Law Commons^™

Ufc Fighters Are Taking A Beating Because They Are Misclassified As Independent Contractors. An Employee Classification Would Change The Fight Game For The Ufc, Its Fighters, And Mma, Vincent Salminen

Pace Intellectual Property, Sports & Entertainment Law Forum

The current state of affairs in the sport of mixed martial arts (MMA) is overwhelmingly in favor of the companies promoting the fights and not in favor of the athletes actually putting their health and lives at risk. This article looks at the Ultimate Fighting Championship (UFC) and how it classifies its fighters as independent contractors rather than employees, even though it treats the fighters more like employees. This article addresses issues fighters are having with the current classification and then examines how the fighters could be classified as employees. Finally, the article will address what an employee classification would …

The Eeoc, The Ada, And Workplace Wellness Programs, Samuel R. Bagenstos

Articles

It seems that everybody loves workplace wellness programs. The Chamber of Commerce has firmly endorsed those progarms, as have other business groups. So has President Obama, and even liberal firebrands like former Senator Tom Harkin. And why not? After all, what's not to like about programs that encourage people to adopt healthy habits like exercise, nutritious eating, and quitting smoking? The proponents of these programs speak passionately, and with evident good intentions, about reducing the crushing burden that chronic disease places on individuals, families, communities, and the economy as a whole. What's not to like? Plenty. Workplace wellness programs are …

Newroom: Yelnosky: Future Of Public Sector Union 'Dues' 01-14-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: Dean Michael Yelnosky's Blog: The First Amendment And Public Sector Union "Dues" 1-9-2017, Michael J. Yelnosky

Law School Blogs

No abstract provided.

The Death Of The Firm, June Carbone, Nancy Levit

Faculty Works

This Article maintains that the decision in Burwell v. Hobby Lobby, which referred to the corporation as a legal fiction designed to serve the interests of the people behind it, signals the “death of the firm” as a unit of legal analysis in which business entities are treated as more than the sum of their parts and appropriate partners to advance not just commercial, but public ends. The Hobby Lobby reference to the firm as a fiction is a product of a decades-long shift in the treatment of corporations. This shift reflects both an ideological embrace of the free-market-oriented “agency-cost” …

The New Labor Law, Kate Andrias

Articles

Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the …

One Of These Interns Is Not Like The Others: How The Eleventh Circuit Misapplied The “Tweaked Primary Beneficiary” Test To Required Clinical Internships, Samuel C. Goodman

University of Miami Law Review

Today’s ever-changing business environment continues to challenge the traditional educational model, further blurring the line between learning and labor. This has resulted in great uncertainty as to the proper legal treatment of the student intern, specifically the unpaid student intern.

This Note is intended to introduce a new perspective to the unpaid internship debate and highlight the need for courts to focus on the specific type of internship at issue before formulating an approach to best assess whether the intern should be classified as an employee entitled to wages. Part I of the Article will discuss the Fair Labor Standards …

A New Take On An Old Problem: Employee Misclassification In The Modern Gig-Economy, Jennifer Pinsof

Michigan Telecommunications & Technology Law Review

For decades, U.S. labor and employment law has used a binary employment classification system, labeling workers as either employees or independent contractors. Employees are granted a variety of legal protections, while independent contractors are not. However, the explosion of the gig-economy—which connects consumers with underutilized resources—has produced a growing number of workers who do not seem to fit into either category. Though far from traditional employees, gig-workers bear little resemblance to independent contractors. Forced to choose, however, most gig-economy companies label their workers as independent contractors, depriving them of many basic worker-protections. Gig-workers have turned to the courts, hoping to …

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 more complete …

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.

Regulations And Flexibility, Donald Roth

Faculty Work Comprehensive List

"Salaried workers are more likely to blur their work and home lives by taking work home, checking emails at night, or telecommuting."

Posting about changes in labor laws from In All Things - an online hub committed to the claim that the life, death, and resurrection of Jesus Christ has implications for the entire world.

http://inallthings.org/regulations-and-flexibility/

The Cowboy Code Meets The Smash Mouth Truth: Mediations On Worker Incivility, Michael C. Duff

West Virginia Law Review

No abstract provided.

Work, Study, Organize!: Why The Northwestern University Football Players Are Employees Under The National Labor Relations Act, César F. Rosado Marzán, Alex Tillett-Saks

Hofstra Labor & Employment Law Journal

This article analyzes the first case of college athlete unionization under the National Labor Relations Act ("NLRA") that has reached the National Labor Relations Board – that of the Northwestern University football players. We reanalyze the case and concur with Region 13 of the NLRB, which determined that these college athletes are employees under the NLRA. However, we also go beyond Region 13's decision and argue that the walk-on players, or those football players who do not receive scholarships, may also be employees under the NLRA.

The grant-in-aid football players of Northwestern University meet the three rules normally used to …

Eliminating Arbitrary Age Descrimination In 401(K) And Pension Plan Eligibility Requirements: A Simple Fix To Encourage Younger Workers To Save For Retirement, Andrew J. Clopton

University of Michigan Journal of Law Reform Caveat

Current federal law allows companies to exclude their youngest workers from participating in 401(k) and other pension plans. Public policy should encourage young workers to contribute to retirement as early as practicable, rather than impose obstacles to saving. Workers who begin saving even a few years earlier improve their retirement security and reduce the likelihood they will be dependent on the government later in life. While “age discrimination” is conventionally thought of as the mistreatment of older workers, this concept applies equally to employees who are differentiated based solely on their young age. Thus, Congress should amend the Internal Revenue …

Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles

Michigan Journal of Gender & Law

Recent scholarship and media attention has focused on the prevalence of sexually harassing behavior directed at working teenagers, and the emergence of sexual harassment lawsuits by these minors against their employers. Although many of the legal issues concerning workplace sexual harassment and adult workers (and the various state and federal jurisprudence prohibiting it) have been widely discussed, there is surprisingly little discourse, research, and precedent addressing the problem of workplace sexual harassment and teen workers. Currently, most sexual harassment cases brought by adolescent workers are litigated using the doctrinal framework for adult workers. Only the Seventh Circuit has developed an …

Essay: A Positive Perspective On Regulation Of The Workplace Relationship, Dana M. Muir

Marquette Benefits and Social Welfare Law Review

Positive Organizational Scholarship studies how business organizations and their employees excel and thrive. It takes the opposite perspective from the traditional organizational research that examines negative deviance and how that deviance inhibits organizational performance. Like traditional organizational scholars, legal scholars (as well as lawyers, legislators, judges, and regulators) typically focus on problems. Examples abound in the field of employment law. For example, to what extent does employment discrimination still exist and how can it be eliminated? And, what constraints prevent Americans from achieving retirement security and how can those constraints be eliminated? This Essay proposes that we examine the Positive …

Worker (Mis)Classification In The Sharing Economy: Trying To Fit Square Pegs Into Round Holes, Robert Sprague

Robert Sprague

Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz

Michigan Journal of Race and Law

Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and …

Subminimum Or Subpar? A Note In Favor Of Repealing The Fair Labor Standards Act's Subminimum Wage Program, Melia Preedy

Seattle University Law Review

This Note argues for the repeal of Section 14(c) of the Fair Labor Standards Act (FLSA), which continues to perpetuate a system allowing employers to pay less than minimum, or “subminimum,” wage to certain employees with disabilities. The Section 14(c) program is a relic of policy leftover from the 1930s and does not help the disabled community, but rather rests on the presumption that persons with disabilities never progress. In light of recent House Resolution 3086, Congress went against the current trend of encouraging maximum independence and equal opportunities for persons with disabilities and instead upheld the subminimum wage program; …

Employment Arbitration Reform: Preserving The Right To Class Proceedings In Workplace Disputes, Javier J. Castro

University of Michigan Journal of Law Reform

The recent judicial enforcement of class waivers in arbitration agreements has generated ample debate over the exact reach of these decisions and their effects on the future of collective action for consumers and employees. In AT&T Mobility v. Concepcion, a 5-4 majority of the Supreme Court majority held that the Federal Arbitration Act (FAA) preempted state laws prohibiting companies from incorporating class action waivers into arbitration agreements. The Court upheld such waivers on the grounds that they are consistent with the language and underlying purpose of the FAA. Most courts across the country have since reinforced the strong federal policy …

What Does Social Equality Require Of Employers? A Response To Professor Bagenstos, Brishen Rogers

Michigan Law Review First Impressions

Individual employment law can appear a bit like tort law did in the late nineteenth century: an "eclectic gallery of wrongs" united largely by the fact that they do not fit into another doctrinal category. The field has emerged interstitially and today includes an array of state and federal common law and statutory claims not covered by labor law or employment discrimination law. These other subfieldshave foundational statutes: the National Labor Relations Act of 1935 and Title VII of the Civil Rights Act of 1964, respectively. Each was passed in response to a major social conflict, and each defines some …

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 …

Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers

University of Michigan Journal of Law Reform

This Note explores how courts interpret the meaning of “essential functions” under Title I of the Americans with Disabilities Act. To be protected under the ADA, a plaintiff must be able to perform the “essential functions” of her job with or without a reasonable accommodation. In general, courts follow one of two approaches when interpreting this phrase. The first approach narrowly focuses on the employer’s judgment regarding which functions are essential. The second approach considers the employer’s judgment, but looks beyond to consider the broader employment relationship. This Note argues that these different approaches have led to varying levels of …

Internships As Invisible Labor, Melissa Hart

Publications

No abstract provided.

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.

Categorically Black, White, Or Wrong: 'Misperception Discrimination' And The State Of Title Vii Protection, D. Wendy Greene

University of Michigan Journal of Law Reform

This Article exposes an inconspicuous, categorically wrong movement within antidiscrimination law. A band of federal courts have denied Title VII protection to individuals who allege “categorical discrimination”: invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of “misperception …

Institute Brief: Support Through Mentorship: Accessible Supervision Of Employees With Intellectual And Developmental Disabilities, John Kramer, Ashley Wolfe, Jean Winsor

The Institute Brief Series, Institute for Community Inclusion

Effective supervision of employees with intellectual or developmental disabilities can be challenging for businesses that may not have experience in hiring people with diverse support requirements. This is largely due to the relatively low participation rates of people with disabilities in the workforce. This is, thankfully, changing as more businesses are seeing the value of diversifying their workforce, which includes hiring people with diverse cognitive abilities like people with intellectual or developmental disabilities.

Privacy In The Workplace, Mark G. Flaherty

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

At-Will Employment: An Overview, Theodore J. St. Antoine

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Aids, Employment And The Law, American Bar Association; Aids Coordinating Committee

Journal of the National Association of Administrative Law Judiciary

No abstract provided.