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Articles 1 - 30 of 271
Full-Text Articles in Law
Rigid Rideshares And The Driver Flexibility Myth, Seth Goldstein
Rigid Rideshares And The Driver Flexibility Myth, Seth Goldstein
St. John's Law Review
(Excerpt)
In 2018, Uber, Lyft, and similar organizations spent $224 million to ensure that Proposition 22 ("Prop. 22") passed in California, reclassifying gig workers as independent contractors, but with some rights not typically guaranteed to independent contractors. Through the most expensive ballot measure in U.S. history at that point, Uber and Lyft argued that to preserve flexibility for drivers, they must remain as independent contractors under the law. However, Prop. 22 did not increase driver benefits nor provide any assurances of flexibility. Many workers in California "regret casting their ballots for Prop. 22" and "feel deceived" by Uber and Lyft. …
All Along The New Watchtower: Artificial Intelligence, Workplace Monitoring, Automation, And The National Labor Relations Act, Bradford J. Kelley
All Along The New Watchtower: Artificial Intelligence, Workplace Monitoring, Automation, And The National Labor Relations Act, Bradford J. Kelley
Marquette Law Review
Recent technological advances have dramatically expanded employers’ ability to electronically monitor and manage employees within the workplace. New technologies, including tools powered by artificial intelligence, are being used in the workplace for a wide range of purposes such as measuring employee work rates, preventing theft, and monitoring drivers with GPS tracking devices. These technologies offer potential solutions for many companies that may increase efficiencies and support operations, dramatically reduce human bias, prevent discrimination and harassment, and improve worker health and safety. Despite these potential benefits, the use of these technologies may raise concerns under the National Labor Relations Act (NLRA), …
Mobilizable Labor Law, Scott L. Cummings, Andrew Elmore
Mobilizable Labor Law, Scott L. Cummings, Andrew Elmore
Indiana Law Journal
In the history of new labor localism, city-level living wage ordinances—emerging in the 1990s with Los Angeles leading the way—have generally been understood as a second-best, limited antipoverty device designed to raise wage floors, with only indirect effects on organized labor. Drawing upon original archival materials, this Article offers an alternative reading of the history of the living wage in Los Angeles, showing how it was designed and operationalized as a proactive tool to rebuild union density and reshape city politics. Doing so makes four key contributions. First, the Article theorizes and empirically examines the living wage as a pioneering …
The Employment Status Of The Twenty-First Century Ncaa Collegiate Athlete: An Evaluation Of The Fair Labor Standards Act And The National Labor Relations Act, Danielle L. Kennebrew
The Employment Status Of The Twenty-First Century Ncaa Collegiate Athlete: An Evaluation Of The Fair Labor Standards Act And The National Labor Relations Act, Danielle L. Kennebrew
DePaul Journal of Sports Law
Many individuals believe that the twenty-first century NCAA collegiate athlete should not be classified as an employee of their respective universities due to the longstanding tradition of amateurism governing collegiate athletics. However, such a proposition does not analysis the statutory test articulated by the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA) when determining a worker’s employment statues. Upon review of the economic realities test utilized by the FLSA and the common-law agency test utilized by the NLRB, there are strong arguments for collegiate athletes holding employee status resulting from the compensation they receive in the …
Stifling Nascent Concerted Activity: The Nlrb And The Alstate Decision, Melanie R. Allen
Stifling Nascent Concerted Activity: The Nlrb And The Alstate Decision, Melanie R. Allen
William & Mary Journal of Race, Gender, and Social Justice
The National Labor Relations Board (NLRB) made a number of significant changes to the interpretation and enforcement of the National Labor Relations Act (NLRA or the Act) under the Trump administration. The collective impact of these changes may make it more difficult for workers to bring successful unfair labor practice charges against their employers. Although NLRB case decisions and rulemaking affect a large proportion of American workers, the significance of these policy changes is often not widely recognized. This Note will examine one such change—the Board’s 2019 Alstate Maintenance decision that overturned its 2011 decision in WorldMark by Wyndham.
Twenty-First Century Labor Law: Striking The Right Balance Between Workplace Civility Rules That Accommodate Equal Employment Opportunity Obligations And The Loss Of Protection For Concerted Activities Under The National Labor Relations Act, Christine Neylon O'Brien
William & Mary Business Law Review
Employees who engage in protected concerted activities relating to work generally are shielded from discipline by Section 7 of the National Labor Relations Act (NLRA). Where otherwise protected work-related activity involves profanity or offensive speech or actions, whether in or out of the workplace, on a picket line, or on social media, such may violate employer civility rules and/or equal employment opportunity laws. Important interests are at stake, including for employers to maintain a safe, discrimination-free workplace; and for employees to exercise their right to communicate about workplace matters. This Article analyzes recent cases on the question when offensive employee …
Structural Labor Rights, Hiba Hafiz
Structural Labor Rights, Hiba Hafiz
Michigan Law Review
American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2 percent in the private sector—a level unequaled since the Great Depression— the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed …
Realigning Federal Statutes: Contradictions Between The Federal Arbitration Act And The National Labor Relations Act, Denise Han
Brigham Young University Prelaw Review
Christopher Steele and Brendan Leveron were employees at a private
maintenance company named Pinnacle. Both Steele and Leveron
reported that Pinnacle allegedly forced them to work overtime without
just compensation—an allegation that, if proven valid, would
violate the Fair Labor Standards Act and California state law. They
also claimed that Pinnacle was guilty of unfair business practices,
retaliation and whistleblowing violations, and a failure to account.
Soon after Steele and Leveron filed these allegations, they discovered
that their predicament was not unique across the firm. In 2012,
they decided to represent their fellow employees in a class-action suit
which so …
Arbitration Agreements – What Is The Employee Actually Signing Up For?, Kennedy Poe
Arbitration Agreements – What Is The Employee Actually Signing Up For?, Kennedy Poe
The Journal of Business, Entrepreneurship & the Law
This note will examine the various effects and implications the Supreme Court’s decision concerning the legality of class action waivers within employee-employer contracts will have on employers, employees, and the contracts made between them. Part I will identify class action waivers within an employment contract’s arbitration agreement and will further elaborate upon the legal implications of such waivers being present in the contract. Part II will then discuss the history of the NLRA and assess its present-day role in employee–employer contract formation, in order to provide clarity as to the dispute that has arisen between the NLRA and class action …
Competition Policy And The Great Depression: Lessons Learned And A New Way Forward, Alan J. Meese
Competition Policy And The Great Depression: Lessons Learned And A New Way Forward, Alan J. Meese
Alan J. Meese
The recent Great Recession has shaken the nation’s faith in free markets and inspired various forms of actual or proposed regulatory intervention displacing free competition. Proponents of such intervention often claim that such interference with free-market outcomes will help foster economic recovery and thus macroeconomic stability by, for instance, enhancing the “purchasing power” of workers or reducing consumer prices. Such arguments for increased economic centralization echo those made during the Great Depression, when proponents of regulatory intervention claimed that such interference with economic liberty and free competition, including suspension of the antitrust laws, was necessary to foster economic recovery. Indeed, …
Labor Law Illiteracy: Epic Systems Corp. V. Lewis And Janus V. Afscme, Michael Yelnosky
Labor Law Illiteracy: Epic Systems Corp. V. Lewis And Janus V. Afscme, Michael Yelnosky
Law Faculty Scholarship
No abstract provided.
Alternative Remedies For Undocumented Workers Left Behind In A Post-Hoffman Plastic Era, Rachel S. Steber
Alternative Remedies For Undocumented Workers Left Behind In A Post-Hoffman Plastic Era, Rachel S. Steber
Catholic University Law Review
Congress enacted the National Labor Relations Act (NLRA) in 1935 in order to level the bargaining power of employees and employers to prevent burdening the flow of commerce and depressing workers’ wages. The NLRA vests the administration of promulgating the goals of the NLRA in the National Labor Relations Board (Board), broadly stating that the Board should take such affirmative action as necessary to effectuate the policies of the Act.
In 1935, however, Congress could not predict the future demographic makeup of the American workforce, and in its definition of an “employee” as covered under the NLRA, the statute makes …
The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias
The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias
Articles
As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …
Restoring A Willingness To Act: Identifying And Remedying The Harm To Authorized Employees Ignored Under Hoffman Plastics, Rita Trivedi
Restoring A Willingness To Act: Identifying And Remedying The Harm To Authorized Employees Ignored Under Hoffman Plastics, Rita Trivedi
University of Michigan Journal of Law Reform
Part I of this Article provides a background for both the NLRA and the IRCA. It examines the goals and remedies of both statutes as well as the impact of the Supreme Court’s Hoffman decision on available remedies.
Part II addresses the currently-skewed remedial incentives. It considers why employers are tempted to hire unauthorized workers and commit unfair labor practices that are then inadequately remedied, which creates a situation that adversely effects the rights of authorized employees.
Part III more closely analyzes this consequential harm. This Part identifies the erosions on the NLRA’s collective nature and the impact on authorized …
Dump And Chase: Why The Nfl, Nba, And Mlb Should Abandon Their Problematic Amateur Draft Age Limits And Rookie Wage Structures And Adopt The Current Nhl Model, Zach Leach
Marquette Sports Law Review
None
The Persistence Of Union Repression In An Era Of Recognition, Anne Marie Lofaso
The Persistence Of Union Repression In An Era Of Recognition, Anne Marie Lofaso
Maine Law Review
Labor rights in countries with predominantly free market economies have generally passed through three stages--repression, tolerance, and recognition. In the United States, nineteenth-century state and federal governments repressed labor unions by making conduct, such as workers banding together for higher wages, subject to criminal penalty and civil liability. Courts paved the way for tolerating labor unions by overruling repressive precedents. By the early twentieth century, Congress followed suit by legislatively exempting unions from certain legal liabilities. In 1935, Congress enacted Section 7 of the National Labor Relations Act (NLRA), marking the first formal federal government recognition of employees' “right to …
Social Bargaining In States And Cities: Toward A More Egalitarian And Democratic Workplace Law, Kate Andrias
Social Bargaining In States And Cities: Toward A More Egalitarian And Democratic Workplace Law, Kate Andrias
Articles
A well-documented problem motivates this symposium: The National Labor Relations Act (NLRA) does not effectively protect workers’ rights to organize, bargain, and strike. Though unions once represented a third of American workers, today the vast majority of workers are non-union and employed “at will.” The decline of organization among workers is a key factor contributing to the rise of economic and political inequality in American society. Yet reforming labor law at the federal level—at least in a progressive direction—is currently impossible. Meanwhile, broad preemption doctrine means that states and localities are significantly limited in their ability to address the weaknesses …
Columbia University And Incarcerated Worker Labor Unions Under The National Labor Relations Act, Kara Goad
Columbia University And Incarcerated Worker Labor Unions Under The National Labor Relations Act, Kara Goad
Cornell Law Library Prize for Exemplary Student Research Papers
Kara Goad’s research examines the forms and terms of labor that incarcerated workers perform in American prisons, seeking to demonstrate that labor law could provide potential remedies for work-related grievances.
Goad’s research includes traditional statutory and case law analysis along with examinations of prison statistics, National Labor Relations Board (NLRB) decisions and other administrative law materials relating to prisons and labor law. She uses her findings lay out a path for incarcerated workers to potentially unionize under the National Labor Relations Act (NLRA).
San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green
San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green
Michigan Journal of Environmental & Administrative Law
Inspired by the holding in WinStar World Casino, this Note considers the potential for tribes to make treaty-based arguments when facing the threat of National Labor Relations Board jurisdiction. This Note presents the results of a survey of U.S. government treaties with Native Americans to identify those treaties with language similar to that interpreted by the Board in WinStar World Casino. The survey identified four treaties and four tribes that could make treaty-based arguments like those made in Winstar World Casino: the Confederated Tribes of the Umatilla Indian Reservation, the Muscogee (Creek) Nation, the Seminole Nation of …
Sixth Circuit Undermines Labor Statute, Angela B. Cornell
Sixth Circuit Undermines Labor Statute, Angela B. Cornell
Cornell Law Faculty Publications
No abstract provided.
I Swear! From Shoptalk To Social Media: The Top Ten National Labor Relations Board Profanity Cases, Christine Neylon O'Brien
I Swear! From Shoptalk To Social Media: The Top Ten National Labor Relations Board Profanity Cases, Christine Neylon O'Brien
St. John's Law Review
(Excerpt)
This Article curates and analyzes ten recent cases where the NLRB decided whether or not § 7 protected employee swearing, with a view toward defining the implications of these decisions for employers and employees in terms of employer rules and discipline, and employee rights and limits thereon. The Article outlines the NLRB’s role and perspective in cases where employees are disciplined or discharged for engaging in profanity at work and/or on social media when the conduct in question is otherwise protected concerted activity. The Article summarizes the facts in each case while analyzing the legal framework that the NLRB …
The New Labor Law, Kate Andrias
The New Labor Law, Kate Andrias
Articles
Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the …
Balancing Employer And Employee Interests In Social Media Disputes, Tara R. Flomenhoft
Balancing Employer And Employee Interests In Social Media Disputes, Tara R. Flomenhoft
Labor & Employment Law Forum
No abstract provided.
Union Representation In Employment Arbitration, Ann C. Hodges
Union Representation In Employment Arbitration, Ann C. Hodges
Law Faculty Publications
Employers in recent years have promulgated arbitration programs to resolve disputes with their present and former employees. Arbitration may in many cases provide a lower-cost forum than litigation for resolving such disputes. But the problem of representation of Americans of modest incomes still remains. Ann Hodges explores in this chapter whether labor unions can help address that representation gap.
Constitutional Economics, Luke P. Norris
Constitutional Economics, Luke P. Norris
Law Faculty Publications
This Article argues that the conventional narrative about the decline of Lochnerism and the rise of mid-century substantive due process jurisprudence is incomplete. That narrative focuses initially on how the premises underlying Lochner’s conception of economic freedom were rejected. The Article instead focuses on how the labor movement articulated an alternative conception of freedom that was adopted by Congress, the Executive, and the Supreme Court. While Lochnerism was premised on a negative view of freedom, the labor movement articulated a positive view of freedom and analogized it to republican freedom of association in the political sphere. By reframing the terms …
Awakening The Spirit Of The Nlra: The Future Of Concerted Activity Through Social Media, Benjamin J. Hogan
Awakening The Spirit Of The Nlra: The Future Of Concerted Activity Through Social Media, Benjamin J. Hogan
West Virginia Law Review
No abstract provided.
Are Unions A Constitutional Anomaly?, Cynthia Estlund
Are Unions A Constitutional Anomaly?, Cynthia Estlund
Michigan Law Review
This term in Friedrichs v. California Teachers Ass’n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an “agency fee,” as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an “anomaly.” This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its …
The Wellness Approach: Weeding Out Unfair Labor Practices In The Cannabis Industry, Taylor G. Sachs
The Wellness Approach: Weeding Out Unfair Labor Practices In The Cannabis Industry, Taylor G. Sachs
Florida State University Law Review
Secondary Handbilling: The Need For A New Response, Heather Briggs, Curtis L. Mack
Secondary Handbilling: The Need For A New Response, Heather Briggs, Curtis L. Mack
Akron Law Review
This article will examine both the reasoning between the two diverging lines of cases regarding secondary handbilling and picketing, and the possible avenues of relief which might be available to the neutral employer that finds itself caught in the crossfire of a labor dispute.
The Excessive Use Of Presumptions And The Role Of Subjective Employee Intent In Effectuating The Purposes Of The National Labor Relations Act, Stuart Newman, Diane S. Shepherd
The Excessive Use Of Presumptions And The Role Of Subjective Employee Intent In Effectuating The Purposes Of The National Labor Relations Act, Stuart Newman, Diane S. Shepherd
Akron Law Review
This article will first examine the origin and development of significant presumptions and second, suggest a method by which the Board could better protect the Section 7 rights of employees without risking destabilization of the collective-bargaining process.