Law Commons^™

Constitutional Clash: Labor, Capital, And Democracy, Kate Andrias

Northwestern University Law Review

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts—“labor’s” efforts for short—seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would also support the Constitution’s …

Enforcing Equity, Daiquiri J. Steele

Northwestern University Law Review

Federal administrative agencies that enforce workplace laws have dual responsibilities: (1) to prevent or remedy noncompliance with the underlying workplace law and (2) to prevent or remedy noncompliance with the law’s antiretaliation provisions. Disparities based on race, sex, and their intersection exist with respect to both of these types of employer noncompliance, as female workers and workers of color experience more violations of the substantive provisions and the retaliation provisions of these laws. While effective enforcement is vital to preserving workplace regulation as a whole, there is also an equity component to enforcement. Because workplace law violations disproportionately harm women …

Employer Tuition Assistance: Current Approaches And The Application Of The Implied Covenant Of Good Faith And Fair Dealing, Jordan T. Krieger

Northwestern University Law Review

American corporations are increasingly expanding tuition reimbursement programs, potentially improving access to higher education for American workers. Yet, despite their increasing availability, only 2% of employees, as a percentage of those interested in pursuing further education, are utilizing these reimbursement programs. For those employees who do make use of these reimbursement programs, they may face unexpected challenges to accessing judicial remedies if a dispute arises.

This Note takes an interdisciplinary approach to first explore employee risks and employer incentives under tuition reimbursement programs. On the employee side, a worker risks premature termination by expressing an interest in tuition reimbursement because …

The Effect Of The Pro Act On Secondary Activity And International Trade, Christopher R. Rodenbaugh

Northwestern Journal of International Law & Business

No abstract provided.

Leveling The Playing Field: How To Get International Student-Athletes Paid Under Name, Image And Likeness, Justin Auh

Northwestern Journal of International Law & Business

No abstract provided.

Independent Contractors In Law And In Fact: Evidence From U.S. Tax Returns, Eleanor Wilking

Northwestern University Law Review

Federal tax law divides workers into two categories depending on the degree of control exercised over them by the service purchaser (i.e., the firm): employees, who are subject to direct supervision; and independent contractors, who operate autonomously. Such worker classification determines the administration of income tax and what it subsidizes, as well as which nontax regulations pertain, such as workplace safety and antidiscrimination protections. The Internal Revenue Service and other federal agencies have codified common law agency doctrine into multifactor balancing tests used to legally distinguish employees from independent contractors. These tests have proved challenging to apply and costly to …

Big Data Affirmative Action, Peter N. Salib

Northwestern University Law Review

As a vast and ever-growing body of social-scientific research shows, discrimination remains pervasive in the United States. In education, work, consumer markets, healthcare, criminal justice, and more, Black people fare worse than whites, women worse than men, and so on. Moreover, the evidence now convincingly demonstrates that this inequality is driven by discrimination. Yet solutions are scarce. The best empirical studies find that popular interventions—like diversity seminars and antibias trainings—have little or no effect. And more muscular solutions—like hiring quotas or school busing—are now regularly struck down as illegal. Indeed, in the last thirty years, the Supreme Court has invalidated …

The Supreme Court Gets The Ball Rolling: Ncaa V. Alston And Title Ix, Arianna Banks

Northwestern University Law Review

Student-athlete compensation has been a consistent topic of controversy over the past few years, as critics question the legitimacy of the NCAA’s notion of amateurism and proponents favor the status quo. The Supreme Court decision in NCAA v. Alston has only served to intensify the debate, opening the door to alternative compensation structures. Despite a unanimous ruling in favor of the athletes, the limited holding of the case has only produced further questions. In his scathing concurrence, Justice Kavanaugh raises one such question: how does a student-athlete compensation structure comply with Title IX? This Comment seeks to address that question …

The Dawn Of A New Era: Antitrust Law Vs. The Antiquated Ncaa Compensation Model Perpetuating Racial Injustice, Amanda L. Jones

Northwestern University Law Review

Two crises in 2020 fueled the fire underlying a debate that has been smoldering for years: whether student athletes should be compensated. The COVID-19 pandemic coincided with the Black Lives Matter movement and drew unprecedented attention to systemic racism permeating society, including college sports that rely disproportionately on Black men risking physical harm to support an entire industry. The Supreme Court’s decision in NCAA v. Alston opened the door for some athletic conferences to offer student athletes unlimited education-related benefits and called out the NCAA’s business model that relies on not paying student athletes under the justification of amateurism. Alston …

Business Information And Nondisclosure Agreements: A Public Policy Framework, Rex N. Alley

Northwestern University Law Review

Trade secret law, as codified in the Uniform Trade Secrets Act, gives businesses in nearly every U.S. jurisdiction a uniform, clearly defined right to protect secret and valuable business information from misappropriation. But how can businesses protect information that, while potentially useful, falls short of the legal definition of a trade secret? Businesses often require their employees to sign nondisclosure agreements (NDAs) to protect this category of information, which this Note refers to as “confidential business information” or “CBI.” These CBI NDAs are often drafted so broadly that, read literally, they would encompass every piece of information an employee learns …

Salary History And The Equal Pay Act: An Argument For The Adoption Of “Reckless Discrimination” As A Theory Of Liability, Kate Vandenberg

Northwestern Journal of Law & Social Policy

The Equal Pay Act (EPA) purports to prohibit employers from paying female employees less than male employees with similar qualifications; however, the affirmative defenses provided in the EPA are loopholes that perpetuate the gender pay gap. In particular, the fourth affirmative defense allows for wage differentials based on a “factor other than sex.” Many federal circuits have read this defense broadly to include wage differentials based on salary history. That is, an employer can pay a female employee less than her male counterparts because she was paid less by her previous employer. While salary history was once viewed as an …

Algorithmic Advertising Discrimination, Joseph Blass

Northwestern University Law Review

The ability of social media companies to precisely target advertisements to individual users based on those users’ characteristics is changing how job opportunities are advertised. Companies like Facebook use machine learning to place their ads, and machine learning systems present risks of discrimination, which current legal doctrines are not designed to deal with. This Note will explain why it is difficult to ensure such systems do not learn discriminatory functions and why it is hard to discern what they have learned as long as they appear to be performing well on their assigned task. This Note then shows how litigation …

Redefining Workplace Speech After Janus, Theo A. Lesczynski

Northwestern University Law Review

We have a First Amendment right to criticize the government. But this freedom does not translate into a right to criticize one’s boss even if, as for millions of Americans, one’s boss happens to be a government employer. Public employee speech doctrine has long established wide latitude for public employers to supervise their workers. Employees must show at the threshold that their speech was on a matter of public concern and not an internal workplace matter. The Supreme Court’s pronouncements over the last decade in a related doctrinal area, however, have unsettled the line demarcating workplace speech. In its agency …

A Lesson From Goodfellas: Why Current Illinois Consideration Based Pension Reform Proposals Still Fail, Lari A. Dierks

Northwestern Journal of Law & Social Policy

No abstract provided.

Reconciling Agency Fee Doctrine, The First Amendment, And The Modern Public Sector Union, Courtlyn G. Roser-Jones

Northwestern University Law Review

Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay “fair share” or “agency” fees. In public unions—when the employer is the government—this arrangement creates tension between two important values: the First Amendment’s protection against compelled expression and the collective benefits of worker representation. When confronted with this tension forty years ago in Abood v. Detroit Board of Education, the Supreme Court struck an …

Unmarked? Criminal Record Clearing And Employment Outcomes, Jeffrey Selbin, Justin Mccrary, Joshua Epstein

Journal of Criminal Law and Criminology

An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively lowlevel misdemeanors. In an era of heightened security concerns, easily available data, and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential. In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We studied a random sample of participants in one such …

Employment Discrimination On The Basis Of Criminal History: Why An Anti-Discrimination Statute Is A Necessary Remedy, Elizabeth Westrope

Journal of Criminal Law and Criminology

The harms of mass incarceration do not end when an individual is released from prison. Instead, criminal records haunt approximately 70 million people throughout the United States today. Criminal histories follow persons convicted of crimes for the rest of their lives, creating collateral consequences that make it difficult for these individuals to get back on their feet and re-integrate into society. Gaining employment is one of the most crucial steps for returning citizens to take in order to regain stability in their lives. Yet, it remains one of the biggest obstacles. Employers are often wary of hiring persons with criminal …

Revisiting Erisa’S Church Plan Exemption After Advocate Health Care Network V. Stapleton, Emily Morrison

Northwestern University Law Review

For much of the last forty years, ERISA’s church plan exemption has existed quietly without much fanfare. But increased litigation over the last five years has dragged the exemption into the spotlight. The litigation focuses on religiously affiliated hospital systems and whether their pension plans have been correctly classified as church plans exempt from ERISA.

This Note examines the history behind the church plan exemption, including statutory modifications made in 1980 and the IRS’s longstanding interpretation of these changes, which precipitated the dispute at issue in the current wave of litigation. While the U.S. Supreme Court’s recent decision in Advocate …

The Cat’S Paw Supervisor: Vance V. Ball State University’S Flexible Jurisprudence, Daniel Leigh

Northwestern University Law Review

It is easier to hold a company liable for workplace harassment perpetrated by a supervisor than by a coworker. In Vance v. Ball State University, the Supreme Court attempted to clarify the crucial yet enigmatic definition of “supervisor.” In doing so, the Court created a definition that early commentators criticized as too narrow and too inflexible to capture the varied structures of the modern workplace. In contrast to those commentators, this Note argues that Vance’s definition is flexible enough to encompass all workplaces. Vance’s definition does this by incorporating the tort concept of proximate causation into employment …

(Un)Equal Protection: Why Gender Equality Depends On Discrimination, Keith Cunningham-Parmeter

Northwestern University Law Review

Most accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader antisubordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular …

Protecting Title Vii's Antiretaliation Provision In The Wake Of University Of Texas Southwestern Medical Center V. Nassar, Kimberly A. Pathman

Northwestern University Law Review

No abstract provided.

The New Danger Of Being Fired: Section 525(B)’S Disproportionate Effect On Older Workers And A Call To Amend, Jina Kim Yun

Northwestern Journal of Law & Social Policy

This Note explores an increasingly perverse effect of an anti-discriminatory provision of the Bankruptcy Code on numerous Americans who have declared personal bankruptcies after the recent economic recession of 2007. Under § 525(b) of the Bankruptcy Code, a private employer is not prohibited from barring a former debtor from prospective employment based on a past insolvency. This provision has had an immense impact on the large number of former debtors seeking the fresh start that bankruptcy law is meant to provide. With the dramatic increase in the number of personal bankruptcies, this Note argues that such an impact is overly …

Are Women-Only Trade Unions Necessary In South Korea: A Study Of Women Workers' Struggles In Korea's Labor Market Comment , Gina Kong

Northwestern Journal of International Law & Business

Recently, in response to discriminatory laws, a gendered labor market, and male-dominated unions, Korean women workers organized women- only trade unions. This comment argues that the strategy of Korean women workers to unionize apart from mainstream labor unions is a necessary and positive movement. First, the comment examines the circumstances in which the organization of Korean women's trade unions became necessary to respond to the discrimination and mistreatment of women by the Korean labor market and the inadequacy of mainstream trade unions to protect women workers. Second, the comment examines how the Korean women's trade unions have been improving the …

A Finger In The Dike? An Examination Of The Efficacy Of State And Federal Attempts To Use Law To Stem Outsourcing, Beverley Earle, Geralk A. Madek, Christina Madek

Northwestern Journal of International Law & Business

Many people, not just in the United States, are concerned about the implications of this growth in outsourcing for the future of business. State governments in particular are trying to stop outsourcing and are using the law as a means to do so. However, are these attempts, which are variants of the old "buy American" programs, doomed to be ineffective and ultimately protectionist, without really protecting American business? This paper will examine the developments of offshoring, outsourcing, and insourcing in Part II. Part III examines both state and federal legal efforts to restrict this growth. Part IV examines the WTO …

Code Or Contract: Whether Wal-Mart's Code Of Conduct Creates A Contractual Obligation Between Wal-Mart And The Employees Of Its Foreign Suppliers, Katherine E. Kenny

Northwestern Journal of International Law & Business

This comment examines whether corporate codes of conduct and more specifically, Wal-Mart's Code of Conduct, are binding contracts between foreign suppliers and their employees or whether they are voluntary and non-contractual devices. An analysis of U.S. law and the text and implementation of Wal-Mart's Code of Conduct reveals that the Code should not be interpreted as a contract binding on foreign suppliers and their employees for the breach of contract for denial of minimum and overtime wages, the breach of contract for forced labor, and the breach of contract for denial of the fundamental right to freely associate. The comment …

The Kalanke Ruling: Gender Equality In The European Labor Market, Ann Donahue

Northwestern Journal of International Law & Business

Part I of this note describes the facts that lead up to the ruling in Ka- lanke v. Freie Hansesetadt Bremen and critiques the decision of the ECJ. Since the Court's reasoning lacks depth and precedence, Part II examines the opinion of the Advocate General to explain the possible reasoning be- hind the decision. Part III scrutinizes the degree of cohesiveness between the Kalanke ruling and subsequent decisions by the ECJ. Part IV follows the reactions of the European market to Kalanke. Part V examines propos- als to minimize the effects of the decision. Finally, the note proposes statutory language …

National And International Sources Of Women's Right To Equal Employment Opportunities: Equality In Law Versus Equality In Fact, Jill Andrews

Northwestern Journal of International Law & Business

Women's right to equal employment opportunity has been recognized virtually worldwide. In fact, one-third of the total world labor force consists of women.' As the higher echelons in employment are reached, however, the number of positions occupied by women tapers off dramatically.2 Thus, while the right to equal employment opportunity is acknowledged, enforcement remains a formidable challenge. Although facially similar laws prohibiting discrimination in the recruitment, promotion and working conditions of women have been enacted by United Nations member countries, the United States, the European Community and Japan, the difference between equality in law and equality in fact lies with …

Thailand's Labor And Employment Law: Balancing The Demands Of A Newly Industrializing State, W. Gary Vause, Nikom Chandravithun

Northwestern Journal of International Law & Business

This article provides a comparative overview of Thailand's labor law, one of the principal considerations for prospective investors. The legal system is analyzed from the perspective of a U.S. investor; to provide a familiar frame of reference, comparisons are made throughout the analysis to labor law in the United States. Observations also are offered on the important extra-legal aspects of employment in Thailand, such as the implications of Thai culture for the employer-employee relationship.

Working On Dignity: Ec Initiatives On Sexual Harrassment In The Workplace, Victoria A. Carter

Northwestern Journal of International Law & Business

This article argues that the [European] Commission should propose legally binding legislation to guarantee all workers, both women and men, protection against sexual harassment in Community workplaces. Section I describes the nature of sexual harassment, the problems it poses in the EC, and the effects of sexual harassment on people and businesses. Section II reviews existing Member State legislation and labor union policies and identifies the inadequacy of these measures to protect EC workers from sexual harassment. Section III describes existing EC legislation on sexual harassment and the equal treatment of women and men in the workplace and identifies the …

Potential Liability Of New Employers To Pre-Existing Collective Bargaining Agreements And Pre-Existing Unions: A Comparison Of Labor Law Successorship Doctrines In The United States And Canada, Phillip M. Schreiber

Northwestern Journal of International Law & Business

Successorship questions arise in many areas of corporate law when one business entity takes over another business entity. In labor law, successorship issues can arise whenever one business entity takes over another business entity which has employees that are collectively organized. Similar successorship issues in labor law exist in both the United States and Canada. However, both the determination of successor status and the consequences of this determination differ in the United States and Canada. In addition, differences exist within the various Canadian provinces and federal territories. This comment will explore and analyze these differences.