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Articles 1 - 30 of 38
Full-Text Articles in Law
Penyelesaian Perselisihan Pemutusan Hubungan Kerja (Phk) Atas Kesalahan Berat, Rico Saputra Ginting
Penyelesaian Perselisihan Pemutusan Hubungan Kerja (Phk) Atas Kesalahan Berat, Rico Saputra Ginting
"Dharmasisya” Jurnal Program Magister Hukum FHUI
It is felt that arrangements related to settlement of relational disputes can no longer accommodate the various developments that have taken place, because the rights of individual workers/laborers have not been recognized in industrial relations disputes. The relationship between workers/laborers and employers is a relationship based on the agreement of the parties, but industrial relations disputes can be caused by termination of employment. Disputes in industrial relations can occur due to differences of opinion which result in conflicts between employers or groups of employers and workers/laborers or trade unions/labor unions due to disputes regarding rights, disputes over interests, disputes over …
Consent, Coercion, And Employment Law, Samuel R. Bagenstos
Consent, Coercion, And Employment Law, Samuel R. Bagenstos
Articles
The Roberts Court has recently handed several high-profile wins in labor and employment law cases to anti-labor and pro-employer forces. This paper argues that those decisions replicate crucial moves made by some infamous Lochner-era cases — and that those same moves continue to underlie key elements of labor and employment doctrine more generally. In particular, these decisions rest on a contestable understanding of free worker choice. This paper begins by examining the key recent Roberts Court decisions and demonstrates that they appear to invoke at least two distinct and conflicting understandings of employee and employer choice. It then turns to …
A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz
A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz
University of Michigan Journal of Law Reform
In June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership, but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now …
Rwu First Amendment Blog: Michael J. Yelnosky's Blog: Janus V. Afscme And "Weaponizing The First Amendment 06-30-2018, Michael J. Yelnosky
Rwu First Amendment Blog: Michael J. Yelnosky's Blog: Janus V. Afscme And "Weaponizing The First Amendment 06-30-2018, Michael J. Yelnosky
Law School Blogs
No abstract provided.
Rwu First Amendment Blog: Jared Goldstein's Blog: Masterpiece Cakeshop Ruling: No Constitutional Right To Discriminate (For Now) 06-05-2018, Jared A. Goldstein
Rwu First Amendment Blog: Jared Goldstein's Blog: Masterpiece Cakeshop Ruling: No Constitutional Right To Discriminate (For Now) 06-05-2018, Jared A. Goldstein
Law School Blogs
No abstract provided.
Griggs At Midlife, Deborah A. Widiss
Griggs At Midlife, Deborah A. Widiss
Michigan Law Review
Not all Supreme Court cases have a midlife crisis. But it is fair to say that Griggs v. Duke Power Co., which recently turned forty, has some serious symptoms. Griggs established a foundational proposition of employment discrimination law known as disparate impact liability: policies that significantly disadvantage racial minority or female employees can violate federal employment discrimination law, even if there is no evidence that the employer “intended” to discriminate. Griggs is frequently described as one of the most important decisions of the civil rights era, compared to Brown v. Board of Education for its “momentous social consequences.” In 1989, …
Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos
Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos
Articles
Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.
Categorically Black, White, Or Wrong: 'Misperception Discrimination' And The State Of Title Vii Protection, D. Wendy Greene
Categorically Black, White, Or Wrong: 'Misperception Discrimination' And The State Of Title Vii Protection, D. Wendy Greene
University of Michigan Journal of Law Reform
This Article exposes an inconspicuous, categorically wrong movement within antidiscrimination law. A band of federal courts have denied Title VII protection to individuals who allege “categorical discrimination”: invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of “misperception …
Limiting The Affirmative Defense In The Digital Workplace , Daniel B. Garrie
Limiting The Affirmative Defense In The Digital Workplace , Daniel B. Garrie
Michigan Journal of Gender & Law
From 2009 to 2011, there were more than 30,000 sexual harassment claims filed in the United States. The ubiquitous availability of digital technology devices has facilitated many instances of sexual harassment. Such sexual harassment occurs through unprovoked and offensive e-mails, messages posted on electronic bulletin boards, and other means available on the Internet. To date, courts remain silent on this issue. Should this type of sexual harassment be treated differently from physical sexual harassment? The surprising answer is yes. This Article suggests a new judicial framework for addressing sexual harassment perpetrated through digital communications. This framework accounts for the real-world …
Sex Equality's Unnamed Nemesis, Veronica Percia
Sex Equality's Unnamed Nemesis, Veronica Percia
Michigan Journal of Gender & Law
Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours …
Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine
Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine
Articles
"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …
After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine
After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine
Articles
The following essay is based on a talk the speaker was invited to deliver to the National Labor Relations Board on June 3 in Washington, D.C., on the occasion of the agency's 70th anniversary.
Labor And Employment Law In Two Transitional Decades, Theodore J. St. Antoine
Labor And Employment Law In Two Transitional Decades, Theodore J. St. Antoine
Articles
Labor law became labor and employment law during the past several decades. The connotation of "labor law" is the regulation of union-management relations and that was the focus from the 1930s through the 1950s. In turn, voluntary collective bargaining was supposed to be the method best suited for setting the terms and conditions of employment for the nation's work force. Since the 1960s, however, the trend has been toward more governmental intervention to ensure nondiscrimination, safety and health, pensions and other fringe benefits, and so on. "Employment law" is now the term for the direct federal or state regulation of …
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
Articles
A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Articles
Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …
Arbitration And Judicial Review, Theodore J. St. Antoine
Arbitration And Judicial Review, Theodore J. St. Antoine
Other Publications
A quarter century ago, in a presentation at the Academy's annual meeting, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body that has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: "What's the big deal about contract reading, anyway? Isn't it just the same as contract interpretation?" Or, more substantively scathing: "Do you really think, Ted, that all you have to do to interpret a labor agreement is to …
Contract Reading' In Labor Arbitration, Theodore J. St. Antoine
Contract Reading' In Labor Arbitration, Theodore J. St. Antoine
Articles
A quarter century ago, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. This phrase has almost invariable been misunderstood to refer to reading or interpreting the contract. When I spoke of the "contract reader," it was in the context of judicial review of an award. My point was this: When a court has before it an arbitrator's award applying a collective bargaining agreement, it is as if the employer and the union had signed a stipulation stating: "What the arbitrator says this contract means is exactly what we meant …
Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine
Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine
Articles
One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that …
Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine
Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine
Articles
Would employees-including union employees-be better off with mandatory arbitration, even of statutory employment claims? The answer to this important question should depend less on abstract notions about the importance of statutory claims and the sanctity of the right to a jury trial, and more on a pragmatic assessment of what is likely to be best for the great majority of workers. Employing this type of analysis, which would take into account an overworked, underfunded Equal Employment Opportunity Commission, backlogged court dockets and other practical problems, my view is that most employees might well be better off with mandatory arbitration, provided …
Arbitration: Back To The Future, Theodore J. St. Antoine
Arbitration: Back To The Future, Theodore J. St. Antoine
Other Publications
A strong new ideological current is sweeping through much of the Western World. At one extreme it manifests itself as a deep distrust of big government. In more modest form, it is a sense of skepticism or disillusionment about the capacity of big government to deal effectively with the problems confronting our society. In continental Europe today there is much talk of the principle of "subsidiarity," the notion that social and economic ills should be treated at the lowest level feasible, usually the level closest to the people directly affected. In the United States there is much talk of "privatization," …
Hostile Environent Sexual Harassment Claims And The Unwelcome Influence Of Rape Law, Janine Benedet
Hostile Environent Sexual Harassment Claims And The Unwelcome Influence Of Rape Law, Janine Benedet
Michigan Journal of Gender & Law
This article considers the unwelcomeness requirement of the plaintiff’s prima facie case. In particular, it examines the discussion of unwelcomeness found in the decision of the Supreme Court in Meritor Savings Bank v. Vinson, and the content given to this element by the subsequent decisions of lower courts. Such an inquiry reveals several parallels between the approach of courts to sexual harassment claims and their traditional treatment of the criminal offense of rape. The same biases and erroneous assumptions that have hampered an effective response to the physical violation of women have permeated the application of the purported remedy …
Employment Discrimination: Recent Developments In The Supreme Court, Eileen Kaufman
Employment Discrimination: Recent Developments In The Supreme Court, Eileen Kaufman
Touro Law Review
No abstract provided.
Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine
Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine
Articles
The Commission on the Future of Worker-Management Relations, the so-called "Dunlop Commission," is focusing on three principal subjects: (1) union organizing, (2) worker participation in management decision making, and (3) alternative dispute resolution (ADR). I am going to concentrate on the last, but first I would like to say a few words about union organizing. After all, unionization and collective bargaining - and for that matter, worker participation as well - can fairly be viewed as special forms of alternative dispute resolution.
Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine
Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine
Articles
A unifying theme of this Symposium is as old and enduring as the common law: when and how can a well-established, successful adjudicative institution be adapted to meet the demands of new and substantially different situations? There have been splendid triumphs of transference, such as Lord Mansfield's appropriation of the law merchant in the eighteenth century as a major building block of modem commercial law. There have also been embarrassing failures, like the abortive effort to transport American labor law concepts en masse into the alien British environment of the early 1970s. The common question confronting the participants in this …
Employment Discrimination, Charles Stephen Ralston, Paul Kamenar, William Bradford Reynolds, Gail Wright-Sirmans
Employment Discrimination, Charles Stephen Ralston, Paul Kamenar, William Bradford Reynolds, Gail Wright-Sirmans
Touro Law Review
No abstract provided.
Prevention Of Antiunion Discrimination In The United States, Theodore J. St. Antoine
Prevention Of Antiunion Discrimination In The United States, Theodore J. St. Antoine
Articles
Nearly all rank-and-file employees in private businesses of any substantial size in the United States are protected by federal law against antiunion discrimination. The Railway Labor Act applies to the railroad and airline industries. The National Labor Relations Act (NLRA) applies to all other businesses whose operations "affect [interstate] commerce" in almost any way. Supervisory and managerial personnel, domestic servants, and agricultural workers are excluded from this federal scheme. Separate federal law covers the employees of the federal government. About thirty of the fifty states have statutes ensuring the right to organize on the part of some or most of …
Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine
Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine
Articles
Bernard Meltzer has testified under oath that he "rarely take[s] absolute positions." The record bears him out. While his colleagues among labor law scholars often strain to demonstrate that the labor relations statutes and even the Constitution support their hearts' desires, the typical Meltzer stance is one of cool detachment, pragmatic assessment, and cautious, balanced judgment. The "itch to do good," Meltzer has remarked wryly, "is a doubtful basis for jurisdiction" -or, he would likely add, for any other legal conclusion. In this brief commentary I propose to examine the Meltzer approach to four broad areas of labor law: (1) …
Legal Barriers To Worker Participation In Management Decision Making, Theodore J. St. Antoine
Legal Barriers To Worker Participation In Management Decision Making, Theodore J. St. Antoine
Articles
Collective bargaining lies at the heart of the union-management relationship. It is the end and purpose of the whole effort to protect employees against reprisals when they form an organization to represent them in dealing with their employers. Collective bargaining is grounded in the belief that industrial strife will be checked, and the workers' lot bettered, if workers are given an effective voice in determining the conditions of their employment. My thesis is that federal law, even while placing the force of government behind collective bargaining, has so artificially confined its scope that the process has been seriously impeded from …
Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine
Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine
Articles
"Peaceful picketing," the United States Supreme Court has said, "is the workingman's means of communication."' One line of analysis is that, as a means of communication, picketing is free speech and is therefore entitled to every constitutional protection afforded other forms of expression. This means that it cannot be subjected to special restrictions, such as antiboycott curbs, simply because it is picketing. The opposing line of analysis is that picketing is not simply speech; it is "speech plus." The "plus" element removes picketing from the realm of pure speech and enables it to be regulated in ways that the Constitution …