Labor and Employment Law Commons^™

From Race To Class Struggle: Re-Problematizing Critical Race Theory, E San Juan Jr.

Michigan Journal of Race and Law

The misconstrual of "class" as a theoretical and analytic concept for defining group or individual identity has led, especially during the Cold War period, to its confusion with status, life-style, and other ideological contingencies. This has vitiated the innovative attempt of CRT to link racism and class oppression. We need to reinstate the Marxist category of class derived from the social division of labor that generates antagonistic class relations. Class conflict becomes the key to grasping the totality of social relations of production, as well as the metabolic process of social reproduction in which racism finds its effectivity. This will …

Social Citizen As Guest Worker: A Comment On The Changing Identities Of Immigrants And The Working Poor, Frank W. Munger

Articles & Chapters

No abstract provided.

Where There's At-Will, There Are Many Ways: Redressing The Increasing Incoherence Of Employment At Will, Scott A. Moss

Publications

Employment at will, the doctrine holding that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as "essential to free enterprise" and "central to the free market," but in recent years they increasingly have riddled the rule with exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of …

Bilingualism And Equality: Title Vii Claims For Language Discrimination In The Workplace, James Leonard

University of Michigan Journal of Law Reform

Linguistic diversity is a fact of contemporary American life. Nearly one in five Americans speak a language other than English in the home, and influxes of immigrants have been a constant feature of American history. The multiplicity of languages in American society has touched nearly all aspects of American culture, and specifically has added new and important challenges to the American workplace. Chief among these new concerns are the growing number of legal claims centered around language discrimination in the workplace. The common vehicle for these claims has been Title VII, and there is considerable support in the academic literature …

Reconstituting The Law Of The Workplace In An Era Of Self-Regulation, Cynthia L. Estlund

ExpressO

As the reach of collective bargaining has shrunk in recent decades, the domain of employment law – of judicially-enforceable individual rights and administratively-enforced regulatory standards – has expanded. Both branches of employment law have seen the rise of employer “self-regulation” – internal systems for enforcement of rights and regulatory standards – and of legal inducements to self-regulation in the form of reduced public oversight or sanctions. In the shift from “self-governance” to “self-regulation,” employees have lost their institutional voices and are losing the protective oversight of courts and public agencies. In this article Professor Estlund looks for ways not to …

Evaluating Work: Enforcing Occupational Safety And Health Standards In The United States, Canada And Sweden, Daniel B. Klaff

ExpressO

The United States’ occupational safety and health enforcement system is breaking down. Klaff argues that much of this breakdown has to do with a fundamental lack of worker participation in the United States’ safety and health system. Klaff makes his case by comparing and contrasting the history and enforcement schemes of the United States, Canada, and Sweden. After arguing for economic rights as human rights, Klaff concludes by offering a set of recommendations for the United States’ occupational safety and health system based upon his value-centered analysis.

The Employment Consequences Of Wrongful-Discharge Laws: Large, Small, Or None At All?, David H. Autor, John J. Donahue Iii, Stewart J. Schwab

Cornell Law Faculty Publications

The Needle And The Damage Done: How Hoffman Plastics Promotes Sweatshops And Illegal Immigration And What To Do About It , Jennifer S. Berman

ExpressO

This paper examines the intersection of immigration and labor law as developed in federal law, culminating in the recent Supreme Court case, Hoffman Plastics. Arguing that Hoffman was wrongly decided, the paper further demonstrates that stronger penalties are necessary under the NLRA to deter employer wrongdoing, protect workers’ rights, and slow the proliferation of sweatshops.

The Imperium Strikes Back: The Need To Teach Socioeconomics To Law Students., William K. Black

Faculty Works

No abstract provided.

Terminating Public School Teachers For Cause Under Minnesota Law, Christine D. Ver Ploeg

William Mitchell Law Review

It is important to understand the realities that surround the discharge of a teacher, for embarking upon this path promises to be painful for everyone involved. Teachers who challenge allegations that they are personally or professionally unworthy of continuing to teach in their districts--or perhaps to continue to teach at all--understandably experience extraordinary trauma and anxiety. By the same token, districts that ultimately fail to prove the case for discharge can face significant financial liability and may even be forced to reinstate teachers who have been found to be deficient. Finally, these efforts often divide schools and communities because teachers, …

Race, Gender, And Work/Family Policy, Nancy E. Dowd

UF Law Faculty Publications

Family leave is not an end in itself, but rather is part of a much bigger picture: work/family policy. The goal of work/family policy is to achieve a good society by supporting families. Ideally, families enable children to develop to their fullest capacity and to contribute to their communities and society. Public rhetoric in the United States has always strongly supported families. Our policies, however, have not. In the area of work/family policy, the United States continues to lag behind every other advanced industrialized country, as well as many developing countries, in the degree to which we provide affirmative support …

Masculinities At Work, Ann C. Mcginley

Scholarly Works

This article focuses on the study of masculinities, a body of theoretical and empirical work by sociologists, feminist theorists and organization management theorists. This work, much of which employment law scholars have ignored, studies the role of masculinities, which are often invisible, in creating structural barriers to the advancement of many women and some men at work. Masculinities comprise both a structure that reinforces the superiority of men over women and a series of practices, associated with masculine behavior, performed by men or women, that aid men to maintain their superior position over women. In their less visible form, masculinities …

Orchestrated Experimentalism In The Regulation Of Work, Orly Lobel

Michigan Law Review

Since the advent of the New Deal vision, work and the workplace have undergone dramatic changes. Policies and institutions that were designed to provide good working conditions and voice for workers are no longer fulfilling their promise. In Working in America: A Blueprint for the New Labor Market ("Blueprint"), four MIT economists take on the challenge of envisioning a new regulatory regime that will fit the realities of the new market. The result of several years of deliberation with various groups in business and labor, academia, and government, Blueprint provides a thoughtful yet unsettling vision of the future of work. …

Across The Borders: Immigrant Status And Identity In Law And Latcrit Theory, Ruben J. Garcia

Scholarly Works

Immigrants make up a large and increasing portion of the American community. The recent census found an unprecedented number of immigrants within the United States. Immigrants, however, have fewer legal protections than almost any other individuals within our borders. This lack of protection is especially disconcerting given that immigrants are often the most subordinated members of our communities. Particularly after the events of September 11, 2001, the rights and protections available to immigrants—whether they are documented or not—are tenuous. As LatCrit scholars have pointed out, immigration law is intensely racialized, and yet other bodies of law, such as civil rights …

The Role Of Workplace Culture Evidence In Hostile Workplace Environment Sexual Harassment Litigation: Does Title Vii Mean New Management Or Just Business As Usual?, Christopher Massaro

NYLS Law Review

No abstract provided.

The New Labor Market For Lawyers: Will Female Lawyers Still Earn Less?, Joni Hersch

Cardozo Journal of Equal Rights & Social Justice

The article examines the persistent gender pay gap in the legal profession, despite women's increased representation, and identifies key factors contributing to this disparity. It highlights how structural and societal factors, such as work hours, family responsibilities, and discrimination, play significant roles. The analysis suggests that while younger cohorts show signs of narrowing the gap, systemic barriers and biases continue to affect women's earnings and career advancement. The study underscores the need for policies addressing these inequities to ensure equal opportunities and pay.

“Head Start Works Because We Do”: Head Start Programs, Community Action Agencies, And The Struggle Over Unionization, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

In the summer of 2002, the city of Boston watched a fierce battle unfold between low-wage workers who provide child care and the social service agencies that employ them. Boston requires its city contractors to pay more than twice the federal minimum wage of $5.15 an hour to their employees, according to the terms of the city's "living wage" ordinance. The social service agencies, which receive government subsidies to run their child care programs, claimed that they could not afford to pay this rate. These agencies mounted an intense legal and political campaign, arguing that they would be forced to …

The Customer Is Always Right… Not! Employer Liability For Third Party Sexual Harassment, Lea B. Vaughn

Michigan Journal of Gender & Law

This article will ask a series of questions. What is third party sexual harassment? Under what conditions does it occur? Does it differ in any significant respects from traditional notions of sexual harassment? Should those differences, if any, make a difference in the way that the legal system addresses third party harassment? And indeed, should the problem be addressed solely through the legal system? What might an employer do to alleviate sexual harassment of this type?

Empathy, Spring, And Fervorino, Susan Bennett

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Job Segregation, Gender Blindness, And Employee Agency Symposium: Law, Labor, And Gender - New Perspectives On Labor And Gender, Tracy E. Higgins

Faculty Scholarship

Almost forty years after the enactment of Title VII, women's struggle for equality in the workplace continues. Although Title VII was intended to "break[] down old patterns of segregation and hierarchy," the American workplace remains largely gender-segregated. Indeed, more than one-third of all women workers are employed in occupations in which the percentage of women exceeds 80%. Even in disciplines in which women have made gains, top status (and top paying) jobs remain male-dominated while the lower status jobs are filled by women. This pattern of gender segregation, in turn, accounts for a substantial part of the persistent wage gap …

Evaluating The Sex Discrimination Argument For Lesbian And Gay Rights, Edward D. Stein

Articles

The sex discrimination argument for lesbian and gay rights analyzes laws that discriminate on the basis of sexual orientation in terms of sex discrimination. For example, sodomy laws that prohibit only same-sex sexual activities are analyzed as discriminating on the basis of sex because they prohibit women from doing something men are permitted to do, that is, have sex with women. This argument has been championed by some scholars and litigators, and it has persuaded some judges. Edward Stein shows that there are sociological, theoretical, moral, and practical problems facing the sex discrimination argument. He suggests that there are better …

Predicting The Future Of Employment Law: Reflecting Or Refracting Market Forces?, Stewart J. Schwab

Cornell Law Faculty Publications

In this Article I predict how employment law will change in the future. My task is positive rather than normative. I will not argue that the developments I foresee are good ones to be applauded. Rather, they arise "inevitably" from the way the law will react to changes in labor markets.

Of course, as Professor Ronald Dworkin emphasizes, in developing a theory of law one cannot sharply distinguish between the positive and normative. Dworkin points out that even in describing the current legal framework, one must choose what to highlight and what to ignore, a process based on values. When …

Unemployment Insurance And Wealth Redistribution, Gillian Lester

Faculty Scholarship

This Article evaluates the merit of liberalizing unemployment insurance eligibility as a means to achieve progressive wealth redistribution-an idea that has recently gained popularity among policymakers and legal scholars. Unemployment insurance (UI) provides temporary, partial wage replacement to workers who suffer unexpected job loss, but it tends to exclude workers who have very low wages or hours of work, or who quit for reasons considered "personal" (for example, to accommodate family demands). Professor Lester argues that while redistribution to workers who are poor or who have caregiving obligations is a desirable goal, expanding UI is a poor way to do …

"Bad For Business": Contextual Analysis, Race Discrimination, And Fast Food, 34 J. Marshall L. Rev. 207 (2000), Regina Austin

UIC Law Review

No abstract provided.

Silencing Speech In The Workplace: Re-Examining The Use Of Specific Speech Injunctive Relief For Title Vii Hostile Environment Work Claims, 34 J. Marshall L. Rev. 321 (2000), Sonali Das

UIC Law Review

No abstract provided.

Crime And Work, Jeffrey Fagan, Richard B. Freeman

Faculty Scholarship

Crime and legal work are not mutually exclusive choices but represent a continuum of legal and illegal income-generating activities. The links between crime and legal work involve trade-offs among crime returns, punishment costs, legal work opportunity costs, and tastes and preferences regarding both types of work. Rising crime rates in the 1980s in the face of rising incarceration rates suggest that the threat of punishment is not the dominant cost of crime. Crime rates are inversely related to expected legal wages, particularly among young males with limited job skills or prospects. Recent ethnographic research shows that involvement in illegal work …

Brief Of Intervenor, Women’S Legal Education And Action Fund (Leaf), Ferrel V. Ontario, Laura Spitz

Faculty Scholarship

The issues in this appeal are whether Bill 8, An Act to Repeal Job Quotas and Restore Merit-Based Employment Practices in Ontario ("Bill 8''), contravenes section 15(1) of the Canadian Charter of Rights and Freedoms (the "Charter''), and, if so, whether the contravention is justified under section I of the Charter. This brief reviews the Government's repeal of the Federal Emplyment Equity Act (EEA). This repeal impairs designated groups to the greatest extent possible by removing all of the mechanisms which are necessary to remedy systemic discrimination in employment. Additionally, where discrimination is effected by the wholesale repeal of human …

Against Common Sense: Why Title Vii Should. Protect Speakers Of Black English, Jill Gaulding

University of Michigan Journal of Law Reform

The speech of many black Americans is marked by phrases such as 'we be writin"' or "we don't have no problems." Because most listeners consider such "Black English" speech patterns incorrect, these speakers face significant disadvantages in the job market. But common sense suggests that there is nothing discriminatory about employers' negative reactions to Black English because it makes sense to allow employers to insist that employees use correct grammar.

This article argues against this common sense understanding of Black English as bad grammar. The author first analyzes the extent of the job market disadvantages faced by Black English speakers …

An Unfirm Foundation: The Regrettable Indefensibility Of Religious Exemptions, Frederick Mark Gedicks

University of Arkansas at Little Rock Law Review

No abstract provided.

Engineering The Middle Classes: Class Line-Drawing In New Deal Hours Legislation, Deborah C. Malamud

Michigan Law Review

The likely readers of this Article work for a living, or are studying with the hope that they will work for a living very soon. Unlike many other workers in this society, they do not (and will not) get paid time-and-a-half for overtime. In this Article, I tell the story of how upper-level white-collar workers - people like the intended readers of this Article - came to be exempt from the Fair Labor Standards Act's general overtime rules. My purpose in telling this story is not to participate in the debate on whether the so-called "white-collar exemptions" to the Fair …