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2005

Labor and Employment Law

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Full-Text Articles in Law

Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps Dec 2005

Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps

ExpressO

This paper asks two questions connected by the fact that they both stem from the inherent incompleteness of employment contracts: in American law, how can the terms in employment handbooks be variable, but sometimes only within reasonable procedurally fair circumstances; and in English law, why doesn’t the implied term of mutual trust and confidence in employment contracts fall foul of the strict test for implication of terms into contract? This paper finds the answer to both questions in the doctrine of good faith. An analysis of good faith as a “comparative conversation” between academic and judicial debates in the US …


Wait! Don't Fire That Blogger! What Limits Does Labor Law Impose On Employer Regulation Of Employee Blogs?, Carson Strege-Flora Dec 2005

Wait! Don't Fire That Blogger! What Limits Does Labor Law Impose On Employer Regulation Of Employee Blogs?, Carson Strege-Flora

Washington Journal of Law, Technology & Arts

The Ninth Circuit Court of Appeals recently issued a decision protecting the right of an employee to post critical comments about his employer on a website. The court found that the employer’s discipline was an unfair labor practice prohibited by federal labor law because it was “concerted activity” protected by the National Labor Relations Act (NLRA). Employers wishing to discipline employees for their public blogging activity should be familiar with the protections provided by the NLRA. This Article explores the consequences for violating the Act and addresses what employers should consider when attempting to limit employee blogging.


Workplace Flexibility 2010: Facts On Short Term Time Off, Jean Flatley Mcguire, Kaitlyn Kenney Dec 2005

Workplace Flexibility 2010: Facts On Short Term Time Off, Jean Flatley Mcguire, Kaitlyn Kenney

Memos and Fact Sheets

Short Term Time Off (STO) refers to job-protected time away from the workplace (generally 5 days or less) to address anticipated or unexpected issues of limited duration. STO may be scheduled or unscheduled, depending on the underlying need. STO enables workers to address the routine and emergency situations that occur in everybody’s lives.

The need for STO may arise, for example, because a worker or worker’s child is sick or has a routine doctor’s appointment, because a worker has to wait for the plumber or apply for benefits or go to court, or because a worker needs to attend a …


Kentucky River At The Intersection Of Professional And Supervisory Status: Fertile Delta Or Bermuda Triangle?, Marley S. Weiss Dec 2005

Kentucky River At The Intersection Of Professional And Supervisory Status: Fertile Delta Or Bermuda Triangle?, Marley S. Weiss

Faculty Scholarship

No abstract provided.


Labor And Employment, W. Melvin Haas Iii, William M. Clifton Iii, W. Jonathan Martin Ii Dec 2005

Labor And Employment, W. Melvin Haas Iii, William M. Clifton Iii, W. Jonathan Martin Ii

Mercer Law Review

This Article surveys recent developments in state statutory and common law that affect labor and employment relations of Georgia employers. Accordingly, it surveys published decisions from the Georgia Court of Appeals and Georgia Supreme Court from June 1, 2004 to May 31, 2005. This Article also highlights specific revisions to the Official Code of Georgia Annotated ("O.C.G.A.").


Clarett V. National Football League: Defining The Non-Statutory Labor Exception To Antitrust Law As It Pertains To Restraints Primarily Focused In Labor Markets And Restraints Primarily Focused In Business Markets, Ronald Terk Sia Dec 2005

Clarett V. National Football League: Defining The Non-Statutory Labor Exception To Antitrust Law As It Pertains To Restraints Primarily Focused In Labor Markets And Restraints Primarily Focused In Business Markets, Ronald Terk Sia

The University of New Hampshire Law Review

[Excerpt] “Contemporary sports have seen an influx of young talent opting for a chance at playing in the big leagues earlier at the expense of obtaining higher education. Many dream of playing professional sports—dreams often prohibited by player eligibility rules. In situations where the restraints are not argued to have been protected by non-statutory labor exception, antitrust law has been seen to set its talons into eligibility rules. […]

Federal antitrust law and national labor law set forth two conflicting policies that have created a periodic drama for sports fans concerned that their favorite sports will suffer a cataclysmic court …


A Subdued Year For California Lawmakers: The New California Employment Legislation Effective January 1, 2006, Michele Benedetto Neitz Nov 2005

A Subdued Year For California Lawmakers: The New California Employment Legislation Effective January 1, 2006, Michele Benedetto Neitz

Publications

This legislative update will address the most significant employment legislation signed and vetoed this year. It will also highlight a significant deadline for employers from last year’s enacted legislation. Finally, this update will describe two relevant propositions rejected by the people of the State of California.


Seeing Straight In The Workplace: An Examination Of Sexual Orientation Discrimination In Public Employment In The Aftermath Of Lawrence V. Texas, Devin A. Cohen Nov 2005

Seeing Straight In The Workplace: An Examination Of Sexual Orientation Discrimination In Public Employment In The Aftermath Of Lawrence V. Texas, Devin A. Cohen

ExpressO

Title VII does not explicitly protect homosexual employees from sexual orientation discrimination and the courts have generally refused to bootstrap sexual orientation discrimination into Title VII as a form of gender discrimination. Therefore, homosexual employees have had to depend on their constitutional rights to protect them from their public employers’ sexual orientation discrimination. Traditionally, the courts have allowed public employers to discriminate against homosexual employees so long as the employers’ reasons were rationally related to legitimate business purposes.

I argue that the Supreme Court’s reasoning in Lawrence v. Texas forces future courts to question the reasonableness of employers’ rational bases. …


Labor And Employment Law, W. David Paxton, Gregory R. Hunt Nov 2005

Labor And Employment Law, W. David Paxton, Gregory R. Hunt

University of Richmond Law Review

It was a relatively quiet year in the Virginia labor and employment law arena, with no real groundbreaking cases or legislative enactments. There were developments in case law and legislative changes, but these were more subtle this year than in years past, and for the most part, the courts confirmed, affirmed, or clarified the existing state of the law. This article discusses cases and legislative activity of note in the Virginia labor and employment law arena during the past year. Part II addresses recent cases considering employment agreements under Virginia law. Part III considers cases in the continually evolving area …


Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai Nov 2005

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.


Proposed Federal Definition Of "Internet Job Applicant" Suggests Need For Revised Human Resource Policies, Carson Strege-Flora Oct 2005

Proposed Federal Definition Of "Internet Job Applicant" Suggests Need For Revised Human Resource Policies, Carson Strege-Flora

Washington Journal of Law, Technology & Arts

After several years of discussion, the Equal Employment Opportunity Commission, along with several other federal agencies, has proposed a new definition of “Internet job applicant” to help employers understand how to treat such applicants. The explosion over the past decade of Internet recruiting prompted the need for clarification of how employers must treat applicants for purposes of federal antidiscrimination law and recordkeeping requirements. The new guidelines suggest that employers engaged in Internet recruiting should review their hiring policies to ensure that their treatment of Internet job applicants complies with the proposed guidelines. This Article suggests that employers avoid violating federal …


Re Aliant Telecom Inc And Ac & Twu (Macdonald), Innis Christie Oct 2005

Re Aliant Telecom Inc And Ac & Twu (Macdonald), Innis Christie

Innis Christie Collection

Union Grievance 04-01, dated July 21, 2004, on behalf of the Grievor, Robert MacDonald, alleging that the Employer discharged the Grievor in violation of Article 2.1 of the Collective Agreement between the parties effective January 1, 1999 — January 1, 2002, which the parties agree is the Collective Agreement applicable here. At the outset of the hearing in this matter the parties agreed that I am properly seized of it, that I should remain seized after the issue of this award to deal with any matters arising from its application and that all time limits, either pre-or post-hearing, are waived. …


Family Medical Leave Act Standards Of Proof And The Impact Of Desert Palace On Retaliation Cliams, Carol L. Risk, Richard A. Bales Oct 2005

Family Medical Leave Act Standards Of Proof And The Impact Of Desert Palace On Retaliation Cliams, Carol L. Risk, Richard A. Bales

North Carolina Central Law Review

No abstract provided.


Cutting Undocumented Alien Employment Using The Spine Of A Knife: How The Fourth Circuit Failed To Adequately Use Title Vii To Strengthen Irca In Egbuna V. Time Life Libraries, Inc., Jeffrey B. Widdison Oct 2005

Cutting Undocumented Alien Employment Using The Spine Of A Knife: How The Fourth Circuit Failed To Adequately Use Title Vii To Strengthen Irca In Egbuna V. Time Life Libraries, Inc., Jeffrey B. Widdison

North Carolina Central Law Review

No abstract provided.


Short Term Time Off Options For Federal Employees, Workplace Flexibility 2010, Georgetown University Law Center Oct 2005

Short Term Time Off Options For Federal Employees, Workplace Flexibility 2010, Georgetown University Law Center

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

No abstract provided.


Short Term Time Off Options For Federal Employees, Workplace Flexibility 2010, Georgetown University Law Center Oct 2005

Short Term Time Off Options For Federal Employees, Workplace Flexibility 2010, Georgetown University Law Center

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

No abstract provided.


Vol. 22, No. 4, Rochelle Gordon, Brian Clauss Oct 2005

Vol. 22, No. 4, Rochelle Gordon, Brian Clauss

The Illinois Public Employee Relations Report

Contents:

Privatization of Public Educational Services: The Application of the Doctrine of Successorship in the No Child Left Behind Era, by Rochelle Gordon and Brian Clauss

Recent Developments

Further References, compiled by Yoo-Seong Song


Reconsidering Severe Or Pervasive: Aligning The Standard In Sexual Harassment And Racial Harassment Causes Of Action, Heather L. Kleinschmidt Oct 2005

Reconsidering Severe Or Pervasive: Aligning The Standard In Sexual Harassment And Racial Harassment Causes Of Action, Heather L. Kleinschmidt

Indiana Law Journal

No abstract provided.


Who Made That?: Influencing Foreign Labour Practices Through Reflexive Domestic Disclosure Regulation, David J. Doorey Oct 2005

Who Made That?: Influencing Foreign Labour Practices Through Reflexive Domestic Disclosure Regulation, David J. Doorey

Osgoode Hall Law Journal

An important tool of "decentred" regulation, including reflexive law, is corporate information disclosure. Disclosure regulation can have an important normative influence on corporate behaviour because it introduces a risk element that must be managed by corporate leaders. The challenge for regulators is to identify the scope of disclosure that will cause corporate responses of the sort desired by the state. This article considers the potential role of disclosure regulation as a tool for influencing labour practices beyond the borders of the regulating state and, in particular, within the vast global supply chains of multinational corporations. In the context of improving …


Insecure Retirement Income, Wrongful Plan Administration And Other Employee Benefits Woes—Evaluating Erisa At Age Thirty, Maria O'Brien Hylton Oct 2005

Insecure Retirement Income, Wrongful Plan Administration And Other Employee Benefits Woes—Evaluating Erisa At Age Thirty, Maria O'Brien Hylton

Buffalo Law Review

Book review of James A. Wooten's The Employee Retirement Income Security Act of 1974—A Political History


The Limitation On Undocumented Workers’ Lost Earnings After Balbuena And Sanango: Crafting A Fair And Principled Balance Of Immigration Policy And New York State Labor Law § 240 Safety Goals, Meredith R. Miller Oct 2005

The Limitation On Undocumented Workers’ Lost Earnings After Balbuena And Sanango: Crafting A Fair And Principled Balance Of Immigration Policy And New York State Labor Law § 240 Safety Goals, Meredith R. Miller

Scholarly Works

In December 2004, in a pair of cases, the Appellate

Division, First Department, held that under state labor

and tort laws, injured workers who are not legally permitted

to be present or employed in the United States

are only entitled to receive lost earnings reflecting what

they could have earned in their country of origin. This

article explores these First Department decisions by first

discussing the federal statutory and decisional backdrop

against which the cases arose. This article then

provides a discussion of the First Department cases and

the competing economic incentives they implicate.

Finally, this article posits that a …


An Analysis Of The Effects On Parties' Unionization Decisions Of The Choice Of Union Representation Procedure: The Strategic Dynamic Certification Model, Sara Slinn Oct 2005

An Analysis Of The Effects On Parties' Unionization Decisions Of The Choice Of Union Representation Procedure: The Strategic Dynamic Certification Model, Sara Slinn

Osgoode Hall Law Journal

This article proposes a new theoretical framework-the strategic dynamic certification model-to explain how union certification processes operate. Statutory certification procedures are not neutral. Instead, they produce particular incentives, disincentives, and opportunities for employers, unions, and employees, and these affect the outcomes of the procedure. Empirical evidence confirms this model's ability to analyze the certification process and the outcomes of unionization attempts. In particular, this model explains why the change from a card-check to a mandatory representation vote encourages unlawful employer conduct, enhances the effectiveness of union avoidance activities, and deters employee participation in the unionization decision. The article concludes that, …


Sexual Harassment: Limiting The Affirmative Defense In The Digital Workplace, Donald P. Harris, Daniel B. Garrie, Matthew J. Armstrong Oct 2005

Sexual Harassment: Limiting The Affirmative Defense In The Digital Workplace, Donald P. Harris, Daniel B. Garrie, Matthew J. Armstrong

University of Michigan Journal of Law Reform

Digital communications sexual harassment is on the rise. Such harassment occurs through sexually offensive and unwarranted e-mails, placing harassing messages on electronic bulletin boards, and other forms of harassment that occur through the Internet. To date, courts have remained silent on the issue of sexual harassment by digital communications. Should this type of harassment be treated any differently than harassment that occurs in the physical space? The somewhat surprising answer is yes.

This Article advocates applying a new judicial framework for addressing digital communications sexual harassment. This new framework accounts for the real-world technology in the digital workplace and the …


The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future, Susan Franck Oct 2005

The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future, Susan Franck

Articles in Law Reviews & Other Academic Journals

The number of investment treaties has surged in the past decade. Even now, the United States and Canada are actively engaged in programs designed to facilitate the completion of multilateral treaties such as the Dominican Republic-Central American Free Trade Agreement (CAFTA-DR) and Bilateral Investment Treaties (BITs). These investment treaties act like economic bills of rights, which grant foreign investors substantive protections and procedural rights to facilitate investment. Sovereigns, meanwhile, may benefit from these treaties by obtaining increased foreign direct investment, which may promote the development of their country's infrastructure 6 and offer citizens basic services including access to clean water, …


Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor Sep 2005

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.


Separate To Unite: Will Change To Win Strengthen Organized Labor In America?, Keith J. Gross Sep 2005

Separate To Unite: Will Change To Win Strengthen Organized Labor In America?, Keith J. Gross

Buffalo Public Interest Law Journal

No abstract provided.


Reinforcing The Seams: Guaranteeing The Promise Of California’S Landmark Anti-Sweatshop Law - An Evaluation Of Assembly Bill 633 Six Years Later, Marci Seville Sep 2005

Reinforcing The Seams: Guaranteeing The Promise Of California’S Landmark Anti-Sweatshop Law - An Evaluation Of Assembly Bill 633 Six Years Later, Marci Seville

Women’s Employment Rights Clinic

Today, AB 633 stands as a landmark law with great potential — much of it yet to be realized — to fight against the proliferation of sweatshops and corporate abuse in the garment industry, and to serve as model legislation for other low-wage industries across California and around the nation in which workers are denied their most basic workplace rights. In documenting the successes of AB 633, as well as presenting the challenges garment workers still face in recovering their wages under the law, this report seeks to provide an answer to the pivotal question: Has AB 633 fulfilled its …


Arbitration Of Employer Violations Of The West Virginia Human Rights Act: West Virginia Should Make Like Ants Marching And Continue Its Pursuit Of Bliss, Nicholas S. Johnson Sep 2005

Arbitration Of Employer Violations Of The West Virginia Human Rights Act: West Virginia Should Make Like Ants Marching And Continue Its Pursuit Of Bliss, Nicholas S. Johnson

West Virginia Law Review

No abstract provided.


In The Land Between Two Maps: Perceived Disabilities, Reasonable Accommodations, And Judicial Battles Over The Ada, Nicholas R. Frazier Sep 2005

In The Land Between Two Maps: Perceived Disabilities, Reasonable Accommodations, And Judicial Battles Over The Ada, Nicholas R. Frazier

Washington and Lee Law Review

No abstract provided.


Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine Sep 2005

Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine

Articles

No abstract provided.