Law Commons^™

How The U.S. Supreme Court Deemed The Workers' Compensation Grand Bargain 'Adequate' Without Defining Adequacy, Michael C. Duff

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During the second and third decades of the twentieth century, the U. S. Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation and the National Association of Manufacturers, of European workers’ compensation systems during the first decade of the twentieth century. Some of those systems had been in existence since the 1870s and 1880s, and many employers preferred them to newly-emerging American employer liability statutes that retained …

Dependent Contractors' In The Gig Economy: A Comparative Approach, Miriam A. Cherry, Antonio Aloisi

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Lawsuits around the misclassification of workers in the on-demand economy have ballooned in the United States in recent years. That is because employee status is the gateway to many substantive legal rights. Inresponse, some commentators have proposed an in-between hybrid category just for for the gig economy. However, such an intermediate category is not new. In fact, it has existed in many countries for decades, producing successful results in some, and misadventure in others. We use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In Italy, the quasi-subordinate category created an opportunity …

The Next Iteration Of Progressive Corporate Law, Matthew T. Bodie

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A wave of progressive corporate law scholarship in the late 1980s and early 1990s reimagined corporate law from the perspective of employees, consumers, and other stakeholders left behind by shareholder primacy. Almost thirty years later, it is time to revisit this literature and consider what progressive corporate law should be in the 21st Century. This essay argues for three changes: (1) a move to the theory of the firm as the underlying economic literature; (2) a focus on employees, rather than stakeholders more generally, and (3) an effort to change statutory and structural aspects of corporate law, such as board …

Workplace Freakonomics, Matthew T. Bodie

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Data analytics has revolutionized our economy, and employment is no exception. Sometimes called people analytics or HR analytics, the study of worker behavior and activity now includes the collection of massive amounts of data that is then crunched by algorithms looking for both expected and unexpected patterns. This work is akin to the "freakonomics" approach, which asks unusual questions and is prepared to find answers that may upset conventional wisdom. This paper explores the possibility of a "workplace freakonomics" approach to using big data in the workplace, and considers the legal and ethical ramifications for wide-ranging explorations of employee data.

The Sharing Economy And The Edges Of Contract Law: Comparing U.S. And U.K. Approaches, Miriam A. Cherry

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Technology and the rise of the on-demand or sharing economy have created new and diverse structures for how businesses operate and how work is conducted. Some of these matters are intermediated by contract, but in other situations, contract law may be unhelpful. For example, contract law does little to resolve worker classification problems on new platforms, such as ridesharing applications. Other forms of online work create even more complex problems, such as when work is disguised as an innocuous task like entering a code or answering a question, or when work is gamified and hidden as a leisure activity. Other …

People Analytics And Invisible Labor, Miriam A. Cherry

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This article explores two trends in labor and employment law: people analytics and invisible labor. People analytics includes the practice of employers using quantitative data to make objective decisions regarding employees. Invisible labor includes work that is unrecognized because it involves emotional work, or that is hidden due to the intermediation of technology. The article then discusses the paradox of the two trends. As people analytics relies on data for decision-making, how can employers use data analytics if there are increasingly invisible components to work? The article considers solutions: should people analytics include components of hidden labor, explicitly recognize and …

Lessons From The Dramatists Guild For The Platform Economy, Matthew T. Bodie

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Are platform workers part of a firm or are they working as individual businesses? Are they providing their labor as part of a team, or do they hold on to individual capital throughout their transactions? This essay explores the question of employee versus independent contract through the specific examples of dramatists and screenwriters. Dramatists have chosen to conduct their work as separate artists; they maintain copyright over their work, and they retain control over its use. Screenwriters, on the other hand, work as part of a team; they hand over their copyright to the production company and cede control over …

Employment As Fiduciary Relationship, Matthew T. Bodie

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Under traditional agency law doctrine, employees are agents of their employers and owe an agent’s concomitant fiduciary duties. Employers, in turn, are merely principals and have no corresponding fiduciary duties. A new wave of thinking has unsettled this approach by concluding that only high-level employees have fiduciary responsibilities to their employers. Taking this controversy as a starting point, this Article reconceives the employment relationship as a mutual fiduciary relationship in which both employers and employees are fiduciaries of one another. Even though current law does not consider employers to be fiduciaries of their employees, employers have long had significant statutory …

The Best Way Out Is Always Through: Changing The Employment At-Will Default To Protect Personal Autonomy, Matthew T. Bodie

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Employment at-will is the default rule of termination for the vast majority of American employment relationships. The rule creates a presumption—a strong one—that the contract for employment allows either party to terminate the contract at any point in time. Since its inception, this bright line rule has given way to carefully curated exceptions, primarily to protect against discrimination and retaliation. This Article proposes that state courts create a new exception to the at-will rule—or, perhaps more accurately, acknowledge an intricacy within the existing default. The personal-autonomy presumption would modify at-will to make clear that employers will not take any action …

Are Uber And Transportation Network Companies The Future Of Transportation (Law) And Employment (Law)?, Miriam A. Cherry

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Transportation network companies (“TNCs”) such as Uber and Lyft manage ridesharing platforms that have increased efficiency and convenience for many passengers. These platforms, however, have also opened the door to many legal and regulatory issues pertaining to their business practices, employment structures, and transportation law and policy. This article provides a perspective on the economic, social, technical, and political aspects of TNCs in two steps, focusing on transportation and employment. First, it examines the future of TNCs in transportation, noting that TNCs could do more in terms of environmentalism to live up to the promise of the “sharing” economy. Second, …

Worse Than Pirates Or Prussian Chancellors: A State's Authority To Opt-Out Of The Quid Pro Quo, Michael C. Duff

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Privatization of public law dispute resolution in workplaces has been under intense scrutiny in the context of arbitration. Another kind of workplace dispute privatization is presently underway, or under serious consideration, in several states. In connection with state workers’ compensation statutes, one state has implemented, and others are considering, a dispute resolution model in which employers are explicitly authorized to opt out of coverage. “Alternative benefit plans,” created under such statutes, permit employers to, among other things, unilaterally and without limitation designate private fact-finders, whose conclusions are subject to highly deferential judicial review. This model is arbitration on steroids. While …

Legal And Governance Structures Built To Share, Miriam A. Cherry

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This short piece, scheduled to appear in the book "The Rise of Platform Cooperativism" (editors Trebor Scholz & Nathan Schneider), discusses the legal issues around choice of entity and governance for on-demand platforms. While platforms are currently established as for-profit businesses that typically match or hire workers, this is not the only option. Instead, new worker owned platforms are being established that could incorporate heightened labor standards. While there are no existing statues that have been written just for platform cooperatives, existing legal structures such as LLCs or B Corporations could be modified for this purpose. While not a perfect …

Beyond Misclassification: The Digital Transformation Of Work, Miriam A. Cherry

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The first part of this article provides a brief litigation update on various worker lawsuits within the gig economy. While the O’Connor v. Uber case has received the lion’s share of attention and analysis, similar lawsuits on labor standards have been filed against other on-demand platforms. Analysis of the ongoing litigation reveals several important themes, including an emphasis on the labor law of California. The second part of the article shifts from the doctrinal issues around misclassification to look at broader trends, arguing that we are currently experiencing a far-reaching digital transformation of work. The changes include thegrowth of automatic …

Crowdwork, Corporate Social Responsibility, And Fair Labor Practices, Miriam A. Cherry, Winifred R. Poster

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Crowdwork, in which large numbers of workers find and perform paid tasks through online platforms, is a paradox. It can make job-matching and production processes more efficient, but it can also lead to a decline in labor standards. We seek to link ethical labor practices in virtual work with well-established notions of corporate social responsibility, that include concerns for worker well-being and fair treatment. We present a typology of trends in labour, and argue that the new phase of ‘crowdwork’ is distinct from previous eras of ‘industrial’ and ‘digital’ employment. The chapter then outlines three best practices for crowdwork. First …

Gig Economy: Settlements Leave Labor Issues Unsettled, Miriam A. Cherry

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This short paper, which appeared on the Law360 blog, is an effort to think through the consequences of the proposed April 2016 settlement of the Uber drivers' lawsuits. This paper makes reference to the special issue of the Journal of Comparative Labor Law & Policy that is dedicated to the legal and economic issuessurrounding crowdwork.

Hidden From View: Disability, Segregation And Work, Elizabeth Pendo

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The employment provisions of the Americans with Disabilities Act of 1990 were intended to bring working-age people with disabilities into the workplace by providing options for them to seek and gain meaningful, integrated employment. Although the ADA has made significant gains, the rate of progress in employment has been disappointing. While the lack of progress of people with disabilities in the traditional workplace has received attention, the work done by many, especially those with severe disabilities in segregated workplaces, remains hidden in sheltered workshops. This chapter explores the intersection of the concepts of disability, invisibility, and work and identifies the …

Our Uneasiness With Police Unions: Power And Voice For The Powerful?, Marcia L. Mccormick

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The police shooting of Michael Brown, and the other recent police shootings of black men and boys, gave rise to many important discussions about race, inequality, power, and policing. But one issue not as widely discussed was the the role and propriety of police unions. This Essay describes the history and uniqueness of public sector unions, such as police unions, and why they are both useful and problematic.

This Essay describes ways police unions might be used to help solve the current problems, such as helping to connect officers with the community. The Federal and State governments have provided recommendations …

The Cowboy Code Meets The Smash Mouth Truth: Meditations On Worker Incivility, Michael C. Duff

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This symposium essay argues that workers must face up and wake up to the emerging real world of perpetual employment vulnerability. Clinging to the faith that those who govern us will abide by simple moral codes simply will not do in this world. Workers must resist forces promoting vulnerability and internalize a steely and clear-eyed ethic of self-defense in response to the smash mouth truth of this challenging new environment. Workers and dissidents must not shrink when their frank opposition to the status quo is cabined and marginalized as “incivility.” The law — and I focus in the essay on …

Income Inequality And Corporate Structure, Matthew T. Bodie

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Efforts to address income inequality generally focus on wealth redistribution through taxation and government benefits. But these efforts do not attack the core problem -- the unfair distribution of wealth at the firm level. This essay, a contribution to the "Inequality, Opportunity, and the Law of the Workplace" symposium, argues that workers need power within their firms to stake their claims to larger slices of the corporate pie. Even though the current law of the workplace does provide regulatory support for workers, it fails to change internal firm governance. Policymakers who want to take on income inequality as a structural …

The Law And Economics Of Corporate Social Responsibility And Greenwashing, Miriam A. Cherry

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In this symposium article, I explore the concept of greenwashing in more depth. In the first part of the article, I start with first principles, looking at the origins of greenwashing, its definitions, and identifying theeconomic incentives that lead firms into the practice. The second part of this article examines the legal structure that allows greenwashing to occur, and with it, explores the pervasiveness and extent ofgreenwashing. The third part of this article articulates the harms of greenwashing. Intuitively, greenwashing involves deception, falsity, and hypocrisy that reflexively seem problematic. Precisely identifying the actual harm inflicted by some forms of greenwashing, …

Alt-Labor, Secondary Boycotts, And Toward A Labor Organization Bargain, Michael C. Duff

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Recently, workers led by non-union labor advocacy groups, popularly labelled “ALT-Labor,” have been staging strikes and other job actions across the low wage economy. Some observers see this activity as the harbinger of a reinvigorated labor movement or, more generally, as audacious dissent by low wage workers with nothing to lose. Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food or big box retail worker. This article takes a different tack, presuming (implicitly using history as its guide) that employers will respond …

A Eulogy For The Eula, Miriam A. Cherry

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Participants in the Duquesne University Law Review were asked to write about the future of contract law, specifically contract law in 2025. My contribution is a short science fiction story that is set in 2025. Sometimes, conflicting terms in a contract can give you a headache...or a brilliant idea? Expect both theutopian and dystopian from this story, along with contract law theory.

Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo

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Building on a prior article about using film to teach health law, this Essay is intended to share my experience using the film Philadelphia as a method of enhancing coverage and discussion of the employment provisions of the Americans with Disabilities Act (ADA), and to provide an opportunity for recognition of, and identification with, the experiences of people with disabilities.

Larry From The Left: An Appreciation, Matthew T. Bodie, Grant M. Hayden

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This essay approaches the scholarship of the late Professor Larry Ribstein from a progressive vantage point. It argues that Ribstein's revolutionary work upended the "nexus of contracts" theory in corporate law and provided a potential alternative to the regulatory state for those who believe in worker empowerment and anti-cronyism. Progressive corporate law scholars should look to Ribstein's scholarship not as a hurdle to overcome, but as a resource to be tapped for insights about constructing a more egalitarian and dynamic economy.

Participation As A Theory Of Employment, Matthew T. Bodie

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The concept of employment is an important legal category, not only for labor and employment law, but also for intellectual property law, torts, criminal law, and tax. The right-to-control test has dominated the debate over the definition of “employee” since its origins in the master-servant doctrine. However, the test no longer represents our modern notion of what it means to be an employee. This change has played itself out in research on the theory of the firm, which has shifted from a model of control to a model of participation in a team production process. This Article uses the theory …

What Brady V. N.F.L. Teaches About The Devolution Of Labor Law, Michael C. Duff

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In this essay I argue that the Eight Circuit got things very wrong when it found, in Brady v. National Football League, that a district court’s injunctions issued against the NFL in connection with player-filed antitrust suits were barred by the Norris LaGuardia Act of 1932 (NLGA). I argue that the Court’s misreading of the NLGA strikes at the “statutory music” of labor law so dramatically as to represent a judicial unmooring from it. I chronicle other recent important, but relatively minor, judicial departures from the music. I also discuss a major but less recent departure – the employer lockout. …

The Roberts Court And The Law Of Human Resources, Matthew T. Bodie

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The rise of human resources departments parallels the increase in the myriad statutory and regulatory requirements that govern the workplace. The Supreme Court's decisions in labor and employment law cases are largely monitored and implemented by HR professionals who must carry out these directives on a daily basis. This article looks at the Roberts Court's labor and employment law cases through the lens of human resources. In adopting an approach that is solicitous towards HR departments and concerns, the Roberts Court reflects a willingness to empower these private institutional players. Even if labor and employment law scholars do not agree …

Implausible Injuries: Wal-Mart V. Dukes And The Future Of Class Actions And Employment Discrimination Cases, Marcia L. Mccormick

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In 2001, a class action suit was brought against Wal-Mart, where plaintiffs sought to certify a class of every woman who did work for the giant retailer or had worked for it since 1998, seeking relief related to promotion and pay policies. Plaintiffs alleged that they were all discriminated against on the basis of sex. The Supreme Court agreed with Wal-Mart, finding that the class did not meet requirements for class actions set by Rule 23. This article explores the reasoning behind the Supreme Court’s split decision that the class did not meet the commonality standard, which relied significantly on …

The Gamification Of Work, Miriam A. Cherry

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In the language of cyberspace, introducing elements of fun or game-playing into everyday tasks or through simulations is known as the process of “gamification.” The idea that people could be working while they play a video game – in some instances without even knowing that they are working – is becoming part of our reality. Gamification is an important element of what in previous writing I have termed “virtual work,” that is, work that is taking place wholly online, in crowdsourcing arrangements, or in virtual worlds. The gamification of work is an important trend with important implications for employment law. …

New Nip In The Bud: Does The Obama Board's Preemptive Strike Doctrine Enhance Tactical Employment Law Strategies?, Michael C. Duff

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In this essay I revisit the classic debate concerning when worker activity is sufficiently “concerted” to be covered by the National Labor Relations Act, a statute covering certain private sector protected “concerted” activity by workers. When workers are obviously engaged in concerted “labor” activity — classically activity like striking, picketing, or even just complaining about working conditions — they are generally protected against employer reprisal for doing so. Over the last few decades there has been disagreement about the definition and limits of “concert.” My renewed interest in this dormant but not dead subject was piqued by the “Obama Board’s” …