Labor and Employment Law Commons^™

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 …

The Settlement Of Labor Disputes In Industries Affected With A National Interest, James J. Graham

The Catholic Lawyer

No abstract provided.

A Reconsideration Of The Right To Strike, James Graham

The Catholic Lawyer

No abstract provided.

Aid To Education; The Ribicoff Memorandum; Church And State; Law And Morals; Fair Housing Laws; Labor Law; Contingent Fees

The Catholic Lawyer

No abstract provided.

Can Nothing Be Said For State "Right-To-Work" Laws?, John E. Coogan, S.J.

The Catholic Lawyer

No abstract provided.

Morality Of Right-To-Work Laws: Additional Comments, Bernard H. Fitzpatrick

The Catholic Lawyer

No abstract provided.

Morality Of Right-To-Work Laws, Bernard H. Fitzpatrick

The Catholic Lawyer

No abstract provided.

Too Much Information!: The Need For Stronger Privacy Protection For The Online Activities Of Employees And Applicants, Ralph Carter

Journal of Civil Rights and Economic Development

No abstract provided.

People Analytics And Invisible Labor, Miriam A. Cherry

Faculty Publications

(Excerpt)

In recent years, I have been writing about two increasingly salient labor and employment law issues: the presence of invisible labor and the rise of people analytics.' First, invisible labor could include emotion work, such as being a colleague's "work wife," or could include "identity work" that is time and effort spent on making others feel comfortable with the worker. Invisible labor might also include uncompensated time spent in "looking good" and "sounding right." It could also include instances where technology obscures work that is being done through a website platform or mobile application. The second trend is …

The Two Laws Of Sex Stereotyping, Noa Ben-Asher

Faculty Publications

This Article offers two main contributions to the study of sex stereotyping. First, it identifies an organizing principle that explains why some forms of sex stereotyping are today legally prohibited while others are not. Second, it argues for a shift in the current rights framework—from equal opportunity to individual liberty—that could assist courts and other legal actors to appreciate the harms of currently permissible forms of sex stereotyping. Commentators and courts have long observed that the law of sex stereotyping has many inconsistencies. For instance, it is lawful today for the state to require that unwed biological fathers, but not …

Why Title Vii's Participation Clause Needs To Be Broadly Interpreted To Protect Those Involved In Internal Investigations, May M. Mansour

St. John's Law Review

(Excerpt)

This Note argues that this narrow interpretation of the statute is contrary to the intention and aim of Title VII and, in turn, should be interpreted more broadly. Part I of this Note gives a brief explanation of the meaning and purpose of Title VII's anti-retaliation provision. Part II focuses on some of the cases that have limited the application of the participation clause to employees who are involved in formal EEOC proceedings. In particular, it focuses on the most recent Second Circuit case, Townsend v. Benjamin Enterprises, Inc., to examine the dangers presented by such a limited …

A Collective Good: Disability Diversity As A Value In Public Sector Collective Bargaining Agreements, Carrie Griffin Basas

St. John's Law Review

(Excerpt)

Part I of this Article explains why disability is a helpful lens and reviews the theoretical underpinnings of the roles of contracts, such as CBAs, in setting workplace dynamics and generating "informal laws." Part II describes the methodology used in this study of CBAs. Part III is a taxonomy of the models of disability-framing and workplace dynamics that the CBAs reflect. Part IV presents a new framework for envisioning how the corrective, civil rights vision of the Idealist model might transform workplaces for all workers-marginalized or empowered, public or private-and, therefore, transform labor and employment law. In other words, …

Fitting The Forum To The Pernicious Fuss: A Dispute System Design To Address Implicit Bias And 'Isms In The Workplace, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This paper proposes a dispute system design to address workplace discrimination caused by implicit biases so that employees and employers involved in such disputes can secure a more responsive justice than existing legal processes are able to provide. Workplace discrimination caused by implicit bias continues to contaminate our work environment despite our focused legal efforts to combat such overt "isms" as sexism, racism, ageism, and ableism. Although overt expressions of bias have significantly decreased in recent years, expressions of implicit bias, the primary cause of workplace discrimination, persists.

This paper extends the research on implicit bias to dispute system …

The Law And Economics Of Catalyzing Fans, Miriam A. Cherry

Faculty Publications

(Excerpt)

In the past decade new technologies have enabled large groups of people, separated by geographical distance and sometimes even national boundaries, to join together for pursuit of social good or economic gains. For example, we have seen thousands of participants engage in the editing of Wikipedia, contributing their expertise to build a base of knowledge on the web. Charities, artists, and now even for-profit businesses are able to use crowdfunding to raise financial support for their endeavors. Prediction markets allow participants to forecast outcomes of future events, creating incentives for accuracy either through monetary rewards or reputational advantage. Crowdsourcing …

Organizational Responsibility For Workplace Racial And Sexual Harassment: The Stories Of One Company's Workers, Cheryl L. Wade

Faculty Publications

(Excerpt)

I begin this Article with the testimony of an African-American man who, along with hundreds of African-American coworkers, brought a race discrimination suit against an industrial construction and fabrication limited liability company ("LLC") doing business in Texas and Louisiana. The company, Turner Industries ("Turner"), rigorously defended itself against the allegations, and rather than settle the case, Turner and ten of the plaintiffs went to trial in October 2012. A jury awarded two of the ten plaintiffs in the 2012 Bellwether trial $2 million each in damages, but the plaintiff whose testimony I include above lost at trial and was …

Teaching Employment Discrimination Law, Virtually, Miriam A. Cherry

Faculty Publications

(Excerpt)

The process of education, teaching, and learning has ideally been conceived of as a transformative endeavor. Students learn a new way of thinking and asking questions, rather than memorizing or assimilating material verbatim by rote. As curiosity and inquisitiveness are to be valued, students change their mode of analysis and in so doing, the way that they perceive the world. While this is the typical meaning of “transformative” learning, what if learning were actually transformative? In other words, what if what you were learning or the process of learning turned you into someone else (at least for the course …

The Gamification Of Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

In the science fiction novel Ender's Game, a young boy, Andrew "Ender" Wiggin, believes that he is at military school, learning how to play a computer war simulation game. In reality, Ender has been genetically engineered to excel in military tactics and is the final hope of humanity, which is under attack by the Formics, an alien insect species. For his final examination, Ender must defend the Earth from a series of attacks. He passes the exam by attempting a desperate aggressive maneuver, which utterly wipes out the attacker's home world but which also destroys part of his …

Virtual Whistleblowing, Miriam A. Cherry

Faculty Publications

(Excerpt)

In approximately 2004, Michael DeKort, a forty-one-year-old Lockheed Martin project manager, became concerned about security flaws in ships his employer was selling to the United States Coast Guard. The new ships were part of a planned $24 billion equipment upgrade that would make the United States Coast Guard a more active part of the war on terror. However, according to DeKort, the vessels featured security cameras with significant blind spots and communications equipment that was not secure. Further, DeKort alleged that other equipment on board could not operate at the extreme temperatures required by Lockheed's contract with the government. …

Overcoming Our Global Disability In The Workforce: Mediating The Dream, Elayne E. Greenberg

Faculty Publications

The unparalleled global support for the 2008 United Nations Convention on the Rights of Persons with Disabilities ("CRPD") highlights the global schism between the public extolling of human rights for individuals with disabilities and the private castigating of such individuals in their daily lives and in the workforce. The CRPD explicitly mandates that work is a right accorded to individuals with disabilities, and global employers are now being challenged to implement that right. Yet, in order to ensure meaningful, universal compliance with its directives, the CRPD imposes affirmative duties on Supporting States to develop a customized, workable plan that effectively …

A Taxonomy Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

The blockbuster movie Avatar begins as humans circle the planet Pandora in search of an element, unobtainium, which will boost the profits of their employer, a mining corporation. Pandora, however, is already inhabited by the Na'vi, an alien species of tall, skinny, blue beings, who live in harmony with the natural environment. With the goal of learning more about the Na'vi and their world, a team of human scientists controls and inhabits vat-grown bodies, using these avatars to interact with the Na'vi. Jake, the protagonist, is a former soldier who has become a paraplegic. When Jake's identical twin, a …

The Global Dimensions Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

Recently, unusual “factories” have appeared in Third World countries; these factories do not manufacture goods, but instead feature computer workers, typing and clicking away, playing video games, collecting coins and swords, and fighting monsters. Known as “gold farmers,” these workers are paid to harvest virtual treasures for online gamers in the developed world. First World gamers want to advance quickly within their online role-paying games of choice and, tired of the repetitive tasks necessary to build a high-level character, would prefer to pay others to do the work. As a result, gold farming operations have appeared in many countries …

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

Faculty Publications

(Excerpt)

Months after insurance giant American International Group (AIG) faltered and the federal government provided financial assistance to keep the company afloat, executive compensation and bonus practices at the company came under scrutiny. Taxpayers balked when evidence came to light that large bonuses were being paid to executives—the same executives, in certain instances, who had been responsible for AIG's losses. The disconnect between AIG's huge losses and the multi-million dollar bonus payments is a striking example of "pay without performance," a phenomenon that Professors Jesse Fried and Lucian Bebchuk documented in their book of the same name. Responding to public …

Working For (Virtually) Minimum Wage: Applying The Fair Labor Standards Act In Cyberspace, Miriam A. Cherry

Faculty Publications

(Excerpt)

When Congress passed the Fair Labor Standards Act ("FLSA")' in 1938 to help relieve the downward spiral of wages in the Great Depression, America's workers commonly showed up to an employer's place of business, leaving little doubt if they were "working" and thus entitled to the statute's minimum wage. Times, and technologies, have changed. With modem computers, individuals often perform work on someone else's behalf while sitting at home, using not their employer's factory machinery, but rather a computer they purchased for themselves, as well as their own Internet connection. The work is often engaging and is far more …

Working (With) Workers: Implementing Theory, Miriam A. Cherry

Faculty Publications

(Excerpt)

The topic of this symposium issue sponsored by the Association of American Law Schools (AALS) is the role of the labor and employment law professor as a public intellectual. Despite the baggage accompanying the phrase "public intellectual," the symposium topic is an important one, for the term carries more meaning than a mere "talking head" or "media figure" can express. To make theoretical ideas more accessible to others, to connect theory and practice, to explain academic or scholarly ideas in a way that the public can understand—these ideas resonate with my philosophy of the law professor's role. In fact, …

Decentering The Firm: The Limited Liability Company And Low-Wage Immigrant Women Workers, Miriam A. Cherry

Faculty Publications

(Excerpt)

Imagine the following scenario: a group of immigrant women clean houses and offices in the suburbs of a large northeastern city. These workers speak languages other than English. Therefore they depend on an intermediary, another immigrant who has been in the United States for a longer period of time, to solicit jobs, negotiate schedules, and communicate with customers. Although this “intermediary” does not actually perform any of the cleaning work, the intermediary’s “cut,” or share of the income generated, is substantial. The immigrant workers are typically paid a low wage, often averaging below the minimum wage set by the …

How To Succeed In Business Without Really Trying (Cases): Gender Stereotypes And Sexual Harassment Since The Passage Of Title Vii, Miriam A. Cherry

Faculty Publications

(Excerpt)

Last year I was invited to an undergraduate revival of the musical "How to Succeed in Business Without Really Trying," a comedy about the workplace, which I thought, as a teacher of employment law, I would enjoy. Written in the early 1960s and made into a 1967 movie, "How to Succeed" follows the adventures of J. Pierrepont Finch, a window washer who, with the aid of a sarcastic self-help book, schemes his way up the corporate ladder. Although ostensibly a humorous look at the corporate world of the late 1950s and early '60s, I found myself cringing throughout the …

Whistling In The Dark? Corporate Fraud, Whistleblowers, And The Implications Of The Sarbanes-Oxley Act For Employment Law, Miriam A. Cherry

Faculty Publications

Passed in 2002 in the wake of the accounting scandals that resulted in billions of dollars of lost value to shareholders, the Sarbanes-Oxley Act has as its major goal the prevention of corporate corruption. This Article analyzes the impact of section 806, the portion of the Sarbanes-Oxlcy Act that provides protections for employees who report securities fraud, and describes the effect that Sarbanes-Oxley has on existing employment law. In addition, this Article contributes to the debate over the general effectiveness of the .Sarbanes-Oxley Act, a topic of contention among both academics and press commentators. This Article argues that the Act …

Exercising The Right To Public Accommodations: The Debate Over Single-Sex Health Clubs, Miriam A. Cherry, Miriam A. Cherry

Faculty Publications

(Excerpt)

Recently, the debate over single-sex health clubs gained national attention when a patent attorney, James Foster, sued for admission to Healthworks, a Massachusetts all-women's health club. One day in 1996, Foster entered the club, which was located close to his Boston condominium, and asked for a tour and an application for membership. The club employees, however, refused him a tour, informing him that Healthworks did not admit men. Shortly thereafter, Foster filed a discrimination claim with the Massachusetts Commission Against Discrimination contending that Healthworks had violated the Massachusetts public accommodations statute. He won at the administrative hearing, and Healthworks …

A Negotiation Approach To Mandatory Arbitration Contracts, Miriam A. Cherry

Faculty Publications

(Excerpt)

In Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc. the First Circuit addressed whether a pre-dispute mandatory arbitration contract covered employment claims under Title VII and the Age Discrimination in Employment Act (ADEA) and was thus enforceable. The court held that while these types of arbitration contracts are theoretically enforceable, this particular contract was not. The First Circuit determined that the 1991 Civil Rights Act and the Older Worker's Benefit Protection Act did not preclude the enforcement of mandatory arbitration contracts, and that there was an insufficient showing of arbitral bias to prevent the contract's enforcement. The court, …

Not-So-Arbitrary Arbitration: Using Title Vii Disparate Impact Analysis To Invalidate Employment Contracts That Discriminate, Miriam A. Cherry

Faculty Publications

(Excerpt)

On May 20, 1996, three women filed a sexual harassment and discrimination lawsuit against the Wall Street investment firm Smith Barney. Later joined by twenty additional women, the plaintiffs alleged that Smith Barney failed to hire and promote women, created a hostile work environment, and discriminated on the basis of pregnancy and marital status. The lawsuit quickly gained widespread publicity, most notably for its accusation that the former manager of the Garden City, New York, branch had established a fraternity-like "boom-boom room" in the office basement where female employees were either excluded or harassed if allowed to enter. On …