Law Commons^™

What Standard Of Proof Must Employers Satisfy To Demonstrate The Applicability Of A Fair Labor Standards Act Exemption?, Anne Marie Lofaso

Law Faculty Scholarship

Case at a Glance: Employees of E.M.D. Sales, Inc., an international food distributor, sued E.M.D., alleging that it violated the Fair Labor Standards Act (FLSA) when it withheld overtime wages from these employees. As an affirmative defense, E.M.D. asserted that the employees were FLSA‑exempted outside salesmen. This case asks the Court to determine whether employers must use the preponderance-of-the-evidence standard or the clear-and-convincing evidence standard to prove the applicability of an exemption under the FLSA.

Breaking The Chains: Lessons Learned From Anti-Slave Labor Laws And Their Applicability To Proposed Expansions To The Uflpa, Kaitlin Danielle Chang

William & Mary Business Law Review

With global trade growing every day and more products being imported from foreign countries, responsible sourcing of products is more important now than ever. Irresponsible importation of goods can lead to countries like the United States supporting human rights abuses abroad by allowing goods made with forced labor into their domestic markets. The Uyghur Forced Labor Protection Act (UFLPA) has empowered the United States’ Customs and Border Protection to hinder the flow of goods made with Uyghur forced labor into the United States, but it has not been completely successful in preventing these goods from being sold in the United …

Pacific Island Countries Green Shipping Corridors Network (Picgsc Network) : Efficiency And Effectiveness Of Green Shipping Corridors And The Impact Of Climate Change On Shipping, Asela Peneueta

World Maritime University Dissertations

No abstract provided.

Navigating The Technological Wave In Maritime : Examining Safety Culture In The Era Of Sustainability And E-Navigation, Mithilesh Kumar

World Maritime University Dissertations

No abstract provided.

The Impact Of Marine Protected Areas In Coastal Communities In Liberia : A Case Study On The Lake Piso Multiple Sustainable Use Reserve, Doris Wrehyonoh Yahn

World Maritime University Dissertations

No abstract provided.

Anti-Discrimination Clauses In Higher Education Collective Bargaining Agreements, William A. Herbert, Erin Ward, Karen Stubaus

Publications and Research

This report presents excerpts from 30 current or recent higher education collective bargaining agreements involving faculty, post-doctoral scholars, or graduate student employees along with hyperlinks to the full agreements. The excerpts are organized by institution and bargaining unit type: combined faculty collective bargaining units; non-tenure track faculty bargaining units; community college faculty bargaining units; post-doctoral scholar and academic researcher bargaining units; and graduate student employee bargaining units.

Constitutional And Administrative Innovation Through State Labor Law, Kate Andrias

Faculty Scholarship

This Essay explores recent efforts by worker organizations to transform labor policy in states, as well as countermobilizations by business and conservative groups. It focuses on two particularly promising efforts: the development of worker standards boards and pro-labor changes to state constitutional law. It shows why, as a matter of political economy, such reforms have been achievable at the state and local levels, but not the federal level, and explores the potential of state reforms to build greater economic and political power for working people, notwithstanding limits imposed by federal preemption doctrine. Ultimately, this Essay argues that these recent innovations …

#Employerstoo: Expanding Vicarious Liability For Sexual Harassment In Title Vii And Tort Law, Kassandra "Kassie" Fotiadis

Michigan Law Review

When an individual experiences sexual harassment through a workplace, she has limited options for recourse. One seemingly promising possibility is bringing a claim against her perpetrator’s employer. But this option—achievable through vicarious liability—has failed to realize its potential. In 1998, the U.S. Supreme Court established a standard to enforce vicarious liability for sexual harassment claims under Title VII. That standard, though, was limited in scope to begin with and has further narrowed over time. Common law principles also allow courts to hold employers vicariously liable for sexual harassment in tort. But few jurisdictions have adopted those principles, and there is …

You're Sending The Wrong Message: Sexual Favoritism And The Workplace, Paige I. Bernick

Tennessee Journal of Law and Policy

No abstract provided.

Employment Law: Smith V. Rock-Tenn. Services: Employer Held Liable For Same-Sex Sexual Harassment In The Workplace, Kaitlyn Dean

Tennessee Journal of Law and Policy

No abstract provided.

Reverse Discrimination: An Opportunity To Modernize And Improve Employment Discrimination Law, William R. Corbett

University of Miami Law Review

The issue of how to prove discrimination in reverse discrimination cases has produced a division in the circuits and some strongly worded opinions about discriminatory discrimination law. The courts begin with the three-stage proof framework developed by the Supreme Court in 1973 in McDonnell Douglas Corp. v. Green, 411 U.S. 792. Some courts adjust the prima facie case, the first stage of the analysis, by requiring a reverse discrimination plaintiff to prove background circumstances that justify the inference that the defendant discriminates in a way that is not consistent with historical patterns of discrimination. Other courts reject the background …

Who Invented It? Streamlining Determination Of Patent Inventorship, Henry H. Perritt, Jr.

University of Miami Law Review

Disputes over inventorship are common in industries where new technology is important. Patents are invalid unless correct inventors are named on the patent, even when all the inventors have assigned their rights to the enterprise applying for a patent. The complexity of modern technology is such that an invention qualifying for a patent rarely is the work of only one individual. Employees and former employees frequently claim that they have been left off patent applications wrongfully. Patent law provides a variety of ways to correct inventorship both while such applications are being prosecuted in the U. S. Patent and Trademark …

Leveling The Playing Field For Racial Justice In The Civil Litigation System, Suzette M. Malveaux

Scholarly Articles

Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should …

Stand-Ins: Causes And Consequences Of Temporary Leadership, Anne Joseph O’Connell

BYU Law Review

Hafen Lecture, BYU Law School, September 13, 2023.

Nil Tampering, Josh Lens

BYU Law Review

The college athletics landscape has experienced several recent dramatic and monumental changes. In 2018, its governing body, the NCAA, implemented the transfer portal to help universities and athletes manage the process by which athletes transfer to another university. In 2021, the NCAA allowed every athlete the freedom to accept compensation in exchange for the use of their name, image, and likeness (“NIL”). Booster collectives quickly formed to facilitate NIL arrangements and now exert significant financial influence in the athlete recruiting and retention process. Tens of thousands of athletes have used the portal since its inception, with many seeking more NIL …

Libby V. Calais Regional Hospital: Contracting Out Of Maine's Employment-At-Will Doctrine, Russell Goldsmith

Maine Law Review

In Libby v. Calais Regional Hospital, Elizabeth Libby, a medical technologist at Calais Regional Hospital, brought suit against her former employer claiming breach of contract for improper discharge and alleging that the hospital failed to honor the terms of their mutually binding employment agreement. In particular, the plaintiff maintained that the hospital did not follow the termination procedures that had been set forth in her employee handbook and that were incorporated as terms of her employment contract. The trial court granted defendant's motion for a directed verdict, concluding that the plaintiff did not present sufficient evidence to show that her …

Toward A Better Understanding Of Mail Balloting: The Case Of U.S. Labor Union-Representation Elections, Rafael Gely, Leonard Bierman, Timothy Chandler

Faculty Publications

The issue of how people vote in elections is important and timely. This Article examines this issue from the perspective of whether people vote by mail - i.e., mail balloting - or in person on a designated election day i.e., in-person voting. It explores the pros and cons of mail balloting versus in-person voting from a general political perspective and in the context of elections for labor union representation in the United States. It presents heretofore unreported data on the use of mail balloting in union-representation elections. It then draws lessons from these data concerning how mail balloting-which has increased …

The Future Of Work In The Era Of Ai, Orly Lobel

Indiana Law Journal

Artificial intelligence (AI) is revolutionizing both work itself and the processes of employment—hiring, recruitment, evaluation, compensation, performance analysis, retention, and job mobility. This Essay, based upon the 2024 Indiana Law Journal annual William R. Stewart Lecture, examines the effects of AI on work and argues for a holistic approach that harnesses the benefits of automation while addressing the inevitable systemic changes that AI is rapidly bringing to the labor market. The Essay examines two industries in which AI is already changing labor market demands: trucking and the performing arts. The Essay argues that while the automation can often increase efficiency …

Excluded But Equal, Gali Racabi

William & Mary Bill of Rights Journal

Work law is excessively exclusionary. Canonical examples include agriculture workers, independent contractors, and domestic workers. But work law excludes far more workers and employers than those familiar categories. Whole sectors, occupations, business sizes, wage arrangements, geographical areas, and more are excluded from the basic tenets of economic citizenship, including federal, state, and local minimum wage; overtime; and safety and labor protection laws.

Equal protection claims govern the authority of legislatures to determine who is in and who is out of work laws. Excluded workers and included employers now routinely use state and federal constitutional equal protection arguments against exclusionary work …

Cartel Breakdown: The Impact Of Demonopsonization On Market Concentration, Nathan Ashby, Miguel A. Ramos-Gonzalez

Hunt Institute Working Paper Series

The exogenous removal of labor restrictions mandated by Alston vs. NCAA (National Collegiate Athletic Association) has provided a unique natural experiment for analyzing the impact of demonopsonization on market concentration. Using basketball tournament data between 2003 and 2024 we find evidence of increased concentration in performance among higher-tiered programs. The larger magnitude of estimates for women’s programs likely results from wider dispersion in market demand for participating programs predating the reforms. We also analyze parity in regular-season conference play and fail to detect a relationship between the changes and dispersion for higher-tiered conferences, but we do find a relationship for …

Want To Solve Labor Shortages? Relaxing The Child Labor Law Is Not The Answer, Yi Wu

Dickinson Law Review (2017-Present)

Recently, the United States has been engaged in a nationwide debate over loosening regulations regarding children’s employment. The Fair Labor Standards Act (FLSA) sets restrictions on the working hours of children under 16 and prohibits their employment in certain hazardous positions. However, some states, such as Iowa, Ohio, Arkansas, and Wisconsin, have either passed or are considering legislation allowing children to work longer hours or in potentially dangerous conditions in response to labor shortages. These new state laws conflict with existing federal regulations. This Comment discusses why states should refrain from relaxing their child labor laws to permit children to …

Speaking Collectively: The First Amendment, The Public Sector, And The Right To Bargain And Strike, Kate Andrias

Faculty Scholarship

How is it that the Supreme Court has not understood collective bargaining and strikes among public sector workers to fall within the First Amendment’s ambit? Public sector union activity involves expression, assembly, association, and petitioning. Workers’ ability to form unions and to engage in concerted action in support of their shared goals is an important part of democratic governance. Through unions, workers engage in active citizenship; through association with one another, they express their views collectively and engage the government and the public on issues of public concern. Indeed, in the context of protecting the putative speech rights of union …

The Effects Of 401(K) Vesting Schedules—In Numbers, Samantha Prince, Timothy G. Azizkhan, Cassidy R. Prince, Luke Gorman

Faculty Scholarly Works

Many Americans terminate employment, voluntarily or involuntarily, prior to vesting in their 401(k) plans. This costs them a lot of money; it also saves companies a lot of money. Vesting schedules used by some 401(k) plans cause plan participants to forfeit significant portions of their compensation—employer contributions made on their behalf—that should be increasing their retirement savings. This money is recycled by such plans to offset their employer contribution obligations and other costs. We analyzed data from Form 5500s to identify trends in and implications of vesting schedule use by 408 single-employer 401(k) plans over the five-year period of 2018-2022. …

Widiss Honored With Cosell Miller Award, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

An employment law scholar at the Indiana University Maurer School of Law has been honored for her remarkable contributions to the field.

Deborah A. Widiss, professor of law and the John F. Kimberling Chair, was presented the Miller Award at the 19th annual Colloquium on Scholarship in Employment and Labor Law (COSELL) in San Diego on September 13.

Named in honor of the late Paul Miller, who was the Henry M. Jackson Professor of Law at the University of Washington School of Law, the Miller Award is presented annually to a senior scholar who has shown “outstanding academic and public …

An Extremely Important Document: Khea's Struggle For A Contract, 1974-1978, John L.S. Daley Dr

KNEA 50th Anniversary

In 1973, the Kansas State College, Pittsburg administration fired thirteen faculty members without cause. In order to improve administration-faculty relations, remaining faculty organized, petitioned for recognition, and drafted PSU/KNEA's first contract with PSU/KBOR, which went into effect five years later. The narrative covering this period draws on Axe Library's KNEA Collection and interviews of former faculty.

Maximizing Productivity Through Digital Panopticism: Combatting Invasive Employee Surveillance Systems In The Workplace, Amber Wooten

West Virginia Law Review

The United States has experienced rapid advancements in surveillance technology and data collection in the past three decades. Conversely, since the COVID-19 pandemic, remote work opportunities have increased, with many remote workers being subjected to surveillance within their homes. Given the lack of significant statutory measures to safeguard remote employees against incessant surveillance, employers can monitor employees, collect data, and enforce unattainable productivity quotas with little repercussions. Despite these harms, the influx of remote jobs presents significant benefits, especially for states like West Virginia, which faces immense population decline and lacks consistent physical job opportunities. Remote work promotes flexibility and …

‘Constellations’ And ‘Entanglement’ In The Study Of Legal Pluralism: Reflections On The Scholarship Of Keebet Von Benda-Beckmann, Petra K. Mahy Dr

The Indonesian Journal of Socio-Legal Studies

Two key terms permeate the work of Keebet von Benda-Beckmann (and of her co-authors, especially Franz von Benda-Beckmann) in her discussions of legal pluralism: ‘constellations’ and ‘entanglement’. These terms are both concerned with describing the existence of, and interrelationships between, plural legal orders. This article critically analyses these two terms, their usage and implied meanings, and compares them with other alternative concepts employed elsewhere in legal pluralism and cognate literature. With reference to empirical evidence on plural work regulation in Indonesia, I argue that the terms have some descriptive benefits for understanding the realities of plural legal orders, but still …

Getting Personal With Personnel: The Need For Stricter Employee Privacy Rights As Surviellance By Employers Expand, Amber Makda

Hofstra Labor & Employment Law Journal

No abstract provided.

Fighting For Their Lives, Even Outside Of The Octagon: How The Ufc Violates Antitrust Laws To Undermine Fighters' Compensation, Joseph A. Diez

Hofstra Labor & Employment Law Journal

No abstract provided.

Orange Is The New Bruise: Abuse In Correctional Facilities By Employees And How New York's Adult Survivors Act Can Become A Deterrent, Michael Zanni

Hofstra Labor & Employment Law Journal

No abstract provided.