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Full-Text Articles in Law

Freeing Prisoners' Labor, Stephen P. Garvey Dec 2014

Freeing Prisoners' Labor, Stephen P. Garvey

Stephen P. Garvey

Although labor was central to the internal life of the early penitentiary, it has virtually vanished from today's prison. In this article, Professor Garvey proposes making labor once again a key part of the prison regime. During the decades surrounding the turn of the century, organized labor and business successfully lobbied for protectionist state and federal legislation that prohibited private firms from contracting for prison labor and selling prison-made goods on the open market. This legislation abolished the old "contract" system of prison labor and replaced it with the "state-use" system. Under the state-use system, inmates work only for the …


Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab Dec 2014

Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab

Kevin M. Clermont

This Article utilizes the Administrative Office's data to convey the realities of federal employment discrimination litigation. Litigants in these "jobs" cases appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs. These troublesome facts help explain why today fewer plaintiffs are undertaking the frustrating route into federal district court, where plaintiffs must pursue their claims relatively often all the way through trial and where at both pretrial and trial these plaintiffs lose unusually often.


Smith V. Hussman Refrigerator Company: Fair Representation And The Erosion Of Collective Values, Cynthia Grant Bowman Dec 2014

Smith V. Hussman Refrigerator Company: Fair Representation And The Erosion Of Collective Values, Cynthia Grant Bowman

Cynthia Grant Bowman

No abstract provided.


Legal And Ethical Issues Associated With Employee Use Of Social Networks, Gundars Kaupins, Susan Park Dec 2014

Legal And Ethical Issues Associated With Employee Use Of Social Networks, Gundars Kaupins, Susan Park

Susan Park

Social networking sites such as Facebook and Twitter can help employees enhance a company’s marketing, recruiting, security, and safety. However, employee’s use of social networking sites and employers’ access of those sites can result in illegal and unethical behavior, such as discrimination and privacy invasions. Companies must gauge whether and how to rely upon employees’ use of personal social networking sites and how much freedom employees should have in using networks inside and outside of the companies. This research summarizes the latest legal and ethical issues regarding employee use of social networks and provides recommended corporate policies.


Global Laws, Local Lives: Impact Of The New Regionalism On Human Rights Compliance, Stephen J. Powell, Patricia Camino Pérez Dec 2014

Global Laws, Local Lives: Impact Of The New Regionalism On Human Rights Compliance, Stephen J. Powell, Patricia Camino Pérez

Stephen Joseph Powell

Continuation of the brisk pace of international economic growth with its necessarily increased use of natural resources—often at unsustainable levels—and its higher levels of pollution—often at the cost of citizen health—combine with the rules of the global trading system to threaten human rights to health, to freedom from forced or child labor, to non-discrimination, to a fair wage, to a healthy environment, even to democratic governance and participation in the political process. As a result, in recent years a growing number of economists begrudgingly acknowledge the incontrovertible—although presently dysfunctional—linkage between trade and human rights and the need to integrate these …


Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale Nov 2014

Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale

Elizabeth Dale

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights …


The Law Of Gender Stereotyping And The Work-Family Conflicts Of Men, Stephanie Bornstein Nov 2014

The Law Of Gender Stereotyping And The Work-Family Conflicts Of Men, Stephanie Bornstein

Stephanie Bornstein

This Article looks back to the early equal protection jurisprudence of the 1970s and Ruth Bader Ginsburg's litigation strategy of using men as plaintiffs in sex discrimination cases to cast a renewed focus on antidiscrimination law as a means to redress the work-family conflicts of men. From the beginning of her litigation strategy as the head of the ACLU Women's Rights Project, Ginsburg defined sex discrimination as the detrimental effects of gender stereotypes that constrained both men and women from living their lives as they wished-not solely the minority status of women. The same sex-based stereotypes that kept women out …


Caregivers In The Courtroom: The Growing Trend Of Family Responsibilities Discrimination, Joan C. Williams, Stephanie Bornstein Nov 2014

Caregivers In The Courtroom: The Growing Trend Of Family Responsibilities Discrimination, Joan C. Williams, Stephanie Bornstein

Stephanie Bornstein

When people think of sex discrimination, they tend to think of glass-ceiling discrimination and sexual harassment. This article describes and documents a rapidly expanding area of employment discrimination law: family responsibilities discrimination, or "FRD." FRD is employment discrimination against people based on their caregiving responsibilities, whether for children, elderly parents, or ill partners. FRD includes both "maternal wall" discrimination -- the equivalent of the glass ceiling for mothers -- and discrimination against men who participate in childcare or provide care for other family members.


The Evolution Of “Fred”: Family Responsibilities Discrimination And Developments In The Law Of Stereotyping And Implicit Bias, Joan C. Williams, Stephanie Bornstein Nov 2014

The Evolution Of “Fred”: Family Responsibilities Discrimination And Developments In The Law Of Stereotyping And Implicit Bias, Joan C. Williams, Stephanie Bornstein

Stephanie Bornstein

This Article integrates a discussion of current family responsibilities discrimination ("FRD") case law with a discussion of the single most important recent development in the field: the U.S. Equal Employment Opportunity Commission’s ("EEOC") 2007 issuance of Enforcement Guidance on caregiver discrimination. The Guidance concretely informs the public about what constitutes unlawful discrimination against caregivers under Title VII and the Americans with Disabilities Act. Specifically, the Guidance crystallizes two key holdings from case law in regard to Title VII disparate treatment claims brought by caregivers: (1) where plaintiffs have evidence of gender stereotyping, they can make out a prima facie case …


Work, Family, And Discrimination At The Bottom Of The Ladder, Stephanie Bornstein Nov 2014

Work, Family, And Discrimination At The Bottom Of The Ladder, Stephanie Bornstein

Stephanie Bornstein

With limited financial resources, few social supports, and high family caregiving demands, low-wage workers go off to work each day to jobs that offer low pay, few days off, and little flexibility or schedule stability. It should come as no surprise, then, that workers' family lives conflict with their jobs. What is surprising is the response at work when they do. This Article provides a survey of lawsuits brought by low-wage workers against their employers when they were unfairly penalized at work because of their caregiving responsibilities at home. The Article reflects a review of cases brought by low-wage hourly …


Liberty Vs. Equality: In Defense Of Privileged White Males, Nancy E. Dowd Nov 2014

Liberty Vs. Equality: In Defense Of Privileged White Males, Nancy E. Dowd

Nancy Dowd

In this book review, Professor Dowd reviews Forbidden Grounds: The Case Against Employment Discrimination Laws, by Richard A. Epstein (1992). First, Professor Dowd sets forth the thesis and arguments of Epstein’s book and explores her general criticisms in more detail. Next, she explores Epstein’s core argument pitting liberty against equality from two perspectives: that of the privileged white male and that of minorities and women. Finally, Professor Dowd argues that Epstein’s position cannot be viewed as an argument that most minorities or women would make, as it fails to take account of their stories.


Maternity Leave: Taking Sex Differences Into Account, Nancy E. Dowd Nov 2014

Maternity Leave: Taking Sex Differences Into Account, Nancy E. Dowd

Nancy Dowd

This Article focuses on restructuring the workplace in the context of maternity leave. Although most women are no longer, and, indeed, generally cannot be required to take maternity leave, many are not guaranteed leave or may be provided only with inadequate leave. A minority of states have addressed this problem by enacting statutes requiring that all employers provide job-protected maternity leave. Two of the statutes, the California and Montana provisions, have been challenged as discriminatory under Title VII of the Civil Rights Act of 1964 and the equal protection clause of the 14th Amendment, and the Supreme Court has recently …


Bringing The Margin To The Center: Comprehensive Strategies For Work/Family Policies, Nancy E. Dowd Nov 2014

Bringing The Margin To The Center: Comprehensive Strategies For Work/Family Policies, Nancy E. Dowd

Nancy Dowd

The ultimate goal of work/family policy has always seemed deceptively clear: to provide institutional and cultural support to permit a healthy balance between family and work. An implicit assumption of that goal is that it would be achieved without undermining principles of equality. Indeed, the assumed result of work/family balance is that it would help achieve equality: families would be treated equally, caregivers would be supported equally, and children and family members would receive necessary and important care equally. It has long been recognized that work/family balance is especially critical to gender equality. Equality principles require that work/family policy and …


The Metamorphosis Of Comparable Worth, Nancy E. Dowd Nov 2014

The Metamorphosis Of Comparable Worth, Nancy E. Dowd

Nancy Dowd

The concept of comparable worth has as its factual predicate two typical characteristics of women's employment: occupational concentration or segregation and significantly lower wages compared to those paid to men. What continues to be most troubling about this employment pattern is its stubborn persistence, despite the increased presence of women in the workforce and the existence for over two decades of legislation prohibiting sex discrimination in employment. The concept of comparable worth has provoked an outpouring of emotional rhetoric and scholarly analysis debating the concept’s viability and desirability. Rather than add to that debate, Professor Dowd traces the evolution of …


(Re)Constructing The Framework Of Work/Family, Nancy E. Dowd Nov 2014

(Re)Constructing The Framework Of Work/Family, Nancy E. Dowd

Nancy Dowd

When we talk about the connections between work, family, and marriage, what are our assumptions or our implicit model? In this essay, I hope to expose the importance of questioning the framework within which we operate. Marriage continues to be a core focus of the typical family law course. As a matter of public policy, supporting and valuing marriage, and concern about the conflict between work and family because of the strains it imposes on marriage, makes balancing work and family within a marital framework a focus of law and policy. In this essay, I argue that we need to …


Invisible No More: Domestic Workers Organizing In Massachusetts And Beyond, Natalicia Tracy, Tim Sieber, Susan Moir Scd Oct 2014

Invisible No More: Domestic Workers Organizing In Massachusetts And Beyond, Natalicia Tracy, Tim Sieber, Susan Moir Scd

Tim Sieber

Domestic workers across the country are making it clear that, even in a difficult political environment, it is possible to make gains for low-wage workers. For the first time in many, many decades, domestic workers are finding ways to win. They are creat
ing policy change that will improve the lives of hundreds of thousands of workers in tangible and substantial ways. The 2014 Massachusetts Domestic Workers’ Bill of Rights is the most expansive codification of rights for this long-overlooked part of the labor force ever to be enacted. In one sense, there is nothing new about domestic workers organizing …


Wimberly And Beyond: Analyzing The Refusal To Award Unemployment Compensation To Women Who Terminate Prior Employment Due To Pregnancy, Mary F. Radford Oct 2014

Wimberly And Beyond: Analyzing The Refusal To Award Unemployment Compensation To Women Who Terminate Prior Employment Due To Pregnancy, Mary F. Radford

Mary F. Radford

In Wimberly v. Labor & Industrial Relations Commission, the Supreme Court interpreted section 3304(a)(12) of the Federal Unemployment Tax Act (FUTA), which requires that states not dent unemployment benefits "solely on the basis of pregnancy," as an antidiscrimination statue, rather that one requiring preferential treatment for pregnant and formerly pregnant women. Professor Mary Radford argues that given the ambiguous legislative history and other Supreme Court precedent in the area of unemployment compensation, Wimberly could just as easily have held that FUTA's language requires preferential treatment to pregnant and formerly pregnant women. She further argues that given the current realities that …


Punitive Injunctions, Nirej S. Sekhon Oct 2014

Punitive Injunctions, Nirej S. Sekhon

Nirej Sekhon

No abstract provided.


Class Actions Under The Age Discrimination In Employment Act: The Question Is Why Not?, Anne S. Emanuel Oct 2014

Class Actions Under The Age Discrimination In Employment Act: The Question Is Why Not?, Anne S. Emanuel

Anne S. Emanuel

No abstract provided.


Bottom-Up Workplace Law Enforcement, Charlotte S. Alexander, Arthi Prasad Oct 2014

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

Charlotte S. Alexander

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.


Litigating For The Future Of Public Pensions, Paul Secunda Aug 2014

Litigating For The Future Of Public Pensions, Paul Secunda

Paul M. Secunda

Public pensions are horribly unfunded, millions of public employees are being forced to make greater contributions to their pensions, retirees are being forced to take benefit cuts, retirement ages and service requirements are being increased, and the list goes on and on. These alarming developments involve all level of American government, from the recent move to require new federal employees to contribute more to their pensions, to the significant underfunding of state and local public pension funds across the country, to the sad spectacle of the Detroit municipal bankruptcy where the plight of public pensions plays a leading role in …


The Nba's 2011 Collectively Bargained Amnesty Clause-Exploring The Fundamentals, Adam Epstein, Kathryn Kisska-Schulze Jul 2014

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 …


Book Review: A Life In Struggle With The Law - Review Of: J. B. Mclachlan: A Biography, By David Frank, Eric Tucker Jul 2014

Book Review: A Life In Struggle With The Law - Review Of: J. B. Mclachlan: A Biography, By David Frank, Eric Tucker

Eric M. Tucker

No abstract provided.


Hersees Of Woodstock Ltd. V. Goldstein: A Small Town Case Makes It Big, Eric M. Tucker Jul 2014

Hersees Of Woodstock Ltd. V. Goldstein: A Small Town Case Makes It Big, Eric M. Tucker

Eric M. Tucker

No abstract provided.


Can Worker Voice Strike Back? Law And The Decline And Uncertain Future Of Strikes, Eric Tucker Jul 2014

Can Worker Voice Strike Back? Law And The Decline And Uncertain Future Of Strikes, Eric Tucker

Eric M. Tucker

This paper examines strikes as an expression of worker voice. It begins with a discussion of the connection between voice and strikes. It then documents the sharp decline in strike frequency across the common law world. It looks more closely at strike rates in Canada, where strike rates have declined in both the public and private sectors and at a greater rate than the decline in union density. It then considers the role of law in decline from the perspective that structural factors primarily shape the environment for strikes but that labour law mediates their impact to a degree. It …


Old Lessons For New Governance: Safety Or Profit And The New Conventional Wisdom, Eric Tucker Jul 2014

Old Lessons For New Governance: Safety Or Profit And The New Conventional Wisdom, Eric Tucker

Eric M. Tucker

New governance theory has a large following in academia and is exerting an influence in numerous spheres of regulatory policy. Yet in the area of occupational health and safety, new governance is hardly new at all. Indeed, it is fair to say that it in many ways what are now labelled new governance concepts were first articulated and applied in the 1972 Robens Report, Safety and Health at Work. This included its critique of command and control legislation and its emphasis on the need to develop better self-regulation. This paper critically examines new governance models in OHS regulation. In the …


Labour Law, Eric M. Tucker Jul 2014

Labour Law, Eric M. Tucker

Eric M. Tucker

No abstract provided.


Voices At Work In North America: Introduction, Sara Slinn, Eric Tucker Jul 2014

Voices At Work In North America: Introduction, Sara Slinn, Eric Tucker

Eric M. Tucker

No abstract provided.


New Approaches To Enforcement And Compliance With Labour Regulatory Standards: The Case Of Ontario, Canada, Leah F. Vosko, Eric Tucker, Mary Gellatly, Mark P. Thomas Jul 2014

New Approaches To Enforcement And Compliance With Labour Regulatory Standards: The Case Of Ontario, Canada, Leah F. Vosko, Eric Tucker, Mary Gellatly, Mark P. Thomas

Eric M. Tucker

This report maps current enforcement and compliance measures and practices in Ontario’s regulation of employment, particularly as they relate to precarious employment. It evaluates the effectiveness of Ontario’s enforcement regimes, focusing on Employment Standards (ES) and Occupational Health and Safety (OHS) legislation, and sets these regimes in the context of those operating in jurisdictions across and outside Canada. Through this process, it identifies and evaluates potential reforms to improve regulatory effectiveness, particularly for workers in precarious jobs. The central argument is that there are fundamental deficiencies in both of these enforcement regimes: each, albeit in different ways, is out of …


The Law Of Employers' Liability In Ontario 1861-1900: The Search For A Theory, Eric Tucker Jul 2014

The Law Of Employers' Liability In Ontario 1861-1900: The Search For A Theory, Eric Tucker

Eric M. Tucker

In examining developments in Ontario's law of employers' liability during the latter half of the nineteenth century, Professor Tucker notes the striking changes - in doctrine, style of reasoning and judicial attitude - toward compensation for injured workers that came about following legislative modification of the common law in this area in 1886. He then discusses a number of theoretical frameworks that might explain the changes in legal response to industrial capitalism in that period, and finds that they do not adequately account for the observed changes. Finally, he develops the outline of a theory of the relative autonomy of …