Law Commons^™

A Review Of Supreme Court Cases Involving Workplace Retaliation: 2006-2018, Rachel Quinn Pearson

Masters Theses & Specialist Projects

Employers want to reduce or eliminate claims of employee retaliation whenever possible because of associated negative organizational consequences such as legal liability, various financial costs for the organization, and negative effect on employee morale. As such, it is important to identify the factors that impact the court’s decision to rule in favor of the plaintiff or the defendant. The purpose of the present study is to identify factors driving the court’s decision, as well as to review the implications of recent Supreme Court holdings for retaliation issues. Supreme Court cases involving a claim of employee retaliation from BNSF v. White …

Compensating Work-Related Disability: Theory, Politics And History Of The Commodification-Decommodification Dialectic, Eric Tucker

Articles & Book Chapters

In 2015, the last year for which we have complete Canadian data, workers' compensation boards recognized that 852 Canadian workers died from work-related injuries and diseases and 232,629 workers experienced disabling injuries requiring them to take time off work. About 13 percent of those injured will have permanent disabilities of varying severity. These figures significantly underestimate the true burden of work-related disability for at least three reasons. First, the percentage of the paid Canadian workforce covered by workers' compensation has been shrinking. In 2008, it was estimated to stand at about 80 percent, although coverage bounced back to about 85 …

The Grand Maple Dream: Fulfilled, Fading Or Failed?: Filipino Women Nurses In Manitoba And Their Struggles Against Harassment And Discrimination, Emily Sanchez Salcedo

Center for Business Research and Development

The Philippines is a tiny archipelago in Southeast Asia with over one hundred million people wallowing in a third world economy kept afloat for decades by Overseas Filipino Workers (OFW). In 2017, OFWs collectively sent home cash remittances amounting over $28 billion—roughly $645 million came from Filipinos in Canada. This amount is the eleventh biggest contributor to the Philippine economy (Bangko Sentral ng Pilipinas, 2018).

On the other hand, the Philippines has become the top country for new immigrants to Canada in recent years, surpassing India and China (Friesen, 2018). According to the 2016 Census of Population Program, there are …

Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Angela Onwuachi-Willig, Ifeoma Ajunwa

Faculty Scholarship

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements — which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior …

Foreign Born Latina Earnings And Returns To Education And Experience In The United States, Trevor Mattos

Gastón Institute Publications

The determinants of immigrant earnings have long been a heavily researched topic, beginning with the contributions of Chiswick (1978) and Borjas (1985). The majority of this work focuses on male immigrants. Prior findings provide conflicting results with respect to determinants of native and foreign-born earnings in the U.S. This study, however, focuses on the earnings levels and differential returns to education and experience between native and foreign-born Latina workers in the U.S. using pooled American Community Survey microdata from 2014, 2015, and 2016. The analytical approach borrows from Chiswick’s 1978 paper that utilized cross-sectional regression methods and the human capital …

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Rwu First Amendment Blog: Dean Yelnosky's Blog: Ruling Could Destroy Labor Unions As We Know Them 2-26-2018, Michael J. Yelnosky

Law School Blogs

No abstract provided.

Brief In Opposition. Idaho Department Of Corrections V. Fuller, 138 S.Ct. 1345 (2018) (No. 17-959), Eric Schnapper, Ericka Birch, Kass Hartstad

Court Briefs

QUESTION PRESENTED The court of appeals concluded that a reasonable jury could find that actions by supervisors at the Idaho Department of Corrections created a hostile work environment. Petitioner does not seek review of that holding. The question presented is: Did the court of appeals err in concluding that the record contained sufficient evidence to permit a reasonable jury to infer that the actions of those supervisors were gender-based?

Felton V. Douglas County, 134 Nev. Adv. Op. 6 (Feb. 15, 2018), Joshua Garry

Nevada Supreme Court Summaries

The Court determined that when an uncompensated volunteer, who has concurrent private employment and is injured during the course of volunteer work, shall have their average monthly wage for the purposes of workers’ compensation benefits to be the aggregate of the “deemed wage” provided by statute along with their earnings from the concurrent private employment.

Disbelief Doctrines, Sandra F. Sperino

Faculty Articles and Other Publications

Employment discrimination law is riddled with doctrines that tell courts to believe employers and not workers. Judges often use these disbelief doctrines to dismiss cases at the summary judgment stage. At times, judges even use them after a jury trial to justify nullifying jury verdicts in favor of workers.

This article brings together many disparate discrimination doctrines and shows how they function as disbelief doctrines, causing courts to believe employers and not workers. The strongest disbelief doctrines include the stray comments doctrine, the same decisionmaker inference, and the same protected class inference. However, these are not the only ones. Even …

Amicus Curiae Brief Of The American Civil Liberties Union Of Massachusetts, Massachusetts Law Reform Institute, Pioneer Valley Workers Center, United Food And Commercial Workers Local 1459, University Of Massachusetts Labor Relations And Research Center, And Professor Michael Wishnie In Support Of Plaintiffs-Appellants, William C. Newman, Harris Freeman

Faculty Scholarship

This Amicus Curiae Brief is filed on behalf of the American Civil Liberties Union of Massachusetts, Massachusetts Law Reform Institute, Pioneer Valley Workers Center, United Food and Commercial Workers Local 1459, University of Massachusetts Labor Relations and Research Center, and Professor Michael Wishnie in Support of Plaintiffs-Appellants, Arias-Villano v. Chang & Son Enters., 481 Mass. 625 (2019).

The Case For Tipping And Unrestricted Tip-Pooling: Promoting Intrafirm Cooperation, Samuel Estreicher, Jonathan R. Nash

Faculty Articles

This Article proceeds as follows. Part I presents doctrinal background. It discusses the laws governing tip-pooling, with an emphasis on relevant federal and state laws. Part II analyzes, from a law-and-economics perspective, how tip-pooling arrangements—both voluntary and mandatory—might arise, and what form they might take. Part III shows how governing law limits the ability of restaurateurs to put tip-pooling arrangements in place, and shapes the incentives of employees. It also analyzes the response of restaurants like the Union Square Hospitality Group that have barred all tipping. Part IV suggests revisions to existing law that would free up management’s freedom to …

A Modern Union For The Modern Economy, Jeffrey M. Hirsch, Joseph A. Seiner

Faculty Publications

No abstract provided.

Digital Media And Unionization In The “Guilded" Age: How Labor Organizations In The Entertainment Industry Are Swimming Against The Current Of Streaming New Media And Technology, Jacqueline G.H. Kim

Prize Winning Papers

No abstract provided.

Unbundling Freedom In The Sharing Economy, Deepa Das Acevedo

Faculty Articles

Courts and scholars point to the sharing economy as proof that our labor and employment infrastructure is obsolete because it rests on a narrow and outmoded idea that only workers subjected to direct, personalized control by their employers need work-related protections and benefits. Since they diagnose the problem as being our system’s emphasis on control, these critics have long called for reducing or eliminating the primacy of the “control test” in classifying workers as either protected employees or unprotected independent contractors. Despite these persistent criticisms, however, the concept of control has been remarkably sticky in scholarly and judicial circles.

This …

When Should Employers Be Liable For Factoring Biased Customer Feedback Into Employment Decisions?, Dallan F. Flake

Law Faculty Scholarship

In today’s customer-centric business environment, firms seek feedback from consumers seemingly at every turn. Firms factor customer feedback into a host of decisions, including employment-related decisions such as who to hire, promote, and fire; how much to pay employees; and what tasks to assign them. Increasingly, researchers are discovering that customer feedback is often biased against certain populations, such as women and racial minorities. Sometimes customers explicitly declare their biases, but more often their prejudices are harder to detect — either because they intentionally hide their biases in their ratings or because the customers do not realize their own biases, …

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).

The Motive Power In Public Sector Collective Bargaining, Martin Malin

All Faculty Scholarship

In the private sector, George Taylor referred to the strike as providing the “motive power” in collective bargaining. A major reason behind the enactment of public employee collective bargaining laws is to reduce the interruption of public services from job actions. This was the case with the enactment of New York’s Taylor Law.This paper, written for a conference commemorating the 50th anniversary of the Taylor Law and published in a special issue of the Hofstra Labor and Employment Law Journal focused on the Taylor Law, examines what, in the absence of a right to strike, provides the motive power for …

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

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Confidentiality And Whistleblowing, Richard Moberly

Nebraska College of Law: Faculty Publications

I. A (BRIEF) HISTORY OF WHISTLEBLOWING IN THE LAST FIFTEEN YEARS: A. Antiretaliation Protections, B. Bounty Provisions. C. Structural Disclosure Channels

II. THE CORPORATE RESPONSE. : A. Using Confidentiality Provisions, B. Results from Broad Study of Settlement Agreements—1. Brief Background on the Study, 2. The Prevalence of Confidentiality Provisions.

III. GOVERNMENT COUNTERMOVES: A. SEC Rule 21F-17, B. OSHA Guidance, C. Government Contractors

Companies often require confidentiality from their employees. Maintaining corporate secrets helps protect intellectual property and gives a company an edge in a competitive marketplace. The law generally supports this corporate desire for secrecy through statutes that prohibit …

Case Study 2: Advising Governance Structures, Marci Seville, Bruce A. Green

Publications

This case study is part of the Movement Lawyering Roundtable Symposium.

This symposium presents case studies of the often difficult ethical and tactical issues confronted by lawyers for social justice movements. These case studies were developed by the pairing of movement lawyers with legal ethicists and enriched by the discussions at the Movement Lawyering Ethics Roundtable. They seek to provide guidance to lawyers facing these recurrent issues. This issue also includes an essay entitled "rebuilding the Ethical Compass of the Law" and reading guides with selected bibliographies.

Communitarianism And The Roberts Court: The Sequel, Robert M. Ackerman, Adam G. Winn

Law Faculty Research Publications

No abstract provided.

Maryland's New Remedy For Wage Theft, Martha M. Ertman, Doris N. Weil

Faculty Scholarship

No abstract provided.

Employee Voice In Arbitration, Ann C. Hodges

Law Faculty Publications

The Supreme Court’s 2018 decision in Epic Systems v. Lewis allows employers to force employees to agree to individual arbitration of any claims against the employer, removing their ability to bring class and collective actions. These unilaterally imposed arbitration agreements deprive employees of any voice in this important term of employment.

If arbitration is to serve its intended function of a mutually agreeable forum to resolve disputes, Congress should require employers who desire to use arbitration to negotiate the terms of the agreement with a representative of their affected employees. Such a requirement would reduce some of the adverse effects …

Modernizing Disability Income For Cancer Survivors, Ann C. Hodges

Law Faculty Publications

The medical progress in cancer treatment is worthy of celebration, as survivors of many cancers are living longer. This good news, however, comes with challenges for those survivors. Empirical evidence from researchers at cancer centers demonstrates the devastating impact that cancer has on employment, resulting in serious financial stress for survivors and their families. My previous research used this empirical data to recommend changes in employment laws to meet the need of survivors to maintain employment. This article builds on the prior research by using the empirical evidence of the employment effects of cancer to recommend changes in the disability …

Crossing The Thin Blue Line: Protecting Law Enforcement Officers Who Blow The Whistle, Ann C. Hodges

Law Faculty Publications

Law enforcement makes headline news for shootings of unarmed civilians, departmental corruption, and abuse of suspects and witnesses. Also well-documented is the code of silence, the thin blue line, which discourages officers from reporting improper and unlawful conduct by fellow officers. Accordingly, accountability is challenging and mistrust of law enforcement abounds. There is much work to be done in changing the culture of police departments and many recommendations for change. One barrier to transparency that has been largely ignored could be eliminated by reversal of the Supreme Court’s 2006 decision in Garcetti v. Ceballos. Criticism of the decision has …

Bermuda: Public Health Insurance, Maxwell Mead

Global Public Health

Bermuda, a British island territory located in the remote North Atlantic, remains a serviceable country to its citizens. However, it still lacks a national healthcare system: marking it as a difficult country to live in. Despite acknowledging this issue, Bermudan officials have made few attempts to fix the problem. This, in turn, has made Bermuda the highest annual spender on health per capita in the world at $11,952. As such, the cost of living is rather high in Bermuda, sitting at a full 94.86% higher than the cost of living in the United States. All of this makes affording healthcare …

A Tale Of Two Standards: Why Wyoming Courts Should Apply The Actual Substantial Evidence Standard When Reviewing Workers’ Compensation Cases, Michael C. Duff

All Faculty Scholarship

In Wyoming, as in almost all states, facts in contested workers’ compensation cases are developed within an administrative agency. When agency factual findings are challenged in court, the level of judicial deference applied to the agency is important and may be outcome determinative. Wyoming courts claim to apply the “substantial evidence” standard of review, often expressed as evidence that a “reasonable mind could accept” as supporting an agency determination. The Wyoming Supreme Court, however, also sometimes upholds workers’ compensation agency decisions that are deemed “not contrary to the overwhelming weight of the evidence.” It is unclear whether this latter formulation …

A Critical Examination Of A Third Employment Category For On-Demand Work (In Comparative Perspective), Miriam A. Cherry, Antonio Aloisi

All Faculty Scholarship

A number of lawsuits in the United States are challenging the employment classification of workers in the platform economy. Employee status is a crucial gateway in determining entitlement to labor and employment law protections. In response to this uncertainty, some commentators have proposed an “intermediate”, “third,” or “hybrid” category, situated between the categories of “employee” and “independent contractor.”

After investigating the status of platform workers in the United States, the authors provide snapshot summaries of five legal systems that have experimented with implementing a legal tool similar to an intermediate category to cover non-standard workers: Canada, Italy, Spain, Germany, and …

Collective Struggles: A Comparative Analysis Of Unionizing Temporary Foreign Farm Workers In The United States And Canada, Robert Russo

All Faculty Publications

The use of temporary foreign migrant workers in the labor sector is part of a vibrant political and legal discussion in both the United States and Canada. Current reforms of temporary foreign worker programs in both countries call for an analysis of this workforce. This article focuses on documented temporary foreign workers performing agricultural labor in both countries. It is a comparative study of alleged violations of documented temporary foreign farm workers' rights relating to unionization in the United States and Canada.