Labor and Employment Law Commons^™

Is A Locomotive In Use And Therefore Subject To Locomotive Inspection Act Liability When It Makes A Temporary Stop?, Anne Marie Lofaso

Law Faculty Scholarship

Case at a Glance: LeDure v. Union Pacific Railroad Company. Bradley LeDure, a long-time locomotive engineer for Union Pacific, slipped on the slick surface of a locomotive while it was idle but powered on, seriously injuring himself. If Union Pacific violated safety regulations under the Locomotive Inspection Act, then it would be negligent per se. But that theory of liability is only available if the locomotive was in use at the time of the accident. The case presents a question of statutory interpretation of the term use.

The Remainder Effect: How Automation Complements Labor Quality, James Bessen, Erich Denk, Chen Meng

Faculty Scholarship

This paper argues that automation both complements and replaces workers. Extending the Acemoglu-Restrepo model of automation to consider labor quality, we obtain a Remainder Effect: while automation displaces labor on some tasks, it raises the returns to skill on remaining tasks across skill groups. This effect increases between-firm pay inequality while labor displacement affects within-firm inequality. Using job ad data, we find firm adoption of information technologies leads to both greater demand for diverse skills and higher pay across skill groups. This accounts for most of the sorting of skills to high paying firms that is central to rising inequality.

Modern-Day Slavery Ring Discovered On Georgia Farms: When Will It End?, Lizet Palomera Torres

GGU Law Review Blog

Although all people in the United States have fundamental human rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights (UDHR), not everyone can enjoy them equally. Many people, such as employers, blatantly disregard these core human rights and exploit their migrant workers. However, despite migrant workers being disproportionately vulnerable to abuse, it is not uncommon for migrant workers to be reluctant to report employers because of their fear of retaliation and their relatively poor position. These workers often do not speak the language, are in remote and segregated areas and are exploited through their immigration …

2022'S States With The Highest Job Resignation Rates: Ask The Experts, Adam Mccann, Erin J. Hendrickson

Popular Media

No abstract provided.

Dau-Schmidt: Scotus Vaccine Ruling Raises As Many Questions As It Resolves, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.

'Freedom's Just Another Word For Nothin' Left To Lose': The Ongoing Struggle To Properly Regulate The Gig Economy In California, Francis J. Mootz Iii, Jeffrey Michael

McGeorge School of Law Scholarly Articles

No abstract provided.

Lifting Labor’S Voice: A Principled Path Toward Greater Worker Voice And Power Within American Corporate Governance, Leo E. Strine Jr., Aneil Kovvali, Oluwatomi O. Williams

Ira M. Millstein Center for Global Markets and Corporate Ownership

The dramatic decline in corporate gainsharing with American workers over the last two generations has contributed to stagnating wages, soaring inequality, and economic insecurity. There are global causes of greater inequality and depressed pay that go beyond the decline in workers’ share. But many public policymakers and economists believe that the reduced share of corporate prof its that American workers receive has been a major factor in the much larger increase in inequality that has occurred in the United States, compared to its market economy allies in the Organization for Economic Co-operation and Development (OECD). To some, the explanation for …

Bostock: A Clean Cut Into The Gordian Knot Of Causation, Melissa Essary

Scholarly Works

Regardless of merit, most individual employment discrimination claims die a fast death at summary judgment. Judges apply the fine mesh net created by McDonnell Douglas v. Green, and most cases are caught in its trap. This dated, obfuscatory Supreme Court case creates a complex and flawed binary approach to causation: either discrimination or an innocent reason caused an adverse employment action. For decades, all three levels of the federal judiciary have wrestled with McDonnell Douglas, creating snarls and knots in construing causation. Because of this causal confusion, the ideal of equal opportunity in employment is on life-support.

Judges …

Essential Jobs, Remote Work And Digital Surveillance: Addressing The Covid-19 Pandemic Panopticon, Antonio Aloisi, Valerio De Stefano

All Papers

An unprecedented COVID-19-induced explosion in digital surveillance has reconfigured power relationships in professional settings. This article critically concentrates on the interplay between technology-enabled intrusive monitoring and the augmentation of 1

managerial prerogatives in physical and digital workplaces. It identifies excessive supervision as the common denominator of “essential” and “remotable” activities, besides discussing the various drawbacks faced by the two categories of workers during (and after) the pandemic. It also assesses the adequacy of the current European Union legal framework in addressing the expansion of data-driven management. Social dialogue, workers’ empowerment and digital literacy are identified as effective solutions to promote …

The Eu Commission’S Proposal For A Directive On Platform Work: An Overview., Valerio De Stefano

Articles & Book Chapters

This article discusses the proposal for the EU Directive on Platform Work. While welcoming the proposal advanced by the Commission, it highlights some of its shortcomings and suggests more robust protection both for the draft Chapter on the presumption of employment, which risks being vastly ineffective, and the Chapter on algorithmic management, whose protection needs a full extension to the self-employed, more substantial collective rights for workers, and broadening the scope to the entire EU workforce.

Bargaining Sectoral Standards: Towards Canadian Fair Pay Agreement Legislation, Sara Slinn, Mark Rowlinson

All Papers

This paper considers the recently introduced New Zealand Fair Pay Agreement (FPA) sectoral bargaining framework and offers a preliminary series of ideas and proposals setting out how an FPA model for bargaining sectoral standards could work in Canada. It is intended as the beginning of a more detailed discussion on the development of an FPA regime culminating in model legislation that could be adapted to different Canadian jurisdictions. Guided by principles of accountability, integration, and inclusivity, this proposal is intended to apply to all workers in an employment relationship – including dependent contractors and gig and platform workers. The proposed …

Optimizing Whistleblowing, Usha Rodrigues

Scholarly Works

Whistleblowers have exposed misconduct in settings ranging from public health to national security. Whistleblowing thus consistently plays a vital role in safeguarding society. But how much whistleblowing is optimal? And how many meritless claims should we tolerate to reach that optimum? Surprisingly, legislators and scholars have overlooked these essential questions, a neglect that has resulted in undertheorized, stab-in-the-dark whistleblower regimes, risking both overdeterrence and underdeterrence.

This Article confronts the question of optimal whistleblowing in the context of financial fraud. Design choices, which play out along two axes, have profound effects on the successful implementation of whistleblowing policy. One axis varies …

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 …

Don't Abolish Employee Noncompete Agreements, Alan J. Meese

Faculty Publications

For over three centuries, Anglo-American courts have assessed employee noncompete agreements under a Rule of Reason. Despite long-standing precedent, some now advocate banning all such agreements. These advocates contend that employers use superior bargaining power to impose such "contracts of adhesion," preventing employees from selling their labor to the highest bidder and reducing wages. Abolitionists also contend that such agreements cannot produce cognizable benefits and that employers could achieve any benefits via less restrictive alternatives without limiting employee autonomy.

This Article critiques the Abolitionist position. Arguments for banning noncompete agreements echo hostile critiques of other nonstandard contracts during antitrust law's …

Plant Closings And Reductions In Force, Margaret Hannon

Book Chapters

This chapter examines the effect of federal discrimination laws on permanent layoffs caused by plant closings and reductions in force (RIFs) and discusses the federal Worker Adjustment and Retraining Notification Act (WARN Act), Pub.L. No. 100-379, 102 Stat. 890 (1988), and the Illinois Worker Adjustment and Retraining Notification Act (Illinois WARN Act), 820 ILCS 65/1, et seq. This chapter examines cases in which RIFs have been challenged as violating an employee’s rights under federal age discrimination law, the legal standards applied by the courts in reviewing such challenges, and some particular problems that have arisen in the context of company …

Cause For Concern Or Cause For Celebration?: Did Bostock V. Clayton County Establish A New Mixed Motive Theory For Title Vii Cases And Make It Easier For Plaintiffs To Prove Discrimination Claims?, Terrence Cain

Faculty Scholarship

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against an employee “because of” race, color, religion, sex, or national origin. This seems simple enough, but if an employer makes an adverse employment decision partly for an impermissible reason and partly for a permissible reason, i.e., if the employer acts with a mixed motive, has the employer acted “because of” the impermissible reason? According to Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar, the answer is no. The Courts in Gross and Nassar held that …

Without Accommodation, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

Under the Americans with Disabilities Act (ADA), workers with disabilities have the legal right to reasonable workplace accommodations provided by employers. Because this legal right is unique to disabled workers, these workers could, in theory, enjoy greater access to the types of accommodations that are desirable to all workers including the ability to work from home, to work flexible hours, and to take leave. This Article compares access to these accommodations, which have become increasingly desirable during the COVID-19 pandemic, between disabled workers and nondisabled workers. Using 2017-2018 data from the American Time Use Survey's Leave and Job Flexibilities Module, …

Wage Recovery Funds, Elizabeth Ford

Faculty Articles

Wage theft is rampant in the US. It occurs so frequently because employers have much more power than workers. Worse, our main tool for preventing and remedying wage theft – charging government agencies with enforcing the law -- has largely failed to mitigate this power differential. Enforcement agencies, overburdened by the magnitude of the wage theft crisis, often settle cases for nothing more than wages owed. The agency, acting as broker for the payment of the wages owed, voluntarily foregoes both interest and statutory penalties. This is a bad deal for workers, but not just because they do not get …

Escaping The Allure Of Joint Employment: Using Fault-Based Principles To Impose Liability For The Denial Of Employee Statutory Rights, Michael C. Harper

Faculty Scholarship

Using joint employment alone to impose liability requires an extension of the strict imputed liability theory embodied in respondeat superior. Employers, including incorporated businesses, under the common law are strictly liable for harms to their employees, as they are for harm to third parties, because of actions of their agents or other employees taken within the scope of their employment. The liability is strict because it does not depend on a finding that the employer, the principal, was negligent or otherwise at fault. Expanding liability through joint employment, even if based on a demonstration of joint control of statutorily protected …

Should Labor Abandon Its Capital? A Reply To Critics, David H. Webber

Faculty Scholarship

Several recent works have sharply criticized public pension funds and labor union funds (“labor’s capital”). These critiques come from both the left and right. Leftists criticize labor’s capital for undermining worker interests by funding financialization and the growth of Wall Street. Laissez-faire conservatives argue that pension underfunding threatens taxpayers. The left calls for pensions to be replaced by a larger social security system. The libertarian right calls for them to be smashed and scattered into individually-managed 401(k)s. I review this recent work, some of which is aimed at my book, The Rise of the Working-Class Shareholder: Labor’s Last Best Weapon, …

Lowering The Stakes Of The Employment Contract, Aditi Bagchi

Faculty Scholarship

Every country has to make hard choices about the distribution of entitlements. But employers control the entitlements that individual Americans enjoy to a far greater extent than those in other rich democracies. In this Essay, I argue that, in the absence of the political consensus necessary to deliver state solutions to political questions, employers here are assigned an exaggerated role in employees’ lives. Government incentives for and directives to employers have become a strategy of political deflection. The effect has been to raise the stakes of employment well beyond the scope of those terms and conditions that relate to attracting …

Looking South: Toward Principled Protection Of U.S. Workers, Ann C. Mcginley

Scholarly Works

No abstract provided.

Laboratories Of Democracy: State Law As A Partial Solution To Workplace Harassment, Ann C. Mcginley

Scholarly Works

This Article analyzes the substantive and procedural problems created by the federal judiciary in Title VII hostile work environment law that concurrently drains federal anti-harassment law of its meaning. The premise is that, at least for the near future, relying on federal courts and/or the U.S. Congress to protect employees' civil rights is likely fruitless. Instead, we should encourage state legislatures that seek to improve civil rights in employment in their own jurisdictions and state supreme courts to interpret their own state laws to recognize employees' civil rights to the fullest extent possible. Part II analyzes how federal courts decide …

Miscarriage Of Justice: Early Pregnancy Loss And The Limits Of U.S. Employment Law, Laura T. Kessler

Utah Law Faculty Scholarship

This Article explores judicial responses to miscarriage under federal employment law in the United States. Miscarriage is an incredibly common experience. Of confirmed pregnancies, about fifteen percent will end in miscarriage; almost half of all women who have given birth have suffered a miscarriage. Yet this experience slips through the cracks of every major federal employment law in the United States.

The Pregnancy Discrimination Act of 1978, for example, defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Family and Medical Leave Act of 1993 requires covered employers to provide employees with …

Fifty More Years Of Ineffable Quo? Workers’ Compensation And The Right To Personal Security, Michael C. Duff

All Faculty Scholarship

During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its …

Racialized, Judaized, Feminized: Identity-Based Attacks On The Press, Lili Levi

Articles

No abstract provided.

Block Rewards, Carried Interests, And Other Valuation Quandaries In Taxing Compensation, Henry M. Ordower

All Faculty Scholarship

In this article, Ordower contextualizes block rewards litigation with historical failures to tax compensation income paid in kind. Tax fairness principles demand current taxation of the noneconomically diluting block rewards’ market value.

The American Experience With Employee Noncompete Clauses: Constraints On Employees Flourish And Do Real Damage In The Land Of Economic Liberty, Kenneth G. Dau-Schmidt, Xiaohan Sun, Phillip J. Jones

Articles by Maurer Faculty

Agreements not to compete are generally an anathema to free market advocates. Independent profit maximization is one of the fundamental assumptions of the neoclassical economic model and necessary to its conclusion that markets yield results that are Paraeto efficient. Consistent with this theory, and practical experience, agreements among competitors, or potential competitors, to divide a market, or fix price or quantity are per se violations under our antitrust laws.

Despite this fact, even some ardent free market advocates have argued on behalf of the enforcement of covenants not to compete in the employment relationship. The traditional economic argument in favor …

Four Perspectives On A Sustainable Future In Nosara, Costa Rica, Greg Munno, Álvaro Salas Castro, Tina Nabatchi, Christian M. Freitag

Articles by Maurer Faculty

The town of Nosara on Costa Rica’s Nicoya peninsula is home to a vibrant community of diverse residents and is adjacent to an important turtle nesting site. However, tensions between lifelong residents, more recent transplants, visitors, and developers have increased as more of the world discovers this once-isolated haven. Climate change, income inequality, and alienation from a distant government apparatus have further complicated effective land-use planning and fractured social cohesion. Using a mixed-method approach of in-depth interviews (n = 67), Q methodology (n = 79), and public deliberation (n = 88), we explored residents’ priorities for the future of their …

Employee Turnover & Partial Plan Terminations, Samantha J. Prince

Faculty Scholarly Works

Who would have expected that a pandemic would bring Congressional awareness of an oft-overlooked concept called Partial Plan Terminations? Congress codified a temporary (and now expired) partial termination safe harbor for qualified retirement plans in the Consolidated Appropriations Act, 2021. This was necessary because qualified plans can experience a partial termination due to layoffs resulting from an economic downturn. The pandemic created such an upheaval for many businesses that without such relief, an overwhelming number of plans would have partially terminated. However, even with businesses reopening, the economy continues to be in flux, and this can portend more employee turnover. …