Law Commons^™

Cracks In The Shield: The Necessity Of The Employment Non-Discrimination Act, James N. Bolotin

James N Bolotin

This paper argues that legislation protecting homosexuals from employment discrimination is necessary, despite hopeful arguments that the text of Title VII should or can already protect against discrimination based on sexual orientation. The paper discusses how the precedent of the federal courts has gone too far in the wrong direction to believe that they will fix this interpretation problem on their own. Furthermore, it posits that the passage of ENDA or similar legislation will successfully lessen the prevalence of this type of discrimination.

Part I considers the history of Title VII’s “because of sex” protection. This includes a short discussion …

Community Supported Agriculture And Community Labor: Constructing A New Model To Unite Volunteers And Employers, A. Bryan Endres, Rachel Armstrong

A. Bryan Endres

Community Supported Agriculture (CSA) is a farm philosophy and marketing strategy that creates a union between consumers and farmers. Extending beyond the traditional buyer-seller relationship, CSA farmers invite customers to participate in food production in a variety of scenarios the authors refer to as “community labor.” But community labor entails a serious paradox. Traditional employment law doctrine envisions autonomous competition between laborer and employer, and makes little room for these novel, community-based relationships. More importantly, rigid application of employment law structures undermines many of the values embedded in the CSA movement and may limit its continued viability and growth. Constructed …

Utilizing Credit Reports For Employment Purposes: Casting A Wider Net Into The Ocean Of Employment Practices Results In Unintended Yet Much Needed Outcomes, David D. Schein, James D. Phillips

David D. Schein

In our previous article, “Holding Credit Reporting Agencies Accountable: How the Financial Crisis May be Contributing to Improving Accuracy in Credit Reporting”[1] we reviewed the legal history of the Fair Credit Reporting Act (FCRA) and its amendments, and the Federal case law by circuit. We suggested that the ability of consumers to ensure the accuracy and security of their credit reports might lead to an expansion of the litigation surrounding accurate credit reporting. This article takes the discussion further by exploring the ever-expanding use of credit reports in the employment law arena. We review the state legislation limiting the use …

Landing Stable Employment: The Exploratory Study Of A Job Vs. Career, Valencia Tamir Johnson Dr.

Valencia T Johnson

Landing stable employment can be difficult and discouraging. Some employers want applicants that are searching for a “career”, and some employers are looking for applicants that want a “job”. Ask yourself, what is the difference between a job and a career? In simple terms, a job is short-term and a career is long-term. Applicants who seek a job would likely stay less than a year, as with a career, the candidate would likely stay more than a year or longer. This article provides a clear and concise overview of the exploratory study of landing a career or job.

Privacy As A Tool For Antidiscrimination, Jessica Roberts

Jessica L. Roberts

Traditionally, laws that protect privacy and laws that prohibit discrimination have been considered distinct kinds of legal protections. This Essay challenges that binary on both practical and theoretical grounds. Using the Genetic Information Nondiscrimination Act (GINA) as a case study, it argues that lawmakers can use privacy law to further antidiscrimination goals. GINA, which prohibits genetic-information discrimination in health insurance and employment, does more than simply outlaw discriminatory conduct. It also prohibits employers from requiring—or even requesting—their employees’ genetic information. While GINA’s privacy and antidiscrimination protections have previously been viewed as discrete, this Essay reads them in concert, arguing that …

How To Create American Manufacturing Jobs, John D. Gleissner Esquire

John D Gleissner Esquire

No abstract provided.

U.S.Foreign Trade Zones, Tax-Free Trade Zones Of The World, And Their Impact On The U.S. Economy, Susan W. Tiefenbrun

Susan W Tiefenbrun

ABSTRACT

U.S. Foreign Trade Zones, Tax-Free Trade Zones of the World, and Their Impact on the United States Economy , by Susan Tiefenbrun

Free trade zones (FTZs) date back to the time of the Phoenicians; they developed in the l970s and proliferated from 1980 until today. FTZs are duty-free areas where goods may be warehoused, processed, sold, serviced, distributed, showcased, packaged, labeled, sorted, assembled, and/or manufactured as finished goods prior to re-exporting them as duty-exempt finished products. More than one 135 countries operate tax-free trade zones. There are more than 3,500 of these zones and subzones all over the world, …

Flexible Work Schedule, Child Care And Female Employment In Developing Countries: Evidence Using Firm-Level Data, Mohammad Amin

Mohammad Amin

Using newly available data on whether a country gives additional legal rights or not for flexible or part-time work schedule to employees with minor children, we analyze the impact of such provision in the law on female employment. For a representative sample of manufacturing firms in 57 developing countries, we find that the stated provision in the law has a large positive effect on the employment of females. Specifically, on the conservative side, the provision in the law increases the proportion of females in the workforce by 7.7 percentage points, a large effect given that on average females constitute 32 …

A Way Forward: Transparency At American Law Schools, Kyle P. Mcentee, Patrick J. Lynch

Kyle P McEntee

Law school has long been thought of as an investment in human capital inherently worth consuming. This is a dated view. Today, entering the legal profession through law school requires an increasingly significant financial investment. Yet very little information about the value of a legal education is available for prospective law students. In fact, much of the information tends to mislead rather than inform aspiring lawyers.

This Article surveys the available information with respect to one important segment of the value analysis: post-graduation employment outcomes. It then proposes a new standard for the presentation of post-graduation outcomes, "The LST Proposal." …

Making Non-Competes Unenforceable, Viva R. Moffat

Viva R. Moffat

The law of employee non-competition agreements is a mess. Differing standards, unpredictability, and uncertainty within and between jurisdictions is the norm. The variability in state law provides a significant incentive on both sides to forum shop when a dispute over a non-compete arises. This forum shopping leads to conflicts of law, and choice of law doctrine does not resolve these disputes in a satisfactory way. Because non-compete law is often a matter of fundamental public policy, the use of escape valves from the operation of conflicts principles means that there is no predictability or certainty in non-compete litigation. The search …

‘Sewing The Fly Buttons On The Statute:’ Employee Inventions And The Employment Context, Justine Pila

Justine Pila

Section 39(1) of the Patents Act 1977 governs the ownership of inventions devised by employees in the course of their employment. Introduced ‘to codify in a few lines the accumulated common law experience’ prior to 1977, it does not expressly differentiate between employment fields, and has been widely assumed to apply indiscriminately, without regard to the particular context of employment. The purpose of this article is to revisit that assumption. In the argument made, section 39(1) was built around a private sector paradigm the courts’ departure from which is supported by a ‘rational reason’ in the Shanks v Unilever plc …

The Abcs Of Common Law Wrongful Termination Claims In The Washington Metropolitan Region, Ufuoma Otu

Ufuoma Otu

The ABCs of Common Law Wrongful Termination Claims in the Washington Metropolitan Region By R. Scott Oswald Abstract While there are numerous statutes protecting employees, there are still many gaps. This is especially true given the at-will nature of most employment in the United States. To fill these gaps, most courts, including those of Maryland, Virginia, and the District of Columbia, created common law tort actions for wrongful discharge in violation of public policy. Though the elements of these claims are generally similar, each jurisdiction establishes important limitations that employment attorneys must understand. The available sources of public policy vary …

Another Parallel With Silicon Valley: Non-Compete Clauses Under Israeli Law, Edo B. Royker

Edo B Royker

The attached Article contributes to the literature on the benefits of not enforcing non-compete provisions in fostering a start-up friendly environment. Many scholars have previously focused on this issue, but the current literature has primarily focused on comparing the state of the law between California and Boston alone. My article serves the novel function of providing a third focal point for this analysis – Israel – and provides an in depth analysis of Israeli statutory and case law on this issue. Introducing a third focal point will add empirical evidence to the debate on whether the failure to enforce such …

The Abuse Of H-2 Visas And Their Use For Labor Trafficking Purposes, Maryam Tabatabai

Maryam Tabatabai

This article will discuss recent cases of guest worker exploitation, ineffective enforcement of H-2 regulations, inadequate protection of guest workers, causes of action currently available to victims, and possible solutions to mitigate abuse. Every year, about 121,000 guest workers arrive in the United States with hopes of achieving a better life for themselves and their families. Our system needs to ensure that we have legislative frameworks and the enforcement mechanisms in place to protect these workers, so that they may work hard to obtain a better living.

Gender And Partner Compensation At America's Largest Firms, Marina Angel

Marina Angel

Abstract

This study compiled the largest research sample on the gender gap in compensation at the 200 largest law firms by combining two large databases to examine the compensation disparities between men and women partners. The analysis elucidates the question of whether the difference is because women are less productive than men partners or because they are women. The Am Law 100 and 200 studies include gross revenue, profits, number of equity and non-equity partners, and the total number of lawyers at each firm. The Vault/MCCA Law Firm Diversity Programs study (Vault/MCCA) includes the gender ratios at each Am Law …

The Ugly Ducking Comes Of Age: The Promise Of Full-Time Field Placements, Robert A. Parker, Sue Schechter

Robert A. Parker

This article locates field placement offerings within a landscape of legal education that is being transformed by incisive critiques, new regulations, advances in technology, and harsh economic conditions. Drawing upon our combined experience of over 15 years working with students enrolled in full-time field placements and with faculties who define the parameters of field placement programs, we offer a description of the advantages of these programs, innovative options for implementation, and some traps for the unwary. The heart of our article is a discussion of the results of our comprehensive survey of all 200 ABA approved law schools. The information …

Working The Crowd: Employment And Labor Law In The Crowdsourcing Industry, Alek L. Felstiner

Alek L Felstiner

This Article confronts the thorny questions that arise in attempting to apply traditional employment and labor law to “crowdsourcing,” an emerging online labor model unlike any that has existed to this point. Crowdsourcing refers to the process of taking tasks that would normally be delegated to an employee and distributing them to a large pool of online workers, the “crowd,” in the form of an open call.

The Article describes how crowdsourcing works, its advantages and risks, and why workers in particular subsections of the paid crowdsourcing industry may be denied the protection of employment laws without much recourse to …

The External Effects Of Black-Male Incarceration On Black Females, Stéphane Mechoulan

Stéphane Mechoulan

This paper examines how the increase in the incarceration of Black men and the sex ratio imbalance it induces shape the behavior of young Black women. Combining data from the Bureau of Justice Statistics and the Current Population Survey to match male incarceration rates with individual observations over two decades, I show that Black male incarceration lowers the odds of Black non-marital teenage fertility while increasing young Black women's school attainment and early employment. These results can account for the sharp bridging of the racial gap over the 1990s for a range of socio-economic outcomes among females.

Statistical Evidence On The Gender Gap In Law Firm Partner Compensation, Marina Angel, Eun Young Whang, Rajiv Banker, Joseph F. Lopez

Marina Angel

Our study compiled the largest research sample on the gender gap in compensation at the 200 largest law firms by combining two large databases to examine why women partners are compensated less: because they are less productive than men partners or because they are women. The AmLaw 100 and 200 studies include gross revenue, profits, number of equity and non-equity partners, and the total number of lawyers at each firm. The Vault/MCCA Law Firm Diversity Programs study (Vault/MCCA) includes the gender ratios at each AmLaw 200 firm. Our study covers the years 2002 to 2007.

The ratio of women equity …

Employment At-Will: Sacred Writ Or Big Lie?, John Judge

John Judge

Texas was the fourth state to adopt the at-will rule of employment termination, an inferential rebuttal defense to an employee’s action for breach of a contract of employment of indefinite duration. The 1888 decision in East Line & R. R. R. Co. v. Scott, 10 S.W. 99 (Tex., 1888), looks to Horace Woods’ 1877 treatise MASTER & SERVANT, and has been slavishly followed in Texas despite dubious intellectual provenance and a complete lack of relevance to actual reality in the contemporary employment market.

Individualized Assessment Of Applicants With Convictions, Stacy A. Hickox

Stacy A. Hickox

Employers often rely on criminal background checks as part of the hiring process. Yet consideration of applicants’ criminal records clearly has an adverse impact on applicants of color, since a higher percentage of them have a record. This article reviews how an employer has been able to justify its consideration of criminal convictions under Title VII. In addition, state statutes that limit employers’ consideration of a criminal record provide guidance for employers who are trying to establish a business necessity for their reliance on criminal records. Typically, courts look at the nature of the crime and its relationship to the …

The Inevitable Disclosure Doctrine: A Common-Sense Application That Considers The Rights Of Trade Secret Holders And Employees, Eduardo M. Gonzalez

Eduardo M Gonzalez

Under the inevitable disclosure doctrine, a court may enjoin a person accepting employment with a direct competitor of a former employer to protect a trade secret. Most states that have adopted the doctrine do not limit its application. Such broad application of the doctrine can be harsh and unfair if the former employee lacked any intent to disclose a trade secret. Moreover, it encourages frivolous lawsuits by employers and discourages bargained-for non-compete agreements. Some states, notably California, citing these policy concerns, have declined to adopt the doctrine. This extreme approach is equally troublesome because it ignores that the protection of …

From Contracts To Compliance? An Early Look At Implementation Under China's New Labor Legislation, Virginia E. Ho

Virginia E Ho

In 2008, three new primary labor laws took effect in China that together represent the first major retooling of its labor legislation in fifteen years: the Labor Contract Law, the Labor Dispute Mediation and Arbitration Law, and the Employment Promotion Law. The new laws have attracted widespread attention from the international business community, labor advocates, and observers of China's ongoing legal reforms. However, whether the legislation can overcome and resolve fundamental implementation barriers remains largely the subject of speculation and debate. This Article offers a preliminary answer.

Drawing on the literature on corporate compliance and regulatory policy, it first describes …

Jon & Kate Plus The State: Why Congress Should Protect Children In Reality Programming, Dayna B. Royal

Dayna B. Royal

As "reality" programming continues to increase in popularity, so too does the number of children living out their young lives in front of the camera. Yet the current legal regime is inadequate to protect these children, whose parents have betrayed their best interests for fame and fortune. This article argues that Congress should enact a statute providing a regulatory sliding scale based on age that would largely prohibit children from participating in reality programming. A federal statute would bring clarity to this unsettled area of the law while ensuring that parents and programming executives cannot skirt individual state laws and …

Ceo Postings: Leveraging The Internet’S Communications Potential While Managing The Message To Maintain Corporate Governance Interests In Information Security, Reputation And Compliance, Margo E. K. Reder

Margo E. K. Reder

CEO POSTINGS –

LEVERAGING THE INTERNET’S COMMUNICATIONS POTENTIAL WHILE MANAGING THE MESSAGE TO MAINTAIN CORPORATE GOVERNANCE INTERESTS IN INFORMATION SECURITY, REPUTATION AND COMPLIANCE

By Margo E. K. Reder

For approximately eight years, Whole Foods Market, Inc. [Whole Foods] CEO John Mackey posted messages to Yahoo! Financial’s online message board for Whole Foods. Rather than using his real name, Mr. Mackey like many posters to chat rooms, created an online alter ego and posted his comments under a pseudonym. As “Rahodeb” Mr. Mackey promoted his Whole Foods chain, boasted about personal stock gains in Whole Foods stock, company plans and performance …

The Phoenix From The Ash: Proving Discrimination By Comparators, Charles A. Sullivan

Charles A. Sullivan

Hidden beneath judicial and scholarly obsession with formal proof structures for individual disparate treatment cases is a simpler, more direct method of establishing discrimination. Taking the “disparate treatment” label seriously, I argue that “comparator” proof requires merely that the plaintiff identify a similarly situated person of another race or the opposite sex who was treated more favorably than plaintiff. Such proof is increasingly driving litigation in the lower courts, which suggests that comparators should be moved to center stage in the antidiscrimination project However, like other efforts, the comparator approach risks falling victim to the general hostility of the courts …

Ensuring Enforceability & Fairness In The Arbitration Of Employment Disputes, Stacy A. Hickox

Stacy A. Hickox

Private arbitration of employment law claims has become common in recent years. The Supreme Court has shown a strong preference for requiring that an employee pursue an employment claim through an arbitration program rather than seeking to enforce his or her rights in court. At the same time, legislation has been introduced to try to protect the rights of employees who, without an arbitration program in place, would have the opportunity to assert their statutory rights in court. This article explores what safeguards should be in place to assure that employers can rely on the enforceability of an arbitration program …

Just Semantics: The Lost Readings Of The Ada, Jill C. Anderson

Jill C. Anderson

Just Semantics: The Lost Readings of the ADA

Jill C. Anderson

INTRODUCTION

I. THE NARROWED DISABILITY DEFINITION

II. DE DICTO-DE RE AMBIGUITY

III. HOW THE COURTS MISS AMBIGUITY

IV. RESOLVING AMBIGUITY

V. APPLICATIONS IN CASE LAW

VI. IMPLICATIONS FOR REFORM

CONCLUSION

Abstract

Disability rights advocates and commentators agree that the ADA has veered far off course from its mandate of protecting people with disabilities---actual or perceived---from discrimination. They likewise agree that the fault lies in the language of the statute itself and in the courts’ “literalist” reading of its definition of disability. As a result, many disability rights advocates have …

Some Reflections On Labor And Employment Ramifications Of Diocesan Bankruptcy Filings, David L. Gregory

David L. Gregory

Sexual abuse of children by Roman Catholic clergy is perhaps the greatest scandal in the history of the Catholic Church in the United States. On September 7, 2007, the San Diego, California diocese settled with 144 claimants for $198 million. In mid-July, the Los Angeles Archdiocese settled with 508 claimants for $660 million. No article in the burgeoning law review literature on the scandal and its aftermath has focused on the labor and employment ramifications of diocesan bankruptcy filings. After first presenting the situations in the five dioceses that have filed for bankruptcy, I discuss the case and canon law …

Explaining The Spread Of At-Will Employment As An Inter-Jurisdictional Race-To-The-Bottom In Employment Standards, Richard A. Bales

Richard A. Bales

The at-will employment rule often is attributed to Horace Gay Wood, who described the rule in an 1877 treatise. Over the next forty years, the rule was judicially adopted in most American states. How and why the rule spread, however, has been the subject of considerable academic debate.

This essay argues that the underindustrialized states first adopting the at-will rule likely did so as a means of attracting capital. In any event, and more importantly, this essay argues that once the first underindustrialized states adopted the rule, other underindustrialized states would have been compelled to adopt the rule to remain …