Law Commons^™

Comment: Unconstitutional Accountability In The Department Of Veterans Affairs, Ian Pomplin

Marquette Benefits and Social Welfare Law Review

The Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, Pub. L. No. 115-41, 131 Stat. 862 (2017), was enacted into law on June 23, 2017, in an effort to reform a troubled government agency that has had the media shine a spotlight on its abuses and waste. This new law significantly lowers the standard of evidence to take adverse actions against federal employees at the Department of Veterans Affairs, overrides collective bargaining agreements, and greatly shortens notice and response time periods that are constitutionally guaranteed. This comment will discuss the history of due process in federal employment, …

Qualified Immunity: 1983 Litigation In The Public Employment Context, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Title Ix Sexual Assault Investigations In Public Institutions Of Higher Education: Constitutional Due Process Implications Of The Evidentiary Standard Set Forth In The Department Of Education's 2011 Dear Colleague Letter, Lance Toron Houston

Hofstra Labor & Employment Law Journal

This Article examines the constitutional due process impact of the vastly opposite and conflicting standards of review in Title IX sexual assault investigations. Thousands of unionized public employees are subject to the terms and conditions of a public university collective bargaining agreement, which requires a heightened standard of "clear and convincing evidence" to discipline employees. At the same timeperhaps unknowingly-the employee is also held to the strict federally mandated standard of a "preponderance of the evidence," which has a lower standard of review. In short, under the same facts and within the same Title IX investigation, the employee is subject …

Labor And Employment Arbitration Today: Mid-Life Crisis Or New Golden Age?, Theodore J. St. Antonie

Articles

The major developments in employer-employee arbitration currently do not involve labor arbitration, that is, arbitration between employers and unions. The focus is on employment arbitration, arbitration between employers and individual employees. Beginning around 1980, nearly all the states judicially modified the standard American doctrine of employment-at-will whereby, absent a statutory or contractual prohibition, an employer could fire an employee "for good cause, for no cause, or even for cause morally wrong." Under the new regime, grounded in expansive contract and public policy theories, wrongfully discharged employees often reaped bonanzas in court suits, with California jury awards averaging around $425,000." Many …

Newsroom: Monestier On Long-Arm Jurisdiction, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Qualified Immunity: 1983 Litigation In The Public Employment Context, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Stuck Between A Lump Of Coal And A Hard Place: The Mine Safety And Health Administration's Struggle With Due Process And America's Coal Industry, Patrick R. Baker

West Virginia Law Review

No abstract provided.

Raising The Floor Of Company Conduct: Deriving Public Policy From The Constitution In An Employment-At-Will Arena, Steven J. Mulroy, Amy H. Moorman

Florida State University Law Review

No abstract provided.

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

Touro Law Review

No abstract provided.

Due Process In Unemployment Insurance Adjudication: Overview Of The Unemployment Insurance System, Frank J. Barbaro

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Security Clearance Review: Employees Of American Industry Vis-A-Vis Civil Servants And Military Members, Robert Robinson Gales

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Judicial Impartiality In Employment Cases - Judge As Witness Before Himself: Walter Lee Hearne V. Wayne Sherman, Health Director Of Chatham County, Monique Shamun

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Court Of Special Appeals Of Maryland Holds No Res Judicata, No Double Jeopardy, And No Due Process Violation In State Employee Termination. Maryland State Department Of Education V. Douglas Shoop, Sama Shabib

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

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 …

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

The Unconstitutionality Of Mississippi's Employment Protection Act And A Framework For Assessing Similar State Immigration Employment Laws, Nicholas Neidzwski

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Darned If You Due Process, Darned If You Don't! Understanding The Due Process Dilemma For Punitive Damages In Title Vii Class Actions, Paul Edgar Harold, Tracy L. Cole

University of Arkansas at Little Rock Law Review

When Congress expanded the remedies available to Title VII the plaintiffs in the Civil Rights Act of 1991 to include compensatory and punitive damages, it did not realize that it was creating a minefield for certifying would-be Title VII class actions. The Fifth Circuit thoroughly explored many of the new pitfalls and hazards in its landmark opinion in Allison v. Citgo Petroleum Corp. This article attempts to critically evaluate a recent post-Allison trend whereby Title VII plaintiffs seeking class certification have foregone their claims for compensatory damages while still seeking punitive damages. Plaintiffs, relying on the Supreme Court's recent cases …

Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine

Articles

"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …

A Question Of Fairness: The Proper Standard Of Review Of School Board Just And Reasonable Cause Determinations In Teacher Termination Proceedings In Idaho, John E. Rumel

Articles

No abstract provided.

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

Articles

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

Articles

Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine

Articles

One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that …

Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine

Articles

Would employees-including union employees-be better off with mandatory arbitration, even of statutory employment claims? The answer to this important question should depend less on abstract notions about the importance of statutory claims and the sanctity of the right to a jury trial, and more on a pragmatic assessment of what is likely to be best for the great majority of workers. Employing this type of analysis, which would take into account an overworked, underfunded Equal Employment Opportunity Commission, backlogged court dockets and other practical problems, my view is that most employees might well be better off with mandatory arbitration, provided …

Essay: Torquemada And Unemployment Compensation Appeals, William W. Milligan

University of Michigan Journal of Law Reform

The premise of this Essay is that unemployment compensation appeals hearings take the form of inquests rather than follow the traditional adversarial model. Given this, the hearing officer carries a special burden of ensuring that due process is afforded. State review systems should structure the process so that the difference, along with the unique burden, is made explicit.

Arbitration: Back To The Future, Theodore J. St. Antoine

Other Publications

A strong new ideological current is sweeping through much of the Western World. At one extreme it manifests itself as a deep distrust of big government. In more modest form, it is a sense of skepticism or disillusionment about the capacity of big government to deal effectively with the problems confronting our society. In continental Europe today there is much talk of the principle of "subsidiarity," the notion that social and economic ills should be treated at the lowest level feasible, usually the level closest to the people directly affected. In the United States there is much talk of "privatization," …

Due Process Review Under The Railway Labor Act, Christopher L. Sagers

Michigan Law Review

This Note contends that the RLA prohibits due process review and further argues that such a result is constitutional. Part I examines the statutory language of the RLA itself and contends that it limits district court review to the three statutory grounds. Part II argues that the Supreme Court's opinion in Sheehan reaffirms this interpretation because the Court's language unmistakably conveys an intent to bar due process review. Part III explains that such a limitation does not violate the Constitution. The only constitutional provision that could be implicated in an RLA proceeding, the right of procedural due process, is protected …

Worker Profiling And Due Process, P. Maureen Bock-Dill

University of Michigan Journal of Law Reform

Abstract for a piece in the 1995 Unemployment Compensation: Continuity and Change symposium presented by the Advisory Council on Unemployment Compensation and the University of Michigan Journal of Law Reform.

Due Process Implications Of Telephone Hearings: The Case For An Individual Approach To Scheduling Telephone Hearings, Allan A. Toubman, Tim Mcardle, Linda Rogers-Tomer

University of Michigan Journal of Law Reform

Abstract for a piece in the 1995 Unemployment Compensation: Continuity and Change symposium presented by the Advisory Council on Unemployment Compensation and the University of Michigan Journal of Law Reform.

Due Process Review Under The Railway Labor Act, Chris Sagers

Law Faculty Articles and Essays

The federal government regulates disputes between organized labor and management in a wide range of private industries. Most disputes are governed by the Labor-Management Relations Act (LMRA), which both protects the rights of management and organized labor and establishes a comprehensive scheme of dispute resolution. The Railway Labor Act (RLA), however, creates a regime unique to the railroad and airline industries. It requires that certain claims between the covered employers -- known in the RLA as “carriers” -- and their employees be settled by submission to the RLA statutory arbitration scheme. Under this scheme, parties must resolve disputes “in the …

The Constitutionality Of Employer-Accessible Child Abuse Registries: Due Process Implications Of Governmental Occupational Blacklisting, Michael R. Phillips

Michigan Law Review

This Note discusses the due process implications of permitting employer access to state child abuse registries when disclosure affects registry members' employment.