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Articles 1 - 30 of 52
Full-Text Articles in Law
State Legislative Update, M. Katherine Kerbs, Katherine E. Mcmurtrey, Courtney Lauer, Theresa Mullineaux
State Legislative Update, M. Katherine Kerbs, Katherine E. Mcmurtrey, Courtney Lauer, Theresa Mullineaux
Journal of Dispute Resolution
Mediation is a non-binding type of dispute resolution. Mediation is a process where a neutral, third party with no authoritative decision-making power assists parties in a dispute to voluntarily reach a mutually acceptable agreement. The legal community has encouraged alternative dispute resolution, including mediation. With mediation as the primary alternative dispute resolution type in the federal district courts, it is now even more important that legislation surrounding mediation and confidentiality is created. In fact, over half of the ninety-four federal court districts now offer, and in most instances, require mediation.
Causation Confusion: Missouri’S Adoption Of A Contributing Factor Standard For Workers’ Compensation Retaliation Claims, Suzanne L. Specker
Causation Confusion: Missouri’S Adoption Of A Contributing Factor Standard For Workers’ Compensation Retaliation Claims, Suzanne L. Specker
Missouri Law Review
As this Note argues, the exclusive cause standard frustrated the statute’s purpose and effectively sanctioned employer discrimination and retaliation against employees who filed workers’ compensation claims. In Templemire v. W&M Welding, Inc., the Supreme Court of Missouri corrected this mistake by adopting the “contributing factor” causation standard in lieu of the exclusive cause standard.10 In Part II, this Note analyzes the facts and holding of Templemire v. W&M Welding, Inc. Next, in Part III, this Note explores the legal background of Missouri’s workers’ compensation laws, the historical context and policy considerations behind the development of Section 287.780, and the judicial …
Userra Oxymoron: Termination As A Valid Reemployment Position, The, Breanna Hance
Userra Oxymoron: Termination As A Valid Reemployment Position, The, Breanna Hance
Missouri Law Review
This Note assesses Milhauser’s impact on reemployment claims under USERRA. Part II begins with an analysis of the facts and holding of the case. Next, Part III synthesizes the background of USERRA, provides an overview of the statute, and introduces the escalator principle. Part IV outlines the court’s rationale in deciding Milhauser. Finally, Part V discusses the impact of Milhauser on USERRA reemployment claims. This Note argues that: (1) the court’s reliance on USERRA regulation § 1002.194 was misplaced because the court’s interpretation presents a conflict between two sections of the statute and creates burden of proof issues; (2) the …
Correcting A Flaw In The Arbitration Fairness Act, Imre Stephen Szalai
Correcting A Flaw In The Arbitration Fairness Act, Imre Stephen Szalai
Journal of Dispute Resolution
The proposed Arbitration Fairness Act of 2013 will ban courts from enforcing arbitration agreements in the employment and consumer contexts. This law will protect America's employees and consumers by keeping the courthouse door open to critical civil rights, employment, and consumer protection litigation. However, the proposed Arbitration Fairness Act suffers from a subtle flaw: it is uncertain whether the law will apply to the states. This flaw, which arises from one of the greatest constitutional errors the Supreme Court has ever made, must be corrected in order to provide the broadest protection to millions of American employees and consumers, and …
Equal Exposure Brews Frustration For Employees: Court Filters Personal Comfort Doctrine Through Workers' Compensation Amendments, Breanna Hance
Equal Exposure Brews Frustration For Employees: Court Filters Personal Comfort Doctrine Through Workers' Compensation Amendments, Breanna Hance
Missouri Law Review
This Note will examine the status of the “arising out of and in the course of employment” requirement after Johme. Part II begins with an analysis of the facts and holding of Johme. Next, Part III synthesizes the background of workers’ compensation laws in Missouri, including the establishment of the workers’ compensation system, the development of the personal comfort doctrine, the 2005 statutory revisions, and two post-2005 cases interpreting the changes. Part IV outlines the court’s rationale in deciding Johme. Finally, Part V discusses the impact of Johme on the “arising out of and in the course of employment” requirement. …
Law School Marketing And Legal Ethics, Ben L. Trachtenberg
Law School Marketing And Legal Ethics, Ben L. Trachtenberg
Faculty Publications
Law schools have misled prospective students for years about the value of legal education. In some cases, law school officials have engaged in outright deceit, knowingly spreading false information about their schools. More commonly, they have presented statistics — especially those concerning the employment outcomes of law graduates — in ways nearly guaranteed to confuse readers. These deceptions and sharp practices violate the norms of the legal profession, a profession that scrupulously regulates the advertising of legal services. The deceptions also violate ethical rules prohibiting lawyers from engaging in dishonesty, misrepresentation, and deceit. This article exposes how pitches aimed at …
Labor-Relations Privilege: How Far Can We Tip The Scales To Hide The Truth, The, Joanna L. Byrne
Labor-Relations Privilege: How Far Can We Tip The Scales To Hide The Truth, The, Joanna L. Byrne
Journal of Dispute Resolution
In order to understand the precise effect the Peterson holding will have on labor-relations law and privilege creation, it is important to first understand how privileges have been created in the past, both traditionally and divergently. Next, it is important to apply the historical context of privilege creation to understand the critical thinking that determines when and how a new privilege should apply. Further, it is important to compare and contrast labor-relations privileges with other privileges in order to create proper limits and application of the labor-relations privilege. Applying this analytical framework to the facts, holding, and reasoning of the …
Regulators, Mount Up, Ben L. Trachtenberg
Regulators, Mount Up, Ben L. Trachtenberg
Faculty Publications
Since I began circulating drafts of an article arguing that certain law school officials have exposed themselves to professional discipline by engaging in dishonest marketing tactics, responses have varied considerably. Everyone seems to agree, however, that law school officials should not lie in their pursuit of students. There also appears to be broad consensus that misleading (albeit not intentionally false) marketing—such as systematically skewed salary statistics—is an unfortunate phenomenon, although disagreement remains on just how serious a problem it is and what level of corrective effort is appropriate. In their recently-published response pieces, Kyle McEntee of Law School Transparency (“LST”) …
Title Vii Works - That's Why We Don't Like It, Chuck Henson
Title Vii Works - That's Why We Don't Like It, Chuck Henson
Faculty Publications
In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …
Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone
Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone
Missouri Law Review
This Article argues that the stray comments "doctrine" does more harm than good and that those courts wishing to grant a defendant summary judgment on a claim should have to do so by looking at the totality of the circumstances, rather than summarily using a single facet of a comment to dismiss it from consideration. It points out that the doctrine and its premises fail to comport with even a basic understanding of social science and how people foment, act upon, and reveal discriminatory bias. Interestingly, another judge-made doctrine built into employment discrimination law - the same actor inference - …
Missouri Courts Side With Employees Against The Eighth Circuit: Continued Employment Does Not Constitute Acceptance And Consideration For Mandatory Arbitration Agreements: Frye V. Speedway Chevrolet Cadillac, Laura Browne
Journal of Dispute Resolution
The question of whether continued employment constitutes acceptance and consideration for an employment contract, particularly applied to mandatory arbitration clauses, has split the authorities who decide on cases arising out of Missouri. The United States Court of Appeals for the Eighth Circuit, while purporting to apply Missouri law in cases arising out of Missouri, holds that an employee who continues to work for his or her employer after an arbitration program has been implemented is bound by it by the virtue of his or her continued employment. Missouri courts, however, disagree with this interpretation of Missouri law and held in …
Eeoc Reinforces Broad Interpretation Of Adaaa Disability Qualification: But What Does Substantially Limits Mean, Carol J. Miller
Eeoc Reinforces Broad Interpretation Of Adaaa Disability Qualification: But What Does Substantially Limits Mean, Carol J. Miller
Missouri Law Review
Part I of this Article recognizes the difficulty in calculating how many workers are disabled. Such difficulties have been used by the courts to justify differing interpretations of what constitutes a disability. This Part also discusses the origin of the ADA and provides a brief overview of the 2008 ADAAA. Part I of the Article examines the United States Supreme Court's interpretations that narrowed the construction of what is a "substantial limitation" and what is an ADA disability. This Part highlights the lack of consensus between the courts, Congress, and the EEOC, as well as the courts' apparent disregard of …
Employees' Decade: Recent Developments Under The Mhra And The Employers' Potential Rebound, The, Dane C. Martin
Employees' Decade: Recent Developments Under The Mhra And The Employers' Potential Rebound, The, Dane C. Martin
Missouri Law Review
This Note will identify the considerable changes and varying interpretations of the MHRA over the last decade, analyze the optimal balance between the competing, important interests, and determine any potential need for amendment, including consideration of the various proposals currently before the legislature. Part 11 thus analyzes the four major areas of difficulty in the adjudication of MHRA claims in the last decade, including jury trials, available damages, the burden of proof, and individual liability. Next, Part III recognizes the most recent developments under the MHRA. And lastly, Part IV involves a two-part discussion beginning with the policy and effect …
Resurrection Of A Dead Remedy: Bringing Common Law Negligence Back Into Employment Law, Amanda Yoder
Resurrection Of A Dead Remedy: Bringing Common Law Negligence Back Into Employment Law, Amanda Yoder
Missouri Law Review
Prior to the enactment of workers' compensation laws' across the United States and in Missouri, many employees injured on the job were left with no redress. In 1921, less than 3,000 of the nearly 50,000 employees injured in Missouri received compensation.2 During this time, an estimated 25,000 employees died on the job in industrial accidents but less than twenty percent of their families received compensation.3 Those families that were compen- sated still had to bear the cost and delay of litigation.4 In response, legislatures sought to protect employees from the risks of the workplace and transfer the burden of recovery …
Anti-Discrimination Law In Peril, Trina Jones
Anti-Discrimination Law In Peril, Trina Jones
Missouri Law Review
In this short Essay, I explore the tendency of courts to summarily dismiss employment discrimination claims and consider whether the judicial skepticism, if not outright hostility, we are witnessing is limited to statutory actions under Title VII or is instead part of a broader movement against discrimination claims. In Part II, I suggest that between 1973, when McDonnell Douglas was decided, and 2009 societal beliefs about the prevalence of discrimination in the United States changed. In 1973, as the country emerged from the Jim Crow era, the presumption was one of widespread discrimination. Today, in so-called "post-racial" America, an opposite …
Pretext In Peril, Natasha T. Martin
Pretext In Peril, Natasha T. Martin
Missouri Law Review
This Article addresses the connections among substance, procedure, and equality in the American workplace. Exploring the deepening struggle for plaintifs under Title VII of the Civil Rights Act of 1964, this Article seeks to add clarity to an enduring quandary - why does Title VII fail to combat the prejudicial disparate treatment it was designed to eradicate? This Article offers a critique of the hardships shouldered by plaintiffs in proving contemporary workplace discrimination. Challenging the seemingly unfettered discretion of the courts in evaluating claims of workplace bias, this Article pursues the interplay of procedural and substantive law to expose how …
Pretext Without Context, D. Wendy Greene
Pretext Without Context, D. Wendy Greene
Missouri Law Review
First, this response addresses the lower courts' opinions in Ash v. Tyson Foods, Inc., as well as the Supreme Court's per curiam opinion in this case, which espouses a more contextualized analysis of pretext in race-based disparate treatment cases. Next, this response examines Holiness v. MooreHandley, Inc. and the acontextual, colorblind analysis the court applied. Each case illustrates the negative effects of courts analyzing pretext without context at different stages of race discrimination litigation: during post-trial phases in Ash v. Tyson Foods, Inc. and at the summary judgment stage in Holiness v. Moore-Handley, Inc. Ash v. Tyson Foods, Inc. and …
Discrimination Redefined, Ann. C. Mcginley
Discrimination Redefined, Ann. C. Mcginley
Missouri Law Review
I agree with Professor Martin's premise that it has become increasingly difficult to prove disparate treatment, especially in light of courts' aggressive use of summary judgment. I argue in this essay that the courts' retrenchment in Title VII cases results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of"pretext." Moreover, I posit that the recent Supreme Court case of Ricci v. …
Evolving Schizophrenic Nature Of Labor Arbitration, The, Martin H. Malin
Evolving Schizophrenic Nature Of Labor Arbitration, The, Martin H. Malin
Journal of Dispute Resolution
Commentators have rightly criticized Pyett for its complete disregard of decades of established precedent. In this article, however, I situate the Pyett decision in the context of an ongoing evolution in labor arbitration as that institution has tried to accommodate the intrusion of public law claims into a private system of workplace self-governance. I suggest that labor arbitration has developed a kind of schizophrenic existence, preserving its role as a substitute for strikes and other workplace strife in a private system of self-governance while accommodating an additional role as a substitute for litigation of public law claims. Nevertheless, I find …
Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges
Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges
Journal of Dispute Resolution
First, the article will review the history of arbitration of statutory employment claims, including the Pyett decision. Second, the article will look at the history and causes of legalism in arbitration. Then the article will consider the probable responses of employers and unions to Pyett. While predictions are necessarily speculative, it is likely that some unionized employers will seek to require employees to arbitrate statutory claims, perhaps in higher percentages than in the nonunion workplace. While unions may, and perhaps should, resist, many future collective bargaining agreements (CBAs) may contain such provisions. The article then discusses the alternative dispute resolution …
Mediation In Employment And Creeping Legalism: Implications For Dispute Systems Design, Lisa Blomgren Bingham, Susan Summers Raines, Timothy Hedeen, Lisa Marie Napoli
Mediation In Employment And Creeping Legalism: Implications For Dispute Systems Design, Lisa Blomgren Bingham, Susan Summers Raines, Timothy Hedeen, Lisa Marie Napoli
Journal of Dispute Resolution
This article will explore the question of creeping legalism in mediation of statutory disputes arising out of employment. First, it will briefly review the issue of creeping legalism in arbitration. Second, it will introduce dispute systems design (DSD). Third, it will review the analogous debate on legalism in mediation in three design contexts: evaluative mediation of employment disputes in the court-connected setting, grievance mediation embedded in the collective bargaining agreement, and transformative mediation of employment disputes in the United States Postal Service's (USPS's) REDRESS program. Most employees do not face a choice among mediation models; instead, they choose among adjudicative …
Missouri's Section 287.865.5 Proof Of Claim Filing Requirement: Are Injured Employees Getting A Fair Shake, Carrie B. Williamson
Missouri's Section 287.865.5 Proof Of Claim Filing Requirement: Are Injured Employees Getting A Fair Shake, Carrie B. Williamson
Missouri Law Review
This Article argues that Section 287.865.5's bankruptcy proof of claim filing requirement is bad law because it runs counter to the purposes of Missouri's workers' compensation system. It also reveals significant gaps found at the confluence of workers' compensation law and bankruptcy law and exacerbates cracks in the systems. The cracks in turn become traps for the unwary injured worker. Because of these problems, the Section 287.865.5 proof of claim filing requirement should be amended so that it operates more in harmony with federal bankruptcy law. This Article proposes several amendments to the statutory provisions pertaining to the proof of …
Not Taking Care Of Business: State Responds To The Employee Free Choice Act, Preemption, And The Nlra, Mega Maskery Luecke
Not Taking Care Of Business: State Responds To The Employee Free Choice Act, Preemption, And The Nlra, Mega Maskery Luecke
Missouri Law Review
In 2009, Senator Ted Kennedy (D-MA) and Representative George Miller (D-CA) introduced legislation in their respective chambers that would significantly change how workers form unions under the National Labor Relations Act (NLRA). Under the current process, at least thirty percent of a company's employees must first sign cards that accompany a petition requesting union representation, after which the employees or the employer can ask the National Labor Relations Board (NLRB) to hold a secret ballot election to poll employees on the issue of whether a majority wants to be represented by a union. If passed, the Employee Free Choice Act …
High Cost Of Low-Cost Workers: Missouri Enacts New Law Targeting Employers Of Unauthorized Workers, The, Michael B. Barnett
High Cost Of Low-Cost Workers: Missouri Enacts New Law Targeting Employers Of Unauthorized Workers, The, Michael B. Barnett
Missouri Law Review
This note seeks to explain Missouri's enactment of a law requiring use of E-Verify by certain employers, track recent developments that have made it more difficult to employ unauthorized workers, and advocate the position that this legislation will be upheld in the face of legal challenges. The following Section addresses federal immigration law and the subsequent creation of the E-Verify program. It also examines Missouri's recent enactment that requires some employers to enroll in the E-Verify program and provides stiff penalties for any entity that employs unauthorized workers. Section III considers recent cases out of Arizona, Oklahoma, and Missouri that …
Elevator Company Goes Down: Mandatory Arbitration Provisions As Applied To Pending Civil Rights Claims In The Employment Context, Miranda Fleschert
Elevator Company Goes Down: Mandatory Arbitration Provisions As Applied To Pending Civil Rights Claims In The Employment Context, Miranda Fleschert
Journal of Dispute Resolution
In Goldsmith v. Bagby Elevator Company, the Eleventh Circuit Court of Appeals carved a distinction in the employment context between mandatory predispute arbitration agreements and compulsory arbitration agreements as applied to pending claims of discrimination. In doing so, the court warns employers that any effort to terminate an employee's rights with respect to a pending Equal Employment Opportunity Commission ("EEOC") claim by instituting a mandatory arbitration provision will be seen as impermissibly retaliatory. Amid the backdrop of a case in which supervisors routinely called black employees "monkeys," "slaves," and "niggers," the court makes a well-meaning attempt at preserving employees' statutorily …
Knowing And Voluntary Standard: Is The Sixth Circuit's Test Enough To Level The Playing Field In Mandatory Employment Arbitration, The, Christina Semmer
Knowing And Voluntary Standard: Is The Sixth Circuit's Test Enough To Level The Playing Field In Mandatory Employment Arbitration, The, Christina Semmer
Journal of Dispute Resolution
Most courts require that for an individual to waive her Seventh Amendment right to trial by jury, she must knowingly and voluntarily waive that right. This heightened requirement for waiver exists because the United States Supreme Court has found that "[tlhe trial by jury is justly dear to the American people... and every encroachment upon it has been watched with great jealousy." Seemingly this standard should apply to mandatory employment arbitration agreements, as shifting the venue from the courts to the arbitral tribunal implicitly means waiving the right to trial by jury. However, because the Federal Arbitration Act ("FAA") requires …
The Application Of Rfra To Override Employment Nondiscrimination Clauses Embedded In Federal Social Services Programs, Carl H. Esbeck
The Application Of Rfra To Override Employment Nondiscrimination Clauses Embedded In Federal Social Services Programs, Carl H. Esbeck
Faculty Publications
General federal employment nondiscrimination legislation permits religious organizations to take religion into account when making employment decisions. However, some federal social service programs have embedded in their authorizing legislation a nondiscrimination clause binding on recipients of program grants. And a few of these embedded clauses require that grantees (including religious grantees) not discriminate in employment on the basis of religion. This extended essay demonstrates how the Religious Freedom Restoration Act of 1993 overrides these employment nondiscrimination clauses when applied to faith-based social service grantees. Not only is this the conclusion of the U.S. Department of Justice in its policy announced …
Pragmatism Over Politics: Recent Trends In Lower Court Employment Discrimination Jurisprudence, Lee Reeves
Pragmatism Over Politics: Recent Trends In Lower Court Employment Discrimination Jurisprudence, Lee Reeves
Missouri Law Review
This Article has five parts. After considering empirical evidence, Part I concludes that judges' political ideology plays only a limited role in their decisionmaking. Part II identifies the increase in case filings over the last two decades as a likely non-ideological cause of the increased judicial skepticism towards claims of employment discrimination. This Part begins by examining aggregate trends in the district and appellate caseload and then translates caseload into the more meaningful metric of workload. Part II next evaluates various steps courts have taken to handle these workload increases. Finally, Part II concludes with a discussion of why employment …
Unreasonable - Missouri Rejects A Reasonable Person Standard For Determining Co-Employee Liability Under Badami's Something More Test, Richard D. Worth
Unreasonable - Missouri Rejects A Reasonable Person Standard For Determining Co-Employee Liability Under Badami's Something More Test, Richard D. Worth
Missouri Law Review
Missouri's workers' compensation law has changed dramatically since its common law inception. Co-employee liability for injuries caused to fellow employees has shadowed this change. At common law, employers were not liable for injuries to their employees caused by the actions of fellow employees. However, Missouri's adoption of the Workers' Compensation Act in 1926 shifted the burden of liability for work-related injuries from employees to employers and the general public. Although employers now bear the burden of work-related injures to their employees, Missouri has continued to recognize co-employee liability, but only under limited circumstances. For an employee to lose immunity from …
Employers Beware: The Missouri Court Of Appeals Takes A Bit Out Of The Employment At-Will Doctrine, Daniel P. O'Donnell Jr.
Employers Beware: The Missouri Court Of Appeals Takes A Bit Out Of The Employment At-Will Doctrine, Daniel P. O'Donnell Jr.
Missouri Law Review
In Dunn v. Enterprise Rent-A-Car Co., the Court of Appeals for the Eastern District of Missouri held that Thomas P. Dunn had presented sufficient evidence to state a cause of action for wrongful discharge for refusing to engage in conduct and for reporting conduct which he reasonably believed violated federal securities laws. Dunn continued Missouri's trend of expanding the availability of wrongful discharge actions to at-will employees terminated in contravention of public policy by merely requiring that the employee "reasonably believe" the instances at issue violate the law. This Note argues that the Eastern District was correct in extending the …