Labor and Employment Law Commons^™

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Ryan G. Vacca

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further ...

Alt-Labor, Secondary Boycotts, And Toward A Labor Organization Bargain, Michael C. Duff

Michael C Duff

Recently, workers led by non-union labor advocacy groups, popularly labelled “ALT-Labor,” have been staging strikes and other job actions across the low wage economy. Some observers see this activity as the harbinger of a reinvigorated labor movement or, more generally, as audacious dissent by low wage workers with nothing to lose. Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food or big box retail worker. This article takes a different tack, presuming (implicitly using history as its guide) that employers will respond ...

The Nba's 2011 Collectively Bargained Amnesty Clause-Exploring The Fundamentals, Adam Epstein, Kathryn Kisska-Schulze

Adam Epstein

The purpose of this article is to fundamentally introduce the amnesty clause, a relatively new provision in the labor and employment law discussions involving sport. The expression amnesty clause or amnesty provision is found in the 2011 NBA CBA. To date, academic references to the amnesty clause within the sport genre are virtually non-existent. The amnesty clause provides NBA teams a tool to release players from their contracts if they feel that the player turned out to be a bad investment, regardless of the reason. Additionally, by releasing a player under an amnesty clause provision, the team exercising the clause ...

Bottom-Up Workplace Law Enforcement, Charlotte S. Alexander, Arthi Prasad

Indiana Law Journal

This Article presents an original analysis of newly available data from a landmark survey of 4387 low-wage, front-line workers in the three largest U.S. cities. We analyze data on worker claims, retaliation, and legal knowledge to investigate what we call “bottom-up” workplace law enforcement, or the reliance of many labor and employment statutes on workers themselves to enforce their rights. We conclude that bottom-up workplace law enforcement may fail to protect the workers who are most vulnerable to workplace rights violations, as they often lack the legal knowledge and incentives to complain that are prerequisites for enforcement activity.

Unaffordable Justice: The High Cost Of Mandatory Employment Arbitration For The Average Worker, Lisa A. Nagele

Lisa A Nagele

While the use of arbitration provisions in collective bargaining agreements and executive employment agreement serve a beneficial purpose for workers and employers alike, the growing use of mandatory, pre-dispute arbitration agreements in non-unionized employment settings stands as an obstacle for employees to vindicate their statutorily prescribed civil rights. In particular, by forcing employees to share in the unique costs of arbitration, employees are deterred from bringing otherwise meritorious claims that would only require the payment of a filing fee in court. Thus, in the absence of legislation banning mandatory employment arbitration agreements, to ensure that cost is not a barrier ...

Still Out Of Step: The Sixth Circuit’S Adoption Of A “But-For” Standard For Ada Plaintiffs In Lewis V. Humboldt Acquisition Corp., Allison J. Zimmon

Boston College Journal of Law & Social Justice

On May 25, 2012, the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, reversed seventeen years of precedent and joined its sister circuits by discarding the “sole cause” standard for proving discrimination under Title I of the Americans with Disabilities Act (ADA). By declining to adopt the “motivating factor” standard used in the majority of the other circuits, and instead adopting a “but-for” standard, the Sixth Circuit’s ADA jurisprudence continues to be an outlier. This Comment argues that the “but-for” standard imposes an unfair burden on vulnerable and disabled employees who are seeking relief from ...

Whistleblowing And Free Speech: Garcetti's Early Progeny And Shrinking Constitutional Rights Of Public Employees, J. Michael Mcguinness

Touro Law Review

No abstract provided.

The Reasoning Behind A "Good Reason" Standard: The Seventh Circuit's Analysis Of Successor Liability In Teed V. Thomas & Betts Power Solutions, L.L.C., James Long

Boston College Law Review

On January 9, 2013, the U.S. Court of Appeals for the Seventh Circuit held in Teed v. Thomas & Betts Power Solutions, L.L.C. that a federal common law standard for successor liability applies to claims arising under the Fair Labor Standards Act. In doing so, the court established a new, broader standard for successor liability that applies to any claim arising from an employer’s violation of a federal labor or employment statute. This Comment argues that, although the court properly recognized congressional policies favoring employee protection, the new standard goes too far in liberalizing the successor liability ...

Grassroots Policy Advocacy And The California Domestic Worker Bill Of Rights, Hina Shah

Publications

Recent victories in domestic workers rights are a result of grassroots, worker-led campaigns to change the cultural value of domestic work and fundamentally question why the law treats these workers differently from other workers. Building visibility through worker leadership and broad-based coalitions, the domestic work campaigns have succeeded in gaining more equal treatment under the law. This is the story of the California campaign and the Golden Gate University Women’s Employment Rights Clinic’s role in the campaign.

Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson

Jennifer Jackson

We live in a rapidly evolving technological age, which now allows parents to enter surrogacy contracts. In such a world, the law often lags in catching up to technology and the ramifications that may ensue. This paper focuses on the California Family Rights Act (CFRA) and the consequences it has on surrogacy agreements and the rights intended parents. While the CFRA includes broad language as to the definition of a “child,” case law shows that surrogate born children may be unintentionally excluded. As a result, this paper analyzes the arguments both for and against revision to the CFRA and concludes ...

To Read Or Not To Read: Privacy Within Social Networks, The Entitlement Of Employees To A Virtual “Private Zone” And The Balloon Theory, Shlomit Yanisky-Ravid Professor Of Law

Shlomit Yanisky-Ravid Professor of Law

Social networking has increasingly become the most common venue of self-expression in the digital era. Although social networks started as a social vehicle, they have recently become a major source for employers to track personal data ("screening") of applicants, employees or former employees.

This article addresses the questions of whether this casual business routine harms employees' rights to privacy with regard to data users post in social networks, what the drawbacks of this routine may be, and why and how privacy rights should be protected to secure private zones within the virtual sphere. The article suggests that a privacy right ...

Access To Justice: Ensuring Equal Pay With The Paycheck Fairness Act, Deborah Thompson Eisenberg

Congressional Testimony

No abstract provided.

Root Canal Of The Problem: The Iowa Supreme Court's Protection Of Male Impulses Over Female Traits, Catherine E. Mendola

Boston College Journal of Law & Social Justice

In 2010, Dr. James H. Knight DDS fired his employee, Melissa Nelson, explaining that his wife had become jealous of their consensual but nonsexual relationship. Nelson, in turn, filed a sex discrimination claim, alleging that her termination would not have occurred, but-for her sex. The Iowa Supreme Court sided with Knight, ruling that Nelson’s termination was due to Knight’s wife’s jealousy, irrespective of Nelson’s sex. This Comment argues that: (1) in the absence of sexual conduct, the court’s reliance on precedent involving consensual sexual relationships was misplaced; (2) in relying on the wrong precedent, the ...

Missing God In Some Things: The Nlrb’S Jurisdictional Test Fails To Grasp The Religious Nature Of Catholic Colleges And Universities, Nicholas Macri

Boston College Law Review

The National Labor Relations Board (NLRB) uses a substantial religious character test to determine whether it is authorized to exercise jurisdiction over faculty labor relations at religiously affiliated colleges and universities. Under the NLRB’s test, a school is not considered religious unless it makes religious indoctrination one of its primary purposes, denies faculty members academic freedom, and discriminates based on religion when hiring faculty and admitting students. Such an approach fails to recognize the religious nature of Catholic institutions of higher learning, which carry out their religious missions precisely by avoiding religious indoctrination, granting faculty academic freedom, and welcoming ...

Amended Brief Of Professor Nancy Gertner And Professor Kent Greenfield As Amici Curiae In Support Of Plaintiff, Louisiana Municipal Police Employees' Retirement System V. The Hershey Company, C.A. No. 7996-Ml, Nancy Gertner, Kent Greenfield

Kent Greenfield

Amicus brief filed by Nancy Gertner and Kent Greenfield in the case of Louisiana Municipal Police Employees' Retirement System v. The Hershey Company, C.A. No. 7996-ML.

Employee Rights: If Nobody Knows, Who Cares?, Lee Howery

GGU Law Review Blog

No abstract provided.

Whether A Standard Legislated Framework Should Govern Public-Private Partnerships For Finance And Maintenance Of Public Infrastructure In The Modern Economy?, Anika Guevara

Anika Guevara

No abstract provided.

I’M The One Making The Money, Now Where’S My Cut? Revisiting The Student-Athlete As An “Employee” Under The National Labor Relations Act, John J. Leppler

Pace I.P., Sports & Entertainment Law Forum

This Article argues why the National Collegiate Athletic Association’s (NCAA) Big-Time Division I College Football and Men’s Basketball student-athletes are legally “employees” and why these student-athletes are inadequately compensated for their revenue-producing skills.

Part II of this Article sets forth the common law “right of control” test and the National Labor Relation Act’s (NLRA) special statutory test for students in a university setting, and shows how the National Labor Relations Board (NLRB) and the judiciary determine whether a particular person, specifically a university student, meets these standards and is legally an “employee”. Moreover, the NCAA asserts it ...

Veiled Discrimination, Sahar F. Aziz

Sahar F Aziz

Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. An employer’s workplace rules that define professionalism, therefore, are his prerogative and defined by the demands of the marketplace. Underlying this conclusion is the false premise that objective and neutral factors shape modern notions of professionalism. To the contrary, professionalism is a subjective concept dependent on the decision makers’ worldview, norms, values, and definitions of propriety.

Employees who belong to the employer’s social group or fall within society’s majority are advantaged ...

Expert Seminar The Employment Relationship Beyond Eu And Across National Borders - Challenges And Responses Tuesday 11 March 2014, 09.15-16.00, Michele Faioli

Michele Faioli

No abstract provided.