Labor and Employment Law Commons^™

The Ministerial Exception: Our Lady Of Guadalupe School And Antidiscrimination Employment Laws, Shelly A. Yeini

Vanderbilt Journal of Transnational Law

The Ministerial Exception (ME) is a legal doctrine providing that antidiscrimination employment laws do not apply to the relationship between religious institutions and their ministers. Such a notion appears in various democracies, as it aims to confront a shared problem: the attempt to solve the clash between antidiscrimination employment laws and religious autonomy. Liberal democracies strive to protect employees from discrimination, as well as to accommodate freedom of religion, which cannot be fulfilled without the existence of religious organizations. While being able to choose their staff is at the heart of the existence of religious institutions, the fulfillment of such …

Privileged But Equal? A Comparison Of U.S. And Israeli Notions Of Sex Equality In Employment Law, Leora F. Eisenstadt

Vanderbilt Journal of Transnational Law

Ever-expanding media coverage, scholarship, and popular publications discussing the difficulty of combining work and family suggest that this issue is now the essential locus for gender debate in the United States. The essence of the debate is the meaning of equality: whether it carries the same meaning for women and men, whether biological and sociological differences should impact the understanding of equality, and whether law and social policy should reflect or encourage these differences. Privileged but Equal details the theory of sex equality that is embodied in Israeli employment law and contrasts it with the U.S. approach. The Article suggests …

Enforcing International Labor Standards: The Potential Of The Alien Tort Claims Act, Marisa A. Pagnattaro

Vanderbilt Journal of Transnational Law

Professor Pagnattaro argues that courts should allow claims under the Alien Tort Claims Act (ATCA) to enforce international labor rights for alien workers. She begins by reviewing the history of the ATCA and the developing jurisprudence in the international labor context, including recent and pending cases involving employee ATCA claims against U.S. multinational corporations. After outlining what is necessary to assert an ATCA claim, including what is required to satisfy jurisdictional requirements, to state a claim under the law of nations, and to hold employers liable for violations of the law of nations, she details international foundations which can be …

Teen Prostitution In Japan: Regulation Of Telephone Clubs, Andrew D. Morrison

Vanderbilt Journal of Transnational Law

The history of prostitution in Japan may be traced to the eighth century. Originally, prostitutes carried on their trade individually and independently. Around the thirteenth century, however, the nature of prostitution changed, as prostitutes formed small enterprises located in red-light districts. By the seventeenth century, red-light districts existed throughout Japan.

In 1900, the Japanese government, realizing the widespread proliferation of the prostitution industry, passed the Regulation for Control of Prostitutes. The law regulated prostitution nationwide by requiring prostitutes to register with local government authorities and to undergo regular health inspections. This system continued until the end of World War Two, …

Mandating English Proficiency For College Instructors: States' Responses To "The Ta Problem", Kenneth King

Vanderbilt Journal of Transnational Law

This Note examines the background, provisions, effects, and constitutionality of state legislation mandating English proficiency assessment for college instructors. Such legislation responds to complaints about the comprehensibility of international instructors--particularly teaching assistants--at U.S. colleges and universities. U.S. universities employ large numbers of international instructors in scientific, technical, and business fields. Such employment is only one aspect of a broader U.S. importation of scientific and technical talent. This Note first considers the background and legitimacy of complaints about international instructors, and then examines the background and details of specific state provisions. It discusses the statutes' effects and particular concerns they raise, …

Kalanke V. Freie Hansestadt Bremen: The Significance Of The Kalanke Decision On Future Positive Action Programs In The European Union, Rebecca Means

Vanderbilt Journal of Transnational Law

In the landmark case Kalanke v. Freie Hansestadt Bremen, the European Court of Justice held that a German state law giving women an "absolute and unconditional priority" in the labor market was inconsistent with the European Equal Treatment Directive. Although many Europeans vehemently criticized the Kalanke decision initially, the furor now appears to have subsided. As a result of this decision, however, the European Union is currently re-examining equal treatment policies and will likely provide further guidance to Member States attempting to formulate positive action programs.

This Note first discusses the institutions of the European Union as they relate to …

Mahoney V. Rfe/Rl: An Unexpected Direction For The Foreign Laws Defense, Thomas Wang

Vanderbilt Journal of Transnational Law

A law is only as good, or as powerful, as its exceptions allow it to be. Unless carefully drawn, an exception intended to avoid unjust or impractical applications of a rule can consume the rule itself. In the case of the Age Discrimination in Employment Act and Title VII, which were amended to apply to U.S. citizens working abroad, the "foreign laws defense," as interpreted in Mahoney v. RFE/RL, threatens to defeat the application of the general rule prohibiting discrimination. This Note briefly traces the history of the extraterritorial application of U.S. law and the interests that were served by …

Changing The Approach To Ending Child Labor: An International Solution To An International Problem, Timothy A. Glut

Vanderbilt Journal of Transnational Law

A recent study by the United States Department of Labor has revealed that oppressive child labor is a serious problem in many countries. This Note begins by examining the international scope of the child labor problem, including the underlying reasons for its continued existence. The Note then discusses measures, both unilateral and multilateral, for curtailing child labor. The author determines that these measures are insufficient to end the child labor problem and discusses potential solutions to the problem. The author concludes that the most effective measure to end child labor would be a multilateral agreement with clear standards and an …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Extraterritorial Employment Standards of the United States: The Regulation of the Overseas Workplace

By James Michael Zimmerman

New York, New York: Quorum Books, 1992. Pp.206.

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Fact-Finding before International Tribunals

Edited by Richard B. Lillich

Irvington-on-Hudson, New York: Transnational Publishers Inc., 1992, Pp. 338.

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International Human Rights Law in the Commonwealth Caribbean

Edited by Angela D. Byre and Bevereley Y. Byfield

Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991. Pp. 398.

Recent Decision, R. Christian Hutson

Vanderbilt Journal of Transnational Law

Two dismissed employees, through their collective bargaining agent, sought reinstatement through the arbitration process. Relying on a California statute which made knowing employment of an illegal alien unlawful, the employer determined that the employees resided in the United States illegally and dismissed them." The collective bargaining representative argued that the employer lacked "just cause" to make the dismissal. The arbitrator adopted the representative's position, ruling that continued employment of the two illegal aliens would not subject the employer to criminal liability and holding the California statute "dormant." Based on this finding, the arbitrator awarded reinstatement to each employee and backpay …

The Strange New World Of United States Export Controls Under The International Emergency Economic Powers Act, Joel B. Harris, Jeffrey P. Bialos

Vanderbilt Journal of Transnational Law

This Article examines whether the President's reauthorization of the Regulations is within the scope of the authority provided by IEEPA and explores the potential long term consequences of "life under IEEPA" for the United States system of export and boycott-related controls.

Section I analyzes whether the President's emergency powers under the IEEPA permit the maintenance of regulations originally promulgated under a statute that has since lapsed (i.e. the EAA). The Article demonstrates that when Congress promulgated the IEEPA, Congress expressly evinced its intent to give the President broad emergency authority to regulate exports and boycott-related practices during periods of the …

The Export-Import Bank Of The United States And South Africa: The Effects Of The Evans Amendment, Anthony N. Vance

Vanderbilt Journal of Transnational Law

The Evans Amendment is an example of legislation that had the opposite effect of that which was congressionally intended. The Amendment was designed as a compromise to keep the Eximbank in South Africa, but its effect has been the termination of Eximbank activity in that country.

The United States exporters that expected to be hurt by the termination of Bank activity have apparently been largely unaffected because of the availability of other financing sources, particularly within South Africa. As a result, foreign competitors with uninterrupted financing support from their own governments have failed to make significant inroads into the business …

Book Review: The Winding-Up Of Insolvent Companies In England And France, Keith M. Lundin

Vanderbilt Journal of Transnational Law

Livadas provides an especially adept analysis and comparison of the treatment of employees of insolvent companies in the two countries. The author convincingly demonstrates that a French "liquidation des biens" protects employee wages, benefits, and claims more extensively than an English winding-up proceeding. The French requirement of compulsory insurance to protect the wages of employees and the special privilege afforded employees against the immovable assets of a French company are without analogy in English winding-up law. Livadas punctuates the chapters on the liabilities of officers and directors, which are generally more strict in France than in England, and the priorities …

United States Employment Taxation Of German Nationals Working In The United States, John L. Gornall, Jr., Kevin Conboy

Vanderbilt Journal of Transnational Law

This Article begins with a discussion of the general application of FICA, SECA, and FUTA to nonresident aliens. Knowledge of the ordinary United States employment taxation scheme is necessary for an understanding of how the totalization agreement works.

The second part of this Article explains how totalization agreements between the United States and certain foreign countries--including the Federal Republic of Germany--have altered the United States employment taxation of nonresident aliens. These agreements generally provide the following: (1) the foreign worker and employer may pay taxes and receive benefits from either the home country or the temporary host country, but in …

Back To Square One: Estoppel Against The Government After Immigration And Naturalization Service V. Miranda, Gerald J. Pels

Vanderbilt Journal of Transnational Law

In this nation of immigrants, few matters of public policy arouse more intense or divisive public debate than the subject of change in our immigration and naturalization laws. Presently, our system of immigration laws, which is grounded upon antiquated procedure, is being tested by new problems. For example, the increase in political asylum cases and the influx of aliens from the third world have posed new challenges for these outdated procedures. The 97th Congress considered adopting the Simpson-Mazzoli bill in 1982 to alleviate the problems.

The Senate passed the Simpson-Mazzoli bill on August 17,1982, but the House did not act …

Recent Development: Amenability Of Foreign Corporations To United States Employment Discrimination Laws, Kevin C. Tyra

Vanderbilt Journal of Transnational Law

As the Linskey court noted, the existence of employment exemption provisions in over thirty commercial treaties, if liberally construed, would create a loophole in Title VII enforcement. Given the ever-increasing number of United States employees of foreign-owned corporations, liberal treaty constructions could decrease the scope of Title VII.

Nevertheless, the effect on international commerce must be considered. Although equal employment opportunity is a laudable goal, this goal may conflict with the values of other cultures, as it did with the culturally-based organization and management philosophy of the C. Itoh Co. A more prudent approach to the problem of subsidiaries might …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Definition of Seaman under the Jones Act Need Not be Restricted to Person Assigned to Only One Vessel

Fourth Amendment Does Not Bar Warrantless Fishing Vessel Searches Authorized by the Fishery Conservation and Management Act of 1976 to Protect Fisheries in the Conservation Zone

Properly Extradited Fugitive Not Entitled to Judicial Hearing Challenging Enlargement of Original Warrant of Surrender

Visa Numbers Wrongfully Charged Against Western Hemisphere Quotas are Reissued According to an Historical Approach Rather than Chronological Order

Payment of Irrevocable Letter of Credit May Not be Enjoined on Grounds of Instability of Foreign Governments

Expropriation of a Contractual Right …

Whither The Commission On Human Rights: A Report After The 35th Session, Gerson Smoger

Vanderbilt Journal of Transnational Law

The statement that the Commission on Human Rights "functions as the focal point of the United Nation's concentration on the international observance of human rights" is fraught with definitional inconsistencies. Throughout its existence one of the main problems faced by the members of the Commission has been to agree upon the appropriate limits of the expression "human rights." The question arises whether the term includes the right of a retired school teacher to speak out against his country's employment practices or his entitlement to receive social security after his departure from the teaching force. If these are both considered to …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

A Time Charterer is not Liable as Owner Pro Hac Vice for Injuries Incurred by Employees of the Vessel's Owner in the Course of their Employment

U.S. Violation of Regulation in Deportation Proceeding Renders Alien's Deportation Unlawful only if Such Violation Prejudiced the Alien's Interests Protected by the Regulation

Where Information Regarding Weight of Suitcase Checked with Airline is Undocumented, Liability Limitation of the Warsaw Convention does not Apply

Cultural Exchange Agreements involving Payment Constitute Commercial Activity and are not Immune under the Foreign Sovereign Immunities Act

American And British Employment Discrimination Law: An Introductory Comparative Survey, Robert N. Covington

Vanderbilt Journal of Transnational Law

Age, alienage, ethnicity, race, religion, and sex lead to differential treatment of individuals the world over. Employment discrimination is felt most acutely in those industrialized nations where one's income level is the major determinant of so many other things: where one lives, what one wears, how one's children are educated. Concern over the social and economic consequences of employment discrimination has led to the development of new legal techniques on both sides of the Atlantic. The recent enactment in Britain of the Sex Discrimination Act, 1975, and the Race Relations Act, 1976, invites a comparison of those statutes and related …

Workmen's Compensation At Sea, Charles D. Evens

Vanderbilt Journal of Transnational Law

At the present time there are three possible remedies available to seamen who are injured in the course of their employment. In order to maintain any of these actions, the injured party must of course qualify as a seaman. The traditional tests used to determine whether a maritime worker is a seaman are as follows: 1) the vessel must be in navigation, 2) the worker must have a more or less permanent connection with the vessel, and 3) the worker must be aboard the vessel primarily to aid in navigation. These standards have been somewhat modified by Offshore Company v. …

Admiralty--Choice Of Law--Ship Owner With Substantial Business Contacts In The United States Is An Employer Within Meaning Of Jones Act, Journal Staff

Vanderbilt Journal of Transnational Law

Plaintiff, a Greek seaman, sought relief in federal court under the Jones Act for injuries suffered aboard ship while docked in a United States seaport. Defendants, corporations, controlled by a permanent resident alien of the United States, contended the Court was without jurisdiction since they were not employers within the meaning of the Jones Act and because the contract of employment with plaintiff provided for the application of Greek law. The District Court found for the plaintiff. The Fifth Circuit affirmed.

On certiorari to the United States Supreme Court, held, affirmed. A shipowner with substantial business contacts in the United …