Law Commons^™

Gig Workers As Essential Workers: How To Correct The Gig Economy Beyond The Covid-19 Pandemic, Miriam A. Cherry, Ana Santos Rutschman

Faculty Publications

(Excerpt)

During the early stages of the COVID-19 pandemic in 2020, estimates suggest that approximately forty percent of U.S. workers shifted to working remotely from home. But for many gig workers, who performed grocery shopping for Instacart, delivered food and restaurant meals for DoorDash, or who picked up and delivered packages for Shipt, they were working in person and busier than ever. In fact, many of these gig jobs were considered "essential work," and the rules of state lockdowns across the country classified gig workers as "essential workers."

Paid by the task, and managed by algorithms that can automatically deactivate …

Corporate Social Responsibility And Crowdwashing In The Gig Economy, Miriam A. Cherry

Faculty Publications

(Excerpt)

Within this Article, I elaborate on the term “crowdwashing,” a neologism. Even though many online platforms describe themselves as “communities” that are part of the “sharing economy,” this “sharing” terminology is largely a misnomer when describing the activities of larger commercialized on-demand platforms. Rather than referring to volunteer efforts for collective benefit, many references to “sharing” in the “sharing economy” refer to the concept of commodification of previously underutilized assets. For example, consider receiving money for the rental of a spare bedroom through AirBnB or the sale of small, previously unproductive periods of time to complete tasks on Amazon’s …

Law School Marketing And Legal Ethics, Ben L. Trachtenberg

Faculty Publications

Law schools have misled prospective students for years about the value of legal education. In some cases, law school officials have engaged in outright deceit, knowingly spreading false information about their schools. More commonly, they have presented statistics — especially those concerning the employment outcomes of law graduates — in ways nearly guaranteed to confuse readers. These deceptions and sharp practices violate the norms of the legal profession, a profession that scrupulously regulates the advertising of legal services. The deceptions also violate ethical rules prohibiting lawyers from engaging in dishonesty, misrepresentation, and deceit. This article exposes how pitches aimed at …

Regulators, Mount Up, Ben L. Trachtenberg

Faculty Publications

Since I began circulating drafts of an article arguing that certain law school officials have exposed themselves to professional discipline by engaging in dishonest marketing tactics, responses have varied considerably. Everyone seems to agree, however, that law school officials should not lie in their pursuit of students. There also appears to be broad consensus that misleading (albeit not intentionally false) marketing—such as systematically skewed salary statistics—is an unfortunate phenomenon, although disagreement remains on just how serious a problem it is and what level of corrective effort is appropriate. In their recently-published response pieces, Kyle McEntee of Law School Transparency (“LST”) …

Weathering Wal-Mart, Joseph Seiner

Faculty Publications

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). …

Title Vii Works - That's Why We Don't Like It, Chuck Henson

Faculty Publications

In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …

The Gamification Of Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

In the science fiction novel Ender's Game, a young boy, Andrew "Ender" Wiggin, believes that he is at military school, learning how to play a computer war simulation game. In reality, Ender has been genetically engineered to excel in military tactics and is the final hope of humanity, which is under attack by the Formics, an alien insect species. For his final examination, Ender must defend the Earth from a series of attacks. He passes the exam by attempting a desperate aggressive maneuver, which utterly wipes out the attacker's home world but which also destroys part of his …

Shortcuts In Employment Discrimination Law, Kerri Lynn Stone

Faculty Publications

Are employment discrimination plaintiffs viewed by society and by judges with an increased skepticism? This article urges that the same actor inference, the stray comment doctrine, and strict temporal nexus requirements, as courts have applied them, make up a larger and dangerous trend in the area of employment discrimination jurisprudence- that of courts reverting to special, judge-made "shortcuts" to curtail or even bypass analysis necessary to justify the disposal or proper adjudication of a case. This shorthand across different doctrines reveals a willingness of the judiciary to proxy monolithic assumptions for the individualized reasoned analyses mandated by the relevant antidiscrimination …

Penumbral Academic Freedom: Interpreting The Tenure Contract In A Time Of Constitutional Impotence, Richard J. Peltz-Steele

Faculty Publications

This article recounts the deficiencies of constitutional law and common tenure contract language - the latter based on the 1940 Statement of Principles of the American Association of University Professors - in protecting the academic freedom of faculty on the modern university campus. The article proposes an Interpretation of that common language, accompanied by Illustrations, aiming to describe the penumbras of academic freedom - faculty rights and responsibilities that surround and emanate from the three traditional pillars of teaching, research, and service - that are within the scope of the tenure contract but not explicitly described by it, and therefore …

The Global Dimensions Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

Recently, unusual “factories” have appeared in Third World countries; these factories do not manufacture goods, but instead feature computer workers, typing and clicking away, playing video games, collecting coins and swords, and fighting monsters. Known as “gold farmers,” these workers are paid to harvest virtual treasures for online gamers in the developed world. First World gamers want to advance quickly within their online role-paying games of choice and, tired of the repetitive tasks necessary to build a high-level character, would prefer to pay others to do the work. As a result, gold farming operations have appeared in many countries …

Ricci Glitch? The Unexpected Appearance Of Transferred Intent In Title Vii, Kerri Lynn Stone

Faculty Publications

In the case of Ricci v. DeStefano, the Supreme Court officially opened the door to what this Article identifies as a theory of “transferred intent” jurisprudence under Title VII. The principle of transferred intent, borrowed from tort and criminal law, has never before been seen as factoring into Title VII antidiscrimination jurisprudence. In Ricci, the Supreme Court assumed that a city’s refusal to promote firefighters qualifying for promotion based on exams that appeared to disproportionately screen out members of minority groups amounted to deliberate discrimination, irrespective of their individual races or whether their individual races were actually taken into account. …

The Application Of Rfra To Override Employment Nondiscrimination Clauses Embedded In Federal Social Services Programs, Carl H. Esbeck

Faculty Publications

General federal employment nondiscrimination legislation permits religious organizations to take religion into account when making employment decisions. However, some federal social service programs have embedded in their authorizing legislation a nondiscrimination clause binding on recipients of program grants. And a few of these embedded clauses require that grantees (including religious grantees) not discriminate in employment on the basis of religion. This extended essay demonstrates how the Religious Freedom Restoration Act of 1993 overrides these employment nondiscrimination clauses when applied to faith-based social service grantees. Not only is this the conclusion of the U.S. Department of Justice in its policy announced …

Working (With) Workers: Implementing Theory, Miriam A. Cherry

Faculty Publications

(Excerpt)

The topic of this symposium issue sponsored by the Association of American Law Schools (AALS) is the role of the labor and employment law professor as a public intellectual. Despite the baggage accompanying the phrase "public intellectual," the symposium topic is an important one, for the term carries more meaning than a mere "talking head" or "media figure" can express. To make theoretical ideas more accessible to others, to connect theory and practice, to explain academic or scholarly ideas in a way that the public can understand—these ideas resonate with my philosophy of the law professor's role. In fact, …

The Paradox Of Personality: Mental Illness, Employment Discrimination, And The Americans With Disabilities Act, Deirdre M. Smith

Faculty Publications

Both medicine and the law devote considerable concern to drawing lines, that is, to classifying and making distinctions. In medicine, such line-drawing occurs when a person is designated healthy or ill, normal or disordered. In the law, such line-drawing determines who does and does not bear legal responsibility for a given situation. This Article reviews the demarcation drawn by psychiatry and the courts between disfavored personality and mental illness, a dichotomy not based upon empirical science and therefore, wholly susceptible to social construction and implementation. While society may pathologize noxious personalities, thus making them disabilities, it is loath to extend …

Democracy And Dispute Resolution: Systems Design And The New Workplace, Richard C. Reuben

Faculty Publications

There has been growing discussion in law reviews and business journals about the so-called new workplace, which is distinguished from the old, in part, by greater employee mobility and job flexibility. This article extends that discussion by exploring the implications of the new workplace for the design of dispute resolution systems. In particular, it argues that the structure and values of the new workplace correspond to the essential values of democratic governance, and that dispute resolution should be integrated into the new workplace in a way that enhances rather than diminishes these core democratic values. As I have articulated in …

Love, Sex And Politics? Sure. Salary? No Way: Workplace Social Norms And The Law, Rafael Gely, Leonard Bierman

Faculty Publications

A recent article in the New York Times captioned “Love, sex and politics? Sure. Salary? No way” discusses Americans' strong aversion to talking about their salaries. The piece notes that while discussion of financial matters is often acceptable in some parts of the world, it is generally considered “crass” in the United States. In short, discussion by individuals of their salaries and related matters can be seen as violating an American “social norm.” One-third of United States private sector employers have reinforced this norm by adopting specific rules prohibiting employees from discussing their wages with co-workers, rules known as pay …

Avoiding Regulatory Mismatch In The Workplace: An Informational Approach To Workplace Safety Regulation, Thom Lambert

Faculty Publications

The purpose of this article is to do just that. As it turns out, there is fertile middle ground between the pure libertarian “do nothing” approach and the paternalistic command-and-control approach OSHA tends to favor. Even the middle ground “information-provision” approach a number of theorists have advocated (in imprecise terms) could be implemented several different ways, some of which would be more effective than others. It is therefore possible to make some systematic policy prescriptions that may aid regulators attempting to avoid regulatory mismatch.In the course of exploring the range of regulatory options, this article attempts to make several contributions …

Is There A Place For Race As A Legal Concept, Sharona Hoffman

Faculty Publications

What does "race" mean? The word "race" is omnipresent in American social, political, and legal discourse. The concept of "race" is central to contemporary debate about affirmative action, racial profiling, hate crimes, health inequities, and many other issues. Nevertheless, the best research in genetics, medicine, and the social sciences reveals that the concept of "race" is elusive and has no reliable definition.

This article argues that "race" is an unnecessary and potentially pernicious concept. As evidenced by the history of slavery, segregation, the Holocaust, and other human tragedies, the idea of "race" can perpetuate prejudices and misconceptions and serve as …

Pay Secrecy/ Confidentiality Rules And The National Labor Relations Act, Rafael Gely, Leonard Bierman

Faculty Publications

This article seeks to provide a comprehensive account of doctrinal issues related to the use of pay secrecy/confidentiality rules (“PSC rules”) under the NLRA. In Part II, we describe what pay secrecy/confidentiality is and discuss recent survey evidence of their presence in workplaces across the United States. In Part III, we describe the current legal framework under which PSC rules are evaluated under the NLRA, while in Parts IV and V, we explore various doctrinal issues related to these rules in more detail. This leads us to Part VI, where we ponder the future of PSC rules under the NLRA …

Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa A. Eichhorn

Faculty Publications

Two federal circuits, borrowing from Title VII jurisprudence, recently recognized a cause of action for a disability-based hostile environment under the Americans with Disabilities Act (ADA). Neither opinion, however, considered how the analysis of a disability-based hostile environment claim under the ADA might differ from that of a race- or sex-based hostile environment claim under Title VII. This Article examines the differing theories of equality underlying the two statutes and argues that, because the statutes prohibit discrimination in fundamentally different ways, courts must resist the temptation to copy and paste Title VII doctrine into ADA hostile environment opinions. This Article …

Spouses Need Not Apply: The Legality Of Antinepotism And No-Spouse Rules , Rafael Gely, Timothy D. Chandler, Jack Howard, Robin Cheramie

Faculty Publications

We begin this analysis in Part II with a brief discussion of employment policies that have been adopted to meet the unique needs of working families. Interestingly, these practices often exist contemporaneously with policies that restrict employment opportunities for dual-earner couples, namely antinepotism and no-spouse rules. In Part III, we present the results of our comprehensive analysis of case law in this area to show the nature of legal challenges to antinepotism and no-spouse rules and how they have been decided by the courts. In Part IV, we describe the legislative framework under which MSD claims have been raised and …

Disability, Employment Policy, And The Supreme Court, Michael Ashley Stein

Faculty Publications

No abstract provided.

A Tale Of Three Statutes . . . (And One Industry): A Case Study On The Competitive Effects Of Regulation, Rafael Gely

Faculty Publications

The comparison of the three labor regulatory regimes raises an interesting counterexample to the traditional model of regulation. Instead of adopting a one-size-fits-all model, could a regulatory model be conceptualized where a menu of regulatory options is made available to the target population? Under such an approach those affected by the regulatory regime will choose among the various regulatory options and adopt those that better fit their particular situations. Part IV.B develops the basic parameters of this proposal. The article ends with a brief conclusion.

Distilling The Essence Of Contract Terms: An Anti-Antiformalist Approach To Contract And Employment Law, Rafael Gely

Faculty Publications

A look at the development of labor and employment law in the U.S. reveals one astonishing principle. There is an underlying assumption that employers own the time and activities of employees, and thus any change in the allocation of rights between employers and employees has to be justified against the “interference” with the rights of employers. For example, whenever legislation has been introduced intended to protect workers' rights, employers have argued that such protections will interfere with the right of employers to control their employees. This argument has been successfully made many times, and it has, I argue, shaped the …

Restricting Public Employees' Political Activities: Good Government Or Partisan Politics?, Rafael Gely, Timothy D. Chandler

Faculty Publications

The article starts by reviewing, in Part II, the history of the regulation of political activities by public employees, and in Part III, the regulation of patronage. Part IV develops the argument that both sets of regulations, although justified on different grounds, are better understood as political control mechanisms. Part V provides some empirical evidence for this argument by examining voting patterns on federal legislation restricting public employees' political activities. Part VI discusses the relationship of these laws to public sector unionization. Part VII concludes the article.

Labor Markets, Rationality, And Workers With Disabilities, Michael Ashley Stein

Faculty Publications

No abstract provided.

Empirical Implications Of Title I, Michael Ashley Stein

Faculty Publications

No abstract provided.

Where Are We Now?: Life After Electromation, Rafael Gely

Faculty Publications

Given the expectations that preceded the Board's decisions, and the reactions that followed, it is somewhat surprising how little attention has been given to the decisions the NLRB has issued since Electromation and E.I. du Pont. While in general these recent decisions are consistent with the holdings in Electromation and E.I. du Pont, they provide us with the opportunity to analyze the manner in which the Board is currently dealing with the legality of workplace cooperative efforts. This article explores that issue. Part II of the article provides a brief overview of the workplace cooperative efforts problem. Part III reviews …

"Let's Call It A Draw": Striker Replacements And The Mackay Doctrine, Rafael Gely, Leonard Bierman

Faculty Publications

In a recent article we discuss the issue of the use of permanent replacements for striking employees under the National Labor Relations Act (NLRA) Our discussion focuses on the efficiency aspects of the seminal 1938 case of NLRB v. Mackay Radio and Telegraph Co. In the article, we propose a “negotiations” approach, which we argue is likely to result in a more economically efficient interpretation of the Mackay doctrine. As has been the case with other proposals made with respect to this very contentious issue, our proposal has confronted some criticism. Professor William R. Corbett, in a recent piece in …

Whose Team Are You On? My Team Or My Team?: The Nlra's Section 8(A)(2) And The Team Act, Rafael Gely

Faculty Publications

This article analyzes employee participatory programs from the internal labor markets perspective. Internal Labor Markets (“ILM”) refer to the explicit or implicit agreements between employer and employees incorporating rules governing wages, working hours, promotion opportunities and grievance procedures. In order to function properly, ILMs require employees to learn skills that are valuable to the contracting firm, but are of much lesser value elsewhere. Employees agree to acquire such “firm-specific” skills and employers agree to subsidize the training needed to obtain these new skills. It is a mutually beneficial arrangement: employers expect to observe increases in productivity and efficiency and employees …