstract provided.

Section 5 Constraints On Congress Through The Lens Of Article Iii And The Constitutionality Of The Employment Non-Discrimination Act, Craig Konnoth

Publications

The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.

However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key …

Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux

Publications

The Supreme Court has recently decided to hear argument in the largest private-employer civil rights case in American history, Dukes v. Wal-Mart Stores, Inc. This historic case involves up to 1.5 million women suing Wal-Mart, one of the largest companies in the world, for alleged gender discrimination in pay and promotions, in violation of Title VII of the Civil Rights Act of 1964. Like many employees who challenge companywide employment discrimination, the plaintiffs in Dukes brought their case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and sought injunctive and declaratory relief, …

Excluding Unemployed Workers From Job Opportunities: Why Disparate Impact Protections Still Matter, Helen Norton

Publications

No abstract provided.

From Wards Cove To Ricci: Struggling Against The Built-In Headwinds Of A Skeptical Court, Melissa Hart

Publications

When the Supreme Court in 1971 first recognized disparate impact as a legal theory under Title VII, the Court explained that the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability." Forty years later, it is the built-in headwinds of a Supreme Court skeptical of - perhaps even hostile to - the goals of disparate impact theory that pose the greatest challenge to continued movement toward workplace equality. The essay examines the troubled trajectory that disparate impact law has taken in the …

Yes, Labor Markets Are Flawed--But So Is The Economic Case For Mandating Employee Voice In Corporate Governance, Scott A. Moss

Publications

No abstract provided.

Industrial Terrorism And The Unmaking Of New Deal Labor Law, Ahmed A. White

Publications

The passage of the Wagner (National Labor Relations) Act of 1935 represented an unprecedented effort to guarantee American workers basic labor rights--the rights to organize unions, to provoke meaningful collective bargaining, and to strike. Previous attempts by workers and government administrators to realize these rights in the workplace met with extraordinary, often violent, resistance from powerful industrial employers, whose repressive measures were described by government officials as a system of "industrial terrorism." Although labor scholars have acknowledged these practices and paid some attention to the way they initially frustrated labor rights and influenced the jurisprudence and politics of labor relations …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.