Labor and Employment Law Commons^™

A Miser’S Rule Of Reason: The Supreme Court And Antitrust Limits On Student Athlete Compensation, Herbert J. Hovenkamp

All Faculty Scholarship

The unanimous Supreme Court decision in NCAA v. Alston is its most important probe of antitrust’s rule of reason in decades. The decision implicates several issues, including the role of antitrust in labor markets, how antitrust applies to institutions that have an educational mission as well as involvement in a large commercial enterprise, and how much leeway district courts should have in creating decrees that contemplate ongoing administration.

The Court accepted what has come to be the accepted framework: the plaintiff must make out a prima facie case of competitive harm. Then the burden shifts to the defendant to produce …

Memorial Notice For Professor Emeritus, Dr. Charles Scontras, Bureau Of Labor Education. University Of Maine

Bureau of Labor Education

Dr. Scontras was a tireless advocate for workers and for the preservation Maine’s history of working class struggle. For more than half a century Dr. Scontras addressed the history and present condition of labor in Maine. His work appeared in the op-ed pages of Maine’s newspapers, in six volumes of Maine labor history covering the period from 1636 to the present, in presentations at labor halls and in his determination to make the historical records of Maine labor unions available at the University of Maine Fogler Library Labor Archives.

Pandemic Surveillance Discrimination, Christian Sundquist

Articles

The COVID-19 pandemic has laid bare the abiding tension between surveillance and privacy. Public health epidemiology has long utilized a variety of surveillance methods—such as contact tracing, quarantines, and mandatory reporting laws—to control the spread of disease during past epidemics and pandemics. Officials have typically justified the resulting intrusions on privacy as necessary for the greater public good by helping to stave off larger health crisis. The nature and scope of public health surveillance in the battle against COVID-19, however, has significantly changed with the advent of new technologies. Digital surveillance tools, often embedded in wearable technology, have greatly increased …

Resetting Normal: Women, Decent Work And Canada's Fractured Care Economy, The Canadian Women's Foundation, Canadian Centre For Policy Alternatives, Ontario Nonprofit Network, Fay Faraday

Commissioned Reports, Studies and Public Policy Documents

Women in Canada have been disproportionately impacted by the COVID-19 pandemic to an extent that threatens to roll back equality gains. Economic losses have fallen heavily on women and most dramatically on women living on low incomes who experience intersecting inequalities based on race, class, disability, education, and migration and immigration status. The pandemic crisis has highlighted the fragility of response systems and the urgent need for structural rethinking and systemic change.

Essentializing Labor Before, During, And After The Coronavirus Pandemic, Deepa Das Acevedo

Faculty Articles

In the era of COVID-19, the term essential labor has become part of our daily lexicon. Between March and May 2020, essential labor was not just the only kind of paid labor occurring across most of the United States; it was also, many argued, the only thing preventing utter economic and humanitarian collapse. As a result of this sudden significance, legal scholars, workers’ advocates, and politicians have scrambled to articulate exactly what makes essential labor “essential.” Some commentators have also argued that the rise of essential labor as a conceptual category disrupts—or should disrupt—longstanding patterns in the way the nation …

Building A Good Jobs Economy, Dani Rodrik, Charles F. Sabel

Faculty Scholarship

Conventional models are failing throughout the world. In the developed world, the welfare state-compensation model has been in retrenchment for some time, and the drawbacks of the neoliberal conception that has superseded it are increasingly evident. Yet there is no compelling alternative on offer. In the developing world, the conventional, tried-and-tested model of industrialization has run out of steam. In both sets of societies a combination of technological and economic forces (in particular, globalization) is creating or exacerbating productive/technological dualism, with a segment of advanced production in metropolitan areas that thrives on the uncertainty generated by the knowledge economy co-existing …

No-Hire Provisions In Mcdonald's Franchise Agreements, An Antitrust Violations Or Evidence Of Joint Employer?, Andrele Brutus St. Val

Articles

As the archetypical franchisor and industry leader, McDonald’s has come under much public and legal scrutiny in recent years for its business practices and its effects on low-wage and unskilled employees. Its no hire provision—which is a term included in its franchise agreements with franchisees that bars franchisees from hiring each others employees—has been found by economist to suppress wages and stagnate growth. This provision is being challenged under antitrust law while its employment practices are being disputed under labor law. McDonald’s is defending its business practices by presenting two seemingly contradictory defenses. This article explores how McDonald’s position in …

The Persistent Labor Market Effects Of A Criminal Conviction And “Ban The Box” Reforms, Joshua M. Congdon-Hohman

Economics Department Working Papers

Past literature has established that individuals who have been incarcerated face difficulties reentering the work force following their release, while finding and keeping a job can significantly reduce recidivism amongst individuals with prior criminal convictions. In attempt to improve employment outcomes, many local and state governments in the United States have initiated "Ban the Box" regulations. These initiatives delay inquiries regarding criminal history on job applications. Versions of ban the box regulations covering public sector employment have been enacted in 31 states and more than 150 local governments. Ban the box laws have included private employers in eleven states and …

Unbundling Freedom In The Sharing Economy, Deepa Das Acevedo

Faculty Articles

Courts and scholars point to the sharing economy as proof that our labor and employment infrastructure is obsolete because it rests on a narrow and outmoded idea that only workers subjected to direct, personalized control by their employers need work-related protections and benefits. Since they diagnose the problem as being our system’s emphasis on control, these critics have long called for reducing or eliminating the primacy of the “control test” in classifying workers as either protected employees or unprotected independent contractors. Despite these persistent criticisms, however, the concept of control has been remarkably sticky in scholarly and judicial circles.

This …

The Future Encyclopedia Of Luddism, Miriam A. Cherry

All Faculty Scholarship

In common parlance, the term “Luddite” means someone who is anti-technology, or maybe, just not adept at using technology. Historically, however, the Luddite movement was a reaction born of industrial accidents and dangerous machines, poor working conditions, and the fact that there were no unions to represent worker interests during England’s initial period of industrialization. The Luddites did not hate technology; they only channeled their anger toward machine-breaking because it had nowhere else to go. The attached book chapter is an alternate history (written circa 2500) that depends on the critical assumption that the Luddites succeeded in their industrial campaign …

The Future Encyclopedia Of Luddism, Miriam A. Cherry

All Faculty Scholarship

In common parlance, the term “Luddite” means someone who is anti-technology, or maybe, just not adept at using technology. Historically, however, the Luddite movement was a reaction born of industrial accidents and dangerous machines, poor working conditions, and the fact that there were no unions to represent worker interests during England’s initial period of industrialization. The Luddites did not hate technology; they only channeled their anger toward machine-breaking because it had nowhere else to go. The attached book chapter is an alternate history (written circa 2500) that depends on the critical assumption that the Luddites succeeded in their industrial campaign …

The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a complex question, raising …

The Impact Of Emerging Information Technologies On The Employment Relationship: New Gigs For Labor And Employment Law, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

The technology of production has always shaped the employment relationship and the issues that are important in labor and employment law. Since at least the late 1970s the American economy has adopted information technology that promises to change the employment relationship in ways at least as profound as those wrought by the other revolutions in general production technology, such as the adoption of steam power, electricity, or methods of mass production. The global network of programmable machines of the information age allows us to communicate and process much more information, much more quickly than ever previously imagined. This increased informational …

Initiative And Referendum: A Maine Odyssey, Charles A. Scontras

Bureau of Labor Education

Maine is no stranger to the nation’s battles involving the development of the tools of direct democracy and how to use them. Since the citizen initiative and referendum were passed in late 1908, Mainers have used “the power of the people” to vote directly on many laws, bypassing the Legislature. Now, after more than 100 years in use, the initiative process may be facing a test: Gov. Paul LePage is preparing blueprints to use the initiative in an attempt to change the state’s welfare system and reduce the income tax — victories denied to him in the Legislature. It’s a …

Sharing The Prosperity: Why We Still Need Organized Labor, Angela B. Cornell

Cornell Law Faculty Publications

Today economic inequality is greater in the United States than in any other advanced nation. Bringing the minimum wage up to a true living wage is a crucial step forward, as are other employment-related benefits like broadening access to overtime and instituting paid sick leave. But employment statutes such as minimum-wage regulations cannot replace the broad-based benefits that come from organized labor. Unionization places the ability to influence what happens in the workplace directly in workers’ own hands, even as it creates institutions that can advocate for working people at the community, state, and national level. Under an effective labor-law …

Uncontrolled Experiments From The Laboratories Of Democracy: Traditional Cash Welfare, Federalism, And Welfare Reform, Jonah B. Gelbach

All Faculty Scholarship

In this chapter I discuss the history and basic incentive effects of two key U.S. cash assistance programs aimed at families with children. Starting roughly in the 1980s, critics of the Aid to Families with Dependent Children (AFDC) program argued that the program -- designed largely to cut relatively small checks -- failed to end poverty or promote work. After years of federally provided waivers that allowed states to experiment with changes to their AFDC programs, the critics in 1996 won the outright elimination of AFDC. It was replaced by the Temporary Assistance to Needy Families (TANF) program, over which …

Right-To-Work:' The Issue That Won't Die — A Historical Perspective, Charles A. Scontras

Bureau of Labor Education

Phoenix-like, "right-to-work" measures have again surfaced in the state Legislature. Such measures are designed to prohibit employers from negotiating union security clauses by which all who benefit from union bargaining agreements pay their share of the costs involved in the union's legal obligation to represent all workers.

The Impact Of Affirmative Action On The Employment Of Minorities And Women Over Three Decades: 1973-2003, Fidan Ana Kurtulus

Upjohn Institute Working Papers

What role has affirmative action played in the growth of minority and female employment in U.S. firms? This paper analyzes this issue by comparing the employment of minorities and women at firms holding federal contracts and therefore mandated to implement affirmative action, and at noncontracting firms, over the course of three decades spanning 1973–2003. It constitutes the first study to comprehensively document the long-term impact of affirmative action in federal contracting on the U.S. employment landscape. The study uses a new panel data set of over 100,000 large private-sector firms across all industries and regions, obtained from the U.S. Equal …

Do I Have To Cross The Picket Line?, Bureau Of Labor Education. University Of Maine

Bureau of Labor Education

Refusing to cross a lawfully established picket line is protected by the National Labor Relations Act. You have the legal right not to cross a picket line in solidarity with your own union, out of sympathy for workers from another union, or just to avoid confrontation. By refusing to cross a picket line while on duty you are essentially engaging in a strike in sympathy with the picketing workers. Refusing to cross a picket line is a legally protected act. When you approach a picket line you may be asked to honor the picket line. Politely asking someone not to …

Invisible No More: Domestic Workers Organizing In Massachusetts And Beyond, Natalicia Tracy, Tim Sieber, Susan Moir Scd

Labor Studies Faculty Publication Series

Domestic workers across the country are making it clear that, even in a difficult political environment, it is possible to make gains for low-wage workers. For the first time in many, many decades, domestic workers are finding ways to win. They are creat
ing policy change that will improve the lives of hundreds of thousands of workers in tangible and substantial ways. The 2014 Massachusetts Domestic Workers’ Bill of Rights is the most expansive codification of rights for this long-overlooked part of the labor force ever to be enacted. In one sense, there is nothing new about domestic workers organizing …

What You Should Know About "Right To Work" Laws, 2013 Update, Bureau Of Labor Education. University Of Maine

Bureau of Labor Education

This is a brief 2013 update to the Bureau of Labor Education’s (BLE) 2011 briefing paper, “The Truth about ‘Right to Work’ Laws.” As documented in the 2011 BLE paper, the term “right-to-work” is highly misleading, and many studies have shown that RTW laws are not helpful to the well-being of working people. “Right-to-work” does not protect against unfair firing, or promote equitable wages and decent working conditions. By undermining unions and the ability of labor and management to bargain freely, right-to-work laws weaken the ability of workers to protect their rights through a union contract. There are two major …

Neoclassical Labor Economics: Its Implications For Labor And Employment Law, Michael L. Wachter

All Faculty Scholarship

Whereas law and economics appears throughout business law, it never caught on in legal commentary about labor and employment law. A major reason is that the goals of the National Labor Relations Act (NLRA), the country’s foundational labor law, are at war with basic principles of economics. The lack of integration is unfortunate if understandable. Notwithstanding the NLRA’s normative goal to keep wages out of competition, economic analysis applies as centrally to labor markets as to any other market.

One of the NLRA’s primary goals is to equalize bargaining power. Its drafters envisioned achieving this goal through procedural and substantive …

The Striking Success Of The National Labor Relations Act, Michael L. Wachter

All Faculty Scholarship

Although often viewed as a dismal failure, the National Labor Relations Act (NLRA) has been remarkably successful. While the decline in private sector unionization since the 1950s is typically viewed as a symbol of this failure, the NLRA has achieved its most important goal: industrial peace.

Before the NLRA and the 1947 Taft-Hartley Amendments, our industrial relations system gave rise to frequent and violent strikes that threatened the nation’s stability. For example, in the late 1870s, the Great Railroad Strike spread throughout a number of major cities. In Pittsburg alone, strikes claimed 24 lives, nearly 80 buildings, and over 2,000 …

Maine Lobster Fishermen Had Early Brush With Organized Labor, Charles A. Scontras

Bureau of Labor Education

In the current effort of Maine lobster fishermen to maintain and enhance their interest, John Drouin, a Cutler lobsterman and vice chairman of the Maine Lobster Advisory Council — a group of fishermen and dealers who work with the Department of Marine Resources to protect the industry — noted that Maine lobstermen operate as independent business owners, compared with Canadian lobster fishermen, who are represented by unions and thus exert greater influence against the processors. “Until the day comes when we become unionized or one big co-op, we are just 5,000 individuals,” Drouin said.

Oklahoma, Maine, Migration And The "Right To Work:" A Confused And Misleading Analysis, Bureau Of Labor Education. University Of Maine

Bureau of Labor Education

The recent article released by the Maine Heritage Policy Center (MHPC), “The Case for Right-to-Work in Maine: Examining the Evidence in Oklahoma” (1/23/2012), attempts to make a case for the supposed benefits of a right-to-work (RTW) law in Maine, by discussing the case of Oklahoma’s RTW law, and then presenting a number of statistics on migration to Oklahoma, and from Maine to RTW states. However, a closer examination of this report reveals that it is based on highly questionable and misleading assumptions, and its assertions are based on incomplete data.

Labor, Industry Fighting Over Unemployment Benefits — Sounds A Lot Like The 1960s, Charles A. Scontras

Bureau of Labor Education

Current legislative efforts to reform the unemployment compensation law (LD1725) by increasing penalties for fraud and tightening qualifications for benefits, e.g., removal of the exemption of vacation time as a factor in assessing benefits and lengthening the search for employment after six weeks rather than the current requirement of twelve weeks, triggers some historical images.

Working Conditions And Patient Safety: Safe Staffing In Maine's Hospitals, Bureau Of Labor Education. University Of Maine

Bureau of Labor Education

A growing body of research is now documenting how serious problems in the work environments of nursing care in American hospitals are posing a threat to patient safety, as well as contributing to shortages of nurses working in hospital settings and in greater job stress and burnout among nurses. A major factor in this picture, according to a major report by the National Institute of Medicine, is the issue of chronic understaffing among direct care nurses.

What You Need To Know About Worker's Compensation, Bureau Of Labor Education. University Of Maine

Bureau of Labor Education

Annual data compiled by the U.S. Department of Labor consistently reveal that for too many workers the result of their employment is a job-related injury, illness, and in a number of cases, death. These data document the ongoing need and importance of workers’ compensation. The purpose of this paper is to provide an overview on: • workers’ compensation, how it evolved in the U.S., and the impact of this history today; • developments with Maine’s law, and resources for accessing information on this statute; and • the need to reform workers’ compensation for Maine workers.

Desde Quisqueya Hacia Borinquen: Experiences And Visibility Of Immigrant Dominican Women In Puerto Rico: Violence, Lucha And Hope In Their Own Voices, Sheila I. Velez Martinez

Articles

In this paper, I engage in a discussion of the experiences of Dominican women in Puerto Rico by using their own voices; voices that narrate the construction and deconstruction of their identities. These women have lived through daunting and often deplorable experiences of violence and disenfranchisement, but have also had wonderful stories and experiences along the way. These women in more ways than one “challenge the dominant discourse regarding women’s submission, intuition, and dependence vis-à-vis men.” I propose that while these immigrant women have put their lives on the line for their families and themselves, they are by no means …

The Truth About "Right To Work" Laws, Bureau Of Labor Education. University Of Maine

Bureau of Labor Education

There are many misconceptions about “right-to-work” laws. This sounds like it would be a plus for working people. However, this term is misleading, and a distortion of the reality underlying it. Despite its name, right-to-work laws do not guarantee anyone a job, protect against unfair firing, guarantee equitable wages, or decent working conditions. By undermining unions and the ability of labor and management to bargain freely, right-to-work laws weaken the best job security protection workers have -- the union contract. Maine has rejected such a law a number of times in the past, including a 1948 referendum in which state …