Law Commons^™

Weaseling Out Of Weingarten: Why Outsourcing Investigatory Examinations Does Not Obviate Representational Rights Under The Fslmrs, Craig Westergard

Hofstra Labor & Employment Law Journal

The Federal Service Labor Management Relations Statute (hereinafter "FSLMRS") grants covered federal employees the right to union representation at investigatory examinations conducted by "a representative of the agency." While the Supreme Court has defined the term "agency representative" broadly, some courts have permitted agencies to evade the FSLMRS by outsourcing examinations to third parties. This trend is contrary to Supreme Court precedent, the text of the FSLMRS, and the purposes of the statute, and it deprives federal employees of their representational rights. As such, it should be repudiated.

This article first describes the history of unionization and outlines the substantive …

Opposite Sides Of The Same Coin: Worker Classification In The New Economy, Griffin Toronjo Pivateau

Hofstra Labor & Employment Law Journal

Massive changes have disrupted the institution of employment. The growth of the service sector, technological advancements, and developments in the finance market have created a demand for new employment models. Employers have responded by increasingly utilizing independent contractors to fill positions traditionally held by employees.

Designating a worker as either "employee" or "independent contractor" determines the degree to which employment law applies to the worker. An independent contractor falls outside many of the benefits and protections that the law provides employees. Currently, courts, states, and administrative agencies use a confusing array of employment tests, created for different purposes and different …

Modernizing Disability Income For Cancer Survivors, Ann C. Hodges

Hofstra Labor & Employment Law Journal

The medical progress in cancer treatment is worthy of celebration, as survivors of many cancers are living longer. This good news, however, comes with challenges for those survivors. Empirical evidence from researchers at cancer centers demonstrates the devastating impact that cancer has on employment, resulting in serious financial stress for survivors and their families. My previous research used this empirical data to recommend changes in employment laws to meet the need of survivors to maintain employment. This article builds on the prior research by using the empirical evidence of the employment effects of cancer to recommend changes in the disability …

Getting Paid In The Naked Economy, Meredith R. Miller

Hofstra Labor & Employment Law Journal

“It’s the end of work as we know it,” reports consulting firm Accenture in a paper about the “rise of the extended workforce.” (Gartside, Silverstone, Farley & Cantrell, Trends Reshaping the Future of HR: The Rise of the Extended Workforce, at 3 (Accenture 2013). The report predicts that, “[i]n the future, organizations’ competitive success will hinge on...workers who aren’t employees at all.” The legal nature of employment is changing and has been changing for quite some time; fewer and fewer workers are “employees.”

It is not new or novel to recognize that, from a legal perspective, there are many benefits …

Finding A Fix For The Fmla: A New Perspective, A New Solution, Nicole Buonocore Porter

Hofstra Labor & Employment Law Journal

When the Family and Medical Leave Act was enacted in 1993, it was considered landmark legislation, as the first statute that contained an affirmative obligation on some employers to provide up to twelve weeks of unpaid leave for certain enumerated reasons, including for the birth or adoption of a baby, to care for a family member with a serious health condition, or because of the employee’s own serious health condition. Yet, despite the promise of the FMLA, many scholars argue that its faults outweigh its benefits. Critics complain about: the large percentage of the population not covered by the FMLA; …

Reimagining The Law Of Self-Employment: A Comparative Perspective, Jayesh M. Rathod, Michal Skapski

Hofstra Labor & Employment Law Journal

U.S. employment law has traditionally disfavored bright-line rules to distinguish between traditional “employees” and independent contractors, instead relying on more flexible criteria, to be applied on a case-by-case basis. This fluidity has enabled employers to structure these relationships – and the corresponding bundle of worker rights and benefits – in ways that serve their own material and normative interests. Indeed, recent employment law literature has noted a dramatic shift towards independent contracting and contingent worker schemes in the U.S., even when the actual workplace dynamics are more akin to an employer-employee relationship. These same trends are now visible on the …