Law Commons^™

The Ragged Edge Of Rugged Individualism: Wage Theft And The Personalization Of Social Harm, Matthew Fritz-Mauer

University of Michigan Journal of Law Reform

Every year, millions of low-wage workers suffer wage theft when their employers refuse to pay them what they have earned. Wage theft is both prevalent and highly impactful. It costs individuals thousands each year in unpaid earnings, siphons tens of billions of dollars from low-income communities, depletes the government of necessary resources, distorts the competitive labor market, and causes significant personal harm to its victims. In recent years, states and cities have passed new laws to attack the problem. These legal changes are important. They are also, broadly speaking, failing the people they are supposed to protect.

This Article fills …

A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz

University of Michigan Journal of Law Reform

In June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership, but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now …

Switching Employers In A Working World: American Immigrants And The Revocation Notice Problem, Julie Aust

University of Michigan Journal of Law Reform

A current tension in U.S. employment immigration law involves the notice requirements for prospective permanent residency—”green card”—applicants. Foreign workers oftentimes do not receive their green cards for more than ten years after beginning the permanent residency process. For almost four decades after the first major employment immigration legislation was passed in 1965, green card applicants were unable to change employers during this extremely long process without abandoning their applications. In 2000, Congress sought to remedy the problem by passing legislation allowing foreign workers to change employers without sacrificing progress on their green cards. This legislation, however, created a massive gap …

Social Media And The Job Market: How To Reconcile Applicant Privacy With Employer Needs, Peter B. Baumhart

University of Michigan Journal of Law Reform

In the modern technological age, social media allows us to communicate vast amounts of personal information to countless people instantaneously. This information is valuable to more than just our “friends” and “followers,” however. Prospective employers can use this personal data to inform hiring decisions, thereby maximizing fit and minimizing potential liability. The question then arises, how best to acquire this information? For job applicants, the counter-question is how best to protect the privacy of their social media accounts. As these two competing desires begin to clash, it is important to find a method to mediate the conflict. Existing privacy law, …

The Fourth Trimester, Saru M. Matambanadzo

University of Michigan Journal of Law Reform

This Article introduces a new conceptual framework to the legal literature on pregnancy and pregnancy discrimination: the fourth trimester. The concept of a fourth trimester, drawn from maternal nursing and midwifery, refers to the crucial three to six month period after birth when many of the physical, psychological, emotional, and social effects of pregnancy continue. Giving this concept legal relevance extends the scope of pregnancy beyond the narrow period defined by conception, gestation, and birth and acknowledges that pregnancy is a relational process, not an individual event. In the United States, however, antidiscrimination law has failed to acknowledge the demands …

Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers

University of Michigan Journal of Law Reform

This Note explores how courts interpret the meaning of “essential functions” under Title I of the Americans with Disabilities Act. To be protected under the ADA, a plaintiff must be able to perform the “essential functions” of her job with or without a reasonable accommodation. In general, courts follow one of two approaches when interpreting this phrase. The first approach narrowly focuses on the employer’s judgment regarding which functions are essential. The second approach considers the employer’s judgment, but looks beyond to consider the broader employment relationship. This Note argues that these different approaches have led to varying levels of …

Categorically Black, White, Or Wrong: 'Misperception Discrimination' And The State Of Title Vii Protection, D. Wendy Greene

University of Michigan Journal of Law Reform

This Article exposes an inconspicuous, categorically wrong movement within antidiscrimination law. A band of federal courts have denied Title VII protection to individuals who allege “categorical discrimination”: invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of “misperception …

Tortious Interference With The Expectancy Of Entitlement Benefits, Paul Caritj

University of Michigan Journal of Law Reform

This Note proposes a new tort to address employers' and their agents' increasing abuse of the Unemployment Insurance appeals process, which interferes with employees' expectancy of entitlement benefits. Though existing state Unemployment Compensation statutes sanction both unemployed workers claiming benefits and employers for making fraudulent statements, these provisions approach the issue of fraud too narrowly to combat this growing problem. Meanwhile, no existing remedy properly compensates victims of this sort of abuse, adequately deters abusive behavior by scaling the penalty to the harm, and is accessible to economically disadvantaged plaintiffs. As well as providing an analysis of the specific problem …

Employee Free Choice: Amplifying Employee Voice Without Silencing Employers - A Proposal For Reforming The National Labor Relations Act, Amy Livingston

University of Michigan Journal of Law Reform

This Note investigates the effectiveness of the National Labor Relations Act (NLRA) in balancing unions, employers', and employees' rights during the course of union organizing drives. After reviewing case law and commentary, it concludes that the NLRA's certification regime is ineffective and permits pressures that inhibit employees from expressing their real desires about whether or not to be represented by a union. This Note then examines proposed alternatives for certifying unions, and takes note of Canada's federal and ten provincial certification regimes. Finally, it concludes that the NLRA must be amended to protect worker free choice, and proposes reforms including …

Liberty, Justice, And Insurance For All: Re-Imagining The Employment-Based Health Insurance System, Carolyn V. Juárez

University of Michigan Journal of Law Reform

This Note examines the history of employment-based health insurance and the inherent historical limitations that have led to an erosion of health insurance coverage. Based on a review of several studies, this Note argues that the number of uninsured Americans has reached crisis proportions. State reform efforts, legislative proposals, and other proposed solutions have failed to repair the system. Nonetheless, this Note argues that employment-based health care is integral to the structure of national health care. Furthermore, health insurance coverage can be increased by combining employment-based health care with three reforms: large employer mandates, refundable tax credits, and purchasing pools. …

Intentional Job Discrimination-New Tools For Our Oldest Problem, Alfred W. Blumrosen, Ruth G. Blumrosen

University of Michigan Journal of Law Reform

The roots of employment discrimination lie deep in our history. By the 18th century, race slavery was the underpinning of wealth in the southern colonies. Black slaves were considered property - subhumans who had no rights in themselves or their offspring. In 1765, the British imposed "stamp taxes" on the colonies; the colonies resisted. In 1766, Parliament claimed the power to govern the colonies in all matters, but by 1770 it had repealed almost all the taxes that offended the colonists. "Business as usual" returned to the relations between the colonies and Britain.

Ghost Workers In An Interconnected World: Going Beyond The Dichotomies Of Domestic Immigration And Labor Laws, Ruben J. Garcia

University of Michigan Journal of Law Reform

Beginning with the September 11, 2001 ("9/11 ") terrorist attacks, the labor movement's plans to organize immigrant workers and achieve immigration reform have met serious challenges. After 9/11, the political climate surrounding immigrants put the AFL-CIO s hopes for legislative reform on hold, because of socially perceived connections between immigrants and terrorism. Then, in a March 2002 decision titled Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court held that undocumented immigrant workers could not collect back pay under the National Labor Relations Act (NLRA) when their rights to join unions are violated. According to the Court, back pay …

Crazy (Mental Illness Under The Ada), Jane Byeff Korn

University of Michigan Journal of Law Reform

This Article examines how people with mental disabilities and mental illnesses have been treated under the Americans with Disabilities Act. Part I addresses the history of mental illness. It argues that while beliefs about the causes and content of mental illness have vacillated over time, the mentally ill have received consistently poor treatment throughout human history. Part II addresses present problems with the definition of mental illness, including how mental illness and mental disability are defined under the Americans with Disabilities Act.

Part III discusses the problems faced by people with mental illness today. The author argues the current state …

After Ellerth: The Tangible Employment Action In Sexual Harassment Analysis, Susan Grover

University of Michigan Journal of Law Reform

In this Article, Professor Grover argues that courts too readily allow employers to avoid vicarious liability for supervisors' unlawful sexual harassment of subordinates. The Article explores the breadth of the affirmative defense first introduced in the Supreme Court's 1998 cases of Faragher v. Boca Raton and Burlington Indus., Inc. v. Ellerth. That defense clears an employer of liability for a supervisor's unlawful sexual harassment if (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the …

Stock Market Volatility And 401 (K) Plans, Colleen E. Medill

University of Michigan Journal of Law Reform

Many workers today depend on their 401(k) plan to provide them with an adequate income during retirement. For these workers to achieve retirement income security, their 401(k) plan investments must perform well over their working lifetime. Employers' selection of investment options for the 401(k) plan, a fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA), plays a critical role in determining investment performance. In this Article, Professor Medill uses a series of hypothetical litigation scenarios to illustrate how interpretation of the employer's duty of prudence and duty of loyalty under ERISA present different policy choices for the …

The Attachment Gap: Employment Discrimination Law, Women's Cultural Caregiving, And The Limits Of Economic And Liberal Legal Theory, Laura T. Kessler

University of Michigan Journal of Law Reform

Title VII has prohibited employment discrimination on the basis of pregnancy since 1978, when Congress passed the Pregnancy Discrimination Act ("PDA"), but it does not require employers to recognize women's caregiving obligations beyond the immediate, physical events of pregnancy and childbirth. The Family and Medical Leave Act of 1993 ("FMLA ") also does little more than provide job security to some relatively privileged women in the case of childbirth. Neither of these statutes, which constitute the bulk of the United States' maternity and parental leave policies, provides for the most common employment leave needs of caregivers, who by all measures …

Reforming Accretion Analysis Under The Nlra: Supplementing A Borrowed Analysis With Meaningful Policy Considerations, Matthew S. Miner

University of Michigan Journal of Law Reform

Current accretion analysis utilizes a variety of factors to determine whether to merge a non-unionized group of employees with a unionized group of employees within the same firm. The present construction of the analysis; however, ignores employee views and potential manipulation of the doctrine. By failing to account for these two important factors, current accretion analysis neglects two key concerns of the National Labor Relations Act - preventing employer discrimination and fostering uncoerced employee action and choice. This Note advocates a better approach, which gives proper weight to employee views and considers employer motive to control against the possibility of …

"Supervisor" Hostile Environment Sexual Harassment Claims, Liability Insurance, And The Trend Towards Negligence, Amanda D. Smith

University of Michigan Journal of Law Reform

A lack of settled standards for determining liability in supervisor hostile environment sexual harassment lawsuits combined with similar uncertainty in the context of employer liability insurance coverage has resulted in increased litigation in this area. This Note argues that the current predominant standard in the employer liability context, which is based on negligence principle should be rejected in favor of an apparent authority standard, which more appropriately strikes a balance between encouraging employers to identify harassing behaviors and exonerating them from liability when they do so and take appropriate remedial action. It further argues that in order to develop effective …

Verbal Sexual Harassment As Equality-Depriving Conduct, Keith R. Fentonmiller

University of Michigan Journal of Law Reform

Part I of this Note argues that commentators like Browne and some courts have mischaracterized the harm of verbal sexual harassment as mere "offense." Rather, the true harm of a sexually hostile environment created by words and expressive conduct extends beyond offense, emotional distress, and economic displacement; at bottom, the harm is equality-deprivation.

Part II explains how a sexually hostile environment is equality-depriving by arguing that words which create a sexually hostile environment must be understood in historical and social context. Words can be used not only to communicate ideas but also to perform acts of coercion and sexual abuse. …

Reckless Endangerment Of An Employee: A Proposal In The Wake Of Film Recovery Systems To Make The Boss Responsible For His Crimes, Anne D. Samuels

University of Michigan Journal of Law Reform

This Note argues that the traditional regulatory, civil, and criminal mechanisms are both ineffective and inappropriate to deter or punish corporate decisionmakers for decisions that pose risks to the safety or health of employees in the workplace. The Note proposes a new criminal offense to prevent and punish culpable corporate decisionmaking that results in employee deaths or injuries. Part I explains the novel application of the traditional murder offense in Film Recovery Systems and demonstrates that the case fails to lay the foundation for a standardized response to employee endangerment. Part II analyzes the traditional responses of the regulatory and …

Nonmajority Bargaining Orders: The Only Effective Remedy For Pervasive Employer Unfair Labor Practices During Union Organizing Campaigns, David S. Shillman

University of Michigan Journal of Law Reform

Current Board policy forbids issuing a bargaining order in this situation, where there is no objective evidence of majority support for a union, even though the bargaining ·order may be the only effective remedy for extreme employer unfair labor practices. The Board's refusal to issue nonmajority bargaining orders (NMBOs), grounded in its fear of imposing a union on unwilling employees, has left it impotent to remedy the most severe employer unfair labor practices. This Note examines arguments for and against the Board's use of NMBOs and concludes that NMBOs are within the scope of the Board's remedial powers and should …

Pension Plan Terminations And Asset Reversions: Accommodating The Interests Of Employers And Employees, Carl A. Butler

University of Michigan Journal of Law Reform

This Note focuses on the problems that often arise for plan participants when an overfunded defined benefit plan is terminated and the employer recaptures excess assets. Part I explains the relative ease with which employers can terminate plans and receive excess assets under current pension law. Part II argues that pension law must be reformed because its shortcomings threaten American workers' retirement income security, it allows for sham terminations that remove assets from plans that are, in fact, ongoing, and it usually allows excess assets to go to employers rather than employees. Part III discusses two reforms proposed for plan …

Exploring Voluntary Arbitration Of Individual Employment Disputes, Alfred W. Blumrosen

University of Michigan Journal of Law Reform

This Article outlines an arbitration process which may be employed in individual employment contracts to achieve a fair disposition of disputes, with the maximum finality for an arbitration decision which is consistent with legal principles. Where finality is not possible, arbitration would be a condition precedent to formal legal processes. To assure fairness in the process, the employer would agree to pay the arbitrator's fee and the employee's attorney fees incurred in connection with the arbitration.

Protecting The Whistleblower From Retaliatory Discharge, Martin H. Malin

University of Michigan Journal of Law Reform

This approach to the problem of whistleblowing, however, is misguided; the appropriate balance is between the employee's interest in acting in accordance with his individual conscience and his duty of loyalty to his employer. This Article argues that although the law should protect individual acts of whistleblowing once they have occurred, it should not affirmatively encourage whistleblowing. Part I discusses the protection currently available to whistleblowers under the common law, collective bargaining agreements, and the antiretaliation provisions of several important statutes. Part II proposes a general standard of whistleblower protection that is designed to protect individual whistleblowers in appropriate circumstances, …

Challenging The Employment-At-Will Doctrine Through Modern Contract Theory, Clare Tully

University of Michigan Journal of Law Reform

This Note advocates an implied contract analysis that both satisfies contractual requirements and protects the reasonable expectations of employees and employers. Part I describes the various reliance interests that employees bring to their jobs, the employer inducements that cause this reliance, and the business benefits that accrue when employees rely upon these inducements. Part II examines in detail judicial reluctance to enforce either these reliance interests or employer promises as contract rights under the at-will doctrine. Part II also urges the increased use of modern contract theories such as promissory estoppel, quasi-contract, and implied contract to protect employee reliance interests …

Alternatives To Seniority-Based Layoffs: Reconciling Teamsters, Weber, And The Goal Of Equal Employment Opportunity, Paul M. Hamburger

University of Michigan Journal of Law Reform

This Note advocates the use of legal incentives for adopting nonpreferential alternatives to seniority-based layoffs. Part I analyzes the impact of bona fide seniority systems on recently hired minorities and women. Part II discusses existing legal incentives for unions and employers to seek alternatives to strict seniority layoffs and for courts to enjoin such layoffs, thereby forcing the parties to negotiate over alternatives. Finally, part III examines two kinds of potential alternatives: racially preferential alternatives, which are prohibited under Title VII, and nonpreferential options, which are permissible and should be used increasingly.

Protecting Employee Solicitation - Distribution Rights From Union Waiver, Alan V. Reuther

University of Michigan Journal of Law Reform

Section 7 of the National Labor Relations Act guarantees various fundamental rights to employees, including the right to self-organization. Recognizing the inherent superiority of the work place as a situs for organizational activities, the courts and the National Labor Relations Board (hereinafter NLRB or Board) have balanced the property interests of employers against the organizational interests of labor and concluded that employees have the right to distribute literature on the employer's premises in nonworking areas during nonworking time and to solicit support during nonworking time for purposes protected by Section 7, unless special circumstances of production, discipline, or safety are …

Employer Racial Discrimination: Reviewing The Role Of The Nlrb, Lawrence F. Doppelt

University of Michigan Journal of Law Reform

The NLRB and various commentators rely upon three basic legal arguments in rejecting this interpretation: first, the EEOC, and not the NLRB, is the sole and proper agency for litigating racial issues; second, employer racial discrimination does not interfere with the protected rights of employees under the Act, and third, it is not, and never was, Congress' intent in passing the Act to bring racial discrimination within its purview. Unquestionably, each of these legal arguments has, or at some time had, surface appeal, and, at one time, considerable force. The great mass of legal commentary supports at least one of …