Labor and Employment Law Commons^™

Acqui-Hiring, Gregg D. Polsky, John F. Coyle

Scholarly Works

Facebook, Google, and other leading technology companies in Silicon Valley have been buying start-up companies at a brisk pace. In many of these transactions, the buyer has little interest in acquiring the startup’s projects or assets. Instead, the buyer’s primary motivation is to hire some or all of the startup’s software engineers. These so-called “acqui-hires” represent a novel — and increasingly common — tool by which the largest and most successful technology companies in the world satisfy their intense demand for engineering talent.

To date, the acqui-hire has attracted no attention in the academic or professional legal literature. With this …

Zappers & Employment Tax Fraud, Richard Thompson Ainsworth

Faculty Scholarship

Beyond the grey area of worker misclassifications and general employment tax irregularities there are darker employment relationships where workers are intentionally paid in cash “off-the-books” or “under-the-table.” Grey employment relationships present civil enforcement issues that may become criminal; darker-relationships are criminal from the beginning. Zappers are found on the dark side.

Zappers are fraud-technologies that automatically (and remotely) skim cash from electronic cash registers (ECRs) or back room point of sales (POS) systems. Globally, tax auditors are finding that Zappers frequently provide the cash that is used to compensate “under-the-table” workers. In fact, a Zapper appears to be at the …

Friendship, Commerce, And Navigation Treaties: An Analysis Of The Foreign Corporation's Exemption From United States Labor Standards , Gregory S. Lane

Pepperdine Law Review

No abstract provided.

Transnational Business Governance Interaction And Competition Between Standard-Setting Initiatives: Labor Standards In Garment, Toys And Agriculture, Nicole Helmerich, Christopher Kaan

Transnational Business Governance Interactions Working Papers

This paper analyzes interactions within standard-setting networks in the area of social and labor rights. We examine the shape of transnational business governance interactions (TBGI), pathways, and interaction mechanisms in three sectors: garments, toys and agriculture. Our comparative analysis of each of these sectors reveals meaningful differences in both the organization of regulation networks and the resulting level of competition among participants. Overall, we find that the creation of a more inclusive and more coherent standard in a whole business sector comes with the cost of weaker rules and less monitoring. These industry-specific observations provide a springboard for future studies …

A System Of Transnational Business Interactions: The Case Of The Living Wage, David J. Doorey

Transnational Business Governance Interactions Working Papers

The subject of transnational business governance (TBG) interactions is an emerging field of study. These interactions are complex, involving multiple public and private actors crossing vast geopolitical spaces, with sometimes shared, but often conflicting interests. This complexity makes TBG interactions both an exciting new field of inquiry for scholars, but also an extremely challenging one. In these early days of theory development, it is useful to engage in a mapping exercise that will help scholars identify and test the relationships between the many inputs and outputs of TBG interactions. This new systems framework is demonstrated by reference to the complex …

Reforming The Second Tier Of The U.S. Pension System: Tabula Rasa Or Step By Step?, 46 J. Marshall L. Rev. 631 (2013), G. A. (Sandy) Mackenzie, Jonathan Barry Forman

UIC Law Review

No abstract provided.

Putting A Price On Friendship: Examining The Ownership Battle Between A Business' Social Media Networks, And The Humans That Operate Them, 47 J. Marshall L. Rev. 745 (2013), Michael Furlong

UIC Law Review

No abstract provided.

Participation As A Theory Of Employment, Matthew T. Bodie

All Faculty Scholarship

The concept of employment is an important legal category, not only for labor and employment law, but also for intellectual property law, torts, criminal law, and tax. The right-to-control test has dominated the debate over the definition of “employee” since its origins in the master-servant doctrine. However, the test no longer represents our modern notion of what it means to be an employee. This change has played itself out in research on the theory of the firm, which has shifted from a model of control to a model of participation in a team production process. This Article uses the theory …

Can Executive Compensation Reform Cure Short-Termism?, Gregg Polsky, Andrew C. Lund

Scholarly Works

There is an increasingly pervasive view among corporate governance observers that senior managers are too focused on short-term results at the expense of long-term interests. Concerns about “short-termism” have been expressed within the financial industry context and outside of it, but because of the recent financial crisis, much of the discussion has been directed at financial institutions. To combat short-termism, several commentators have advocated executive compensation reform to encourage senior managers to adopt a longer-term perspective. Yet these reforms will likely prove ineffective because of other significant pressures on managers to maintain current stock prices.

Incorporating Rights: Empire, Global Enterprise, And Global Justice, Erika George

Faculty Scholarship

This Article traces the history and evolution of corporate responsibility under international law to contextualize the developing discourse on business and human rights. It explores the role of private industry in contributing to colonial expansion, slavery, and conflict, and examines the advocacy efforts of abolitionists, anti-imperialism activists, and peace movements to craft reforms and create norms to control corporate conduct. First, the Article outlines the challenge that regulating private commercial power presents for a system of public international law premised on the sovereign power of states. Then, using the example of colonial era European charter companies the Article offers a …

Shareholder Demands For Higher Corporate Earnings Have Their Price: How Courts Allow Employers To Fire Older Employees For Their Achievements, Kester Spindler

Pepperdine Law Review

No abstract provided.

Executive Compensation: In Culture Of Greed And Selfishness, Is There Room For Theory Of "Enough", Robert C. Downs

Faculty Works

No abstract provided.

Reforming Executive Compensation: What Do We Know And Where Do We Go?, Priyanka Rajagopalan

The Journal of Business, Entrepreneurship & the Law

In this Article, I study a fascinating problem - what are the legal, political and economic implications of regulating executive bonuses? While the Administration's recent consideration of proposals to tax bonuses of AIG executives has sparked a great deal of media speculation and attention, there has been little legal scholarship discussing the various possible consequences of this and other methods of regulating executive compensation. Especially given the growing interest in executive compensation and the possible benefits and costs of regulation in this arena, I believe this paper will make a significant scholarly contribution to the existing literature on corporate governance …

The Roberts Court Gets Down To Business: The Business Cases, Kenneth W. Starr

Pepperdine Law Review

No abstract provided.

Envisioning Enforcement Of Freedom Of Association Standards In Corporate Codes: A Journey For Sinbad Or Sisyphus?, James J. Brudney

Faculty Scholarship

Since the 1970’s, multinational corporations (MNCs) in large numbers have adopted codes of conduct declaring their commitment to workers’ rights. These codes, however, do not require adherence to specific labor regulations or standards in a global setting. The MNC record on voluntary compliance has been discouraging, especially in labor-intensive industries like apparel, shoes, and toys, where a global supply chain of contractors effectively controls labor conditions. The persistent gap between aspiration and achievement regarding corporate codes has led to disagreement over their meaning and value. MNCs hope to be judged on the basis of the self-regulatory systems they have established. …

Further Considerations: Immigrant Entrepreneurs - Contributions And Challenges, Jayesh Rathod

Contributions to Books

An overview of the contributions made by immigrant entrepreneurs in the United States, and the challenges they face.

Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin

Publications

This Article challenges the corporate-constructed image of American business and industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and doctrinal corporate law, this Article examines the ways that social and legal actors understand what it means for a corporation or its products to be American. In a global economy, what does it mean for a corporation to present the impression of national citizenship? Considering the recent bailout of American automotive corporations, the automotive industry today becomes a powerful vehicle for problematizing the conflicted public/private nature of the corporate …

Tribal Rituals Of The Mdl: A Comment On Williams, Lee, And Borden, Repeat Players In Multidistrict Litigation, Myriam E. Gilles

Articles

No abstract provided.

Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin

Scholarship@WashULaw

This Article seeks to challenge the corporate-constructed image of American business and American industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and the realities of doctrinal corporate law, I hope to examine the ways that we as social actors, legal actors, and (perhaps above all) consumers understand what it means for a corporation or a corporation’s product to be American. In a global economy where labor, profits, and environmental effects are spread across national borders, what does it mean for a corporation to present the impression of national …

The Diminishing Returns Of Incentive Pay In Executive Compensation Contracts, Gregg D. Polsky, Andrew Lund

Scholarly Works

For the past 30 years, the conventional wisdom has been that executive compensation packages should include very large proportions of incentive pay. This incentive pay orthodoxy has become so firmly entrenched that the current debates about executive compensation simply take it as a given. We argue, however, that in light of evolving corporate governance mechanisms, the marginal net benefit of incentive-laden pay packages is both smaller than appreciated and getting smaller over time. As a result, the assumption that higher proportions of incentive pay are beneficial is no longer warranted.

A number of corporate governance mechanisms have evolved to duplicate …

The Garcetti Virus, Nancy M. Modesitt

All Faculty Scholarship

In an era where corporate malfeasance has imposed staggering costs on society, ranging from the largest oil spill in recorded history to the largest government bailout of Wall Street, one would think that those who uncover corporate wrongdoing before it causes significant harm should receive awards. Employees are particularly well-placed to uncover such wrongdoing within companies. However, rather than reward these employees, employers tend to fire or marginalize them. While there are statutory protections for whistleblowers, a disturbing new trend appears to be developing: courts are excluding from the protection of whistleblowing statutes employees who report wrongdoing as part of …

Executive Compensation In The Courts: Board Capture, Optimal Contracting, And Officers' Fiduciary Duties, Randall Thomas, Harwell Wells

Vanderbilt Law School Faculty Publications

This Article proposes a new approach to monitoring executive compensation. While the public seems convinced that executives at public corporations are paid too much, so far attempts to rein in executive compensation have met with little success. Several approaches have been tried - requiring large pay packages to consist predominantly of incentive pay, new procedures for approving pay, mobilization of public outrage at giant compensation packages. None, however, has stemmed the growth of executive compensation, or convinced opponents of large pay packages that such pay is either fair or deserved. Here we suggest a new approach, one that turns to …

Will Cutting The Payroll Tax Increase Jobs In The U.S.? Empirical Evidence From The Eu Vat, Richard Thompson Ainsworth

Faculty Scholarship

Red Ink Rising, the Peterson–Pew Commission on Budget Reform’s report presents the country with a fiscal/employment dilemma – Congress must act immediately to stem the federal debt, but it must move carefully lest it harm employment in the fragile economy. In short, we must act fast and slow – we must decrease the debt and increase employment. This is a difficult task.

The Peterson-Pew dilemma (notably its jobs-creation aspect) was taken to heart by both of the reform commissions that issued reports soon thereafter (National Commission on Fiscal Responsibility and Reform, The Moment of Truth and The Debt Reduction Task …

The Milieu Of The Boardroom And The Precinct Of Employment, Deborah A. Demott

Faculty Scholarship

This Commentary explores differences between employer-employee relationships and service on a board of directors. Against this backdrop, this Commentary argues that the research findings surveyed by Brooke and Tyler (Jennifer K. Brooke & Tom R. Tyler, Diversity and Corporate Performance: A Review of the Psychological Literature, 89 N.C. L. REV. 715 (2011)), although specific to the employment context, may be salient in assessing the impact of diversity among members of a board of directors.

Promoting Employee Voice In The American Economy: A Call For Comprehensive Reform, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

It has become apparent that there are serious deficiencies in the American model of production. Our model of corporate governance has recently come under intense scrutiny in the academic literature and the popular press. There are increasing concerns that American corporations are too focused on short-run profits and stock prices, at the expense of long-term strategies and investments that would benefit the long-run value of the firm, employees, and the American economy at large. In the pursuit of short-run shareholder interests, American corporations have bestowed on senior executives enormous compensation packages that seem increasingly divorced from any notion of rationality, …

Outsourcing Liability: Are The True Causes Of Unemployment Hiding Behind The Corporate Veil? , Cynthia Herrera

Public Interest Law Reporter

No abstract provided.

Employees And The Boundaries Of The Corporation, Matthew T. Bodie

All Faculty Scholarship

Employees have no formal role in U.S. corporate law. According to most theories of the firm, however, employees play a critical role in differentiating firms from markets. This essay examines the disparity in treatment and seeks to understand the ramifications of the separation of employees from the corporation. After discussing the absence of employees from the corporate structure, the essay looks at the role of the employees in theories of the firm. In contrast to corporate law, these theories generally include employees within the core of the firm, and they often explain the nature and purpose of the firm in …

Yes, Labor Markets Are Flawed--But So Is The Economic Case For Mandating Employee Voice In Corporate Governance, Scott A. Moss

Publications

No abstract provided.

Business-Like: The Supreme Court's 2009-2010 Labor And Employment Decisions, Melissa Hart

Publications

The 2009-10 Term at the Supreme Court was a relatively quiet one for labor and employment law. While the Justices were in the news for decisions on corporate political donations and the Second Amendment, the Court’s work-related docket grabbed no headlines. In fact, though, the Court considered 7 work law cases this Term, in areas ranging from standards for arbitration agreements to employee privacy rights in new technology to time limitations for filing Title VII disparate impact claims. This article discusses the Court’s labor and employment cases for the Term. While they may not have made much news, several of …

Virtual Intermediaries Ii - Canadian Solutions (Drop Shipments) Compared With Us, Japanese & Eu Approaches, Richard Thompson Ainsworth

Faculty Scholarship

Virtual travel agents are opportunistic internet-based travel agents. They are intermediary businesses that create mutually beneficial three-party transactions that secure accommodations for a traveler that: (a) meet the basic needs of the traveler (at a discount), (b) fills vacant room for accommodation retailers with guests that pay below market, but above standard costs, and (c) profit from the extra cash, the margin in the transaction.

The virtual intermediary’s eye is always on the discount and the cash flow. One of the things that catches their attention are the accommodation taxes which they collect from the traveler in advance and remit …