Law Commons^™

Janus, Union Member Speech, And The Public Employee Speech Doctrine, M. Linton Wright

Pace Law Review

In Janus v. American Federation of State, County, and Municipal Employees (“AFSCME”), the Supreme Court held that public sector unions can no longer collect fees from nonmembers to fund the costs of representing them in collective bargaining and grievance proceedings. The Court determined that virtually all union speech is political speech and that collection of these fees is impermissible compelled speech under the First Amendment. However, not everything in Janus harms public union interests. The Janus Court’s discussion of Garcetti v. Cabellos and Connick v. Myers actually helps protect union member speech in the context of First Amendment retaliation cases. …

Compensation Is All-American: Former College Football Star Chris Spielman’S Case Against His Alma Mater And How It Could Affect The Ncaa’S Amateurism Rules, Jason Mcintyre

Pace Law Review

The lawsuit, Spielman v. IMG College, arose when Ohio State University (“OSU”) entered into a marketing deal through their marketing agency, IMG College (“IMG”), with corporations Honda Motor Co. (“Honda”) and Nike USA Inc. (“Nike”), to hang banners depicting images of former college athletes at school sporting events. Charles “Chris” Spielman, the named Plaintiff and former NCAA football player at OSU, brought this lawsuit because he claims that OSU and IMG unreasonably and illegally restrained trade by denying him the right to profit from his name, image, and likeness.

This case plays a role in the ongoing conversation of whether …

The Devil You Don’T Know: Implicit Bias Keeps Women In Their Place, Michele N. Struffolino

Pace Law Review

While men’s claims of gender bias in the family law system are acknowledged, this article focuses on how bias, whether implicit or explicit under the guise of unconscious attitudes or behavior, continues to place women at a systemic disadvantage. Although implicit bias also impacts outcomes in child abuse and neglect actions involving the state, the focus of this article is the impact of implicit bias in actions between women and men in the family courts, in particular those issues involved in the dissolution of the relationship and the family unit. First, the emergence of implicit social cognition theory will be …

After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien Hylton

Pace Law Review

This is a story about a union and a private sector employer who repeatedly negotiated collective bargaining agreements which referenced side contracts which provided retirees with post-employment healthcare benefits. In the early decades of their relationship neither the union nor the employer appear to have given any thought to whether or not these retiree health benefits in fact vested—i.e. were promised to retirees at no cost for the remainder of their lives. By the 1980s and certainly the 1990s however, as health care costs soared and life expectancy expanded, both parties continued to regularly re-negotiate agreements that were silent as …

Naquin V. Elevating Boats, Llc: The Fifth Circuit’S Improper Expansion Of Jones Act “Seaman Status” Qualification, Timothy M. O'Hara

Pace Law Review

The story began nearly a century ago, when Congress enacted the Jones Act and effectively made “seamen the most generously treated personal injury victims in American law.” But defining a Jones Act seaman has not come easy, as it took the United States Supreme Court seventy five years to arrive at the modern seaman status test. This commentary examines the “tortured history” of the Jones Act, how qualification for the statute’s protections has evolved, the modern seaman status test, and the implications of the Fifth Circuit’s recent application thereof. Section II gives a brief history and explanation of maritime law …

Here We Are Now, Entertain Us: Defining The Line Between Personal And Professional Context On Social Media, Raizel Liebler, Keidra Chaney

Pace Law Review

Social media platforms such as Facebook, Twitter, and Instagram allow individuals and companies to connect directly and regularly with an audience of peers or with the public at large. These websites combine the audience-building platforms of mass media with the personal data and relationships of in-person social networks. Due to a combination of evolving user activity and frequent updates to functionality and user features, social media tools blur the line of whether a speaker is perceived as speaking to a specific and presumed private audience, a public expression of one’s own personal views, or a representative viewpoint of an entire …

A Failure To Supervise: How The Bureaucracy And The Courts Abandoned Their Intended Roles Under Erisa, Lauren R. Roth

Pace Law Review

This Article addresses how courts failed to adequately supervise employers administering pension plans before ERISA. Relying on a number of different legal theories—from an initial theory that pensions were gratuities offered by employers to the recognition that pension promises could create contractual rights—the courts repeatedly found ways to allow employers to promise much and provide little to workers expecting retirement security. In Section III, this Article addresses how Congress failed to create an effective structure for strong bureaucratic enforcement and the bureaucratic agencies with enforcement responsibilities failed to fulfill those functions. Finally, in Section IV, this Article discusses how the …

Neither Panacea, Placebo, Nor Poison: Examining The Rise Of Anti-Unemployment Discrimination Laws, Seth Katsuya Endo

Pace Law Review

Since 2009, the unemployment rate in the United States has remained above eight percent, which means that more than twelve million individuals have been looking for work at any given time. With so many affected individuals, unemployment has become an issue of public concern, particularly as stories describing employers refusing to consider currently unemployed candidates for job opportunities have proliferated. In response to these trends, about twenty states and the federal government have passed, or are considering, legislation designed to prohibit employers from discriminating against individuals based on their employment status.

The goal of this Article is to survey the …

Managed Cooperation In A Post-Sago Mine Disaster World, Patrick R. Baker

Pace Law Review

This article proposes a Commission mandated mediation process that will offer a solution to the case backlog that prevents regulatory capture while promoting managed cooperation and communication toward a common goal: safety. While the Commission has implemented new rules, procedures, and steps that have helped the backlog, these improvements have only addressed the symptoms and not the cause. Currently, the solutions have focused on how to reduce the case backlog, instead of creating a system that allows for communication and cooperation, while ensuring compliance and safety. While there has been disagreement as to whether or not the case backlog undermines …

An Analysis Of The United States Employment Immigration System In Attracting And Retaining Skilled Workers And The Effects Of Its Dichotomous Objectives—Competitiveness Versus Protectionism: A Case For Reform?, Vignaswari Saminathan

Pace Law Review

The aim of this Article is to analyze the dichotomous objectives of U.S. immigration policy and to determine what recourse exists to improve the competitiveness of the U.S. immigration system and to ensure adequate protection for U.S. workers. Given that the H-1B visa, the temporary nonimmigrant visa category, has become a very important stepping stone to legal permanent residency, this Article will examine the developments and impact of the dichotomous measures within the context of the H-1B as well as the second employment-based preference category (EB-2) and the third employment-based preference category (EB-3). As such, Part II of this Article …

Private Resolution Of Public Disputes: Employment, Arbitration, And The Statutory Cause Of Action, Griffin Toronjo Pivateau

Pace Law Review

In this Article, I argue that arbitration agreements fall somewhere along the middle of the rights/contract continuum. My understanding of the nature of arbitration agreements relies on a previously existing area of employment law. There is a particular aspect of the employment relationship that, while open to contract, remains subject to constraints imposed by the law. A noncompete agreement permits an employee to contract with his employer to not work for a competitor following the termination of the employment relationship. This right to contract away the right to compete is, however, narrowly construed by the court system. A court may …

Continuing The White-Collar Unionization Movement: Imagining A Private Attorneys’ Union, Kimberly Y. Chin

Pace Law Review

Given the still-rebounding legal market and the secrecy that characterized the employment decisions at many of the nation’s top law firms during the height of attorney layoffs, this Article imagines the formation of private attorney labor unions as a possible solution. Part I briefly discusses the National Labor Relations Act of 1935, the primary piece of legislation that governs employees’ right to organize and collectively bargain, focusing primarily on who is covered with particular attention placed on the inclusion of professional employees. Part II introduces an understanding of white-collar professionals as a distinct economic class, highlighting specifically its similarities and …

Discriminatory Retaliation: Title Vii Protection For The Cooperating Employee, Megan E. Mowrey

Pace Law Review

No abstract provided.

A Square Peg And A Round Hole: The Application Of Weingarten Rights To Employee Drug And Alcohol And Alcohol Testing, Daniel V. Johns

Pace Law Review

No abstract provided.