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Articles 1 - 30 of 63
Full-Text Articles in Law
Combatting Wage Theft In Global Supply Chains: A Proposal For Transnational Wage Lien Laws, Nabila N. Khan
Combatting Wage Theft In Global Supply Chains: A Proposal For Transnational Wage Lien Laws, Nabila N. Khan
LL.M. Essays & Theses
When the world went into lockdown due to the COVID-19 pandemic, major fashion brands attempted to protect their profits by refusing to pay overseas suppliers for over $16 billion USD of goods between April and June 2020. These decisions had a devastating impact on garment workers who toil at the bottom of the supply chain; thousands of garment workers and their families faced wage theft, dealing with months of unpaid wages, benefits and/or severance pay. In the absence of a regulatory framework to hold corporations responsible, workers, unions, and NGOs resorted to naming and shaming brands into taking action. However, …
Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi
Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi
All Faculty Scholarship
In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while …
A New Labor For Deep Democracy: From Social Democracy To Democratic Socialism, Mark Barenberg
A New Labor For Deep Democracy: From Social Democracy To Democratic Socialism, Mark Barenberg
Faculty Scholarship
Conventional workplace law includes the law of collective bargaining and employment contracts. This chapter argues that, to fully understand how law constructs worker power, industrial democracy, and political democracy, workplace law should greatly broaden in scope. The “new labor law” should encompass components of many fields of law that influence worker power and democracy as much as many components of conventional labor law. These additional components are lodged in domestic and international finance law, social wage law, constitutional law, communication law, tax law, and many more fields. The chapter applies the new labor law to critique and offer proposals to …
Pursuing Diversity: From Education To Employment, Amy L. Wax
Pursuing Diversity: From Education To Employment, Amy L. Wax
All Faculty Scholarship
A central pillar of the Supreme Court’s educational affirmative-action jurisprudence is that the pedagogical benefits of being educated with students from diverse backgrounds are sufficiently “compelling” to justify some degree of race-conscious selection in university admissions.
This essay argues that the blanket permission to advance educational diversity, defensible or not, should not be extended to employment. The purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks efficiently and effectively. Whether race-conscious practices for the purpose of creating a more diverse workforce will …
Narrowly Tailoring The Covid-19 Response, Craig Konnoth
Narrowly Tailoring The Covid-19 Response, Craig Konnoth
Publications
No abstract provided.
Due Process Supreme Court Appellate Division Third Department
Due Process Supreme Court Appellate Division Third Department
Touro Law Review
No abstract provided.
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. …
Foreward: Wedding Cakes, Religion, And Sexual Orientation Discrimination, Paul M. Secunda
Foreward: Wedding Cakes, Religion, And Sexual Orientation Discrimination, Paul M. Secunda
Marquette Benefits and Social Welfare Law Review
No abstract provided.
No Cake For You: Discrimination, Dignity, And Refusals To Serve, William D. Araiza
No Cake For You: Discrimination, Dignity, And Refusals To Serve, William D. Araiza
Marquette Benefits and Social Welfare Law Review
No abstract provided.
The Logic Of Speech And Religion Rights In The Public Workplace, Scott R. Bauries
The Logic Of Speech And Religion Rights In The Public Workplace, Scott R. Bauries
Marquette Benefits and Social Welfare Law Review
No abstract provided.
Mdc Rests. V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 76 (Oct. 27, 2016), Alysa Grimes
Mdc Rests. V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 76 (Oct. 27, 2016), Alysa Grimes
Nevada Supreme Court Summaries
To “provide” health benefits under the Minimum Wage Amendment, an employer need only offer to employees (rather than enroll them in) a qualifying health benefit plan. Tips are not included in an employee’s gross taxable income for calculating maximum health benefit plan premiums.
Perry V. Terrible Herbst, Inc., Nev. Adv. Op. 75 (Oct. 27, 2016), Wesley Lemay Jr.
Perry V. Terrible Herbst, Inc., Nev. Adv. Op. 75 (Oct. 27, 2016), Wesley Lemay Jr.
Nevada Supreme Court Summaries
The Minimum Wage Amendment (MWA) of the Nevada Constitution does not have a specific statute of limitations provision. Because the MWA is closely analogous to recovery for back pay under NRS 608.260, the two-year statute of limitations provision in NRS 608.260 applies, and not the catch-all four-year period from NRS 11.220.
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Randy J Kozel
More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …
Truth And Lies In The Workplace: Employer Speech And The First Amendment, Helen Norton
Truth And Lies In The Workplace: Employer Speech And The First Amendment, Helen Norton
Publications
Employers' lies, misrepresentations, and nondisclosures about workers' legal rights and other working conditions can skew and sometimes even coerce workers' important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers' rights or other working conditions as well as by requiring employers to disclose truthful information about these matters.
These governmental efforts, however, are now increasingly vulnerable to constitutional attack in light of the recent antiregulatory turn in First Amendment law, in which corporate and other commercial entities seek -- with growing …
No Free Lunch, But Dinner And A Movie (And Contraceptives For Dessert)?, John C. Eastman
No Free Lunch, But Dinner And A Movie (And Contraceptives For Dessert)?, John C. Eastman
John C. Eastman
Administrative Agencies; Subpoena Power; Relevancy; Right Of Privacy; Atchison, Topeka & Sante Fe Ry. Co. V. Lopez, David L. Hostetler
Administrative Agencies; Subpoena Power; Relevancy; Right Of Privacy; Atchison, Topeka & Sante Fe Ry. Co. V. Lopez, David L. Hostetler
Akron Law Review
The Kansas Supreme Court in Sante Fe has joined the majority of states in declaring that administrative "fishing expeditions" via the use of subpoena powers are now permissible. No probable cause need be shown and confidential information may be subject to subpoena if there is even a mere possibility of relevance to a matter within the scope of the agency's authority. The state's interest in preventing discrimination in employment practices has been declared a "compelling state interest" such as to override any claims to rights of privacy. Although primarily discussing only arrest and conviction records, the court in actuality upheld …
Stuck Between A Lump Of Coal And A Hard Place: The Mine Safety And Health Administration's Struggle With Due Process And America's Coal Industry, Patrick R. Baker
Stuck Between A Lump Of Coal And A Hard Place: The Mine Safety And Health Administration's Struggle With Due Process And America's Coal Industry, Patrick R. Baker
West Virginia Law Review
No abstract provided.
The Constitutional Right To Bargain Collectively: The Ironies Of Labour History In The Supreme Court Of Canada, Eric Tucker
The Constitutional Right To Bargain Collectively: The Ironies Of Labour History In The Supreme Court Of Canada, Eric Tucker
Eric M. Tucker
In June 2007 the Supreme Court of Canada held that the right to collective bargaining is a constitutionally protected under the Charter of Rights and Freedoms' guarantee of freedom of association. In so doing, they overruled a twenty-year old line of precedent that had rejected that very proposition. The court rested its current position of four grounds, one of which was that Canadian labour history supports the view that collective bargaining had become recognized as a fundamental right prior to the Charter. This article critically reviews the court's labour history and argues that it erroneously asserts that workers enjoyed a …
Facebook Is Not Your Friend: Protecting A Private Employee's Expectation Of Privacy In Social Networking Content In The Twenty-First Century Workplace, Cara Magatelli
The Journal of Business, Entrepreneurship & the Law
This Comment explores the implications SNS postings have on private employers concerning the off-duty, non-work related conduct of their employees. This argument recognizes that an employee is entitled to engage in whatever legal off-duty conduct he chooses, so long as the behavior does not damage his employer's legitimate business interests. An employer should not be able to use information gleaned from an employee's SNS postings, unrelated to an employer's business interests, to punish an employee for her choices outside the work place. Disciplining or terminating an employee for his off-duty lifestyle choices permits the morals and standards of the employer …
Federal Equal Protection, Taylor Flynn
Federal Equal Protection, Taylor Flynn
Faculty Scholarship
The Author explores the use of due process and equal protection guarantees from the U.S. Constitution as a means to challenge workplace discrimination faced by LGBT government employees. The Author also discusses how private employees must rely on Title VII of the Civil Rights Act to assert similar claims. Because sex discrimination is prohibited under both the Constitution and Title VII, federal courts have relied on reasoning in the former context when analyzing the latter, and vice versa. This means that a watershed case regarding one law can contain reasoning for the other. The Author goes on to the discuss …
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
All Faculty Scholarship
Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …
Money, Sex, And Religion--The Supreme Court's Aca Sequel, George J. Annas, Theodore Ruger, Jennifer Prah Ruger
Money, Sex, And Religion--The Supreme Court's Aca Sequel, George J. Annas, Theodore Ruger, Jennifer Prah Ruger
All Faculty Scholarship
The Supreme Court decision in the Hobby Lobby case is in many ways a sequel to the Court's 2012 decision on the constitutionality of the Affordable Care Act (ACA). The majority decision, written by Justice Samuel Alito, is a setback for both the ACA's foundational goal of access to universal health care and for women's health care specifically. The Court's ruling can be viewed as a direct consequence of our fragmented health care system, in which fundamental duties are incrementally delegated and imposed on a range of public and private actors. Our incremental, fragmented, and incomplete health insurance system means …
Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman
Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman
Stephen J Elkind
In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education …
Unemployment Insurance And The Religion Clauses Of The United States Constitution, David J. Agatstein
Unemployment Insurance And The Religion Clauses Of The United States Constitution, David J. Agatstein
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Legal Implications Of Substance Abuse Testing In The Workplace, Michael S. Cecere, Phillip B. Rosen
Legal Implications Of Substance Abuse Testing In The Workplace, Michael S. Cecere, Phillip B. Rosen
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
National Treasury Employees Union V. Von Raab—Will The War Against Drugs Abrogate Constitutional Guarantees?, Alyssa C. Westover
National Treasury Employees Union V. Von Raab—Will The War Against Drugs Abrogate Constitutional Guarantees?, Alyssa C. Westover
Pepperdine Law Review
No abstract provided.
Blame It On Catholic Bishop: The Question Of Nlrb Jurisdiction Over Religious Colleges And Universities, Susan J. Stabile
Blame It On Catholic Bishop: The Question Of Nlrb Jurisdiction Over Religious Colleges And Universities, Susan J. Stabile
Pepperdine Law Review
No abstract provided.
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Journal Articles
More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …
The Garcetti Virus, Nancy M. Modesitt
The Garcetti Virus, Nancy M. Modesitt
All Faculty Scholarship
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 …
Protecting Your Rights, But Not Your Paycheck: How Executive Compensation Regulation Passes Constitutional Muster, Sarah B. Patterson
Protecting Your Rights, But Not Your Paycheck: How Executive Compensation Regulation Passes Constitutional Muster, Sarah B. Patterson
West Virginia Law Review
No abstract provided.