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Full-Text Articles in Law
What’S In A Form? Employment Background Checks Under The Fair Credit Reporting Act, Emily Scace
What’S In A Form? Employment Background Checks Under The Fair Credit Reporting Act, Emily Scace
Connecticut Law Review
For employers, background checks, credit checks, and similar measures are a prudent step to guard against negligent hiring claims and other potential losses that can result from poor hiring decisions. But these practices necessarily require employees to relinquish some of their interests in privacy and may also introduce bias into the hiring process. The Fair Credit Reporting Act (FCRA), which applies to many of these employment screening measures, requires employers to follow certain procedural requirements that seek to ensure that employees and applicants understand the scope of the information that will be sought in a background or credit check, provide …
On Social Network Position In Employment Law: Conjectures For Charlie, Sachin Pandya
On Social Network Position In Employment Law: Conjectures For Charlie, Sachin Pandya
Faculty Articles and Papers
This paper, part of a Festschrift for Charles A. Sullivan, shows how arguments from two of Sullivan's papers on employment law would fare in a world in which employers can easily see a worker's or job applicant's relative position within a social or professional network. The paper then uses Sullivan's corpus of legal scholarship to illustrate some challenges to using social network evidence in employment law.
How To Close The Gender Pay Gap: Transparency In Data Regarding Compensation Is The Key, J. Andrew Morgan
How To Close The Gender Pay Gap: Transparency In Data Regarding Compensation Is The Key, J. Andrew Morgan
Connecticut Journal of International Law
This Article will look at the problem of unequal pay and will argue that transparency regarding compensation of men and women must be increased before any decision can be made as to why the gender pay gap exists. This Article proceeds in three parts. Part I provides a comprehensive discussion of existing equal pay laws in the United States that prohibit pay discrimination by sex and an analysis of the most up-to-date data on the current gender pay gap in the United States. It also examines theories as to why or why not there is a pay gap and how …
Efficiency And Its Discontents, Michael Fischl
Efficiency And Its Discontents, Michael Fischl
Faculty Articles and Papers
Review of Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford 2014).
Teaching Law As A Vocation: Local 1330, Promissory Estoppel, And The Critical Tradition In Labour Scholarship, Michael Fischl
Teaching Law As A Vocation: Local 1330, Promissory Estoppel, And The Critical Tradition In Labour Scholarship, Michael Fischl
Faculty Articles and Papers
A central feature of early work associated with critical legal studies was an effort to ‘break the seal’ between teaching and writing, the supposedly dichotomous dimensions of academic life. This essay locates the link in a ‘demystification’ project – a relentless focus on the recurring rhetorical structures of legal reasoning and argument – and nowhere is it more evident than in critical labour scholarship. The essay offers an extended illustration by deploying a series of critical classroom techniques in a study of Local 1330 v. U.S. Steel, a tragically unsuccessful effort by a union to prevent the closing of a …
Pension De-Risking, Brendan Maher
Pension De-Risking, Brendan Maher
Faculty Articles and Papers
The United States is facing a retirement crisis, in significant part because defined benefit pension plans have been replaced by defined contribution retirement plans that, whatever their theoretical merit, have left significant numbers of workers unprepared for retirement. A troubling example of the continuing movement away from defined benefit plans is a new phenomenon euphemistically called “pension de-risking.” Recent years have been marked by high-profile companies engaging in various actions designed to reduce the company’s exposure to pension funding risk (hence the term “pension de-risking”). Some de-risking strategies convert a federally-guaranteed pension into a more risky private annuity. Other approaches …
Protecting The Compromised Worker: A Challenge For Employment Discrimination Law, Peter Siegelman
Protecting The Compromised Worker: A Challenge For Employment Discrimination Law, Peter Siegelman
Faculty Articles and Papers
Only the very best workers are completely satisfactory, and they are not likely to be discriminated against-the cost of discrimination is too great. The law tries to protect average and even below average workers against being treated more harshly than would be the case if they were of a different race, sex, religion, or national origin, but it has difficulty achieving this goal because it is so easy to concoct a plausible reason for not hiring, or firing, or failing to promote, or denying a pay raise to, a worker who is not superlative.
Serving In The Master’S House: Legal Protection For In-Home Care Workers In The United States, Michael Fischl
Serving In The Master’S House: Legal Protection For In-Home Care Workers In The United States, Michael Fischl
Faculty Articles and Papers
This essay will focus on the developing forms of legal protection available in the United States to those whose principal place of work is another person’s home and who are paid to do what is broadly referred to as “care work.” The particular services vary widely – from housecleaning, to child care, to companionship and routine health care management for the elderly and the infirm – but the labor market demographics do not: This is low-wage/no-benefit work performed almost exclusively by women and primarily by women of color and of extra-national origin
Presuming Damages For Unemployment Distress, Sachin Pandya
Presuming Damages For Unemployment Distress, Sachin Pandya
Faculty Articles and Papers
A person is illegally fired and, as a result, becomes unemployed for a period of time. If that person wins a lawsuit based on that illegal firing, she can typically recover what she would have earned in wages during that time, as well as reasonable expenses she incurred to search for a new job. Involuntary unemployment, however, also causes people to lose psychological well-being, because they are forced to suffer the experience of being unemployed while they look for a new job. That loss ("unemployment distress") can range in severity from feelings of anxiety and humiliation to severe depression. Accordingly, …
Legislating Incentives For Attorney Representation In Civil Rights Litigation, Douglas M. Spencer, Sean Farhang
Legislating Incentives For Attorney Representation In Civil Rights Litigation, Douglas M. Spencer, Sean Farhang
Faculty Articles and Papers
Congress routinely relies on private lawsuits to enforce its mandates. In this article, we investigate whether, when it does so, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. Using an original and novel data set based on review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981-2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to …
League Of Ownership Of Teams, Conflicts Of Interest, And Personnel Exchanges, Lewis Kurlantzick
League Of Ownership Of Teams, Conflicts Of Interest, And Personnel Exchanges, Lewis Kurlantzick
Faculty Articles and Papers
No abstract provided.
Improving Retirement Savings Options For Employees, James Kwak
Improving Retirement Savings Options For Employees, James Kwak
Faculty Articles and Papers
Americans do not save enough for retirement. One reason is that our retirement savings accounts — whether employer-sponsored defined-contribution plans such as 401(k) plans or individual retirement accounts — are heavily invested in actively managed mutual funds that siphon off tens of billions of dollars in fees every year yet deliver returns that trail the overall market. Under existing law, as interpreted by the courts, mutual funds may charge high fees to investors, and companies may offer expensive, active funds to their employees. This paper argues that the Employee Retirement Income Security Act should be reinterpreted, in light of basic …
Unpacking The Employee-Misconduct Defense, Sachin S. Pandya
Unpacking The Employee-Misconduct Defense, Sachin S. Pandya
Faculty Articles and Papers
When a worker sues an employer, the employer sometimes learns thereafter that the worker had committed some misconduct at the time of hire or while on the job. In those cases, most American work laws provide the employer with a defense that precludes employer liability, or at least limits remedies, if the employer shows that, had it known of the worker’s misconduct at the time of its allegedly wrongful act, it would have fired the worker because of that misconduct. This Article evaluates the prevailing arguments for and against the employee-misconduct defense as it appears in the National Labor Relations …
Tax Liability For Wage Theft, Sachin S. Pandya
Tax Liability For Wage Theft, Sachin S. Pandya
Faculty Articles and Papers
This paper shows how, under existing tax law, illegal wage underpayment by an employer (sometimes called “wage theft”) may generate employer tax liability for unreported income or disallowed business expense deductions. Given that the tax authority needs information from the underpaid worker to prove such liability, the paper identifies two ways that a worker can transmit that information to a tax authority: becoming a tax informant, or bringing a qui tam action under a state false claims act. Finally, the paper discusses possible influences on the decision of the unpaid worker to inform on the employer to the tax authority, …
Employees Versus Independent Contractors: Why States Should Not Enact Statutes That Target The Construction Industry, James Kwak
Faculty Articles and Papers
No abstract provided.
“We’D Love To Match Them, But…”: How Temporary Employment Agencies Understand And Use Race And Ethnicity, Meghan M. Sweeney
“We’D Love To Match Them, But…”: How Temporary Employment Agencies Understand And Use Race And Ethnicity, Meghan M. Sweeney
Connecticut Public Interest Law Journal
No abstract provided.
Labor Law, The Left, And The Lure Of The Market, Michael Fischl
Labor Law, The Left, And The Lure Of The Market, Michael Fischl
Faculty Articles and Papers
No abstract provided.
“Running The Government Like A Business”: Wisconsin And The Assault On Workplace Democracy, Michael Fischl
“Running The Government Like A Business”: Wisconsin And The Assault On Workplace Democracy, Michael Fischl
Connecticut Law Review
No abstract provided.
Understanding And Regulating The Sport Of Mixed Martial Arts, Brendan Maher
Understanding And Regulating The Sport Of Mixed Martial Arts, Brendan Maher
Faculty Articles and Papers
The past fifteen years have seen the emergence of a new sport in America and around the world: mixed martial arts (“MMA”). MMA is an interdisciplinary combat sport whose participants engage in and combine a variety of fighting disciplines (e.g., kickboxing, wrestling, karate, jiu-jitsu, and so on) within one match. In this Article, I examine and analyze the sport’s evolution, articulate a theory of sporting legitimacy, supply a conceptual taxonomy of regulation, and highlight potential reform. More specifically, my foundational treatment proceeds as follows. I first explain the modern history and development of MMA, tracing it from its shaggy, brutish …
Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya
Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya
Faculty Articles and Papers
This paper presents a method for detecting stealth precedent erosion, i.e., when an appellate court majority deliberately writes the opinion in case y to reduce the scope of its precedent x, but does not expressly refer to precedent x in the opinion. Applying this method, the paper provides a strong basis for concluding that in Ricci v. DeStefano (2009), a United States Supreme Court case decided under Title VII of the Civil Rights Act of 1964, the Court majority eroded by stealth United Steelworkers of America v. Weber (1979), and Johnson v. Transportation Agency (1987), both cases that read Title …
Creating A Paternalistic Market For Legal Rules Affecting The Benefit Promise, Brendan Maher
Creating A Paternalistic Market For Legal Rules Affecting The Benefit Promise, Brendan Maher
Faculty Articles and Papers
Notwithstanding the fact that ERISA was enacted to protect employee benefits, courts have narrowly construed the relief available when benefits are denied, out of concern that a stronger remedy would be too costly for the system to bear. Judges, I argue, are ill-equipped to make this policy judgment. Instead, a regulated, subsidized, paternalistic market should be created to permit the benefit players themselves to choose and price the strength of the remedy they desire. This is a superior means to reach the right level of remedial strength for the most players. To protect against undesirably weak remedial options being selected, …
Rethinking The Tripartite Division Of American Work Law, Michael Fischl
Rethinking The Tripartite Division Of American Work Law, Michael Fischl
Faculty Articles and Papers
The holy trinity of American work law - employment discrimination, labor law, and employment law - has governed the American workplace for over four decades and is also firmly entrenched in the curricula of most law schools. But the discrete lenses provided by the conventional trinity make it difficult to bring into focus two distinct but related dimensions of the accelerating integration of American work law. Thus, we are on the one hand experiencing an accelerating doctrinal integration of our field, as the settings in which nominally out of area law plays a significant governance role are rapidly proliferating. At …
The Other Side Of The Picket Line: Contract, Democracy, And Power In A Law School Classroom, Michael Fischl
The Other Side Of The Picket Line: Contract, Democracy, And Power In A Law School Classroom, Michael Fischl
Faculty Articles and Papers
his essay - from a forthcoming symposium on teaching from the left in the NYU Review of Law & Social Change - offers an account of the successful union organizing campaign among custodial and landscaping workers at the University of Miami during the 2005-06 academic year, focusing in particular on the role played by faculty during the course of the campaign. It examines a fractious debate generated by faculty who held classes off campus in order to support the striking workers and the author's own decision to put the question of whether to honor the picket line to a vote …
Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman
Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman
Faculty Articles and Papers
An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants-upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, …
Is There A Steroids Problem - The Problematic Character Of The Case For Regulation, Lewis Kurlantzick
Is There A Steroids Problem - The Problematic Character Of The Case For Regulation, Lewis Kurlantzick
Faculty Articles and Papers
No abstract provided.
A Woman's World, Michael Fischl
Trade Secrets, Property, And Social Relations, Steven Wilf
Trade Secrets, Property, And Social Relations, Steven Wilf
Faculty Articles and Papers
No abstract provided.
Knicks-Heat And The Appropriateness Of Sanctions In Sport, Lewis Kurlantzick
Knicks-Heat And The Appropriateness Of Sanctions In Sport, Lewis Kurlantzick
Faculty Articles and Papers
No abstract provided.
Retrofitting Unemployment Insurance To Cover Temporary Workers, Sachin Pandya
Retrofitting Unemployment Insurance To Cover Temporary Workers, Sachin Pandya
Faculty Articles and Papers
No abstract provided.
Q-Word As Red Herring: Why Disparate Impact Liability Does Not Induce Hiring Quotas, Peter Siegelman, Ian Ayres
Q-Word As Red Herring: Why Disparate Impact Liability Does Not Induce Hiring Quotas, Peter Siegelman, Ian Ayres
Faculty Articles and Papers
The debates over the passage of Title VII of the 1964 Civil Rights Act' were marked by passionate disagreement: conservatives objected to the legislation as an unwarranted interference with employers' freedom of contract, while liberal supporters considered it a first step toward racial justice. While disagreement about what employment discrimination law should do has continued-in much the same form-to this day, there has been surprising consensus about the mechanism by which Title VII actually works: whether it is thought of as inadequate or excessive, Title VII is usually presumed to promote the hiring of those it is designed to protect.'The …