Law Commons^™

Data Rights For Workers, Pauline Kim, Rachel Leavitt

Scholarship@WashULaw

Workers are subject to immense amounts of data collection on the job, and the algorithmic management tools built with that data can produce negative effects, including deskilling jobs, unstable work hours, reduced wages, and dangerous and degrading working conditions. Workers thus have significant interests how their data are collected and used, and yet they have been excluded from nearly all the recently enacted or proposed data protection laws. Their exclusion stems from data protection’s roots in privacy law and theory, which primarily focused on consumers as data subjects. Current data protection laws, even if expanded to cover workers, would provide …

The Basis Of The Labor Exemption Reconsidered, Sanjukta Paul

Articles

Broadly speaking, this symposium queries the question of expanding some actors’ coordination rights under antitrust law as a way of effectuating legal goals relating to “power relations.” I commend the organizers of the symposium for opening this conversation, for asking about the use of “collective bargaining” beyond the traditional labor domain, and for taking on the question in a creative way. These broader questions are essential, and yet my own article will (paradoxically, perhaps) try to contribute to this effort by going back to the core domain of the labor exemption itself—where, it turns

Stop The Work Stoppages: A Mixed-Mode Dispute Resolution Process To Prevent An Nba Lockout Or Strike, Kyle Cohen

Cardozo Arts & Entertainment Law Journal

The note argues that the NBA and NBPA should incorporate a mixed-mode dispute resolution clause—specifically a "neg-med-arb" (negotiation-mediation-arbitration) process—into future collective bargaining agreements (CBAs). By transitioning from negotiation to mediation and finally to binding arbitration, the league can ensure a successor agreement is reached in time to prevent lockouts or strikes that disrupt the season.

Room To Breathe: The Surprising Capaciousness Of Osh Act Preemption, Michael C. Duff

All Faculty Scholarship

This essay is part of a Saint Louis University Law Journal seminar, conducted by the Wefel Center for Employment Law, titled "Shifting Workplace Law in an Era of Federal Vacuums: Business as Usual or Polycrisis?" The symposium presumed that the federal government would be scaling back workforce regulatory enforcement dramatically in the shadow of DOGE and several other developments. The essay focuses on OSHA and more narrowly questions the extent to which the OSH Act preempts state and local efforts to regulate workplace safety and health. The essay shows that unless OSHA promulgates a full-blown “standard” – a tedious form …

The Notion Of Subordination And The Presumption Of Employment Relationship In The Perspective Of Comparative Labour Law, Adalberto Perulli

Comparative Labor Law & Policy Journal

The concept of subordination serves as the key criterion for accessing social protection across civil law systems. Theoretically, subordination corresponds to what common law systems define — through multifactorial tests — as an employment (or service) contract, distinguishing it from self-employment. While this historic dichotomy is widely regarded as unsatisfactory and has long been questioned, the notion of subordination remains central to ensuring that workers receive the protection guaranteed under the labour law systems. Part I will address the problem of subordination as a fundamental legal category of labour law, rooted in contract law. Regardless of the complex legal origins …

Front Matter, Editors Of Comparative Labor Law & Policy Journal

Comparative Labor Law & Policy Journal

Front Matter

Book Review: Défense Et Illustration De L’Action Internationale: L’Example De L’Oit By Jean-Michel Servais, Editions L’Harmattan, 20251, Lance Compa

Comparative Labor Law & Policy Journal

For decades a leading figure among senior legal officials at the International Labour Organization (ILO), Jean-Michel Servais has synthesized his experience in a magisterial work that every international labour law scholar and practitioner should have on hand — if they read French. This brief review is meant to introduce it to a broader audience, with hope that the book might be translated and published for the benefit of English readers, too.

Procedural Apartheid? How Racial Harassment Cases And Their Proponents Are Subject To Separate And Unequal Due Process, Suzette M. Malveaux

Scholarly Articles

This article makes three unique contributions. First, it introduces the theoretical framework and coins the term “procedural apartheid.” Simply put, when race is invoked as the basis for misconduct, procedural protection is meted out inequitably, often to the detriment of people of color. This phenomenon is situated in the law’s larger project to preference colorblindness over race-conscious ameliorative efforts. The article invites the reader to broadly consider where separate and unequal proceduralism exists because of the centrality of race. This article deploys the term “apartheid”—not literally, but strategically—to highlight the systemic legal and racial nature of this hierarchical divide.

Second, …

Workers’ Empowerment As U.S. Trade Policy, Desiree Leclercq

Scholarly Works

U.S. trade policy stands at an inflection point. The Biden administration’s “worker-centered” trade policy promised to empower foreign workers to improve employment and living standards globally, but it linked its trade assistance to political allies. The Trump administration’s “America First” trade policy promises to use tariffs and isolationism to protect and empower U.S. workers, but it is fostering antagonism rather than cooperation in trade. Both policies, while sharply diverging at the edges, recognize that U.S. trade policy affects employment opportunities in the United States. Both policies also critically overlook the relationship between the treatment of workers in trade partner countries, …

Nothing To See Here. Yet. Ames V. Ohio Department Of Youth Services, Michael J. Yelnosky

Roger Williams University Law Review

No abstract provided.

No Exception For Ultra Vires Discrimination, Rev. James Deboer

American University Journal of Gender, Social Policy & the Law

The Ministerial Exception (“the Exception”) is an affirmative defense that religious institutions may use to obtain dismissal of discrimination claims brought by current and former ministerial employees.The Exception rests on the seemingly straightforward premise that churches and other religious institutions must be free to select and remove their own ministers without interference from secular laws.  It applies with equal force to any kind of discrimination; extends to harassment and retaliation; and is not confined to forms of alleged discrimination motivated by religious belief.

The Supreme Court has only addressed the Exception twice. First, in 2012, through Hosanna-Tabor Evangelical Lutheran Church …

Politics As Usual: Racial Pay Inequity And The Illusion Of Inclusion In The Rise And Fall Of Diversity, Equity, Inclusion, And Accessibility Executive Orders, Francois C. Melville

West Chester University Graduate Theses, Dissertations, and Final Projects

This research examines pressing moral policy questions of our time: who determines when the United States of America has fulfilled its broken promise of equality for all, and what constitutes an appropriate measure of reparative justice. It interrogates why the Diversity, Equity, and Inclusion (DEI) Executive Orders (EOs) implemented across presidential administrations, intended to advance social equity, were grounded in conflict and symbolic gestures rather than scientifically evidenced issues such as wage inequality directly linked to upward career mobility. Race conscious policy generates cultural clashes centered on the perception that gains made by Black and Brown Americans come at the …

Black Labor Matters, Michael Z. Green

American University Law Review

Black and organized workers increasingly find themselves threatened by two key outside forces: one seeking to stop anti-racism efforts via diversity, equity, and inclusion (DEI) practices and the other curtailing employees’ union organizing. This Article argues that a response must be grounded in uniquely local strategies by two specific worker coalitions. One coalition—the New Black Workers Movement (NBWM)—arose from Black Lives Matter civil rights protests in 2020 that captivated the workplace and heightened awareness about anti-Blackness and concerns of systemic racism. The other coalition—the New Labor Workers Movement (NLWM)—developed in 2020 as a workplace response to a global pandemic that …

Protecting Pregnancy: From The Pregnancy Discrimination Act To The Pregnant Workers Fairness Act, L. Camille Hébert

American University Law Review

Women have long faced challenges in balancing their employment with childbearing, facing loss of employment opportunities because of their potential for pregnancy and loss of actual employment when they became pregnant. Over the past six decades, Congress and the U.S. Supreme Court have taken actions with the potential to provide equal employment opportunity for women affected by pregnancy, but those efforts have largely failed because of the actions of lower federal courts in interpreting legislation and the Court’s decisions in ways to reduce protection for pregnancy. The most recent congressional action to protect pregnancy, the Pregnant Workers Fairness Act, was …

Enhancing Military Health System Organizational Efficiency And Quality Of Care Through A Social-Ecological Framework, Eric L. Peipelman

College of Graduate Studies: Theses & Dissertations

Timely and fair adjudication of incivility-related actions within the Department of Defense (DoD) and Military Health System (MHS) is increasingly crucial for maintaining accountability, mission readiness, and quality of care. Ongoing delays in resolving workplace complaints and inefficiencies in resource-heavy adjudications highlight the need to shift from reactive complaint handling toward proactive civility promotion and transparent decision-making. This Integrated Learning Experience (ILE) introduces the Peipelman Civility Discussion and Assessment Toolkit (PCDAT)—a comprehensive, evidence-based framework designed to improve civility, optimize resources, and enhance communication, even in the MHS. Based on the Social-Ecological Model (SEM) and adapted from the Workplace Power and …

Antidiscrimination Law Against Labor, Jordan Laris Cohen

American University Law Review

In recent years, employer compliance with antidiscrimination law has emerged as a major justification for limiting the rights of employees to organize and engage in collective action in the workplace. In IBM Corp., a Republican majority of the National Labor Relations Board cited “laws addressing workplace discrimination and sexual harassment” as a primary reason to deny nonunionized employees the right to a coworker representative during investigatory interviews. In General Motors, a Republican Board majority invoked antidiscrimination law in upending four decades of precedent regarding employer discipline of employees engaged in “opprobrious conduct” in the course of protected organizing …

Federal Hiring Dysfunction And The Self-Shrinking Skew, Lindsey Barrett

American University Law Review

A half-century of remodeling agency workforces against corporate blueprints has hollowed out the civil service, enervated oversight, and facilitated the rise of tech oligarchy. Progressive commentors have criticized the neoliberal turn and proposed reinvigorating reforms, but they’ve overlooked a foundational obstacle: federal hiring dysfunction. Hiring dysfunction entrenches low-resource, deferential regulatory tactics, makes sharper or more onerous approaches less feasible, and undermines recruitment of technical staff for policy and regulatory functions. Concerns about hiring dysfunction and capacity dampen regulatory ambitions. Finally, hiring dysfunction creates plausible-seeming capacity pretexts to oppose novel or more confrontational tactics. The cumulative effects cement regulatory dismantlement to …

The Making Of Egyptian Cotton: An Alternative Narrative Between Empire And Global Capital, Dina I. Waked

FIU Law Review

Egyptian cotton has become a celebrated brand. Referring to cotton as “Egyptian” signals a certain quality, luxury, and durability. Egyptian cotton has, thus, become its own trademark, a signifier of value, and a symbol of national heritage. This image is carefully curated. It is now protected under a licensing scheme of branding and marketing that assures that fraudulently claimed “Egyptian cotton” does not benefit from the added value this geographic location ascribes to it. The Egyptian Cotton Association was thus created 2005 to license and accredit the brand. Part of the curation of the brand image is a historical narrative …

Negligent Hiring: Recidivism And Employment With A Criminal Record, Benjamin David Pyle

Faculty Scholarship

This Article tackles a difficult legal and policy challenge— reducing the impact of criminal records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, …

Informed Applicants: Anti-Discrimination Enforcement Based On The Use Of Criminal Records, Benjamin David Pyle

Faculty Scholarship

Navigating the labor market with a criminal record is treacherous. Countless job applicants will be turned down immediately after a potential employer learns they have had contact with the criminal legal system. Criminal records reflect and exacerbate long-standing racial and economic inequalities in the United States. Thus, the use of records in employment decisions will often implicate anti-discrimination laws. However, successfully enforcing these protections requires job applicants to, at minimum, understand why they were not hired. Many applicants never learn why they were not hired and thus will never be able to protect their rights. This Article argues that understanding …

Employment Law: Governance And Guardrails: Artificial Intelligence And Low-Wage Workers, Seema N. Patel

The Judges' Book

“It’s like magic.” In August 2014, the New York Times reported on how Kronos scheduling software—which uses which uses real-time inputs, including weather forecasts, historical sales data, and nearby events, to predict customer traffic—had created a “chronic crisis over the clock” for Starbucks’s 130,000 baristas. For one barista, Jannette Navarro, the Kronos app controlled everything from how much sleep her four-year-old son might get to what groceries she could afford that month. The software was installed directly onto workers’ personal phones without consultation, negotiation, or notice. What seemed “like magic” to a Kronos executive wreaked havoc on workers’ lives.

A …

Tapera: Melindungi Hak Atas Tempat Tinggal Atau Mengancam Kehidupan Yang Layak, Elizabeth Jeneva Samuella, Ida Susanti

Jurnal Hukum & Pembangunan

This study examines the People's Housing Savings (TAPERA) policy in the context of protecting the right to adequate housing and its impact on the decent living conditions of workers. Under TAPERA regulations, all workers are required to set aside a portion of their salary, including those who already own a home. While this policy aims to improve access to adequate housing, it raises questions about its impact on purchasing power and the fulfillment of other basic needs. The study employs an interdisciplinary approach using socio-legal methods to evaluate whether the mandatory TAPERA contributions can be considered a violation of the …

Workplace Retaliation And The Intersection Of Protected Conduct And Job Performance, Chris M. Schmidt

Arkansas Law Review

A host of statutory schemes seek to ensure equal employment opportunities in the United States by eradicating workplace discrimination (“EEO laws”). Consider two foundational pillars necessary for these EEO laws to strike the desired balance between individual rights and workplace efficiency. First, employees require robust protection from retaliation if they engage in protected conduct—for example, by reporting perceived discrimination. Second, employers can—and ideally, should—make employment decisions based on how an employee performs the job.

The interests in robust protection and performance-based decision-making serve the purposes of our EEO laws and are well-established. Rarely do they conflict (to the contrary, they …

Religious Employment And The Tensions Between Liberty And Equality, R. Shawn Gunnarson, James C. Phillips, Christopher A. Bates

BYU Law Review

Located in Title VII of the Civil Rights Act of 1964 is an exemption for religious employers that is often misunderstood. Often courts and commentators mischaracterize it as a narrow privilege for religious employers to hire people of the same religion. But the statute’s text says otherwise. This article resolves interpretive debates about the meaning and application of the religious employer exemption through a close textualist reading that discovers a new understanding of the structure of Title VII. Our approach applies the tools of textualism, the prevailing theory of statutory interpretation. Paying attention to the text and structure of Title …

Mobility And Power In Temp Work, Andrew Elmore

BYU Law Review

Labor mobility is an underdiscussed determinant of temp worker power. Drawing on original interviews with professional and blue-collar workers who work as and alongside temps, this Article shows how businesses use staffing agencies to restrict the labor mobility of contingent workers. Staffing agencies limit worker mobility by imposing user- and worker-side contractual restraints while misrepresenting themselves to temp workers as their sole employer. They also exploit state-imposed mobility limitations by recruiting foreign nationals and people leaving incarceration and channeling them into their most precarious work. This enables clients to dismantle internal labor markets and to fill staffing shortages without raising …

Labor And Employment Law, W. Jonathan Martin Ii

Mercer Law Review

This Article surveys recent developments in the state statutory and common law that affect labor and employment relations of Georgia employers. Accordingly, it surveys published decisions from the Supreme Court of Georgia and the Court of Appeals of Georgia from June 1, 2024 to May 31, 2025. This Article also includes highlights of certain revisions to the Official Code of Georgia Annotated (“O.C.G.A.”).

Despite Successful Lawsuits And Investigations, Kensington Grocery Stores Still Deny Workers Legal Wages, Tareq Saghie

Capstones

This article looks at three grocery stores in Kensington, Brooklyn that continue to pay immigrant workers below legal wages despite courts and the Department of Labor penalizing them for it repeatedly. The reporting speaks to the ineffectiveness of the law at deterring labor violations, the commonality of wage theft in New York's grocery stores, and the impacts it has on workers.

https://medium.com/@tareqsaghienyc/despite-successful-lawsuits-and-investigations-kensington-grocery-stores-still-deny-workers-legal-a332c980a1cb

Greenhat’S Greenlight To The Cftc: The Case For A Jurisdictional Shift Of Financial Transmission Rights From The Federal Energy Regulatory Commission To The Commodity Futures Trading Commission, Timothy K. Shaw Ii

DePaul Business & Commercial Law Journal

Regional Transmission Organizations and Independent System Operators are a relatively new platform to buy and sell wholesale electricity and transmission service of that electricity. These groundbreaking organizations have been around since 1996 after the Federal Energy Regulatory Commission (“FERC”) issued Order 888. FERC regulates the physical electricity wholesale sale and transmission service market managed by a Regional Transmission Organization (“RTO”) or Independent System Operator (“ISO”),through its Federal Power Act mandate. Many RTOs and ISOs offer a product called a Financial Transmission Right (“FTR”). Traditionally, FTRs assist the holder by providing price certainty, or a hedge, in the capacity market. This …

Choosing The Best Entity For Investments Trading After Understanding The Tax Limitations And Restrictions, Ray A. Knight, Joseph Lakatos

DePaul Business & Commercial Law Journal

The trading of various securities is subject to market rules. However, when securities trading is completed within a business entity, the entity is subject to tax limitations and restrictions. The tax benefits cannot be the dominant purpose for the entity structure; economic substance including profit motive and business purpose for each transaction must be able to be shown.

The trading of investment securities must be housed in the right entity to gain the best economic results as well as to minimize the tax burden. The entity selection process must first consider the characteristics and nature of the securities (e.g., currencies, …

Volume 23 - Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.