Law Commons^™

Trilogy Redux: Using Arbitration To Rebuild The Labor Movement, Ann C. Hodges

Law Faculty Publications

This Article analyzes the possibility of creating a program to provide representation to workers bound to arbitrate their legal disputes with their employers, while at the same time building a movement to challenge the practice of compulsory arbitration and its impact on workers' rights. First, I briefly review the Supreme Court's recent arbitration jurisprudence and its impact on workers, with a particular focus on the limitations on class actions. Then I move to a discussion of the advantages and challenges to the creation of such a program. Finally, I examine some alternative visions of what such a program might look …

Riding The Wave: Uplifting Labor Organizations Through Immigration Reform, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

In recent years, labor unions in the United States have embraced the immigrants’ rights movement, cognizant that the very future of organized labor depends on its ability to attract immigrant workers and integrate them into union ranks. At the same time, the immigrants’ rights movement has been lauded for its successful organizing models, often drawing upon the vitality and ingenuity of immigrant-based worker centers, which themselves have emerged as alternatives to traditional labor unions. And while the labor and immigrants’ rights movements have engaged in some fruitful collaborations, their mutual support has failed to radically reshape the trajectory of either …

Workers Disarmed: The Campaign Against Mass Picketing And The Dilemma Of Liberal Labor Rights, Ahmed A. White

Publications

In the late 1930s and early 1940s, mass picketing, characterized by large numbers of workers congregating in common protest at or near their employers' establishments, emerged as a crucial weapon in a historic campaign by American workers to realize basic labor rights and build an enduring labor movement in the face of strident resistance from a powerful business community. So potent a weapon did mass picketing prove that these business interests, aided by allies at all levels of government, moved quickly to ban the tactic. From the real-world complexities of labor conflict, this coalition forged a simplistic, analytically dubious, but …

Umass Boston – Brazilian Immigrant Center Partnership, Tim Sieber, C. Eduardo Siqueira, Natalicia Tracy, Gaston Institute, University Of Massachusetts Boston

Office of Community Partnerships Posters

The Brazilian Immigrant Center (BIC) does organizing, advocacy and training to reduce marginalization of Brazilian immigrants, promoting their engagement as workers & civic participants. A worker’s center, BIC supports and defends workers’ rights under current state & US labor laws. BIC helps workers mediate complaints with employers, and refers others for class action suits, or intervention by the Mass. Attorney General or US Dept of Labor. A special focus at present is organizing mostly women domestic workers, and BIC has a new Law and Policy Clinic, a Domestic Worker Mediation Program, and an Immigration Justice Project staffed by two full-time …

Teaching The Post-Sex Generation, Kerri Lynn Stone

Faculty Publications

There is a trend that I have observed in the course of leading my classes in discussions about the kinds of behavior that may constitute unlawful discrimination: the emergence of an attitude among students that society is simply “post-sex,” or no longer in need of most or all anti-sex discrimination jurisprudence. This Article details my own approach to teaching and to raising and conducting discussions about how anti-discrimination legislation and jurisprudence works in theory, in practice, and how it would/could work in an ideal world. I enjoy teaching students with a diversity of viewpoints. However, when I began to encounter …

The Striking Success Of The National Labor Relations Act, Michael L. Wachter

All Faculty Scholarship

Although often viewed as a dismal failure, the National Labor Relations Act (NLRA) has been remarkably successful. While the decline in private sector unionization since the 1950s is typically viewed as a symbol of this failure, the NLRA has achieved its most important goal: industrial peace.

Before the NLRA and the 1947 Taft-Hartley Amendments, our industrial relations system gave rise to frequent and violent strikes that threatened the nation’s stability. For example, in the late 1870s, the Great Railroad Strike spread throughout a number of major cities. In Pittsburg alone, strikes claimed 24 lives, nearly 80 buildings, and over 2,000 …

Labor And Employment Law, Eric Wallace

Law Student Publications

During the past two years, there have been several significant developments in labor and employment law, both on the state and federal levels. Because developments in both state and federal law likely will have a profound impact on employers and employees throughout Virginia, they warrant significant discussion in this survey. In addition to examining notable decisions from the Supreme Court of the United States, the United States Court of Appeals for the Fourth Circuit, and the United States District Courts for the Eastern District and Western District of Virginia, this survey also discusses decisions of the Supreme Court of Virginia …

Labor Rights, Human Rights And A Critical Sociology Of Law, Richard R. Weiner

Faculty Publications

Arguing for a transnational labor movement increasingly poses transnational labor rights as transnational human rights. Sociologically, how can such transnational labor rights be secured by institutions at a global level? Moving from human rights to transnational social rights? A seemingly aporia between the concepts of labor rights and human rights can be dialectically mediated by the tradition of a critical sociology of law in yielding a critical sociology of rights.

Umass Boston – Brazilian Immigrant Center Partnership, Tim Sieber, C. Eduardo Siqueira, Natalicia Tracy, Gaston Institute, University Of Massachusetts Boston

Office of Community Partnerships Posters

The Brazilian Immigrant Center (BIC) does organizing, advocacy and training to reduce marginalization of Brazilian immigrants, promoting their engagement as workers & civic participants. A worker’s center, BIC supports and defends workers’ rights under current state & US labor laws. BIC helps workers mediate complaints with employers, and refers others for class action suits, or intervention by the Mass. Attorney General or US Dept. of Labor. A special focus at present is organizing mostly women domestic workers, and BIC has a new Law and Policy Clinic, a Domestic Worker Mediation Program, and an Immigration Justice Project staffed by two full-time …

Mexico's Dilemma: Workers' Rights Or Workers' Comparative Advantage In The Age Of Globalization?, Ranko Shiraki Oliver

Faculty Scholarship

No abstract provided.

Discrimination Against Mothers Is The Strongest Form Of Workplace Gender Discrimination: Lessons From Us Caregiver Discrimination Law, Stephanie Bornstein, Joan C. Williams, Genevieve R. Painter

UF Law Faculty Publications

Work-family reconciliation is an integral part of labor law as the result of two major demographic changes: the rise of the two-earner family, and the pressing concern of elder care as Baby Boomers age. Despite these changes, most European and American workplaces still assume that the committed worker has a family life secured so that family responsibilities do not distract from work obligations. This way of organizing employment around a breadwinner husband and a caregiver housewife, which arose in the late eighteenth century, is severely outdated today. The result is workplace-workforce mismatch: Many employers still have workplaces perfectly designed for …

Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin

Publications

This Article provides an historically-rooted analysis of a recent spate of civil RICO complaints arising from labor union organizing campaigns. The Article historicizes contemporary civil RICO suits against labor unions by analogizing to nineteenth century conspiracy prosecutions of unions. In tracing this history of organized labor’s social standing, the Article addresses the cultural framing of the union and its place in political and cultural discourse over the past century. The civil RICO complaints have received limited scholarly attention mainly focusing on issues of federal preemption; this Article argues for a broad reading of the cases as a way to understand …

An Overview Of The U.S. Retirement Income Security System And The Principles And Values It Reflects, Kathryn L. Moore

Law Faculty Scholarly Articles

This article is designed to provide an overview of the U.S. retirement income security system from a comparative law perspective. Like many countries, the U.S. has a three tier pension or retirement income system, with the three tiers consisting of (1) Social Security, (2) employment-based pensions, and (3) individual savings. Thus, superficially, the U.S. retirement income security system resembles that of many around the world. Yet, in other ways, such as its focus on individual rights and responsibility, the U.S. system is unique.

The article begins by discussing the nine guiding principles of the U.S. Social Security system as identified …

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

Justice, Employment, And The Psychological Contract, Larry A. Dimatteo, Robert C. Bird, Jason A. Colquitt

UF Law Faculty Publications

The paper is a multidisciplinary collaboration between contract law, employment law and management scholars and draws from the fields of law, management, and psychology. After reviewing and noting the gaps in the employment and justice literatures, this paper presents the findings of a survey of 763 participants to measure whether certain variables—procedural and substantive fairness, as well as educating employees on the principle of employment at will—impact the propensities of employees to retaliate and litigate at the time of discharge.

The survey results are significant and striking. We find statistically significant reductions in retaliation and litigation rates when survey respondents …

State Of Maryland V. Louis Hyman: Did Progressivism, Concern For Public Health, And The Great Baltimore Fire Influence The Court Of Appeals?, Justin Haas

Legal History Publications

In the latter half of the nineteenth century, increased immigration from eastern Europe and a growing garment industry in Baltimore led to vast growth in so-called sweatshops: cramped workspaces in which clothing was partially or completely sewn for market. As the sweatshops grew, integrated clothing factories were also emerging, finally becoming a real force in the Baltimore garment industry around the turn of the twentieth century. As the integrated factories grew, the workers joined in the growing organized labor movement, and then began to push for greater protections for the health and safety of workers, as well as fair wages. …

Justice Sonia Sotomayor And The Relationship Between Leagues And Players: Insights And Implications, Michael Mccann

Law Faculty Scholarship

This Essay examines U.S. Supreme Court Justice Sonia Sotomayor’s important role in shaping U.S. sports law. As a judge on the U.S. District Court for the Southern District of New York and later on the U.S. Court of Appeals for the Second Circuit, Sotomayor authored opinions that resolved two major sports law disputes: whether Major League Baseball (“MLB”) owners could unilaterally impose new labor conditions on MLB players during the 1994 baseball strike and whether Ohio State University sophomore Maurice Clarett was obligated to wait three years from the completion of high school to become eligible for the National Football …

People Are Not Bananas: How Immigration Differs From Trade, Jennifer Gordon

Faculty Scholarship

No abstract provided.

The Depression Era Sit-Down Strikes And The Limits Of Liberal Labor Law, Ahmed A. White

Publications

This paper explores the history of sit-down strikes from the New Deal Era and beyond and traces their influence on the substance of modern labor law. It argues that, even as the sit-down strikes proved essential to the development of a meaningful system of labor rights, the strikes also had a very different effect. As this paper undertakes to demonstrate, legal and political attacks on labor rights that were originally aimed at the sit-down strikes metastasized into a more general campaign to prohibit a range of militant strike practices, even those bearing little outward resemblance to the original sit-down strikes. …

The Relative Bargaining Power Of Employers And Unions In The Global Information Age: A Comparative Analysis Of The United States And Japan, Kenneth G. Dau-Schmidt, Benjamin C. Ellis

Articles by Maurer Faculty

In this paper, we examine and compare the impact of American and Japanese labor law on the relative bargaining power of the labor and management within the context of the new global economy based on information technology. We begin by providing a simple economic definition of bargaining power and examining how it can be influenced by economic and legal factors. Next, we discuss the impact of new information technology and the global economy on the employment relationship and how this has decreased union bargaining power relative to management bargaining power. Finally, we compare various facets of American and Japanese labor …

Three Transnational Discourses Of Labor Law In Domestic Reforms, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Current labor law debates, in the United States and elsewhere, reflect entrenched discursive positions that make potential reform seem impossible. This Article identifies and examines the three most influential positions, which it names the “social,” “the neoliberal,” and the “rights-based” approach. It shows that these discursive positions are truly transnational in character. In contrast with conventional wisdom, which accepts the incompatibility of these positions, this Article creates a conceptual framework that productively combines elements from each to enrich the debates over labor law reform and to foster institutional imagination. Applying this framework, the Article examines the collective bargaining systems of …

Lessons From The Laboratory: The Polar Opposites On The Public Sector Labor Law Spectrum, Ann C. Hodges

Law Faculty Publications

Section I analyzes the legal framework and history of collective bargaining in Illinois, and Section II follows with a similar analysis for Virginia. Each section includes current data about public sector employees and union activity in the two states. Section III follows with a discussion of possible explanations for the differences in the law of the two states. Section IV looks at the lessons from this analysis for state and federal lawmakers, unions, employers, and labor relations advocacy groups.

Taming The Employment Sharks: The Case For Regulating Profit-Driven Labor Market Intermediaries In High Mobility Labor Markets, Harris Freeman, George Gonos

Faculty Scholarship

Over the last quarter century, a profound restructuring of U.S. labor markets has occurred. Long-term job tenure, internal labor markets, and employer-sponsored benefits have waned under the pressures of neoliberal globalization. The trend is toward increasingly precarious, shorter-term, serial employment relationships that offer significantly lower wages, reduced job-related benefits, and formidable obstacles to the exercise of employment rights. This fundamental shift has moved so-called “non-standard” employment arrangements, once viewed as marginal, into the core economy. As a result, a remarkable array of profit-driven labor market intermediaries (LMIs) are now embedded in mainstream labor markets. Temporary help and staffing agencies, payrolling …

Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff

All Faculty Scholarship

This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on …

Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

Publications

It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five …

What We Learn In Troubled Times: Deregulation And Safe Work In The New Economy, Susan Bisom-Rapp

Faculty Scholarship

Reviews of how federal agencies functioned during George W. Bush’s presidency reveal many instances of regulatory capture by industry. One prototypical example is the Occupational Safety and Health Administration (OSHA), the agency responsible for occupational safety and health (OSH) standard setting and enforcement. In contrast, a broad array of stakeholders during the Bush years gave good marks to an entirely separate agency, the National Institute for Occupational Safety and Health (NIOSH), which conducts research and develops recommendations to prevent workplace injury and illness. By reviewing the disparate performance of OSHA and NIOSH during the Bush administration, this article sheds light …

Reconceiving Labour Law: The Labour Market Regulation Project, Andrew D. Frazer

Faculty of Law - Papers (Archive)

This paper reviews the recent work by Australian labour lawyers that has embraced the ‘new regulation’ and in particular the idea of law as regulation. This approach has recast the academic study of labour law as being concerned with regulation of the labour market. While much of this work has concentrated on expanding the field of labour law to include many areas of law affecting the labour market (beyond the employer-employee relationship), the work has also developed the view of law as a mechanism of state regulation. The paper examines how the ‘regulatory turn’ in Australian labour law has affected …

Economic Analysis Of Labor And Employment Law In The New Economy, Kenneth G. Dau-Schmidt, Alan Hyde, Michael Risch, Jagdeep Bhandari, Richard Block

Articles by Maurer Faculty

No abstract provided.

Days Without Immigrants: Analysis And Implications Of The Treatment Of Immigration Rallies Under The National Labor Relations Act, Michael C. Duff

All Faculty Scholarship

The massive immigration rallies of early 2006 were prompted by anticipated congressional action classifying all unauthorized workers as felons subject to immediate deportation. While a product of federal immigration policy, the rallies implicate federal labor law because they could be characterized as concerted employee action resulting in a series of work stoppages.

Some employees were discharged for missing work to attend the rallies, so an initial question is whether participation in the rallies is protected activity under the National Labor Relations Act. But even assuming the rallies were attended by unauthorized workers, those workers are undeniably employees within the meaning …

The Triangle Shirtwaist Factory Fire Trial, Douglas O. Linder

Faculty Works

It was a warm spring Saturday in New York City, March 25, 1911. On the top three floors of the ten-story Asch Building just off of Washington Square, employees of the Triangle Shirtwaist Factory began putting away their work as the 4:45 p.m. quitting time approached. Most of the several hundred Triangle Shirtwaist employees were teenage girls. Most were recent immigrants. Many spoke only a little English. Just then somebody on the eighth floor shouted, Fire! Flames leapt from discarded rags between the first and second rows of cutting tables in the hundred-foot-by-hundred-foot floor. Triangle employee William Bernstein grabbed pails …