Labor and Employment Law Commons^™

“You Don’T Bring Me Flowers Anymore”: President Clinton, Paula Jones, And Why Courts Should Expand The Definition Of “Adverse Employment Action” Under Title Vii’S Anti-Retaliation Provision, Lawrence Rosenthal

St. John's Law Review

(Excerpt)

Anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”) prohibit discrimination based on individuals’ protected characteristics. In addition to prohibiting this type of status-based discrimination, these statutes also prohibit employers from retaliating against employees who assert their rights under the statutes or who assist others in asserting their rights.

Over the past several years, retaliation charges filed with the Equal Employment Opportunity Commission (“EEOC”) have made up an increasingly high percentage of all charges filed with the agency. Specifically, …

Dropping The Ball: How The Growth Of Legalized Sports Betting Threatens The Nil Rights Of Collegiate Athletes, Peter Klensch

St. John's Law Review

(Excerpt)

One of the more storied runs in college basketball history happened in 2014 when the seven-seeded University of Connecticut Huskies (“UConn”) made the Final Four and defeated the University of Kentucky Wildcats to win the Division I Men’s College Basketball Tournament. As the second-lowest seed ever to win the Tournament, the focus should have been on UConn’s celebration in Storrs, Connecticut. Instead, the national media was drawn to comments made by UConn’s star point-guard, Shabazz Napier, who said that he sometimes went to bed “starving.”

The remarks caught the immediate attention of state legislators in Connecticut. Representative Matthew Lesser …

Hidden Figures: Wage Inequity And Economic Insecurity For Black Women And Other Women Of Color, Cassandra Jones Havard

St. John's Law Review

(Excerpt)

One hundred years after women secured the right to vote, wage inequality remains prevalent in the United States. The gender wage gap, or pay inequity based solely on sex, arguably, is a measure of the current failure of full and equal participation by women in American society. The gender wage gap exists despite federal legislation designed to further wage equality. In fact, a difference as small as two cents over a lifetime costs a woman approximately $80,000. Currently, it is predicted that for a majority of white women, the pay parity will be attained between 2059–2069. However, Black women …

Personal Foul: The Exploitation Of Ncaa Student-Athletes’ Publicity Rights, Jordan Pamlanye

St. John's Law Review

(Excerpt)

In 2017, Donald De La Haye, a Division I football player for the University of Central Florida of the National Collegiate Athletic Association (“NCAA”), was deemed ineligible for NCAA participation due to his successful YouTube channel, “Deestroying.” De La Haye was a kicker for the University of Central Florida’s (“UCF”) football team. At the time, his YouTube channel had over 90,000 subscribers and almost 5,000,000 views. The NCAA found De La Haye ineligible because he was compensated for videos that included aspects of his life as an NCAA athlete—a violation of the NCAA bylaws.

The consequences of this decision …

Beyond Citizens United: Democratizing The Economy In The Wake Of The Small-Dollar Revolution, Jay Hedges

Journal of Civil Rights and Economic Development

(Excerpt)

Citizens United increases the power of corporations over our political process. Under current corporate governance laws, permission for corporations to behave as political actors ignores the consent of a particularly important constituency of these business entities—labor. This neglect of workers reveals three democratic crises resulting from the corporate structure in the United States, which have only intensified following Citizens United. First, while the political speaking-power of corporations has been substantially increased, these entities lack legitimacy to speak on behalf of their labor constituency. Second, the use of corporate profits, generated by the corporation’s labor force, as the means …

Employment Status For "Essential Workers": The Case For Gig Worker Parity, Miriam A. Cherry

Faculty Publications

The continuing misclassification of gig workers as independent contractors has been problematic for over a decade. Several misconceptions have contributed to this marginalization of on-demand workers: technology that often obscures the work that is being performed; the view that platform work is a side hustle; or that platform work exists only for customer convenience or frivolous requests. During the coronavirus pandemic these myths about gig work were turned upside down as on-demand workers were recognized for their efforts and labeled essential workers. With that recognition came newly-awarded benefits, like pandemic unemployment assistance and paid sick leave. As such, the events …

Can A Person's "Slate" Ever Really Be "Cleaned"? The Modern-Day Implications Of Pennsylvania's Clean Slate Act, Kimberly E. Capuder

St. John's Law Review

(Exceprt)

In 2006, Khalia was arrested for a “low-level counterfeiting charge.” While Khalia was innocent and never convicted for the charged offense, she still had a criminal record. Because she was concerned that future employers would “view her as a thief,” she never applied to any of her dream jobs. But once Khalia’s arrest record was automatically sealed, she finally had enough confidence to send in a job application to a prestigious consulting firm, and was offered the position. Khalia believes that her newly sealed criminal record “means a future without judgment.” And this future without judgment was made possible …

Nothing Is Inevitable: A Rejection Of The Inevitable Disclosure Doctrine Under The Defend Trade Secrets Act, Jacqueline R. Mancini

St. John's Law Review

(Excerpt)

Until June 2013, Manish Desai worked for Molon Motor and Coil Corporation (“Molon”) as Head of Quality Control. In June of that year, Desai left Molon to take a position with a competitor of Molon, Nidec Motor Corporation (“Nidec”). Molon brought suit against Nidec for trade secret misappropriation and alleged that Desai copied confidential information onto a flash drive before his departure. Based on these allegations, Molon argued not only that Desai unlawfully disclosed its trade secrets but also that “Nidec used and continues to use that information.” Molon brought suit under the federal Defend Trade Secrets Act and …

Proposition 22: A Vote On Gig Worker Status In California, Miriam A. Cherry

Faculty Publications

(Excerpt)

In the shadow of the 2020 United States Presidential election, an important vote was also taking place about the employment status of gig workers. In 2019, the California Legislature had enacted AB5, a bill that expanded the definition of “employees” to include workers in the on-demand economy. In response, gig platforms like Uber, Lyft, and Postmates backed a direct ballot initiative, California’s Proposition 22, which asked voters to undo the work of the Legislature. Gig workers would be reclassified as independent contractors, but they would also receive certain benefits, including, among others, the ability to sue for discrimination under …

A Global System Of Work, A Global System Of Regulation?: Crowdwork And Conflicts Of Law, Miriam A. Cherry

Faculty Publications

(Excerpt)

The on-demand economy has truly gone global. Consider online platform TaskRabbit, a U.S.-based site for odd jobs. A high number of TaskRabbit’s users were seeking help with the construction of furniture they purchased at IKEA, and skilled carpenters started using the platform to find customers. Corporate management at Swedish company IKEA noticed the trend, and as a result acquired TaskRabbit in 2017. As a result, a Swedish company now owns a platform labor service in the United States and Britain, with plans to expand the TaskRabbit platform to twenty-seven more countries where IKEA currently owns brick and mortar stores. …

Gig Workers As Essential Workers: How To Correct The Gig Economy Beyond The Covid-19 Pandemic, Miriam A. Cherry, Ana Santos Rutschman

Faculty Publications

(Excerpt)

During the early stages of the COVID-19 pandemic in 2020, estimates suggest that approximately forty percent of U.S. workers shifted to working remotely from home. But for many gig workers, who performed grocery shopping for Instacart, delivered food and restaurant meals for DoorDash, or who picked up and delivered packages for Shipt, they were working in person and busier than ever. In fact, many of these gig jobs were considered "essential work," and the rules of state lockdowns across the country classified gig workers as "essential workers."

Paid by the task, and managed by algorithms that can automatically deactivate …

But, Men And Women Are Equally Compensated, Right? An Examination Of Why An Equal Rights Amendment In New York's Constitution Will End The Wage Gap, Amanda B. Slutsky

Journal of Civil Rights and Economic Development

(Excerpt)

This Note proposes an ERA for New York’s constitution to end the wage gap between men and women, and uses language from H.J. Res 52 and S.B. No. 1919. To demonstrate why New York needs the amendment, this Note will discuss Maryland’s and California’s ERAs and equal pay laws to establish the benefits of an ERA and how both ERAs and equal pay laws, together, help shrink the wage gap in those states. With an ERA, New York’s courts will analyze sex-based discrimination claims with strict scrutiny, which provides heightened protection because women will be considered a suspect class. …

Age Discrimination In The On-Demand Economy And Crowdwork, Miriam A. Cherry

Faculty Publications

(Excerpt)

The dominant narrative about the on-demand or gig economy focuses on the plight of Millennials, the generation born between 1982 and 2004. Reporters, bloggers, and commentators have largely confined their account of gig platforms to what the on-demand economy means for Millennials who are just beginning their careers. Media sources have spotlighted the hardships facing young, tech-savvy workers who are forced to cobble together a living through a combination of part-time work, entrepreneurial activities, and insecure gigs online. These sources note that these Millennials are barely scraping by and often lack job security or benefits. When discussing the problems …

Finding Balance: Using Employment Law Problems To Achieve Multiple Learning Goals In Persuasive Legal Writing, Rosa Castello

Faculty Publications

(Excerpt)

Legal Writing professors, like myself, face the same challenge each new semester: how can I effectively and efficiently help students learn one of the most important skills for a practicing lawyer? And one large hurdle in this quest to make our students good legal writers is creating a trial motion or appellate brief problem that helps them develop the particular skills required for persuasive legal writing. The act of creating the problem is sometimes like tightrope walking̶ finding just the right balance of facts and law to challenge students and help develop and enhance vital research, analytical, organizational, writing, …

No Prior Experience Desired: Villarreal V. R.J. Reynolds Tobacco Co. And The Scope Of Disparate Impact Claims Under The Adea, Nicholas Placente

St. John's Law Review

(Excerpt)

This Note argues that § 4(a)(2) of the ADEA permits disparate impact claims for job applicants, despite the revised holding of the Eleventh Circuit. First, the plain meaning of § 4(a)(2) strongly suggests that disparate impact protections lie for job seekers, in contrast to the Eleventh Circuit’s ultimate finding. This argument draws on a close textual and structural analysis of the ADEA, supplemented with a comparative analysis to Title VII. Furthermore, this Note unpacks the legal arguments surrounding the 1972 amendment to Title VII, demonstrating that the absence of the “applicants for employment” language from § 4(a)(2) does not …

Does It Pay To Be A Manager? The Significance Of The Manager Rule In Analyzing Retaliation Claims Under Title Vii, Cristina Giappone

St. John's Law Review

(Excerpt)

This Note argues that the manager rule should be applied to Title VII cases but in a new and very specific and detailed context involving a case-by-case analysis, similar to that of the United States Court of Appeals for the Ninth Circuit’s reasoning in Rosenfield v. GlobalTranz Enterprises, Inc. This Note is comprised of three parts. Part I provides the history of Title VII generally, and discusses the emergence of the manager rule in the FLSA context. Part II addresses how different federal circuit courts have either recognized or rejected the manager rule as it applies to retaliation …

Twelve Injured Men: Why Injured Jurors Should Not Receive Workers' Compensation Coverage From The Courts, Corey Baron

St. John's Law Review

(Excerpt)

This Note argues that the legislature should add a provision to New York’s Workers’ Compensation Act that expressly precludes jurors from coverage. Such a provision would comport with the policy underlying the statute, the statute’s structure, and the statute’s language. Moreover, that legislative provision would prevent the court from wasting the considerable time and expense of grappling with other courts’ inconsistent interpretations of workers’ compensation statutes and their underlying policies. First, Part I of this Note provides an overview of the workers’ compensation law and explores the policies underlying the advent of workers’ compensation statutes. Then, Part II surveys …

Prop Up The Heavenly Chorus? Labor Unions, Tax Policy, And Political Voice Equality, Philip T. Hackney

St. John's Law Review

(Excerpt)

This Article contributes to the tax legal literature by providing an analysis of labor unions and how we tax them. Although labor unions as a whole are a very small part of our economy and tax system, by looking at one narrow section of the tax-exempt sector we can shed light on the rest of the exempt sector. Additionally, although most tax policy scholarship focuses on one of three values—equity in an economic sense, efficiency in an economic sense, and administrability—I focus primarily on the value of equity in a governance sense.

I argue that, at least in the …

Corporate Social Responsibility And Crowdwashing In The Gig Economy, Miriam A. Cherry

Faculty Publications

(Excerpt)

Within this Article, I elaborate on the term “crowdwashing,” a neologism. Even though many online platforms describe themselves as “communities” that are part of the “sharing economy,” this “sharing” terminology is largely a misnomer when describing the activities of larger commercialized on-demand platforms. Rather than referring to volunteer efforts for collective benefit, many references to “sharing” in the “sharing economy” refer to the concept of commodification of previously underutilized assets. For example, consider receiving money for the rental of a spare bedroom through AirBnB or the sale of small, previously unproductive periods of time to complete tasks on Amazon’s …

General Personnel Issues, William T. Hopkins

The Catholic Lawyer

No abstract provided.

Ogc Issues Roundtable, John Liekweg

The Catholic Lawyer

No abstract provided.

The Constitutionality Of State Labor Relations Board Jurisdiction Over Parochial Schools: Catholic High School Association V. Culvert

The Catholic Lawyer

No abstract provided.

Yeshiva Update: Administration 8, Union 0, Michael A. Foley

The Catholic Lawyer

No abstract provided.

National Labor Relations Board V. Catholic Bishop Of Chicago, James E. Serritella, Reuben & Proctor, Chicago, Illinois

The Catholic Lawyer

No abstract provided.

Corporate America And "The Perks" Of Being A Woman: Increasing Gender Diversity In Corporate Boardrooms, Enkelena Gjuka

Journal of Civil Rights and Economic Development

No abstract provided.

English-Only Policies: The Need For And Benefits Of The Employment Language Fairness Act, Nick Stratouly, Esq.

Journal of Civil Rights and Economic Development

No abstract provided.

Are Uber And Transportation Network Companies The Future Of Transportation (Law) And Employment (Law)?, Miriam A. Cherry

Faculty Publications

(Excerpt)

Uber, Lyft, and other transportation network companies (“TNCs”), have garnered a great deal of attention in the media and popular press for the efficiencies of their service, their “disruptive” business models, and their labor practices. Uber has almost 400,000 drivers in California and Massachusetts alone. Other TNCs have countless drivers of their own, and TNCs have become especially popular in densely populated cities. Gone are the days when one needed to hail or flag down a taxi, or call a dispatcher to request one. Now customers can summon TNC drivers using “apps” on their smartphones, and TNC platforms match …

The Law And Policy Of People Analytics, Matthew T. Bodie, Miriam A. Cherry, Marcia L. Mccormick, Jintong Tang

Faculty Publications

(Excerpt)

Recently, leading technology companies such as Google and IBM have started experimenting with "people analytics," a new data-driven approach to human resources management. People analytics is just one example of the phenomenon of "big data," in which analyses of huge sets of quantitative information are used to guide a variety of decisions. Applying big data to workplace situations could lead to more effective work outcomes, as in Moneyball, where the Oakland A's baseball franchise used statistics to assemble a winning team on a shoestring budget. People analytics is the name given to this new approach to personnel management …

The Sharing Economy And The Edges Of Contract Law: Comparing U.S. And U.K. Approaches, Miriam A. Cherry

Faculty Publications

Technology and the rise of the on-demand or sharing economy have created new and diverse structures for how businesses operate and how work is conducted. Some of these matters are intermediated by contract, but in other situations, contract law may be unhelpful. For example, contract law does little to resolve worker classification problems on new platforms, such as ridesharing applications. Other forms of online work create even more complex problems, such as when work is disguised as an innocuous task like entering a code or answering a question, or when work is gamified and hidden as a leisure activity. Other …

I Swear! From Shoptalk To Social Media: The Top Ten National Labor Relations Board Profanity Cases, Christine Neylon O'Brien

St. John's Law Review

(Excerpt)

This Article curates and analyzes ten recent cases where the NLRB decided whether or not § 7 protected employee swearing, with a view toward defining the implications of these decisions for employers and employees in terms of employer rules and discipline, and employee rights and limits thereon. The Article outlines the NLRB’s role and perspective in cases where employees are disciplined or discharged for engaging in profanity at work and/or on social media when the conduct in question is otherwise protected concerted activity. The Article summarizes the facts in each case while analyzing the legal framework that the NLRB …