Law Commons^™

Whither The Wagner Act: On The Waning View Of Labor Law And Leviathan, Brandon R. Magner

Employee Rights and Employment Policy Journal

The National Labor Relations Act’s (NLRA) well-documented weaknesses in substance and enforcement, combined with legislators’ inability to adapt the Act to the modern economy, have understandably created many cynics in the field of labor law. For several decades, legal scholars have almost unanimously derided the NLRA and the agency which administers it, the National Labor Relations Board (NLRB), for failing to prevent rampant anti-union conduct by employers and the collapse of the union formation process through the Board’s election machinery. This “ossification” of the law, as it has come to be known, is considered to be a key contributor to …

The Labor Gerrymander, Joel Heller

Vanderbilt Law Review

The foundational metaphor of federal labor law is “industrial democracy.” But like any good metaphor, it is subject to overuse. The National Labor Relations Act (NLRA) grants employees the right to have a say in the decisions that govern their working lives through union representation and collective bargaining. Parties and policymakers often invoke the language of American political democracy when describing and debating that right. Democracy is not a unitary concept, however, and not all norms and concepts from the political sphere can or should translate into the labor sphere.

This Article interrogates the political-model analogy through the lens of …

Black And Blue Police Arbitration Reforms, Michael Z. Green

Faculty Scholarship

The racial justice protests that engulfed the country after seeing a video of the appalling killing of a Black male, George Floyd, by a Minnesota police officer in 2020 has led to a tremendous number of questions about dealing with racial issues in policing. Similar concerns arose a little more than fifty years ago when police unions gained power to respond to the civil rights protests occurring during those times by establishing strong protections for their officers in light of brutality claims. This rhythmic progression of protests and union responses is destined to continue without any lasting reforms focused on …

Essential Jobs, Remote Work And Digital Surveillance: Addressing The Covid-19 Pandemic Panopticon, Antonio Aloisi, Valerio De Stefano

All Papers

An unprecedented COVID-19-induced explosion in digital surveillance has reconfigured power relationships in professional settings. This article critically concentrates on the interplay between technology-enabled intrusive monitoring and the augmentation of 1

managerial prerogatives in physical and digital workplaces. It identifies excessive supervision as the common denominator of “essential” and “remotable” activities, besides discussing the various drawbacks faced by the two categories of workers during (and after) the pandemic. It also assesses the adequacy of the current European Union legal framework in addressing the expansion of data-driven management. Social dialogue, workers’ empowerment and digital literacy are identified as effective solutions to promote …

Bargaining Sectoral Standards: Towards Canadian Fair Pay Agreement Legislation, Sara Slinn, Mark Rowlinson

All Papers

This paper considers the recently introduced New Zealand Fair Pay Agreement (FPA) sectoral bargaining framework and offers a preliminary series of ideas and proposals setting out how an FPA model for bargaining sectoral standards could work in Canada. It is intended as the beginning of a more detailed discussion on the development of an FPA regime culminating in model legislation that could be adapted to different Canadian jurisdictions. Guided by principles of accountability, integration, and inclusivity, this proposal is intended to apply to all workers in an employment relationship – including dependent contractors and gig and platform workers. The proposed …

Labor And Employment—Not Waiting For Superman: Collective Bargaining As An Affirmation Of Teachers' Value, Christopher Yeatman

University of Arkansas at Little Rock Law Review

No abstract provided.

A New Morning In Higher Education Collective Bargaining, 2013-2019, William A. Herbert

Publications and Research

This book chapter appears in Julius, D. J. (ed.), Collective Bargaining in Higher Education: Best Practices for Promoting Collaboration, Equity, and Measurable Outcomes (Routledge, New York and London). The chapter analyzes and contextualizes data concerning the growth in unionization and collective bargaining involving faculty, postdoctoral scholars, and graduate assistants from 2013 to 2019, the period between the economic fallout from the Great Recession and the consequences of the COVID-19 pandemic. It discusses the democratic values underlying collective bargaining and the historical and legal development of unionization at public and private institutions over the decades. It identifies three significant new trends …

Graduate Student Employee Unionization In The Second Gilded Age, William A. Herbert, Joseph Van Der Naald

Publications and Research

In debates on the future of work, a common theme has been how work became
less secure through the denial of employee status. Though much of the attention
has focused on other industries, precarity has also affected those working in
higher education, including graduate student employees, contributing to what is
now called the “gig academy.” While universities have reassigned teaching and
research to graduate assistants, they have also refused to recognize them as
employees. Nevertheless, unionization has grown considerably since 2012, most
significantly at private institutions. Utilizing a unique dataset, this chapter
demonstrates that between 2012 and 2019, graduate student …

Essential Jobs, Remote Work And Digital Surveillance: Addressing The Covid-19 Pandemic Panopticon, Antonio Aloisi, Valerio De Stefano

Articles & Book Chapters

COVID-19-induced digital surveillance has ballooned in an unprecedented fashion, causing a reconfiguration of power relationships in professional settings. This article critically concentrates on the interplay between technology-enabled intrusive monitoring and the managerial prerogatives augmentation in physical and digital workplaces. It portrays excessive control as the common denominator for “essential” and “remotable” activities, besides discussing the various drawbacks of the two categories of workers during the pandemic. It also assesses the adequacy of the current EU legal framework in addressing the expansion of data-driven management. Social dialogue, empowerment and digital literacy are identified as effective solutions to promote organisational flexibility, well-being …

Collective Representation And Bargaining For Self-Employed Workers: Final Report, Sara Slinn

Commissioned Reports, Studies and Public Policy Documents

This report seeks to identify and discuss feasible models for collective representation and bargaining for self-employed contractors in the federal jurisdiction. The term “self-employed contractors” refers to workers who would be classified as “independent contractors” under the Canada Labour Code (CLC) Part I and, consequently, be excluded from the ambit of CLC collective representation and bargaining provisions. The study utilizes fieldwork, in the form of interviews and focus group discussions, in four sectors of interest, namely, road transportation, broadcast media, technology, and telecommunications, in order to explore and assess potential models for statutory collective representation and bargaining for self-employed workers. …

Labor Organization In Ride-Sharing—Unionization Or Cartelization?, Mark Anderson, Max Huffman

Vanderbilt Journal of Entertainment & Technology Law

The sharing economy brings together the constituent parts of a business enterprise into a structure that, on its surface, resembles a business firm, but in crucial ways is nothing like the traditional firm. This includes the ownership of the primary capital assets used in the business, as well as one of the most fundamental features of a firm—the relationship with its labor force. Sharing economy workers are formally contractors, running small businesses as sole entrepreneurs, with the effect that they are excluded from many of the protections made available to workers across the economy. The result is a seeming disparity …

Caremark And Esg, Perfect Together: A Practical Approach To Implementing An Integrated, Efficient, And Effective Caremark And Eesg Strategy, Leo E. Strine Jr., Kirby M. Smith, Reilly S. Steel

All Faculty Scholarship

With increased calls from investors, legislators, and academics for corporations to consider employee, environmental, social, and governance factors (“EESG”) when making decisions, boards and managers are struggling to situate EESG within their existing reporting and organizational structures. Building on an emerging literature connecting EESG with corporate compliance, this Essay argues that EESG is best understood as an extension of the board’s duty to implement and monitor a compliance program under Caremark. If a company decides to do more than the legal minimum, it will simultaneously satisfy legitimate demands for strong EESG programs and promote compliance with the law. Building …

A New Labor For Deep Democracy: From Social Democracy To Democratic Socialism, Mark Barenberg

Faculty Scholarship

Conventional workplace law includes the law of collective bargaining and employment contracts. This chapter argues that, to fully understand how law constructs worker power, industrial democracy, and political democracy, workplace law should greatly broaden in scope. The “new labor law” should encompass components of many fields of law that influence worker power and democracy as much as many components of conventional labor law. These additional components are lodged in domestic and international finance law, social wage law, constitutional law, communication law, tax law, and many more fields. The chapter applies the new labor law to critique and offer proposals to …

Issues Of Improving Labor Legislation In The Digital Economy, Makhmud Makhamatov

Review of law sciences

This article explores the issues of remote labor, which is now increasingly being implemented on a global scale, its legal nature, as opposed to home work (work from home). Also, taking into account some aspects of the existing experience in foreign countries and international organizations, recommendations were made on the legal regulation of remote work in the national legislation of the Republic of Uzbekistan.

Alt Labor? Why We Still Need Traditional Labor, Martin H. Malin

Chicago-Kent Law Review

No abstract provided.

A Different Set Of Rules? Nlrb Proposed Rule Making And Student Worker Unionization Rights, William A. Herbert, Joseph Van Der Naald

Journal of Collective Bargaining in the Academy

This article presents data, precedent, and empirical evidence relevant to the National Labor Relations Board (NLRB) proposal to issue a new rule to exclude graduate assistants and other student employees from coverage under the National Labor Relations Act (NLRA). The analysis in three parts. First, the authors show through an analysis of information from other federal agencies that the adoption of the proposed NLRB rule would exclude over 81,000 graduate assistants on private campuses from the right to unionize and engage in collective bargaining. Second, the article presents a legal history from the past half-century about unionization of student employees …

A Different Set Of Rules? Nlrb Proposed Rule Making And Student Worker Unionization Rights, William A. Herbert, Joseph Van Der Naald

Publications and Research

This article presents data, precedent, and empirical evidence relevant to the National Labor Relations Board (NLRB) proposal to issue a new rule to exclude graduate assistants and other student employees from coverage under the National Labor Relations Act (NLRA). The analysis in three parts. First, the authors show through an analysis of information from other federal agencies that the adoption of the proposed NLRB rule would exclude over 81,000 graduate assistants on private campuses from the right to unionize and engage in collective bargaining. Second, the article presents a legal history from the past half-century about unionization of student employees …

State Labor Law And Federal Police Reform, Stephen Rushin, Allison Garnett

Stephen Rushin

No abstract provided.

What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson

Ariana R. Levinson

This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class …

Labor Law Illiteracy: Epic Systems Corp. V. Lewisand Janus V. Afscme, Michael J. Yelnosky

Roger Williams University Law Review

No abstract provided.

The Teachers' Strike Of 2018 In Historical Perspective, Joseph Slater

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Where The Law Ends - Part 1: M&G; Polymers V. Tackett And Cnh Industrial V. Reese - Federal Labor Policy, The Interpretation Of Collective Bargaining Agreements, And The Failure Of Stare Decisis, Roger J. Mcclow

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Regulating Strikes In Essential Services - Canada, Eric Tucker

Articles & Book Chapters

This chapter was written as a part of a comparative law project examining the regulation of strikes in essential services. It describes and analyses Canada's experience with strikes in essential services, including the historical development of essential service strike regulation, Canada's shifting understanding of essentiality and, most recently, the implications of constitutional labour rights, including the right to strike, for essential service strike regulation. It also looks at the law in action through a consideration of the application of these laws in their specific contest.

Regulating Strikes In Essential Services - Canada, Eric Tucker

Eric M. Tucker

This chapter was written as a part of a comparative law project examining the regulation of strikes in essential services. It describes and analyses Canada's experience with strikes in essential services, including the historical development of essential service strike regulation, Canada's shifting understanding of essentiality and, most recently, the implications of constitutional labour rights, including the right to strike, for essential service strike regulation. It also looks at the law in action through a consideration of the application of these laws in their specific contest.

An Empirical Study Of Workers' Demands Through Industrial Actions: A Comparative Analysis Of The United States, Germany And The People's Republic Of China Under The Bargaining Model, Xiaohan Sun

Maurer Theses and Dissertations

The Chinese traditional manufacturing industry used to rely on raw materials and low labor costs to achieve a competitive advantage, however, the Chinese lowest–cost labor market is no longer competitive and the Chinese manufacturing industry is not the strongest player in the high-tech area. The transition of manufacturing industry is confronted with difficulties and challenges.

From the prior research, one of the reasons over labor conflicts is the awareness of rights consciousness. Employment dispute cases have had a significant increase since 2008, and labor disputes gradually increased since the year 2014. Industrial actions, such as strikes and protests, became the …

The Motive Power In Public Sector Collective Bargaining, Martin H. Malin

Hofstra Labor & Employment Law Journal

In the private sector, George Taylor referred to the strike as providing the “motive power” in collective bargaining. A major reason behind the enactment of public employee collective bargaining laws is to reduce the interruption of public services from job actions. This was the case with the enactment of New York’s Taylor Law.

This paper, written for a conference commemorating the 50th anniversary of the Taylor Law and published in a special issue of the Hofstra Labor and Employment Law Journal focused on the Taylor Law, examines what, in the absence of a right to strike, provides the motive power …

The History Books Tell It? Collective Bargaining In Higher Education In The 1940s, William A. Herbert

Journal of Collective Bargaining in the Academy

This article presents a history of unionization and collective bargaining in higher education during and just after World War II, decades before the establishment of statutory frameworks for labor representation. It examines the collective bargaining program adopted by the University of Illinois in 1945, along with contracts negotiated at other institutions, which demonstrated support for employee self-organization. It will also presents counter-examples of institutions using the courts and congressional investigators to defeat unionization efforts. . Lastly, the article will examine the role of United Public Workers of America (UPWA) and its predecessor unions in organizing and negotiating on behalf of …

The Motive Power In Public Sector Collective Bargaining, Martin Malin

All Faculty Scholarship

In the private sector, George Taylor referred to the strike as providing the “motive power” in collective bargaining. A major reason behind the enactment of public employee collective bargaining laws is to reduce the interruption of public services from job actions. This was the case with the enactment of New York’s Taylor Law.This paper, written for a conference commemorating the 50th anniversary of the Taylor Law and published in a special issue of the Hofstra Labor and Employment Law Journal focused on the Taylor Law, examines what, in the absence of a right to strike, provides the motive power for …

The History Books Tell It? Collective Bargaining In Higher Education In The 1940s, William A. Herbert

Publications and Research

This article presents a history of collective bargaining in higher education during and just after World War II, decades before the establishment of applicable statutory frameworks for labor representation. It examines the collective bargaining program adopted by the University of Illinois in 1945, along with contracts negotiated at other institutions. The article also examines the role of United Public Workers of America (UPWA) and its predecessor unions in organizing and negotiating on behalf of faculty, teachers, and instructors. The first known collective agreements applicable to faculty, teachers and instructors, were negotiated by those unions before UPWA was destroyed during the …

Saying Goodbye To Unions In Higher Education: The Yale Hunger Strike In Perspective, Raymond L. Hogler

Academic Labor: Research and Artistry

No abstract provided.