Labor and Employment Law Commons^™

Labor And Employment Law, Eric Wallace

Law Student Publications

During the past two years, there have been several significant developments in labor and employment law, both on the state and federal levels. Because developments in both state and federal law likely will have a profound impact on employers and employees throughout Virginia, they warrant significant discussion in this survey. In addition to examining notable decisions from the Supreme Court of the United States, the United States Court of Appeals for the Fourth Circuit, and the United States District Courts for the Eastern District and Western District of Virginia, this survey also discusses decisions of the Supreme Court of Virginia …

Justice As Right Relationship: A Philosophical And Theological Reflection On Affirmative Action, Robert John Araujo

Pepperdine Law Review

No abstract provided.

Shifting The Burden: Genuine Disputes And Employment Discrimination Standards Of Proof, Barrett S. Moore

University of Arkansas at Little Rock Law Review

Enacted for the purpose of battling workplace discrimination by targeting discrimination against minorities and the disadvantaged, Title VII has become somewhat of an apparition for good-intentioned employers seeking to follow the law. For example, in Ricci v. DeStefano, the city of New Haven, Connecticut refused to hire white firefighters based on a qualification test because to do so would produce the outcome of hiring too few minority firefighters. Despite New Haven's good intentions, the hiring process illegally brought race into the hiring process, thereby showing that America's relationship with civil rights legislation has come full circle.

At the center of …

Flexibility And Fairness In Liberal Market Economies: The Comparative Impact Of The Legal Environment And High Performance Work Systems, Alexander Colvin

Alexander Colvin

This paper compares management flexibility in employment decision-making in the United States and Canada through a cross-national survey of organizations in representative jurisdictions in each country, Pennsylvania and Ontario respectively, that investigates the impact of differences in their legal environments. The results indicate that, compared to their Ontario counterparts, organizations in Pennsylvania have a higher degree of flexibility in employment outcomes, such as higher dismissal and discipline rates, yet do not experience any greater flexibility or simplicity in management hiring and firing decisions. One explanation for this result may lie in the finding that organizations in Pennsylvania experience greater legal …

Improved Metrics For Workplace Dispute Resolution Procedures: Efficiency, Equity, And Voice, John W. Budd, Alexander Colvin

Alexander Colvin

Many debates surround systems for resolving workplace disputes. In the United States, traditional unionized grievance procedures, emerging nonunion dispute resolution systems, and the court-based system for resolving employment law disputes have all been criticized. What is missing from these debates are rich metrics beyond speed and satisfaction for comparing and evaluating dispute resolutions systems. In this paper, we develop efficiency, equity, and voice as these standards. Unionized, nonunion, and employment law procedures are then qualitatively evaluated against these three metrics.

Making It Work At Work: Mediation's Impact On Employee/Employer Relationships And Mediator Neutrality , Allison Balc

Pepperdine Dispute Resolution Law Journal

This Comment discusses the ADR process of mediation in the employment setting, specifically addressing its benefits and effects on the employer/employee relationship and the potential for a non-neutral mediator who is paid by, or has some previous tie to, one of the parties. Section IA examines judicial and legislative views of ADR and mediation. IB discusses mediation's effectiveness in the workplace. Section II discusses the mediation process in an employment dispute. Section III discusses the effects of mediation on the employer and employee, empirical studies, the neutrality of mediators, and potential remedies. Section IV discusses neutrality in the mediation process. …

Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt

Pepperdine Dispute Resolution Law Journal

Since the inception of several employment and discrimination statutes, arbitration has grown exponentially as an alternative for the adjudication of employment disputes. The Supreme Court has traditionally held that statutory claims are indeed arbitrable pursuant to a valid arbitration agreement under the Federal Arbitration Act ("FAA"). In an effort to end employment discrimination based on "race, color, religion, sex, or national origin," Congress enacted the Civil Rights Act of 1964 ("Title VII"). In order to adequately effect this calling, the Equal Employment Opportunity Commission ("EEOC") was created as the Act's primary enforcement mechanism. While arbitration agreements under the FAA and …

Employment Law—The Elusive Enforceability Of Employment Covenants Not To Compete In Arkansas, Victoria J. Malony

University of Arkansas at Little Rock Law Review

Generally speaking, a covenant not to compete , or noncompete agreement, is a promise in an employment contract not to engage in the same type of business for a stated time in the same market as the employer. When these agreements are found by courts to be unenforceable, it leaves employers vulnerable to competitors. On the other hand, when they are enforced, employees may be unable to find work in the industry in which they are most experienced.

Because of the conflicts inherent in covenants not to compete, many courts have struggled to create a rule that can be fairly …

Compulsory Pre-Dispute Arbitration Clauses In The Employment Context After Eeoc V. Luce, Forward, Hamilton & Scripps , Maria Wusinich

Pepperdine Dispute Resolution Law Journal

In EEOC v. Luce, Forward, Hamilton & Scripps, decided in 2003, the Ninth Circuit Court of Appeals aligned its view with its sister circuits and with the Supreme Court regarding the enforceability of arbitration agreements in employment discrimination cases. The court held that an employee's agreement to arbitrate a claim arising under federal anti-discrimination law is enforceable. At first glance, it would appear that as far as the judicial branch is concerned, the longstanding issue of the validity of mandatory arbitration agreements in the employment context is now settled. This article, in contrast, posits that the courts will be …

Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele

Pepperdine Dispute Resolution Law Journal

This paper generally examines the theory and practice of alternative dispute resolution (ADR) and specifically examines the role mediation has played in propelling rights discourse away from the center of efforts to achieve equal employment opportunity in the United States. It further addresses assumptions regarding individual employee goals in the context of a legal environment in which litigating to achieve rights-based remedies is increasingly difficult for grievants.

Direct Employer Liability For Punitive Damages, Sandra F. Sperino

Faculty Articles and Other Publications

In Punitive Damages, Due Process, and Employment Discrimination, Joseph Seiner tackles the growing complexity of employment discrimination punitive damages claims and provides a workable solution to a difficult problem. Given the importance of punitive damages in shaping incentives to bring discrimination suits, his contribution is valuable, especially in trying to align recent constitutional punitive damages cases with the underlying discrimination law.

This Essay begins by emphasizing the fundamental idea on which Professor Seiner and I agree-that there should be little room for courts to reduce punitive damages in federal employment discrimination cases based on constitutional concerns about excessiveness. Title …

Soul Of A Woman: The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Faculty Working Papers

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act's coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …

Workplace Reform In A Jobless Recovery, Marcia L. Mccormick

All Faculty Scholarship

In 2012, the United States was recovering from a recession and policy makers were debating how to solve the country’s economy. This essay looks at the labor and employment reforms (or lack thereof) of President Obama’s first term, and the differing views of the role of government in creating jobs. The article challenges us to think beyond the two solutions commonly discussed: de-regulation and a “New Deal” program.

There are ways current lawmakers could come together to help protect jobs. Some of the solutions offered by the article include using automatic contribution plans, promoting part-time work, and giving employees more …

Before Wisconsin And Ohio: The Quiet Success Of Card-Check Organizing In The Public Sector, Rafael Gely, Timothy D. Chandler

Faculty Publications

Card-check laws, which have been unsuccessfully pursued by private-sector unions, mandate that employers recognize the union as the representative of employees on the basis of signed authorization cards without reliance on a representation election. Card check authorization benefits unions because it short circuits the usual organizing process by eliminating the union's need to further prove majority support in a secret ballot election.' But by doing so, it imposes costs on employers by restricting their efforts to erode union support through aggressive campaign tactics. Our paper seeks to better understand the development of these laws and their effects, and in that …