Law Commons^™

Neville, Jr. Vs. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 95 (Dec. 7, 2017), Anna Sichting

Nevada Supreme Court Summaries

The Court clarified that NRS 608.140 allows for private causes of action for unpaid wages based on the language discussing attorney fees in a private cause of action.

The History Books Tell It? Collective Bargaining In Higher Education In The 1940s, William A. Herbert

Publications and Research

This article presents a history of collective bargaining in higher education during and just after World War II, decades before the establishment of applicable statutory frameworks for labor representation. It examines the collective bargaining program adopted by the University of Illinois in 1945, along with contracts negotiated at other institutions. The article also examines the role of United Public Workers of America (UPWA) and its predecessor unions in organizing and negotiating on behalf of faculty, teachers, and instructors. The first known collective agreements applicable to faculty, teachers and instructors, were negotiated by those unions before UPWA was destroyed during the …

Paid Family And Medical Leave: Cost And Coverage Estimates Of Three Choices In Massachusetts, Policy Brief, Randy Albelda, Alan Clayton-Matthews

Publications from the Center for Women in Politics and Public Policy

This policy brief explores the costs and coverage of three proposed paid family and medical leave programs for Massachusetts. These are House Bill 2172, Senate Bill 1048, and 2018 Initiative Petition C. Each of these proposed programs establishes a contributory fund paid by employers and employees, to be used for eligible workers when they are out of work for their own serious health condition or that of a family member, for pregnancy, or to bond with a new child. The medical leaves considered are for own health reasons, including those related to pregnancy. Family leaves are for bonding with a …

2017 Newsletter, Golden Gate University School Of Law

Women’s Employment Rights Clinic

No abstract provided.

The Audacity Of Protecting Racist Speech Under The National Labor Relations Act, Michael Z. Green

Faculty Scholarship

This Article, written for a symposium hosted by the University of Chicago Legal Forum on the Disruptive Workplace, analyzes the most recent failures of the National Labor Relations Board (NLRB) to determine a thoughtful and balanced approach in addressing racist speech. Imagine two employees in the private sector workplace are discussing the possibility of selecting a union to represent their interests regarding wages and working conditions. During this conversation, a black employee notes the importance of using their collective voices to improve working conditions and compares the activity of selecting a union with the Black Lives Matter protests aimed at …

Ai And Jobs: The Role Of Demand, James Bessen

Faculty Scholarship

In manufacturing, technology has sharply reduced jobs in recent decades. But before that, for over a century, employment grew, even in industries experiencing rapid technological change. What changed? Demand was highly elastic at first and then became inelastic. The effect of artificial intelligence (AI) on jobs will similarly depend critically on the nature of demand. This paper presents a simple model of demand that accurately predicts the rise and fall of employment in the textile, steel, and automotive industries. This model provides a useful framework for exploring how AI is likely to affect jobs over the next 10 or 20 …

Petition For A Writ Of Certiorari. Kirk V. Invesco, Limited, 138 S.Ct. 1164 (2018) (No. 17-762), 2017 U.S. S. Ct. Briefs Lexis 4618, 2017 Wl 5665441, Eric Schnapper, Nitin Sud

Court Briefs

QUESTION PRESENTED The Fair Labor Standards Act provides that covered employees who work more than 40 hours in a week must generally be paid overtime at a rate one and one-half times their regular rate. To assure compliance with that overtime rule, the Act and governing regulations require employers to maintain records of all hours worked by covered employees. If an employer has failed to keep the legally required records, the burden on the employee under Anderson v. Mt. Clemens Pottery Co. is simply to "produce[] sufficient evidence to show the amount and extent of that work as a matter …

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

All Faculty Scholarship

American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that …

Reply Brief. Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark

Court Briefs

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …

Testimony Of Marcy Karin. The Committee Of The Whole. October 10, 2017, Marcy L. Karin

D.C. Council Testimony

No abstract provided.

Sampling Of Employment Retaliation Cases Against Colleges And Universities In The District Of Columbia. Supplemental Testimony By Marcy Karin And Grace Emery For October 10, 2017 Committee Of The Whole Hearing, Marcy L. Karin

D.C. Council Testimony

No abstract provided.

Professional Licensing And Teacher Certification For Non-Citizens: Federalism, Equal Protection And A State’S Socioeconomic Interests, Janet M. Calvo

Publications and Research

Some states have recently addressed the integration of their non-citizen populations and their socioeconomic needs by expanding the eligibility of professional licensing to noncitizens. Changes made in 2016 in the two states with the largest immigrant populations, California and New York, were extensive and comprehensive. California removed immigration status requirements for licensing through legislation that covered all occupations regulated by the California Department of Consumer Affairs. The New York Board of Regents and Commissioner of Education expanded the categories of non-citizens eligible for professional licensing and teaching certification through administrative regulations, including all non-citizens permanently residing in the state under …

Description Of The Albelda Clayton-Matthews/Iwpr 2017 Paid Family And Medical Leave Simulator Model, Alan Clayton-Matthews, Randy Albelda

Economics Faculty Publication Series

The basic strategy behind our approach to estimating the cost of a paid leave program was to, as much as possible, base estimates of program costs on actual known leave-taking behavior, and where this was not possible, to estimate a range of program costs reflecting a range of reasonable assumptions about unknown aspects of behavior in the presence of a paid leave program. We wanted to be able to estimate the sensitivity of program costs estimates to these assumptions. We also wanted to be able to analyze the distribution of program benefits by demographic characteristics. Furthermore, we wanted to be …

The Bankruptcy Of Refusing To Hire Persons Who Have Filed Bankruptcy, Terrence Cain

Faculty Scholarship

In 1978, Congress made it illegal for government employers to deny employment to, terminate the employment of, or discriminate with respect to employment against a person who has filed bankruptcy. In 1984, Congress extended this prohibition to private employers by making it illegal for such employers to terminate the employment of, or discriminate with respect to employment against a person who has filed bankruptcy. Under the law as it currently exists, private employers can refuse to hire a person who has filed bankruptcy solely because that person has filed for bankruptcy. Meanwhile, employers have substantially increased their use of credit …

Social Bargaining In States And Cities: Toward A More Egalitarian And Democratic Workplace Law, Kate Andrias

Articles

A well-documented problem motivates this symposium: The National Labor Relations Act (NLRA) does not effectively protect workers’ rights to organize, bargain, and strike. Though unions once represented a third of American workers, today the vast majority of workers are non-union and employed “at will.” The decline of organization among workers is a key factor contributing to the rise of economic and political inequality in American society. Yet reforming labor law at the federal level—at least in a progressive direction—is currently impossible. Meanwhile, broad preemption doctrine means that states and localities are significantly limited in their ability to address the weaknesses …

Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney

Faculty Scholarship

Several recent court cases, brought on behalf of National Football League (NFL) players by their union, the NFL Players Association (NFLPA), have increased media and public attention to the challenges of labor arbitrator decisions in federal courts. The Supreme Court has established a body of federal common law that places a high premium on deferring to labor arbitrator decisions and counseling against judges deciding the merits of disputes covered by a collective bargaining agreement (CBA). A recent trend suggests federal judges have ignored this body of law and analyzed the merits of labor arbitration decisions in the NFL setting.

NFL …

Petition For A Writ Of Certiorari, Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark

Court Briefs

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …

Reckless Discrimination, Stephanie Bornstein

UF Law Faculty Publications

If there are known, easily adopted ways to reduce bias in employment decisions, should an employer be held liable for discriminatory results when it fails to adopt such measures? Given the vast amount we now know about implicit bias and the ways to reduce it, to what extent is an employer who knowingly fails to do so engaging in intentional discrimination? This Article theorizes a “recklessness” model of discrimination under Title VII, arguing for liability where an employer acts with reckless disregard for the consequences of implicit bias and stereotyping in employment decisions. Legal scholars have argued that Title VII …

The Dubious Empirical And Legal Foundations Of Wellness Programs, Adrianna Mcintyre, Nicholas Bagley, Austin Frakt, Aaron Carroll

Articles

The article offers information on the dubious empirical and legal foundations of workplace wellness programs in the U.S. Topics discussed include enactment of Affordable Care Act for expanding the scope of incentives availas; analysis of financial incentives offered to the employees for encouraging their participation in wellness programs; and targeting incentives specifically toward individuals diagnosed with chronic diseases.

Child Labor Trafficking In The United States: A Hidden Crime, Katherine Kaufka Walts Jd

Center for the Human Rights of Children

Emerging research brings more attention to labor trafficking in the United States. However, very few efforts have been made to better understand or respond to labor trafficking of minors. Cases of children forced to work as domestic servants, in factories, restaurants, peddling candy or other goods, or on farms may not automatically elicit suspicion from an outside observer as compared to a child providing sexual services for money. In contrast to sex trafficking, labor trafficking is often tied to formal economies and industries, which often makes it more difficult to distinguish from ”legitimate” work, including among adolescents. This article seeks …

The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a complex question, raising …

Migrant Workers And Fissured Workforces: Cs Wind And The Dilemmas Of Organizing Intra-Company Transfers In Canada, Eric M Tucker

Articles & Book Chapters

Canadian temporary foreign worker programs have been proliferating in recent years. While much attention has deservedly focused on programs that target so-called low-skilled workers, such as seasonal agricultural workers and live-in caregivers, other programs have been expanding, and have recently been reorganized into the International Mobility Program (IMP). Streams within the IMP are quite diverse and there are few legal limits on their growth. One of these, intra-company transfers (ICTs), is not new, but it now extends beyond professional and managerial workers to more permeable and expansive categories. As a result, unions increasingly face the prospect of organizing workplaces where …

Closing The Employment Standards Enforcement Gap, An Agenda For Change, Leah F. Vosko, John Grundy, Eric Tucker, Andrea M. Noack, Mary Gellatly, Rebecca Casey, Mark P. Thomas, Guliz Akkaymak, Parvinder Hira-Friesen

Commissioned Reports, Studies and Public Policy Documents

Precarious employment is increasing in Ontario. A growing share of Ontario’s private sector employees earns low wages while a shrinking portion belongs to unions. These trends are fueled by changes in the structure of Ontario’s labour force. In many industries, including accommodation and food services, administrative services, and cleaning, workplaces are being transformed through greater use of contracting out, franchising, and extended supply chains. These ways of structuring work contribute to driving working conditions downward.

Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos

Articles

In this Essay, I hope to do two things: First, I try to put the current labor-disability controversy into that broader context. Second, and perhaps more important, I take a position on how disability rights advocates should approach both the current controversy and labor-disability tensions more broadly. As to the narrow dispute over wage-and-hour protections for personal-assistance workers, I argue both that those workers have a compelling normative claim to full FLSA protection—a claim that disability rights advocates should recognize—and that supporting the claim of those workers is pragmatically in the best interests of the disability rights movement. As to …

Sargeant V. Henderson Taxi, 133 Nev. Adv. Op. 27 (June 1, 2017), Ping Chang

Nevada Supreme Court Summaries

The Court determined that (1) a summary judgment is proper when the opposing party did not file a substantive opposition to the motion for summary judgment and (2) a class certification is inappropriate when the plaintiff/appellant did not meet the burden of demonstrating “numerosity, commonality, and typicality,” and the ability to “fairly and adequately” represent the class members when an earlier-filed grievance between the union and taxi company resolved the minimum wage back-pay dispute at issue.

Data-Driven Discrimination At Work, Pauline T. Kim

AI-DR Collection

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback …

Columbia University And Incarcerated Worker Labor Unions Under The National Labor Relations Act, Kara Goad

Cornell Law Library Prize for Exemplary Student Research Papers

Kara Goad’s research examines the forms and terms of labor that incarcerated workers perform in American prisons, seeking to demonstrate that labor law could provide potential remedies for work-related grievances.

Goad’s research includes traditional statutory and case law analysis along with examinations of prison statistics, National Labor Relations Board (NLRB) decisions and other administrative law materials relating to prisons and labor law. She uses her findings lay out a path for incarcerated workers to potentially unionize under the National Labor Relations Act (NLRA).

The Eeoc, The Ada, And Workplace Wellness Programs, Samuel R. Bagenstos

Articles

It seems that everybody loves workplace wellness programs. The Chamber of Commerce has firmly endorsed those progarms, as have other business groups. So has President Obama, and even liberal firebrands like former Senator Tom Harkin. And why not? After all, what's not to like about programs that encourage people to adopt healthy habits like exercise, nutritious eating, and quitting smoking? The proponents of these programs speak passionately, and with evident good intentions, about reducing the crushing burden that chronic disease places on individuals, families, communities, and the economy as a whole. What's not to like? Plenty. Workplace wellness programs are …

Amicus Curiae Brief Of Equality Ohio In Support Of Intervenor Urging Reversal, Doron M. Kalir, Kenneth J. Kowalski

Law Faculty Briefs and Court Documents

Title VII’s plain language bars discharge of “any individual”—whether transgender or not—“because of such individual’s . . . sex.” It applies whenever employers take gender into account in making employment decisions. It is undisputed that the employer in this case based his decision to terminate Ms. Stephens solely on sex-based considerations. To be sure, he could have terminated Ms. Stephens for a wide array of reasons—tardiness, failure to perform, disciplinary issues—or for no reason at all. Under those circumstances, such termination—even of a transgender person—would not be “because of such individual’s sex.” But that is not the case here. Here, …

Heffernan V. City Of Paterson: Watering Down The First Amendment Retaliation Doctrine To Create A Perception Of Protection For Public Employees, Peter J. Artese

Maryland Law Review Online

No abstract provided.