Law Commons^™

Erasing Race, Llezlie Green

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Low-wage workers frequently experience exploitation, including wage theft, at the intersection of their racial identities and their economic vulnerabilities. Scholars, however, rarely consider the role of wage and hwur exploitation in broader racial subordination frameworks. This Essay considers the narratives that have informed the detachment of racial justice from the worker exploitation narrative and the distancing of economic justice from the civil rights narrative. It then contends that social movements, like the Fight for $15, can disrupt narrow understandings of low-wage worker exploitation and proffer more nuanced narratives that connect race, economic justice, and civil rights to a broader antisubordination …

Outsourcing Discrimination, Llezlie Green

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The significant growth in employers’ use of labor intermediaries—that is, third parties that stand between the workers and the organizations for whom they complete work— has fundamentally changed how many low-wage workers enter and function in the workplace. Temporary staffing agencies that hire and place workers with companies and organizations have taken on a gatekeeper role to low-wage jobs in many industries. Recent litigation and various reports allege flagrant hiring discrimination by temporary staffing agencies whose clients encourage them not to hire African American workers and hire and send Latinx immigrants instead. This Article explores the discriminatory treatment of low-wage …

Equality Is A Brokered Idea, Robert Tsai

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This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie …

The New Social Contracts In International Supply Chains, David Snyder

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This Article considers, from legal, practical, moral, and policy perspectives, Model Contract Clauses (MCCs) to protect the human rights of workers in international supply chains. The product of the ABA Business Law Section Working Group to Draft Human Rights Protections in International Supply Contracts, the MCCs are an effort to provide companies with carefully researched and well-drafted clauses to incorporate human rights policies into supply contracts (purchase orders, master vendor agreements, and the like). The Article discusses the impetus, goals, and strategies of the MCCs and explains the paradigm of the corporate, operational, and political landscape for which they are …

Disrupting The Discrimination Narrative: An Argument For Wage And Hour Laws' Inclusion In Antisubordination Advocacy, Llezlie Green

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The traditional discrimination narrative dominates both legal and popular understanding of workplace exploitation of African American workers. This narrative, however, is incomplete as it fails to consider other chronic workplace challenges such as wage theft. The dominant narrative draws upon an anticlassification framework rather than an antisubordination framework. In addition, post-racial legal analyses complicate the dominant narrative’s utility, particularly in a system plagued by structural inequality. Furthermore, both its legal underpinnings and the normative realities of pursuing discrimination claims challenge its efficacy in addressing workplace subordination. Wage theft has largely characterized only the immigrant worker exploitation narrative, despite wage theft’s …

Wage Theft In Lawless Courts, Llezlie Green

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Low-wage workers experience wage theft — that is, employers’ failure to pay earned wages — at alarmingly high rates. Indeed, the number of wage and hour cases filed in federal and state courts and administrative agencies steadily increases every year. While much of the scholarly assessment of wage and hour litigation focuses on large collective and class actions involving hundreds or thousands of workers and millions of dollars in lost wages, the experiences of individual workers with small claims have received little attention. Furthermore, scholarly consideration of the justice gap in lower courts, more generally, has often focused on debt …

Reclaiming The Navajo Range: Resolving The Conflict Between Grazing Rights And Development, Ezra Rosser

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Grazing is fundamental to Navajo identity, yet management of the Navajo range remains highly problematic. This Essay connects the federal government's devastating livestock reduction effort of the 1930s with the inability of the Navajo Nation to place meaningful limits on grazing and the power of grazing permittees. It argues that the Navajo Nation should consider reasserting the tribe's traditional understanding that property rights depend on use as a way to create space for reservation development.

2017 Symposium Discussion: The Life Of An Immigration Attorney, Cori Alonso-Yoder

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No abstract provided.

Human Rights Protections In International Supply Chains—Protecting Workers And Managing Company Risk: 2018 Report And Model Contract Clauses From The Working Group To Draft Human Rights Protections In International Supply Contracts, Aba Section Of Business Law, David Snyder

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This report and the model contract clauses that it contains are an effort to help companies provide legally effective and operationally likely human rights protections for workers in international supply chains. The report is the product of the Working Group to Draft Human Rights Protections in International Supply Contracts, which is a unit of the American Bar Association Business Law Section. After identifying the problems, such as human trafficking and factory collapses as well as developing compliance obligations under federal, state, and foreign law, the report explains the difficulty of drafting legally effective clauses. Most of the issues result from …

Damaged Bodies, Damaged Lives: Immigrant Worker Injuries As Dignity Takings, Jayesh Rathod, Rachel Nadas

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Government data consistently affirm that foreign-born workers in the U.S. experience high rates of on-the-job illness and injury. This article explores whether—and under what circumstances—these occupational harms suffered by immigrant workers constitute a dignity taking. The article argues that some injuries suffered by foreign-born workers are indirect takings by the state due to the government’s lackluster oversight and limited penalties for violations of occupational safety and health laws. Using a framework of the body as property, the article then explores when work-related injury constitutes an infringement upon a property right. The article contends that the government’s weak enforcement apparatus, coupled …

Coming Of Age On $2 A Day, Evicted: What Ced Has To Say To Today's Untethered Poverty, Susan Bennett

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No abstract provided.

Food Stamps, Unjust Enrichment And Minimum Wage, Candace Kovacic-Fleischer

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A number of large retail chains with monopsony power, such as Walmart, pay their low level employees so little that these employees are eligible for food stamps and other governmental benefits. In addition to paying low wages, these chains often have hourly restrictions so that their employees are not eligible for overtime pay. At times the chains violate the wage and hour provisions of the Fair Labor Standards Act (FLSA) by making hourly employees work “off the clock,” a practice known as wage theft.

One of the reasons these low wage retailers can pay so little is because their employees …

Exploited At The Intersection: A Critical Race Feminist Analysis Of Undocumented Latina Workers And The Role Of The Private Attorney General, Llezlie Green

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Undocumented Latina workers experience wage theft and other workplace exploitation at alarmingly high rates. The stock stories associated with immigrant workers often involve male day laborers or female domestic workers and fail to capture the experiences of women toiling in the farms, restaurants, factories, and home and business cleaning services that employ hundreds of thousands of immigrant women. The resulting invisibility of undocumented Latina women in the typical narratives parallels the paucity of undocumented Latina workers who make legal claims against their exploitative employers. Their distinct experiences are characterized by multiple intersecting vulnerabilities based upon their ethnicity, gender, and immigration …

Introduction To Worker Cooperatives And Their Role In The Changing Economy, Priya Baskaran

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This article advocates for cooperatives as a vehicle for protecting and empowering vulnerable workers, like those in New York’s nail salons. Some may argue that worker cooperatives are unnecessary and that advocacy groups and legislation would be just as effective. California has a nonprofit, the California Healthy Nail Salon Collaborative (CHNSC), which is dedicated to advocating for healthy working conditions for nail workers. The organization is composed of key stakeholders in the nail salon industry, including individual manicurists, environmental organizations, researchers, reproductive justice groups, and government agencies. CHNSC created a “healthy nail salon” certification as an incentive for owners to …

Angry Employees: Revisiting Insubordination In Title Vii Cases, Susan Carle

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In too many Title VII cases, employees find themselves thrown out of court because they reacted angrily to reasonable perceptions of employer discrimination. In the race context, supervisors repeatedly call employees the n-word and use other racial epithets, order African American employees to perform work others in the same job classification do not have to do, and impose discipline white employees do not face for the comparable conduct. In the gender context, courts throw out plaintiffs’ cases even where supervisors engage in egregious sexual harassment. Employees who react angrily to such demeaning treatment—by cursing, shouting, refusing an order or leaving …

Riding The Wave: Uplifting Labor Organizations Through Immigration Reform, Jayesh Rathod

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In recent years, labor unions in the United States have embraced the immigrants’ rights movement, cognizant that the very future of organized labor depends on its ability to attract immigrant workers and integrate them into union ranks. At the same time, the immigrants’ rights movement has been lauded for its successful organizing models, often drawing upon the vitality and ingenuity of immigrant-based worker centers, which themselves have emerged as alternatives to traditional labor unions. And while the labor and immigrants’ rights movements have engaged in some fruitful collaborations, their mutual support has failed to radically reshape the trajectory of either …

Procedural Hurdles And Thwarted Efficiency: Immigration Relief In Wage And Hour Collective Actions, Llezlie Green

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Wage theft and its frequent exploitative companions, trafficking and involuntary servitude, have seen substantial increases in recent years. Low-wage workers often bear the brunt of these practices. Vulnerable populations, such as immigrant workers, and more specifically, undocumented workers, experience wage theft and other forms of workplace-related exploitation at alarmingly high rates. Individual adjudications of these claims are neither efficient nor, in many cases, feasible, given attorneys’ aversion to shouldering the risks and costs in cases that may yield only limited attorneys’ fees. The collective adjudication of Fair Labor Standards Act (FLSA) claims, however, largely resolves these challenges and provides an …

Reimagining The Law Of Self-Employment: A Comparative Perspective, Jayesh Rathod, Michal Skapski

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U.S. employment law has traditionally disfavored bright-line rules to distinguish between traditional “employees” and independent contractors, instead relying on more flexible criteria, to be applied on a case-by-case basis. This fluidity has enabled employers to structure these relationships – and the corresponding bundle of worker rights and benefits – in ways that serve their own material and normative interests. Indeed, recent employment law literature has noted a dramatic shift towards independent contracting and contingent worker schemes in the U.S., even when the actual workplace dynamics are more akin to an employer-employee relationship. These same trends are now visible on the …

After Dothard: Female Correctional Workers And The Challenge To Employment Law, Brenda V. Smith, Melissa C. Loomis

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This article examines a profession where women have made great strides - corrections. Using an equality framework, corrections and other non-traditional professions were the first target of the feminist movement in the 1970s. By and large, feminists were successful in creating greater porosity for women in law enforcement, emergency services, corrections, and the military. While women have entered these traditionally masculine spaces, they still suffer from an achievement gap. They are still underrepresented in leadership positions and marginalized in these settings; are still the targets of discrimination based on race, gender, and perceived sexual orientation; and are less likely than …

What Marriage Equality Arguments Portend For Domestic Partner Employee Benefits, Nancy Polikoff

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No abstract provided.

A Supreme Court Ruling That's About Way More Than Preemption, Nancy Polikoff

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No abstract provided.

Two Parts Of The Landscape Of Family In America: Maintaining Both Spousal And Domestic Partner Employee Benefits For Both Same-Sex And Different-Sex Couples, Nancy Polikoff

Articles in Law Reviews & Other Academic Journals

No abstract provided.

A Season Of Change: Reforming The H2b Guest Worker Program, Jayesh Rathod

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INTRODUCTION: Each year, as spring and summer arrive, Americans partake in range of seasonal traditions: beautifying their lawns and gardens; enjoying harvests of fresh fruits, vegetables, and seafood; and attending local fairs and festivals. Although these rituals have become part of the American cultural fabric, few know that they are supported by thousands of temporary guest workers who enter the United States each year under the H-2 visa program.' The H-a program allows U.S employers to petition for seasonal agricultural workers (via the H-2A program) and seasonal nonagricultural workers (via the H-2B program) to work in this country on a …

Protecting Immigrant Workers Through Interagency Cooperation, Jayesh Rathod

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Stephen Lee’s Monitoring Immigration Enforcement offers a promising prescription for resolving the long-standing tension between the workplace enforcement priorities of the Department of Homeland Security (“DHS”) and the efforts by the Department of Labor (“DOL”) to protect the rights of immigrant workers. Lee convincingly describes - often with the aid of rich historical examples - the origins of the chronic imbalance of power between DHS and the DOL, and the limitations of past efforts to synchronize the work of the respective agencies. Lee’s proposal for interagency coordination, in the form of ex ante monitoring by the DOL of worksite enforcement …

Teaching International Law: Lessons From Clinical Education: Introductory Remarks, Richard J. Wilson

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No abstract provided.

The Potential Of Rulemaking By The Nlrb, Jeffrey Lubbers

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No abstract provided.

Achieving Accountability For Migrant Domestic Worker Abuse, Janie Chuang

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Domestic work has become increasingly commoditized in the global economy. Migrant domestic workers' remittances constitute a rich source of revenues for their countries of origin, while their labor ameliorates the “care deficit” experienced in wealthier countries of destination. Despite the importance of their work, migrant domestic workers are some of the most exploited workers in the world. They are often discriminated against based on their gender, class, race, nationality, and immigration status, and they are excluded from labor law protections in most countries of destination.

This essay examines some of the underlying reasons for this mistreatment and neglect. After describing …

Beyond The 'Chilling Effect': Immigrant Worker Behavior And The Regulation Of Occupational Safety & Health, Jayesh Rathod

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This article forms part of a broader scholarly project that seeks to understand the root causes of immigrant worker injury and fatality trends in the U.S., and the ways in which legal norms and regulatory practices shape these trends. This particular contribution examines the broad range of attributes and experiences that influence immigrant worker behavior relating to occupational safety and health -- in the context of interactions with employers and regulatory bodies, and relating to the choices that workers themselves make about how to perform their work.

Drawing upon scholarship from multiple disciplines, the article encourages a more robust understanding …

Immigrant Labor And The Occupational Safety & Health Regime; Part I: A New Vision For Workplace Regulation, Jayesh Rathod

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This article is the first in a series of three articles that together form a scholarly project that unearths the causes of recent trends in immigrant worker fatalities and injuries in the U.S., and presents recommendations for reversing it. The article examines how the history, structure, and operations of the federal Occupational Safety and Health Administration (OSHA) have, at times, obscured the workplace safety concerns of immigrant workers and have left these workers with no meaningful voice in the regulatory process. The article presents a set of regulatory imperatives to guide OSHA’s future work with respect to immigrant workers. These …

The Espionage Act And National Security Whisteblowing After Garcetti, Stephen I. Vladeck

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Should government employees ever have a right to disseminate classified national security information to the public? As a general matter, of course, the answer is "no." It is necessarily tautological that the central purpose of classifying information is to keep that information secret. But what if the information pertains to what we might describe as "unlawful secrets," and the individual in question has exhausted all possible non-public remedies, to no avail? Are there any circumstances in which the law enables the government employee to come forward? Should there be?

As this essay suggests, because of the broad language of the …