Law Commons^™

Losing The Best And The Brightest: The Disappearing Wage Premium For H-1b Visa Recipients, Danielle M. Drago

Vanderbilt Journal of Entertainment & Technology Law

The pressure for immigration reform in the technology industry revolves heavily around the use of the H-1B visa, which allows companies to temporarily hire highly skilled workers. This Note provides an empirical analysis of the historical wages of H-1B workers and domestic workers in the technology industry to determine whether H-1B workers earn more or less than domestic workers in the same industry. In the technology industry, H-1B workers' wage premium has eroded in recent years relative to domestic workers, leading to stagnant wages that may deter the "best and the brightest" from choosing to enter into the H-1B process. …

The Ironies Of Automation Law: Tying Policy Knots With Fair Automation Practices Principles, Meg L. Jones

Vanderbilt Journal of Entertainment & Technology Law

Rapid developments in sensors, computing, and robotics, including power, kinetics, control, telecommunication, and artificial intelligence have presented opportunities to further integrate sophisticated automation across society. With these opportunities come questions about the ability of current laws and policies to protect important social values new technologies may threaten. As sophisticated automation moves beyond the cages of factories and cockpits, the need for a legal approach suitable to guide an increasingly automated future becomes more pressing. This Article analyzes examples of legal approaches to automation thus far by legislative, administrative, judicial, state, and international bodies. The case studies reveal an interesting irony: …

Transforming Federal And State Retirement Tax Deductions To Refundable Tax Credits, Teresa Ghilarducci, Ismael Cid-Martinez

Marquette Benefits and Social Welfare Law Review

The purpose of this Study is to calculate retirement account tax expenditures by states. States with income taxes that allow tax deferral of retirement account contributions and investment earnings lose nearly $20 billion in revenue. This Study uses a variety of data sources, including state reports from their executive agencies and known estimation techniques to calculate the amount of tax credits that a worker in each state would receive if the deferrals were converted to a refundable tax credit. The average credit under these estimation techniques and calculations would be $172.

Get Your Own Coffee: Advice For Employers Facing Increasing Uncertainty With Respect To The Flsa And Unpaid Internship, Nina K. Markey, Holly E. Rich, Ryan D. Freeman

Hofstra Labor & Employment Law Journal

No abstract provided.

Dismantling Social Perceptions & Employment Barriers: Imposing Regulation On Federal Contractors- A Backdoor Approach To Changing America's Hiring Practices For Individuals With Disabilities, Phylis Sherman

Hofstra Labor & Employment Law Journal

No abstract provided.

Child Labor Laws And The Impossibility Of Statutory Emancipation, Dana M. Dohn, Amy Pimer

Hofstra Labor & Employment Law Journal

No abstract provided.

Loosening The Rust Belt: Why Ohio Should Re-Examine Its Current Standard For Determining The Enforceability Of Covenants Not To Compete Contained In Employment Agreements, Brian D. Mielcusny

Cleveland State Law Review

While the field of non-compete litigation is muddled and unpredictable in Ohio, the state would go a long way in at least considering a shift in thinking. By considering the arguments and alternatives presented above, Ohio could rework its CNC standard in a way that would maximize the potential for employee mobility and economic growth. The shifts taking place in Ohio’s economic climate and the onset of growth in emerging industries such as technology, healthcare, and energy show that Ohio might be on the cusp of unparalleled economic development. The need to continue growth in these sectors and keep pace …

Postemployment Noncompete Agreements: Why Utah Should Depart From The Majority, Christopher Mack

Utah Law Review

A decision by the Utah Legislature to follow California’s statutory scheme on noncompetition law would have a positive impact on the economy. A ban on all postemployment noncompete agreements would strengthen the economy by increasing innovation and healthy competition. Additionally, it would create a more fair and efficient labor market, allowing individuals to reach their employment potential. Finally, abolishing postemployment noncompete agreements would significantly increase the protection to employee rights without harming businesses’ rights to protect its goodwill and trade secrets.

Arbitration Whack-A-Mole: The Federal Policy Favoring Arbitration Hammers The Rights Of Individual Employees, Spring E. Taylor

Journal of Dispute Resolution

In a country that protects the plaintiff's right to a day in court, it only seems natural that Sally should have the opportunity to take her cause to the courthouse. But the strong fedral presumption that supports the enforcement of arbitration provisions is like a hammber that pushes plaintiffs like Sally and those if Huffman into the arbitration arena. In Huffman, the Sixth Circuit rescued an employwer from an ambiguous arbitration provision contained in the employer-drafted employment agreement and enforced the arbitration provision as one of the provisions to survive expiration of the contract, even though it was not listed …

Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell

Vanderbilt Journal of Entertainment & Technology Law

When does work become play and play become work? Court shave considered the question in a variety of economic contexts, from student athletes seeking recognition as employees to professional blackjack players seeking to be treated by casinos just like casual players. Here, this question is applied to a relatively novel context: that of online gold farming, a gray-market industry in which wage-earning workers, largely based in China, are paid to play fantasy massively multiplayer online games (MMOs) that reward them with virtual items that their employers sell for profit to the same games' casual players. Gold farming is clearly a …

Hands-Tied Hiring: How The Eeoc’S Individualized Assessment Is Taking Discretion Away From Employers’ Use Of Criminal Background Checks, Carrie Valdez

Cleveland State Law Review

This article argues that the 2012 EEOC Guidance should not be given deference by the courts. Specifically, the Guidance’s individualized assessment, which imposes a heightened requirement on employers to justify their background check policies, is problematic in three important ways. First, the individualized assessment places an impractical burden by what it requires and whom it requires to conduct such an assessment. Second, employer liability for negligent hiring may actually increase if employers perform individualized assessments. Finally, the practical effect of the individualized assessment may be decreased employer reliance on criminal background checks, and the result will likely not be a …

The Resurgence Of Forced Labor: How The Sixth Circuit's Decision In United States V. Toviave Endorses The Exploitation Of Children, Sophia K. Niazi

American University Journal of Gender, Social Policy & the Law

Comment arguing that the Sixth Circuit decision in United States v. Toviave was erroneous because the court failed to determine that the alleged forced labor was used as a means to control the children in the case. The comment looks at the reasoning in Toviave and explores the Sixth Circuit's reasoning in the case as well as the Federal Forced Labor Statute, the Federal Involuntary Servitude Statute and Michigan's current child abuse laws.

The Pbgc Wins A Case Whenever The Debtor Keeps Its Pension Plan, Israel Goldowitz, Garth Wilson, Erin Kim, Kirsten Bender

Marquette Benefits and Social Welfare Law Review

The Pension Benefit Guaranty Corporation, the federal agency charged with insuring private-sector defined benefit pension plans, has long had a prominent role in corporate bankruptcies. PBGC focuses its effort on the continuation of pension plans, in true reorganizations and in sales of businesses. To this end, ERISA has made it more difficult for a sponsor to terminate a plan in its own economic interest. For example, a sponsor’s latitude to terminate an underfunded plan was limited to circumstances involving the sponsor’s financial distress. Likewise, the termination premium, which was added to ERISA in recent years, is an obligation that survives …

Towards The Development Of Governance Principles For The Administration Of Social Protection Benefits: Comparative Lessons From Dutch And American Experiences, Frans Pennings, Paul M. Secunda

Marquette Benefits and Social Welfare Law Review

The purpose of this article is to introduce a new approach to social protection benefit provision through an analysis and comparison of two of the advanced benefit systems in the world. Both the Dutch and American examples teach us that meaningful social benefit protection is possible, consistent, and necessary within market-based societies.

Our recommendation is that advanced-market societies start a discussion on social protection benefits based on the dual principles of federalism/subsidiarity and fiduciary duty. Federalism provides that the national/federal government should provide the principles and minimal framework for benefit provision, while regional authorities, employers, and insurance companies should be …

The Silliness Of Erisa: The Plan Is Not The Only Proper Party Defendant In An Erisa Benefits Claim, Donald T. Bogan

Marquette Benefits and Social Welfare Law Review

ERISA recites in § 502(d)(1) that a plan can sue and be sued as an entity. Does such a legislative pronouncement, in and of itself, establish the plan as a juristic person? Further, does Congress’s declaration that a plan can be sued suggest that no other person or entity can be held liable in an ERISA § 502(a)(1)(B) benefits claim? Relying upon ERISA § 502(d)(1), long-standing authority in the Ninth Circuit Court of Appeals, and in other circuits, holds that the plan, and only the plan, is a proper party defendant in an ERISA § 502(a)(1)(B) benefits claim. That is …

Essay: A Positive Perspective On Regulation Of The Workplace Relationship, Dana M. Muir

Marquette Benefits and Social Welfare Law Review

Positive Organizational Scholarship studies how business organizations and their employees excel and thrive. It takes the opposite perspective from the traditional organizational research that examines negative deviance and how that deviance inhibits organizational performance. Like traditional organizational scholars, legal scholars (as well as lawyers, legislators, judges, and regulators) typically focus on problems. Examples abound in the field of employment law. For example, to what extent does employment discrimination still exist and how can it be eliminated? And, what constraints prevent Americans from achieving retirement security and how can those constraints be eliminated? This Essay proposes that we examine the Positive …

Table Of Contents

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Don't Tell Your Boss? Blowing The Whistle On The Fifth Circuit's Elimination Of Anti-Retaliation Protection For Internal Whistleblowers Under Dodd-Frank, Jeff Vogt

Oklahoma Law Review

No abstract provided.

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.

Where Trade And Industrial Policy Converge: How Developing Countries Can Utilize Trade Preferences To Generate Sustainable, Local Growth In The Garment Sector, Collette Van Der Ven

The International Lawyer

The rise of the textile and apparel global value chains and trade preferences has created unprecedented opportunities for developing countries to participate in trade in textiles and apparel. Yet, while some countries have managed to build backward linkages and engage in industrial upgrading, others remain locked in the lower echelons of the textile and apparel value chai

This Article demonstrates that trade preferences and rules of origin alone do not explain countries' diverging experiences in the apparel value chain. Rather, a country's industrial policy is crucial in determining sustainable growth: is it solely export-oriented, or does it balance promoting growth …