Labor and Employment Law Commons^™

Restrictive Covenants In Illinois: Adequate Consideration Problems Show That The Common Law Is An Inadequate Solution, David S. Repking

Chicago-Kent Law Review

Illinois courts have long dealt with whether restrictive covenants, specifically non-compete clauses, can and should be enforced when they involve employees of businesses. Many aspects of restrictive covenants have been litigated, but a recent Illinois Appellate Court case analyzed the issue of what is adequate consideration in order to enforce a restrictive covenant against a former employee. The First District in Fifield v. Premier Dealer Services, Inc., affirmed a bright-line, two-year rule for deciding how long an employee must work for an employer before a re-strictive covenant can be enforced.

The two-year rule protects employees because an employer cannot …

Mainstreaming Employment Contract Law: The Common Law Case For Reasonable Notice Of Termination, Rachel Arnow-Richman

Florida Law Review

This Article simultaneously exposes a fundamental error in employment termination doctrine and a paradox in contract law jurisprudence. Contemporary employment law has developed under the assumption that at-will parties may terminate their relationship both without reason and without notice. This Article argues that the second half of this formulation—the idea that parties reserve the procedural right to terminate without notice—is neither historically supported nor legally correct. Employment at will, as originally expressed, was a mere duration presumption reflecting America’s rejection of the predominant British rule favoring one-year employment terms. While subsequent case law expanded the presumption in various ways, a …

Employee Beware! Employment Agreements And What The Technology Related Employee Should Know And Understand Before Signing That Agreement: A Practical Guide, Louis J. Papa

Touro Law Review

No abstract provided.

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Law Faculty Scholarship

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Principles Of Contract Law Applied To Entertainment And Sports Contracts: A Model For Balancing The Rights Of The Industry With Protecting The Interests Of Minors, John H. Shannon, Richard J. Hunter Jr.

Loyola of Los Angeles Law Review

This Article discusses the context of common law and statutory materials dealing with minors who participate in the entertainment and sports fields. The Article describes the changes undertaken as a result of several notorious cases involving prominent child actors, and how the California legislature dealt with issues ranging from set asides of income, approval of contracts by a competent court of jurisdiction, recognition of the legitimate interests of all parties to the contract, to principles under which a minor would be precluded from disaffirming a contract. The Article then applies and extends the principles developed in entertainment contracts to minors …

Getting Paid In The Naked Economy, Meredith R. Miller

Scholarly Works

“It’s the end of work as we know it,” reports consulting firm Accenture in a paper about the “rise of the extended workforce.” (Gartside, Silverstone, Farley & Cantrell, Trends Reshaping the Future of HR: The Rise of the Extended Workforce, at 3 (Accenture 2013). The report predicts that, “[i]n the future, organizations’ competitive success will hinge on...workers who aren’t employees at all.” The legal nature of employment is changing and has been changing for quite some time; fewer and fewer workers are “employees.”

It is not new or novel to recognize that, from a legal perspective, there are many benefits …

An Empirical Analysis Of Noncompetition Clauses And Other Restrictive Postemployment Covenants, Randall S. Thomas, Norman Bishara, Kenneth Martin

Vanderbilt Law School Faculty Publications

Employment contracts for most employees are not publicly available, leaving researchers to speculate about whether they contain postemployment restrictions on employee mobility, and if so, what those provisions look like. Using a large sample of publicly available CEO employment contracts, we are able to examine these noncompetition covenants, including postemployment covenants not to compete ("CNCs" or "noncompetes'), nonsolicitation agreements ("NSAs"), and nondisclosure agreements ("NDAs'). What we found confirms some long-held assumptions about restrictive covenants but also uncovers some surprises.

We begin by discussing why employers use restrictive covenants and examining how the courts have treated them. We then analyze an …

Postemployment Noncompete Agreements: Why Utah Should Depart From The Majority, Christopher Mack

Utah Law Review

A decision by the Utah Legislature to follow California’s statutory scheme on noncompetition law would have a positive impact on the economy. A ban on all postemployment noncompete agreements would strengthen the economy by increasing innovation and healthy competition. Additionally, it would create a more fair and efficient labor market, allowing individuals to reach their employment potential. Finally, abolishing postemployment noncompete agreements would significantly increase the protection to employee rights without harming businesses’ rights to protect its goodwill and trade secrets.

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Akron Law Faculty Publications

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Drafting Chapter 2 Of The Ali's Employment Law Restatement In The Shadow Of Contract Law: An Assessment Of The Challenges And Results, Robert A. Hillman

Cornell Law Faculty Working Papers

The American Law Institute (ALI) has just completed the Restatement of the Law Third, Employment Law. Chapter 2 is entitled "Employment Contracts: Termination." As the name suggests, the Chapter focuses on the law's difficult challenge of applying contract law to distinguish lawful terminations of employees from wrongful ones. The question is especially problematic because, on the one hand, employment law's long-existing default rule allows employers to terminate employees "at will" and without cause. Advocates of the at-will doctrine present several policies to support it, including freedom of contract and efficiency. On the other hand, employers seek to attract talented employees …

Subordinate Or Independent, Status Or Contract, Clarity Or Circularity: British Employment Law, American Implications, Harry Hutchison

Georgia Journal of International & Comparative Law

No abstract provided.

Federalism And Business Decisions In The October 2005 Term, Carter G. Phillips

Touro Law Review

No abstract provided.

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981, Eileen Kaufman

Touro Law Review

No abstract provided.

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981, Leon Friedman

Touro Law Review

No abstract provided.

Do You Believe He Can Fly? Royce White And Reasonable Accommodations Under The Americans With Disabilities Act For Nba Players With Anxiety Disorder And Fear Of Flying, Michael A. Mccann

Pepperdine Law Review

This Article examines the legal ramifications of Royce White, a basketball player with general anxiety disorder and obsessive compulsive disorder, playing in the NBA. White's conditions cause him to have a fear of flying, thus making it difficult to play in the NBA. This subject is without precedent in sports law and, because of the unique aspects of an NBA playing career, lacks clear analogy to other employment circumstances. This dispute also illuminates broader legal and policy issues in the relationship between employment and mental illness. This Article argues that White would likely fail in a lawsuit against an NBA …

Weathering Wal-Mart, Joseph A. Seiner

Notre Dame Law Review

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). …

Tenure, The Aberrant Consumer Contract, James J. White

Chicago-Kent Law Review

The tenure contract that prevails among the faculty at nearly all American colleges and universities is unusual, for the employee, who is normally the weaker, is favored by the contract over the employer, who is normally the stronger. The first part of the paper explains what tenure means and how it came about in the early twentieth century. The second part of the paper argues that the contract protects not only academic freedom but also bad teaching and weak scholarship. Finally the paper argues that the tenure contract should be abolished or restricted to minimize the inefficiencies that are now …

Fair Or Foul? Major League Baseball's Use Of A Tortious Interference Lawsuit As A Means Of Investigation, Michael S. Beck

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Nlrb V. Yeshiva University: Teacher Participants In University Policy Formulation Deemed Managerial Under Nlra, Valerie A. Moore

Pepperdine Law Review

The development of a "status quo" for teacher bargaining unit certification was brought to an abrupt halt by the recent Supreme Court Yeshiva decision. The author, in agreement with the majority opinion, examines the development of this "status quo" and the cases leading up to and including the Supreme Court's determination that the Yeshiva faculty were managerial employees and thus exempt from coverage under the National Labor Relations Act. Also, the author illustrates the Supreme Court's unfavorable reaction to the National Labor Relations Board's cursory and inconsistent administrative decisions and opinions.

Enjoining Politically Motivated Strikes In Federal Courts: The Jacksonville Bulk Terminals Case, Mark A. Ozzello

Pepperdine Law Review

The United States Supreme Court, in Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Association, acknowledged that a work stoppage entirely motivated by political goals constitutes a "labor dispute" within the Norris-La Guardia Act which is prohibited from injunctive relief by a federal court. In so ruling, the Supreme Court found the Boys Markets, Inc. v. Retail Clerks Union and Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO exceptions, which allow an injunction to issue pending arbitration in situations where the dispute underlying the work stoppage is arbitrable, to be inapplicable to the no-strike clause in the collective-bargaining agreement scrutinized. …

The Evolving Doctrine Of Union Liability For Health And Safety In The Workplace. Warning: Collective Bargaining Can Be Hazardous To Your Union's Health, Jeffrey S. Wohlner

Pepperdine Law Review

No abstract provided.

Aspects Of Labor Law Affecting Labor-Management Cooperation In The Railroad And Airline Industries, Henry H. Perritt Jr.

Pepperdine Law Review

No abstract provided.

A Minor Problem With Arbitration: A Proposal For Arbitration Agreements Contained In Employment Contracts Of Minors, Richard A. Bales, Matthew Miller-Novak

McGeorge Law Review

No abstract provided.

Innovation In China: Fragmentation, Structured Uncertainty, And Technology Standards, Michael Murphree, Dan Breznitz

Cardozo Law Review de•novo

This Article discusses the history of China’s attempts to develop indigenous technology standards. A case study is presented on China’s attempts to develop digital optical storage media standards, the failure of which we attribute to fragmentation of production and structured uncertainty in China’s economy. Despite the market failures of China’s domestic standards development efforts, we conclude by highlighting some of the appurtenant benefits they produce for Chinese manufacturers.

Larry From The Left: An Appreciation, Matthew T. Bodie, Grant M. Hayden

All Faculty Scholarship

This essay approaches the scholarship of the late Professor Larry Ribstein from a progressive vantage point. It argues that Ribstein's revolutionary work upended the "nexus of contracts" theory in corporate law and provided a potential alternative to the regulatory state for those who believe in worker empowerment and anti-cronyism. Progressive corporate law scholars should look to Ribstein's scholarship not as a hurdle to overcome, but as a resource to be tapped for insights about constructing a more egalitarian and dynamic economy.

Promises Policies And Principles The Supreme Court And Contractual Obligation In Labor Relations, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Preserving Human Capital: Using The Noncompete Agreement To Achieve Competitive Advantage, Griffin Toronjo Pivateau

The Journal of Business, Entrepreneurship & the Law

Organizations today face numerous challenges: worldwide competitors, changes in information technology, increased reliance on knowledge workers, and a shifting economic environment. Faced with the difficulty of securing advantage by traditional means, management has increasingly focused on employees as a key asset and driver of productivity. Many organizations have adopted the human capital theory, which holds that employees form an asset of the organization. Organizations will seek to maximize their human capital as a differentiator. Presumably, an organization that invests in its human capital will find itself rewarded with increased productivity and higher returns. But here is where the problem develops. …

The Talent Agencies Act: Reconciling The Controversies Surrounding Lawyers, Managers, And Agents Participating In California's Entertainment Industry, Gary E. Devlin

Pepperdine Law Review

No abstract provided.

Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody

Pepperdine Dispute Resolution Law Journal

As more employers include mandatory arbitration provisions in their employment contracts, policy-makers are becoming concerned that employees are being forced to trade their civil and statutory rights for their jobs. The California Legislature is considering legislation designed to combat this tendency and to provide legal protection for employees who might otherwise be forced to waive the right for redress of grievances, legal protections against discrimination, and other rights. Although the legislation was designed to protect the constitutional rights of employees, there are legal considerations and policy concerns that challenge the viability of this type of legislation. The primary question is …

Compulsory Pre-Dispute Arbitration Clauses In The Employment Context After Eeoc V. Luce, Forward, Hamilton & Scripps , Maria Wusinich

Pepperdine Dispute Resolution Law Journal

In EEOC v. Luce, Forward, Hamilton & Scripps, decided in 2003, the Ninth Circuit Court of Appeals aligned its view with its sister circuits and with the Supreme Court regarding the enforceability of arbitration agreements in employment discrimination cases. The court held that an employee's agreement to arbitrate a claim arising under federal anti-discrimination law is enforceable. At first glance, it would appear that as far as the judicial branch is concerned, the longstanding issue of the validity of mandatory arbitration agreements in the employment context is now settled. This article, in contrast, posits that the courts will be …