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 …

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

Michigan Law Review

A Review of Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era. by Nate Holdren.

Structural Labor Rights, Hiba Hafiz

Michigan Law Review

American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2 percent in the private sector—a level unequaled since the Great Depression— the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed …

Because Of Bostock, Noelle N. Wyman

Michigan Law Review Online

On a below-freezing January morning, Jennifer Chavez, an automobile technician, sat in a car that she was repairing to keep warm while waiting for delayed auto parts to arrive. Without intending to, she nodded off. Her employer promptly fired her for sleeping on the job. At least, that is the justification her employer gave. But Chavez had reason to believe that her coming out as transgender motivated the termination. In the months leading up to the January incident, Chavez’s supervisor had told her to “tone things down” when she talked about her gender transition. The repair-shop owner said that the …

Workers' Comp And Contagious Disease: History And Future, Kate E. Britt

Law Librarian Scholarship

Modern workers’ compensation schemes set out to provide financial relief to employees who contract an occupational disease during employment, like miners contracting black lung or contractors exposed to asbestos. Certain professions are understood to stand a particular risk of exposure to contagious diseases. Health-care workers interact with persons carrying contagious disease as a matter of course. What workers’ compensation does not cover are diseases which are so prevalent they are considered an “ordinary disease of life.” These diseases, like the common cold, influenza, or pneumonia, could be contracted by persons regardless of their profession, and workers’ compensation acts generally limit …

Consent, Coercion, And Employment Law, Samuel R. Bagenstos

Articles

The Roberts Court has recently handed several high-profile wins in labor and employment law cases to anti-labor and pro-employer forces. This paper argues that those decisions replicate crucial moves made by some infamous Lochner-era cases — and that those same moves continue to underlie key elements of labor and employment doctrine more generally. In particular, these decisions rest on a contestable understanding of free worker choice. This paper begins by examining the key recent Roberts Court decisions and demonstrates that they appear to invoke at least two distinct and conflicting understandings of employee and employer choice. It then turns to …

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 …

Improving Employer Accountability In A World Of Private Dispute Resolution, Hope Brinn

Michigan Law Review

Private litigation is the primary enforcement mechanism for employment discrimination laws like Title VII, the Americans with Disabilities Act, and many related state statutes. But the expansion of extrajudicial dispute resolution—including both arbitration and prelitigation settlement agreements—has compromised this means of enforcement. This Note argues that state-enacted qui tam laws can revitalize the enforcement capacity of private litigation and provides a roadmap for enacting such legislation.

Shots Fired: Digging The Uniformed Services Employment And Reemployment Rights Act Out Of The Trenches Of Arbitration, Lisa Limb

Michigan Law Review

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect servicemembers from discrimination by civilian employers and to provide servicemembers with reemployment rights. Recent circuit court decisions, however, have maimed these protections by ruling that mandatory arbitration is permissible under USERRA. This Note argues that such rulings conflict with USERRA’s plain language, statutory structure, and purpose. Ultimately, in light of strong public policy considerations, this Note contends that mandatory arbitration should not be permissible under USERRA and proposes that Congress amend the Act to explicitly prohibit arbitration.

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 …

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.

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 …

The Effect Of Criminal Records On Access To Employment, Amanda Agan, Sonja B. Starr

Articles

This paper adds to the empirical evidence that criminal records are a barrier to employment. Using data from 2,655 online applications sent on behalf of fictitious male applicants, we show that employers are 60 percent more likely to call applicants that do not have a felony conviction. We further investigate whether this effect varies based on applicant race (black versus white), crime type (drug versus property crime), industry (restaurants versus retail), jurisdiction (New Jersey versus New York City), local crime rate, and local racial composition. Although magnitudes vary somewhat, in every subsample the conviction effect is large, significant, and negative.

The New Labor Law, Kate Andrias

Articles

Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the …

Understanding Noncompetition Agreements: The 2014 Noncompete Survey Project, J. J. Prescott, Norman D. Bishara, Evan Starr

Articles

In recent years, scholars and policymakers have devoted considerable attention to the potential consequences of employment noncompetition agreements and to whether legislatures ought to reform the laws that govern the enforcement of these controversial contractual provisions. Unfortunately, much of this interest—and the content of proposed reforms—derives from anecdotal tales of burdensome noncompetes among low-wage workers and from scholarship that is either limited to slivers of the population (across all studies, less than 1%) or relies on strong assumptions about the incidence of noncompetition agreements. Better understanding of the use of noncompetes and effective noncompetition law reform requires a more complete …

Towards Reasonable: The Rise Of State Pregnancy Accommodation Laws, Stephanie A. Pisko

Michigan Journal of Gender & Law

In light of the recent Supreme Court decision Young v. UPS, pregnancy accommodation in the workplace is once again at the forefront of employment law. Pregnancy is not considered a disability under the ADA, nor is it within the scope of Title VII protections, but states are passing their own pregnancy accommodation laws. These laws will affect employers and employees alike, but exactly how is uncertain. Perhaps the most natural (and obvious) result of the explosion of state pregnancy accommodation laws will be a federal law, or an amendment to the ADA categorizing pregnancy as a disability. But there …

Griggs At Midlife, Deborah A. Widiss

Michigan Law Review

Not all Supreme Court cases have a midlife crisis. But it is fair to say that Griggs v. Duke Power Co., which recently turned forty, has some serious symptoms. Griggs established a foundational proposition of employment discrimination law known as disparate impact liability: policies that significantly disadvantage racial minority or female employees can violate federal employment discrimination law, even if there is no evidence that the employer “intended” to discriminate. Griggs is frequently described as one of the most important decisions of the civil rights era, compared to Brown v. Board of Education for its “momentous social consequences.” In 1989, …

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, …

Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles

Michigan Journal of Gender & Law

Recent scholarship and media attention has focused on the prevalence of sexually harassing behavior directed at working teenagers, and the emergence of sexual harassment lawsuits by these minors against their employers. Although many of the legal issues concerning workplace sexual harassment and adult workers (and the various state and federal jurisprudence prohibiting it) have been widely discussed, there is surprisingly little discourse, research, and precedent addressing the problem of workplace sexual harassment and teen workers. Currently, most sexual harassment cases brought by adolescent workers are litigated using the doctrinal framework for adult workers. Only the Seventh Circuit has developed an …

Breastfeeding On A Nickel And A Dime: Why The Affordable Care Act's Nursing Mothers Amendment Won't Help Low-Wage Workers, Nancy Ehrenreich, Jamie Siebrese

Michigan Journal of Race and Law

As part of the Patient Protection and Affordable Care Act of 2010 (also known as “Obamacare”), Congress passed a new law requiring employers to provide accommodation to working mothers who want to express breast milk while at work. This accommodation requirement is a step forward from the preceding legal regime, under which federal courts consistently found that “lactation discrimination” did not constitute sex discrimination. But this Article predicts that the new law will nevertheless fall short of guaranteeing all women the ability to work while breastfeeding. The generality of the Act’s brief provisions, along with the broad discretion it assigns …

Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz

Michigan Journal of Race and Law

Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and …

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 …

What Does Social Equality Require Of Employers? A Response To Professor Bagenstos, Brishen Rogers

Michigan Law Review First Impressions

Individual employment law can appear a bit like tort law did in the late nineteenth century: an "eclectic gallery of wrongs" united largely by the fact that they do not fit into another doctrinal category. The field has emerged interstitially and today includes an array of state and federal common law and statutory claims not covered by labor law or employment discrimination law. These other subfieldshave foundational statutes: the National Labor Relations Act of 1935 and Title VII of the Civil Rights Act of 1964, respectively. Each was passed in response to a major social conflict, and each defines some …

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 …

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

Articles

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.

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 …

Whose Social Network Account: A Trade Secret Approach To Allocating Rights, Zoe Argento

Michigan Telecommunications & Technology Law Review

Who has the superior right to a social network account? This is the question in a growing number of disputes between employers and workers over social network accounts. The problem has no clear legal precedent. Although the disputes implicate rights under trademark, copyright, and privacy law, these legal paradigms fail to address the core issue. At base, disputes over social network accounts are disputes over the right to access the people, sometimes numbering in the tens of thousands, who follow an account. This Article evaluates the problem from the perspective of the public interest in social network use, particularly the …

Employment Law And Social Equality, Samuel R. Bagenstos

Michigan Law Review

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or …

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 …