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Full-Text Articles in Law

Employer Liability For Sex Harassment Through The Lens Of Restorative Justice, Emily Rees Apr 2021

Employer Liability For Sex Harassment Through The Lens Of Restorative Justice, Emily Rees

Cleveland State Law Review

Title VII cases alleging sex harassment have become almost completely deferential to employers who have anti-harassment policies. In this Note, I discuss legal and sociological influences on this development and propose using restorative justice focused mediation to avoid rendering Title VII entirely ineffective. Mediation should only be compelled as a remedy—after a court finds that harassment occurred, but that the plaintiff cannot prove her employer knew about the harassment. Instead of dismissing these cases—where judges have already found illegal discrimination—some corrective action should be imposed on the employer for its failure to maintain a harassment-free workplace. Focusing ...


Targeted Job Advertisements On Social Media: An Age-Old Practice In A New Suit, Joseph Nelson Jr. Dec 2019

Targeted Job Advertisements On Social Media: An Age-Old Practice In A New Suit, Joseph Nelson Jr.

The Global Business Law Review

This Note argues that an employer’s use of social media sites to "micro-target" potential job applicants is not per se unlawful under the Age Discrimination in Employment Act (ADEA). Rather, recruitment practices that target a specific age group are permissible under the ADEA when those recruitment practices are part of a broader recruitment strategy. When analyzing job advertisements on social media platforms, courts should not only consider the context of the advertisement, but also whether the advertisements are available through other resources. Such an analysis would allow employers to take advantage of the streamlined recruitment platforms available through social ...


Municipal Minimum Wage Ordinances In Ohio: A Home Rule Analysis, Paul J. Lysobey Jan 2019

Municipal Minimum Wage Ordinances In Ohio: A Home Rule Analysis, Paul J. Lysobey

Cleveland State Law Review

In 2016, a grassroots proposal in Cleveland, Ohio sought to raise the minimum wage in the City of Cleveland to fifteen dollars per hour. But before Cleveland residents could vote on the proposal, the Ohio legislature enacted Senate Bill 331, prohibiting Ohio municipalities from setting their own minimum wage rates. However, the Ohio Home Rule Amendment gives municipalities the right to self-governance in certain instances, and there is question as to whether the Ohio legislature’s action is a violation of the right to home rule for Ohio cities. This Note evaluates the constitutionality of Senate Bill 331’s minimum ...


Workplace Privacy In The Age Of Social Media, Tess Traylor-Notaro Jul 2018

Workplace Privacy In The Age Of Social Media, Tess Traylor-Notaro

The Global Business Law Review

This note addresses the lack of adequate protections in Ohio for social media privacy laws in the workplace and compares proposed legislation in Ohio to legislation that has passed in other states. It examines the provision of the SCA including the definition of "user" and whether social media sites fall under its umbrella. It also looks at the safeguards and limitations of the SCA and how it is used to protect a private employee’s social media account. It analyzes the state statutory laws in Arkansas, Illinois, and California passed specifically to prevent employers from requesting passwords to personal Internet ...


Looking Through The (Mis)Classifieds: Why Taskrabbit Is Better Suited Than Uber And Lyft To Succeed Against A Worker Misclassification Claim, Joseph W. Mchugh May 2018

Looking Through The (Mis)Classifieds: Why Taskrabbit Is Better Suited Than Uber And Lyft To Succeed Against A Worker Misclassification Claim, Joseph W. Mchugh

Cleveland State Law Review

In the highly competitive gig-economy, companies are constantly trying to leverage whatever they can to gain a competitive advantage over competitors. One method of doing so is saving on employment costs by classifying workers as independent contractors. There are two ways to accomplish this: (1) structure the business as an internet-based marketplace or platform; or (2) structure the relationship between the business and the worker in a way that ensures the worker remains classified as an independent contractor under either the common law control test or the economic realities test. Both Uber and Lyft have faced accusations of intentionally misclassifying ...


You Play Ball Like A Girl: Cultural Implications Of The Contact Sports Exemption And Why It Needs To Be Changed, Michelle Margaret Smith May 2018

You Play Ball Like A Girl: Cultural Implications Of The Contact Sports Exemption And Why It Needs To Be Changed, Michelle Margaret Smith

Cleveland State Law Review

Women in the United States have historically earned significantly less income per year compared to their male counterparts. In 2014, the pay discrepancy was at its lowest point with women earning seventy-nine cents per every dollar men earned. This discrepancy exists even though women now attain college degrees at a higher rate than men and make up 47% of the labor force. In sports, the pay discrepancy is even greater. At the professional level, women earn as little as 1.2% of what their male counterparts earn. This Note addresses how changing the contact sports exemption in Title IX to ...


Is More Parental Leave Always Better?: An Analysis Of Potential Employee Protections For Leave Offered Outside The Fmla, Natalie Bucciarelli Pedersen Apr 2018

Is More Parental Leave Always Better?: An Analysis Of Potential Employee Protections For Leave Offered Outside The Fmla, Natalie Bucciarelli Pedersen

Cleveland State Law Review

In the past few years, many large companies, including Netflix, Amazon and Facebook have implemented expanded—and very generous—parental leave policies. While on the surface these policies seem employee-friendly and even big-hearted, when one explores the potential consequences of taking such leave, the policies are fraught with potential dangers for employees. In a groundbreaking new study, researchers have found that employers view time off or flexible work arrangements made for an employee’s personal reasons as negatively reflecting on an employee’s work commitment. But what happens if a company decides to terminate an employee because they have taken ...


Toiling In Factory And On Farm: An Employer-Friendly Approach To The Compensability Of Donning And Doffing Activities Under The "Flsa", Jacob A. Bruner Jun 2017

Toiling In Factory And On Farm: An Employer-Friendly Approach To The Compensability Of Donning And Doffing Activities Under The "Flsa", Jacob A. Bruner

Cleveland State Law Review

No realm of employment litigation has been more active in recent years than class action lawsuits under the Fair Labor Standards Act (FLSA). Although the FLSA was originally enacted to help those who toiled in factories and on farms obtain a fair day’s pay for a fair day’s work, it continues to haunt unwary employers nearly seventy years later. This Note attempts to resolve those problems through the proposition of a single, uniform, and employer-friendly standard for donning and doffing claims arising under the FLSA. Specifically, this Note argues that courts should construe the “integral and indispensable” test ...


Amicus Curiae Brief Of Equality Ohio In Support Of Intervenor Urging Reversal, Doron M. Kalir, Kenneth J. Kowalski Apr 2017

Amicus Curiae Brief Of Equality Ohio In Support Of Intervenor Urging Reversal, Doron M. Kalir, Kenneth J. Kowalski

Law Faculty Briefs and Court Documents

Title VII’s plain language bars discharge of “any individual”—whether transgender or not—“because of such individual’s . . . sex.” It applies whenever employers take gender into account in making employment decisions. It is undisputed that the employer in this case based his decision to terminate Ms. Stephens solely on sex-based considerations. To be sure, he could have terminated Ms. Stephens for a wide array of reasons—tardiness, failure to perform, disciplinary issues—or for no reason at all. Under those circumstances, such termination—even of a transgender person—would not be “because of such individual’s sex.” But that ...


Hands-Tied Hiring: How The Eeoc’S Individualized Assessment Is Taking Discretion Away From Employers’ Use Of Criminal Background Checks, Carrie Valdez Jan 2015

Hands-Tied Hiring: How The Eeoc’S Individualized Assessment Is Taking Discretion Away From Employers’ Use Of Criminal Background Checks, Carrie Valdez

Cleveland State Law Review

This article argues that the 2012 EEOC Guidance should not be given deference by the courts. Specifically, the Guidance’s individualized assessment, which imposes a heightened requirement on employers to justify their background check policies, is problematic in three important ways. First, the individualized assessment places an impractical burden by what it requires and whom it requires to conduct such an assessment. Second, employer liability for negligent hiring may actually increase if employers perform individualized assessments. Finally, the practical effect of the individualized assessment may be decreased employer reliance on criminal background checks, and the result will likely not be ...


Loosening The Rust Belt: Why Ohio Should Re-Examine Its Current Standard For Determining The Enforceability Of Covenants Not To Competer Contained In Employment Agreements, Brian D. Mielcusny Jan 2015

Loosening The Rust Belt: Why Ohio Should Re-Examine Its Current Standard For Determining The Enforceability Of Covenants Not To Competer Contained In Employment Agreements, Brian D. Mielcusny

Cleveland State Law Review

While the field of non-compete litigation is muddled and unpredictable in Ohio, the state would go a long way in at least considering a shift in thinking. By considering the arguments and alternatives presented above, Ohio could rework its CNC standard in a way that would maximize the potential for employee mobility and economic growth. The shifts taking place in Ohio’s economic climate and the onset of growth in emerging industries such as technology, healthcare, and energy show that Ohio might be on the cusp of unparalleled economic development. The need to continue growth in these sectors and keep ...


What's So Reasonable About Reasonableness? Rejecting A Case Law-Centered Approach To Title Vii's Reasonable Belief Doctrine, Matthew W. Green Jr. Mar 2014

What's So Reasonable About Reasonableness? Rejecting A Case Law-Centered Approach To Title Vii's Reasonable Belief Doctrine, Matthew W. Green Jr.

Law Faculty Articles and Essays

The article critiques recent application of the reasonable belief doctrine under Title VII of the Civil Rights Act of 1964. Title VII’s anti-retaliation provision, in pertinent part, provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice [under Title VII].” Literally read, the provision requires that an employee oppose a practice Title VII actually makes unlawful. If the employee does so and is retaliated against, the statute affords the employee relief. While the U.S. courts of appeals have ...


Corporate Social Responsibility For Enforcement Of Labor Rights: Are There More Effective Alternatives?, Barbara J. Fick Jan 2014

Corporate Social Responsibility For Enforcement Of Labor Rights: Are There More Effective Alternatives?, Barbara J. Fick

The Global Business Law Review

This article addresses the concept of corporate social responsibility (hereinafter CSR) as it relates to labor rights. It considers the following issues: is the CSR model, as evidenced by the adoption of corporate codes of conduct (hereinafter CoC), effective in protecting labor rights; and is this model the best way to protect labor rights? These issues are examined from two perspectives: practical and philosophical. Lastly, some alternative enforcement mechanisms are considered and their respective advantages and disadvantages for purposes of ensuring labor rights are discussed.


Leave As An Accommodation: When Is Enough, Enough?, Stacy A. Hickox, Joseph M. Guzman Jan 2014

Leave As An Accommodation: When Is Enough, Enough?, Stacy A. Hickox, Joseph M. Guzman

Cleveland State Law Review

The right to reasonable accommodations under the Americans with Disabilities Act includes leave that will enable an employee with a disability to return to work rather than being discharged. This right may seem unreasonable for an employer needing employees to be at work to be productive, raising the question of when leave as an accommodation becomes unreasonable or imposes an undue hardship on an employer. In the absence of specific guidance from the Supreme Court, the circuit courts apply a variety of approaches, ranging from individualized analysis to determinations that any leave exceeding some number of weeks is unreasonable. In ...


Interagency Litigation And Article Iii, Joseph Mead Jul 2013

Interagency Litigation And Article Iii, Joseph Mead

Urban Publications

Agencies of the United States often find themselves on opposite sides of the "v." in disputes ranging from alleged unfair labor practices in federal agencies to competing statutory interpretations to run-of-the mill squabbles over money. Yet Article III's case-or-controversy requirement includes—at a minimum—adverse parties and standing. Courts have disagreed with one another over the extent to which litigation between the sovereign and itself meets Article III standards. Despite the volume of scholarship on Article III standing, relatively little attention has been paid to Article III's requirement of adverse parties in general, or the justiciability of intrabranch ...


Productions Chains And Workplace Law Violations: The Case Of Apple And Foxconn , Hilary K. Josephs Jan 2013

Productions Chains And Workplace Law Violations: The Case Of Apple And Foxconn , Hilary K. Josephs

The Global Business Law Review

For decades U.S. based multinational companies have outsourced production of goods to developing countries with low labor costs and weak implementation of protective legislation. The consumer electronics giant Apple is a prime example: it outsources virtually all of its manufacturing to companies such as Foxconn, a Taiwanese original equipment manufacturer, which employs over a million assembly line workers in China. In the last several years Foxconn's operations have been under scrutiny for violation of Chinese domestic employment law. This paper focuses on the problem of compulsory overtime, a violation of both Chinese law and international labor standards, and ...


The Benefit Of Adopting Comprehensive Standards Of Monitoring Employee Technology Use In The Workplace, Karin M. Mika Sep 2012

The Benefit Of Adopting Comprehensive Standards Of Monitoring Employee Technology Use In The Workplace, Karin M. Mika

Law Faculty Articles and Essays

This article will examine issues as they relate to the privacy of employees’ lives given that nearly everything can be discovered by some form of electronic monitoring. It will posit that most laws as they exist today do little to apprise either the employer or the employee as to what type of electronic monitoring of personal communications is acceptable. It will further propose that most employer policies related to scrutinizing employee electronic communications are vague and unsuitable. The article will conclude that, given the leeway employers tend to be given (often justifiably so) in monitoring employees there is little chance ...


Family, Cubicle Mate And Everyone In Between: A Novel Approach To Protecting Employees From Third-Party Retaliation Under Title Vii And Kindred Statutes, Matthew W. Green Jr. Jan 2012

Family, Cubicle Mate And Everyone In Between: A Novel Approach To Protecting Employees From Third-Party Retaliation Under Title Vii And Kindred Statutes, Matthew W. Green Jr.

Law Faculty Articles and Essays

This article joins the discussion of when employees should be protected against third-party retaliation under Title VII of the Civil Rights Act of 1964 and analogously worded statutes. In Thompson v. N. Am. Stainless, LP., 131 S.Ct. 863 (2011), the U.S. Supreme Court held that third-party retaliation was cognizable under Title VII, an issue that had divided the lower courts for decades. Prior to Thompson, lower courts that recognized the viability of such claims often imposed limits on the classes of relationships for which third-party retaliation was unlawful. For instance, courts often found such claims viable where after ...


Privacy In The Workplace: Are Collective Bargaining Agreements A Place To Start Formulating More Uniform Standards?, Karin Mika Jan 2012

Privacy In The Workplace: Are Collective Bargaining Agreements A Place To Start Formulating More Uniform Standards?, Karin Mika

Law Faculty Articles and Essays

This paper discusses ambiguities related to laws in employee privacy and posits that this is problematic for both employers and employees. The article discusses how private employers have almost no restrictions when it comes to employee monitoring, especially when there is an announced (albeit vague) policy. The article then suggests that unions have at least some negotiating power in terms of setting standards for when an employee may be disciplined and thus, labor unions have at least a modicum of power in negotiating clear rules regarding employee monitoring. The paper further suggests that clear policies aren't a bad thing ...


Weaning Ohio Employers Off Of Lactation Discrimination: The Need For A Clear Interpretation Of Ohio's Pregnancy Discrimination Act Following Allen V. Totes/Isotoner Corp. Note, Shannon Byrne Jan 2011

Weaning Ohio Employers Off Of Lactation Discrimination: The Need For A Clear Interpretation Of Ohio's Pregnancy Discrimination Act Following Allen V. Totes/Isotoner Corp. Note, Shannon Byrne

Cleveland State Law Review

Part II of this Note will explain the relevant statutory and case law background behind pregnancy and lactation discrimination at both the federal and state levels. Part III.A will explain why the Supreme Court of Ohio's decision [in Allen v. Totes/Isotoner Corp, 123 Ohio St. 3d 21, 2009 Ohio 4231, 915 N.E.2d 622 (2009)] to affirm the appellate court's grant of summary judgment was improper. Part III.B will explain why the Supreme Court of Ohio's analysis of the accommodation issue is incorrect. Part IV.A will describe how this improper decision could ...


Workplace Privacy And Monitoring: The Quest For Balanced Interests , Ariana R. Levinson Jan 2011

Workplace Privacy And Monitoring: The Quest For Balanced Interests , Ariana R. Levinson

Cleveland State Law Review

We can see in 2001 that 77 percent of employers were engaged in monitoring. This may have increased slightly or decreased slightly, but whatever has happened, we know that this is a significant amount of employers--much greater than a majority--that are engaging in monitoring of their employees. We can also see the great rise in monitoring of computers and electronic files in a ten-year period between 1997 and 2007. Finally, we can see some of the newer technologies. In 2007, twelve percent of the reporting employers were monitoring the blogosphere, eight percent were monitoring GPS vehicle tracking, and ten percent ...


Pitfalls Of Fmla And Collective Bargaining Agreements, Karin Mika Apr 2010

Pitfalls Of Fmla And Collective Bargaining Agreements, Karin Mika

Law Faculty Articles and Essays

Mika discusses union contracts and how employers must be aware of family and medical leave rights when applying contract provisions.


Intended And Unintended Consequences: The 2006 Fair Minimum Wage Amendment Of The Ohio Constitution , Jason R. Bristol, Ashley A. Weaver, Thomas A. Downie Jan 2010

Intended And Unintended Consequences: The 2006 Fair Minimum Wage Amendment Of The Ohio Constitution , Jason R. Bristol, Ashley A. Weaver, Thomas A. Downie

Cleveland State Law Review

This Article first provides a brief overview of federal and Ohio minimum wage law. The Article then examines the text of the 2006 Amendment. The third section delves into the provisions of HB 690 and the differences between HB 690 and the Amendment. The final section explores litigation issues arising from these differences.


Express Yourself: Striking A Balance Between Silence And Active, Purposive Opposition Under Title Vii's Anti-Retaliation Provision, Matthew W. Green Jr. Jan 2010

Express Yourself: Striking A Balance Between Silence And Active, Purposive Opposition Under Title Vii's Anti-Retaliation Provision, Matthew W. Green Jr.

Law Faculty Articles and Essays

In short, although the article determines that while Crawford should not open the door to silent opposition, the active, purposive requirement that Justice Alito championed and that some courts pre- and post-Crawford have adopted goes too far the other way. There is a swath of opposition conduct that stands between silence and the standard that Justice Alito and some courts advocate. This article explores where that line should be drawn.


Pregnant Employees, Working Mothers And The Workplace - Legislation, Social Change And Where We Are Today , Thomas H. Barnard, Adrienne L. Rapp Jan 2009

Pregnant Employees, Working Mothers And The Workplace - Legislation, Social Change And Where We Are Today , Thomas H. Barnard, Adrienne L. Rapp

Journal of Law and Health

Accordingly, the focus of this Article is on the legal and social evolution resulting from the Civil Rights Act's prohibition of sex-based discrimination- and, in particular, pregnancy-related discrimination - in the workplace. Section II of this Article details the reluctance with which courts and employers initially extended workplace rights to women. Sections III and IV discuss Title VII's prohibition against "sex" discrimination and initial court hesitation to interpret that prohibition to include employees discriminated against on the basis of pregnancy. Sections V and VI provide an overview of federal and Ohio law granting pregnancy-related rights to women, including the ...


Toward A Plain Meaning Approach To Analyzing Title Vii: Employment Discrimination Protection Of Transsexuals, Kevin Schwin Jan 2009

Toward A Plain Meaning Approach To Analyzing Title Vii: Employment Discrimination Protection Of Transsexuals, Kevin Schwin

Cleveland State Law Review

The purpose of this Article is two-fold. First, this Article will discuss whether transsexuals should be protected at all from employment discrimination, and if so, whether protection should be accomplished through legislative or judicial means. Then, the Article will discuss each of the aforementioned approaches and advocate for a logical and consistent manner in which courts should decide cases under Title VII where a transsexual plaintiff alleges discrimination because of sex.


A Primer On The Need To Continue Monitoring Closely The Transfer Of Social Welfare Risk And Liability Of Employee Benefit Plans, James E. Holloway Jan 2009

A Primer On The Need To Continue Monitoring Closely The Transfer Of Social Welfare Risk And Liability Of Employee Benefit Plans, James E. Holloway

Cleveland State Law Review

This Article examines why federal legislative policy-makers and judicial decision-makers should ascertain the impact of the transfer of risk and liability on furthering welfare and security interests and preserving organizational discretion under ERISA and public policy. Part I explains why business organizations or employers transfer risk and liability to employees and retirees. This transfer occurs where global business outcomes cause social consequences that are driven directly by business decisions responding to new global competition and less American economic standing. Part II explains the need to assess the substantive issues and public policy concerns underlying legislative acts and judicial interpretations limiting ...


Lawrence: An Unlikely Catalyst For Massive Disruption In The Sphere Of Government Employee Privacy And Intimate Association Claims, Matthew W. Green Jr. Jan 2009

Lawrence: An Unlikely Catalyst For Massive Disruption In The Sphere Of Government Employee Privacy And Intimate Association Claims, Matthew W. Green Jr.

Law Faculty Articles and Essays

In 2003, the U.S. Supreme Court handed down Lawrence v. Texas, the landmark decision that overturned a Texas statute proscribing homosexual sodomy. The Supreme Court held that the Texas statute infringed the right of 'free adults" to engage in private, consensual, non-commercial sexual conduct in their home. In doing so, the Court overturned a prior case, Bowers v. Hardwick, which had upheld a Georgia sodomy statute. In his Lawrence dissent, Justice Scalia predicted that overruling Bowers would cause a massive disruption of the current social order. To substantiate his point, he cites numerous cases, many in the area of ...


Public Sector Employee Bargaining: Contract Negotiations And Case Law, Andrew Douglas Jan 2007

Public Sector Employee Bargaining: Contract Negotiations And Case Law, Andrew Douglas

Cleveland State Law Review

Between 1973 and 1980, across Ohio there were 428 public employee labor actions. In the face of such labor unrest, coupled with changing times and changing attitudes, the lawmakers of Ohio began to recognize the desperate need of the state's public employees to be granted the right to bargain collectively with their employers. It is my hope that after reading this Article, based upon an academically defensible presentation, you will draw the conclusion that collective bargaining for employees in the public sector is a good thing and should be protected at all costs in and by the law.


Contractual Waivers Of A Right To Jury Trial - Another Opinion, Brian D. Weber Jan 2006

Contractual Waivers Of A Right To Jury Trial - Another Opinion, Brian D. Weber

Cleveland State Law Review

It is well-settled that arbitration in the employment context is favored by the courts, and that there is a federal policy favoring arbitration agreements, in general. However, jury waivers outside of arbitration in the employment context are still a relatively novel idea in some jurisdictions, despite the fact that an arbitration agreement itself inherently prevents the employee from having a jury trial. The Sixth Circuit Court of Appeals, as well as the Ohio Supreme Court, have yet to determine if jury waivers in employment contracts are binding. This paper will assess contractual jury trial waivers in the employment context as ...