Labor and Employment Law Commons^™

Employment, Deborah Mchenry Woodburn

West Virginia Law Review

No abstract provided.

The Deduction Of Unemployment Compensation From Back-Pay Awards Under Title Vii, Eric A. Martin

University of Michigan Journal of Law Reform

This Note argues that federal courts should not deduct unemployment insurance benefits from Title VII back-pay awards. Part I reviews the legislative history and purposes behind the remedial provisions of Title VII. Part I also presents the arguments that courts have advanced regarding the deduction of unemployment benefits from Title VII back-pay awards. Part II assesses these arguments in light of analogous common law doctrine and the legislative objectives of Title VII, and advances arguments not yet considered by the courts. Finally, Part II concludes that federal courts should resolve this division of authority by not deducting unemployment benefits from …

Reforming At-Will Employment Law: A Model Statute, Liana Gioia, Per Ramford

University of Michigan Journal of Law Reform

Effective relief for at-will employees can only be achieved through statutory reform. Although specific legislation has been proposed on the federal 4 and state levels, 5 none of these bills have been sufficiently comprehensive to provide optimal relief. Moreover, those commentators who have called for a statutory remedy have failed to explain precisely what the mechanism for dispute resolution should be, or how it should operate. 6 This Note, therefore, proposes a model statute utilizing mediation-arbitration to provide consistent, informal, and economical protection for at-will employees. Part I explores the development of the at-will rule and the deficiencies of current …

Protection Against Unjust Discharge: The Need For A Federal Statute, Jack Stieber, Michael Murray

University of Michigan Journal of Law Reform

We argue that only a federal statute can fully protect American workers from the harsh consequences of the employment-at-will rule. Part I of this Article outlines the nature and scope of the problems caused by the at-will doctrine. Part II surveys a variety of potential solutions to these problems - unionism, voluntary internal grievance mechanisms, existing statutes, the Constitution, and judicially created exceptions to the at-will rule - and finds each an inadequate source of protection. The final Part urges the enactment of a federal statute to protect all American workers from unjust dicharge and sets out several substantive criteria …

Employment-At-Will Doctrine: Providing A Public Policy Exception To Improve Worker Safety, Daniel T. Schibley

University of Michigan Journal of Law Reform

Occupational safety would be greatly enhanced if employees had a viable option of refusing to work under unsafe conditions without risking their jobs. This Note proposes a public policy exception to the employment-at-will doctrine that would give a cause of action to an employee discharged for refusing to work under unsafe conditions. Part I examines the employment-at-will rule and its recognized exceptions. Part II analyzes the inadequacies of existing statutory remedies for a discharged employee who refused to work under unsafe conditions. Finally, Part III proposes an alternative remedy: providing a common-law exception to the employment-at-will rule that will give …

Employment Problems Of The Handicapped: Would Title Vii Remedies Be Appropriate And Effective?, Cornelius J. Peck

University of Michigan Journal of Law Reform

This Article argues that the employment problems of the handicapped are not well-suited for treatment under a statutory discrimination model. Underlying this argument is the belief that the concept of discrimination is not adaptable to the problems of the handicapped, and efforts to apply it will only worsen existing problems. Part I begins by defining the meaning of discrimination, and then explores the similarities and differences between discrimination against the handicapped, and discrimination based on race, sex, religion, and national origin. The purpose of this discussion is to provide a basic framework for understanding claims that the handicapped should be …

Survey Of Developments In The Fourth Circuit: 1981

West Virginia Law Review

No abstract provided.

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.

Survey Of Developments In West Virginia Law: 1981

West Virginia Law Review

No abstract provided.

Union Representatives As Corporate Directors: The Challenge To The Adversarial Model Of Labor Relations, Robert A. Mccormick

University of Michigan Journal of Law Reform

This Article addresses these questions first by discussing the predominant philosophical approach adopted by unions in their dealings with management, and then describing several ways in which the labor laws reflect this traditional model of employment relations by showing, first, that the influence of unions has been limited to circumscribed categories of business decisions. The Article next examines decisions made by the National Labor Relations Board ("NLRB") and the courts that have carefully sought to separate employer from employee, assuming their interests to be inherently antagonistic. Then follows an evaluation of the NLRB's treatment of deviations from the traditional model …

The Regulation Of Labor Unions, Theodore J. St. Antoine

Articles

This year completes exactly a half century in the federalization and codification of American labor law. Before that the regulation of both the internal affairs and external relations of labor organizations was left largely to the individual states, usually through the application of common or nonstatutory law by the courts. One major exception was the railroad industry, whose patent importance to interstate commerce made it an acceptable subject for federal legislation like the Railway Labor Act.

The Labor-Bankruptcy Conflict: Rejection Of A Debtor's Collective Bargaining Agreement, Michigan Law Review

Michigan Law Review

This Note examines the courts' accommodation of the labor and bankruptcy policies when a debtor in possession or trustee seeks to reject a collective bargaining agreement. Part I criticizes a series of recent cases that failed to confront the statutory conflict. If these courts had recognized the conflict between the language of the Bankruptcy Act (now the Code) and the Labor Act, they would have been forced to consider whether the labor and bankruptcy policies actually clashed. Part II finds that in most instances they do not, and argues that requiring the debtor in possession to bargain with the union …

The Proper Role Of Res Judicata And Collateral Estoppel In Title Vii Suits, Charles C. Jackson, John H. Matheson, Thomas J. Pikorski

Michigan Law Review

The Article proceeds from the premise, established in Part I, that federal courts must apply preclusion principles unless Congress clearly indicates otherwise. Part II considers a number of indicators of Congress's intent, and finds no evidence to rebut the presumption that federal courts must give preclusive weight to certain state decisions. Part III then proposes general guidelines for the application of preclusion doctrines in title VII litigation.

A Critical Analysis Of The Legislative History Surrounding The Black Lung Interim Presumption And A Survey Of Its Unresolved Issues, Mark E. Solomons

West Virginia Law Review

No abstract provided.

Set-Offs Against Back Pay Awards Under The Federal Age Discrimination In Employment Act, Michigan Law Review

Michigan Law Review

This Note proposes a theory to govern set-offs against ADEA damage awards that best effectuates congressional ~tent. It suggests that courts should set off those types of benefits received after a violation that, had they been lost because of a violation, would have been included in the damage award. Part I identifies the proper measure of damages under the ADEA as the net loss of 'job-related benefits," doubled in cases of willful violation. It explains first that job-related benefits should be broadly defined to include unemployment compensation and social security benefits as well as wages, and second that the congressional …

The Role Of Law, Theodore J. St. Antoine

Book Chapters

In the early New Deal days, workers' placards in the coal fields proudly proclaimed, "President Roosevelt wants you to join the union." If not literally true, that boast was well within the bounds of poetic license. After the brief interval of federal laissez-faire treatment of labor relations ushered in by the Norris-La Guardia Act of 1932, the National Labor Relations (Wagner) Act of 1935 declared the policy of the United States to be one of "encouraging the practice and procedure of collective bargaining." Employers, but not unions, were forbidden to coerce or discriminate against employees because of their organizational activities. …

Advance Notice Of Plant Closings: Toward National Legislation, Joseph A. Cipparone

University of Michigan Journal of Law Reform

This article advocates the adoption of national legislation requiring advance notice for plants closed or relocated for ostensibly economic reasons. Part I discusses the magnitude of the plant closing problem, focusing upon the costs associated with such closings, the types of assistance available for terminated workers, and the inadequacies of current relief efforts. Parts II and III examine the arguments for and against requiring advance notice of plant closings, and conclude that such a requirement represents sound public policy. Part IV proposes a complete model advance notice statute. The model statute establishes minimum requirements for a viable advance notice system, …

Wage Discrimination And Job Segregation: The Survival Of A Theory, Ruth G. Blumrosen

University of Michigan Journal of Law Reform

My earlier article in this journal, Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964, advanced the theory that the same discriminatory factors which lead to job segregation are also likely to be responsible for wage differentials between segregated jobs. The discriminatorily depressed wage rate of the segregated job is therefore one of the "adverse effects" under Griggs v. Duke Power Co. of job segregation. In order to establish a prima facie case of wage discrimination in a Title VII action, plaintiffs must show the fact of job segregation - that the jobs were …

Age Discrimination In Employment Act Amendments Of 1978: Tension Between Congress And The Courts, John A. Adams, Jay D. Pimentel

BYU Law Review

No abstract provided.

Standards Of Willfulness Under The Fair Labor Standards Act, Michigan Law Review

Michigan Law Review

The statutes of limitations facing plaintiffs who bring actions under the Fair Labor Standards Act [FLSA] vary, depending upon the willfulness of the violation. The Act establishes two limitations: three years for willful violations, and two years for nonwillful violations. It does not, however, define willfulness, and federal courts have interpreted the concept in two very different ways. Under the more prevalent rule, the test is: "Did the employer know the FLSA was in the picture?" But other courts have been more guarded, reserving the longer limitations period for "violations which are intentional, knowing or voluntary as distinguished from accidental." …

Review Of The Landrum-Griffin Act: Twenty Years Of Federal Protection Of Union Members' Rights, By J. R. Bellace And A. D. Berkowitz, Theodore J. St. Antoine

Reviews

In the innocent closing years of the 1950s, the American public fastened on union democracy as the most burning issue of the day. No other subject produced as much mail for Congress. The 229-201 count by which the Landrum-Griffin bill was substituted for the House Labor Committee's bill on labor-management reporting and disclosure constituted the largest total vote in the history of the House of Representatives. Significantly, however, that vote had little if any bearing on union members' rights. What distinguished Landrum-Griffin from the Committee's bill was its stiff new curbs on picketing and boycotts. As Senator John Kennedy's advisor, …

Sex Discrimination In Coaching, R. Lawrence Dessem

Faculty Publications

This article will attempt to provide a legal framework for analysis of this not uncommon payment of lower salaries or stipends to the teacher-coaches (both male and female) of girls' athletics than to the teacher-coaches of comparable or identical boys' sports.

National Labor Policy: Reflections And Distortions Of Social Justice, Theodore J. St. Antoine

Articles

The impulse behind much of American labor law is profoundly moral. The sufferings and indignities inflicted on working men, women, and even children as the industrial revolution enveloped the western world during the nineteenth and early twentieth centuries led many thoughtful observers to focus their attention on what was commonly called the "social question." Certain issues have been treated almost as if they posed questions of good and evil, when all they actually presented were problems of finding a proper balance of power between labor and management. This article shall develop these themes in several specific contexts.

Birth Defects Caused By Parental Exposure To Workplace Hazards: The Interface Of Title Vii With Osha And Tort Law, Lynne Darcy

University of Michigan Journal of Law Reform

This article will examine the problem of workers' exposure to toxic substances that affect human reproductive functions in light of the applicable legal framework provided by tort law, the Occupational Safety and Health Act of 1970 (OSHA), and Title VII of the Civil Rights Act of 1964. What employers may do to deal with this problem under existing law, and possible resolutions of some apparent conflicts between the underlying purposes of these laws, will also be delineated. It is the position of this article that the competing interests of employers, workers, and workers' offspring must be harmonized not by excluding …

Proposed Labor Reform: "Brave New World" Or "Looking Backward"?, Theodore J. St. Antoine

Other Publications

By now it is a commonplace in the labor relations community that there are two significant deficiencies in the administration of the National Labor Relations Act. Neither is a matter of substantive law in the usual sense. The first is the inordinate delay in securing a remedy in contested cases, and the second is the inadequacy of the remedy in certain critical situations. I should like to examine a few key recommendations of the NLRB Task Force, and a few key provisions of the proposed Labor Reform Act, in light of those two central concerns.

In my assessment I shall …

Employee Stock Ownership Plans, Voting Rights, And Plant Closings, Jonathan Barry Forman

University of Michigan Journal of Law Reform

After examining the structure and tax consequences of ESOPs, this note will argue that ESOPs should guarantee employees full voting rights over securities transferred to them under such plans. This note will also propose that ESOPs can be used in employee takeovers of corporations as part of a plan to help prevent plant closings.

Tort Liability Of Labor Unions For Picket Line Assaults, David R. Case

University of Michigan Journal of Law Reform

This article will discuss whether tort actions against unions for picket line assaults are preempted by the National Labor Relations Act, and if not preempted, what forums are available to hear such actions. This article will also examine the theories that have been used to hold unions liable for the assaults committed by their picketers. Included in this discussion will be an analysis of the policy considerations offered in support of the various theories of liability.

Punitive Damages Under Section 102 Of The Labor-Management Reporting And Disclosure Act, S. Thomas Wienner

University of Michigan Journal of Law Reform

It is firmly established that in a suit brought under section 102, a union member may ordinarily recover compensatory damages for any injury proximately caused by a violation of Title I or section 609. The courts are divided, however, on the question of whether a plaintiff may be awarded punitive damages under section 102. This article will address that question by discussing the language and the legislative history of section 102, the conflicting decisions of the federal courts, and the relevant policy considerations.

Reprisal Discharges Of Union Officials, Alan V. Reuther

University of Michigan Journal of Law Reform

Usually union officers and employees are also members of their union. The dual status of officer-members and employee-members places them in a unique situation under the LMRDA. As union members, they are entitled to the rights enumerated in Title I. As union officers and employees, however, they serve at the pleasure of their superiors. This situation raises the question whether officer- and employee-members have a cause of action under the LMRDA when they are discharged in retaliation for exercising rights protected under Title 1. Resolution of this question depends upon whether or not such reprisal discharges violate the provisions of …

National League Of Cities V. Usery: Its Implications For The Equal Pay Act And The Age Discrimination In Employment Act, Ellen B. Spellman

University of Michigan Journal of Law Reform

In National League of Cities v. Usery, the Supreme Court invalidated the application of the FLSA minimum wage and maximum hours provisions to certain essential state government activities as an unconstitutional intrusion on state sovereignty. This article will explore the implications of that decision with respect to the application of the EPA and the ADEA to state and local governments.

Part I contains a brief discussion of the Fair Labor Standards Act and Amendments. Part II discusses National League with reference to traditional commerce clause interpretation. Part III analyzes the difficulties of applying the decision, particularly the problem of …