Labor and Employment Law Commons^™

By Fair Means: The Inapplicability Of Bristol-Myers Squibb To Flsa Collective Action Lawsuits, Paige Maxa

Washington Law Review

The Fair Labor Standards Act (FLSA), passed by Congress in 1938, sets federal workplace standards and protects over 100 million workers in the United States. The FLSA also includes a collective action provision, which allows workers to privately sue their employers for FLSA violations in a unique way. A collective action lawsuit is a distinct form of aggregate litigation that allows an employee to sue their employer for FLSA violations on behalf of other similarly situated employees in one action. Similarly situated employees who wish to join a collective action must affirmatively opt in and consent to participate in the …

Who Counts As A "Reasonable Employee"? The Third Circuit's Bungling Of Section 8(A)(1) Violations, Ben Milstein

Washington Law Review

The National Labor Relations Act (NLRA) protects private employees’ right to unionize and collectively bargain with their employers. Section 7 of the NLRA guarantees employees the right to self-organize labor unions, while section 8 outlines numerous unfair labor practices. Specifically, section 8(a)(1) bans employer interference, coercion, or restraint of any section 7 rights. In a 2022 case, FDRLST Media v. NLRB, the Third Circuit Court of Appeals reversed a National Labor Relations Board (NLRB) finding that FDRLST Media’s executive officer’s tweet constituted a section 8(a)(1) violation. This Comment examines the history of section 8(a)(1) violations, specifically discussing the widely …

A State Constitutional Challenge To Washington’S Denial Of Minimum Wage To Incarcerated Workers, Cailin Dahlin

Washington Law Review

This Comment challenges as unconstitutional Washington’s exemption of incarcerated individuals from the state Minimum Wage Act. Incarcerated people in Washington, unprotected by minimum wage guarantees, earn low wages in state-run inmate work programs. This statutory carveout is contrary to the rehabilitative purpose of Washington’s prisons because it impedes incarcerated people’s ability to afford necessities, participate in rehabilitative programs, and reintegrate into society. This exemption is unconstitutional under the state’s cruel punishment clause, because it is disproportionately cruel punishment and an excessive fine that incarcerated workers cannot afford. The exemption is also unconstitutional under the state’s privileges and immunities clause, because …

A Noncompete By Any Other Name: Assessing The Validity Of Training Repayment Agreements Under Washington Law, Hannah Lukomski

Washington Law Review

Training Repayment Agreements (TRAs) are restrictive employment covenants that require an employee to pay their employer a fixed or prorated sum for training costs if the employee quits their job within some period defined by the agreement. The prevalence of TRAs has drastically increased in low-wage employment. TRAs harm employees by imposing an artificial financial constraint that disincentivizes employees from leaving their employer within the contract duration. The Washington State Legislature has not directly addressed TRAs despite having articulated limits on other restrictive employment covenants, like noncompetition agreements. This Comment reviews federal agency actions and other states’ approaches in response …

Adverse Elements: How Requiring An Adverse Employment Action Element In Ada Failure-To-Accommodate Claims Hinders Disability Rights, Ava Jadwiga Wallace

Washington Law Review

Individuals with disabilities are continuously marginalized by a world tailored to the able-bodied. One of the most visible areas where this marginalization manifests is employment. The Americans with Disabilities Act of 1990 (ADA) attempts to combat this with its extensive legislation to resolve and mitigate disability discrimination in employment contexts. In this attempt, the ADA mandates that employers provide disabled employees with reasonable accommodations—employment modifications necessary for many disabled employees to perform their jobs and feel included in the workplace. Jurisprudence reflects a series of decisions where courts read the ADA narrowly, strictly, and from an able-bodied perspective, resulting in …

An Empire Of Anti-Democracy: The Imperial Legacies Of American Territorial Labor, Jedidiah J. Kroncke

Washington Law Review

A great deal of recent attention has been given to acknowledging the full historical scope of American empire and its legal foundations. A recurrent focus of this attention has been the impact of the Insular Cases—a set of early twentieth century doctrines that legitimate American territorial acquisitions while denying their full incorporation under the United States Constitution. Issues of political citizenship and property have thus predominated critical work on the Insular Cases.

This Article expands on this resurgent interest by focusing on another critical element of this acknowledgment: the history of territorial labor which has long been central …

Does Black-Letter Law Matter In Labor Rights Protection In China? - A Tale Of Two Cities, Peter Chi Hin Chan

Washington International Law Journal

This article discusses the role of black-letter law in labor protection in China in cases where employers dismiss employees on the grounds of serious breaches of internal regulations. This article presents an empirical analysis of the judicial practice of two of China’s economically developed cities, Suzhou and Wuxi. Suzhou employers have to give employees the opportunity to be heard prior to dismissal, while Wuxi does not provide that opportunity. First, this article introduces the Chinese labor legislation system, the dismissal system, and the two cities’ local labor regulations. Second, the article will analyze and discuss 140 cases from Suzhou and …

Public Health Consequences Of Appellate Standards For Hostile Work Environment Claims, Lauren Krumholz

Washington Journal of Social & Environmental Justice

No abstract provided.

We Are Never Getting Back Together: A Statutory Framework For Reconciling Artist/Label Relationships, Harrison Simons

Washington Law Review Online

Taylor Swift could tell you a thing or two about record label drama. Artists like Swift who want to break into the big leagues and top the charts must rely on record labels’ deep pockets and institutional knowledge to do so. But artists, especially young ones, are often asked to sign deals with labels that leave them with little control over their careers. For many, the risk is worth the reward. However, many others come to regret their decision, with careers that languish or sputter out in label purgatory. Anyone with an ear for the music industry knows that artist-label …

Beyond Title Vii: Litigating Harassment By Nonemployees Under The Ada And Adea, Kate Bradley

Washington Law Review

Employees in the United States are protected from unlawful harassment that rises to the level of a “hostile work environment.” Federal circuits recognize that employers could be liable under Title VII when their employees experience hostile work environments because of harassment from nonemployees. However, outside of Title VII, not all federal circuits have recognized that the Americans with Disabilities Act of 1990 (ADA) and Age Discrimination in Employment Act of 1967 (ADEA) protect employees from hostile work environments.

As a result, employees are vulnerable with respect to age and disability-based harassment. This Comment argues that all federal circuits should allow …

Individual Home-Work Assignments For State Taxes, Hayes R. Holderness

Washington Law Review

The surge in work-from-home arrangements brought on by the COVID-19 pandemic threatens serious disruptions to state tax systems. Billions of dollars are at stake at this pivotal moment as states grapple with where to assign income earned through these remote work arrangements for tax purposes: the worker’s home or the employer’s location? Some states—intent on modernizing their income tax laws—have assigned such income to the employer’s location, but have faced persistent challenges on both constitutional and policy grounds in response.

This Article provides a vigorous defense against such challenges. The Supreme Court has long interpreted the Constitution to be deferential …

Sex Trait Discrimination: Intersex People And Title Vii After Bostock V. Clayton County, Sam Parry

Washington Law Review

Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination and harassment on account of sex. Courts have historically failed to extend Title VII protections to LGBTQ+ people. However, in 2020, the U.S. Supreme Court decision in Bostock v. Clayton County changed this. Bostock explicitly extended Title VII’s protections against workplace discrimination to “homosexual” and “transgender” people, reasoning that it is impossible to discriminate against an employee for being gay or transgender without taking the employee’s sex into account. While Bostock is a win for LGBTQ+ rights, the opinion leaves several questions unanswered. The reasoning in …

Qualified Sovereignty, Kate Sablosky Elengold, Jonathan D. Glater

Washington Law Review

Sometimes acts of the federal government cause harm; sometimes acts of contractors hired by the federal government cause harm. In cases involving the latter, federal contractors often invoke the sovereign’s constitutionally granted and doctrinally expanded supremacy to restrict avenues for the injured to recover even from private actors. In prior work, we analyzed how federal contractors exploit three “sovereign shield” defenses—preemption, derivative sovereign immunity, and derivative intergovernmental immunity—to evade liability, accountability, and oversight.

This Article considers whether, when, and how private federal contractors should be held accountable in a court of law. We argue that a contractor should be required …

Protecting The Rights And Wellbeing Of People With Disabilities During The Covid-19 Pandemic, Elizabeth Pendo

Chapters in Books

The COVID-19 pandemic has exposed and exacerbated significant inequities experienced by people with disabilities. It has also emphasized the value of legal protections against discrimination based on disability. The Americans with Disabilities Act was enacted 30 years ago to eliminate discrimination against people with disabilities and ensure equal opportunity across major areas of American life (ADA, 2008). Together with an earlier law, the Rehabilitation Act of 1973 (Rehabilitation Act, 2012), this landmark civil rights law impacts a broad range of issues raised by the COVID-19 pandemic and protects a large and growing number of Americans. This Chapter focuses on application …

Building Back Better: Investing In A Resilient Recovery For Washington State, Kevin Tempest, Jonah Kurman-Faber, Ruby Wincele

Washington Journal of Environmental Law & Policy

This article analyzes the potential jobs and community health benefits created by a sample Resilient Recovery Portfolio of investments in Washington State. This type of investment mindset can kick-start job growth, shared economic prosperity, cleaner air, and climate-resilient communities, thereby serving as a template for Building Back Better in Washington and elsewhere. A Resilient Recovery Portfolio supports over ten jobs per million dollars invested in clean transportation, forest conservation and ecosystem restoration, clean energy, water and energy efficiency, low carbon agriculture, and sustainable industry programs. By comparison, the state’s ten largest industries support 4.3 jobs per million dollars invested. This …

Protecting Protected Activity, Daiquiri J. Steele

Washington Law Review

The United States Supreme Court recently rolled back protections in employment retaliation cases by requiring plaintiffs to prove that their protected activity was the but-for cause of adverse actions by their employers. As a result, employers may escape liability even though the employee-plaintiffs have proven that employers had an impermissible motive in taking adverse actions. In doing so, the Court undermined the underlying statutes’ retaliation provisions created to help enforce the underlying statute, leading to a court-instituted failure to protect activity that Congress sought to protect.

While legal scholars have paid much attention to the establishment of a but-for causation …

Restoring Reasonableness To Workplace Religious Accommodations, Dallan F. Flake

Washington Law Review

When Congress amended Title VII of the Civil Rights Act in 1972 to require employers to reasonably accommodate employees’ religious practices absent undue hardship to their business, it intended to protect employees from being forced to choose between their jobs and their religious beliefs. Yet in the decades since, courts have cut away at this right to the point it is practically nonexistent. Particularly concerning is the growing tendency of courts to read reasonableness out of the accommodation requirement, either by conflating reasonableness and undue hardship so that an accommodation’s reasonableness depends solely on whether it would cause the employer …

Washington's One-Size-Fits-All Unemployment Compensation Eligibility In Cases Of Voluntary Separation, Julia Fleming

Washington Law Review Online

Washington State’s Employment Security Act allows individuals who voluntarily left their jobs to be eligible for unemployment benefits if they quit their position with “good cause.” In structuring this Act, the state’s legislature has confined the definition of good cause to a one-size-fits-all list consisting of eleven circumstances. Consequently, if a situation arises that forces an individual to quit their job, yet does not fall into one of those eleven outlined circumstances, the Employment Security Department will disqualify the individual from receiving unemployment benefits. In comparison with other states’ unemployment laws, Washington’s system is quite limited, allowing no discretion under …

License To Offend: How The Nlra Shields Perpetrators Of Discrimination In The Workplace, Molly Gibbons

Washington Law Review

Congress established the National Labor Relations Board (NLRB or the Board) to enforce the National Labor Relations Act (NLRA or the Act) and ensure fair labor practices in workplaces across the United States. The NLRA protects employees from discipline while engaging in union activity. Under the NLRA, employers and unions must collectively bargain in good faith. Either party may only walk away from the table when another party’s conduct makes good faith bargaining impossible. However, the NLRB’s determination of what conduct constitutes bad faith bargaining and protected union speech is inconsistent with federal anti- discrimination laws. This discrepancy means employers …

Ride-Hailing Drivers As Autonomous Independent Contractors: Let Them Bargain!, Ronald C. Brown

Washington International Law Journal

“Autonomous” workers include most gig-platform drivers, like those working globally for Uber and Lyft, who are usually classified as independent contractors and are ineligible for labor protections and benefits. The “new economy” and its business model, with its fissurization and increased use of contingent and outsourced workers hired as independent contractors, provide employers flexibility and lower costs by shifting labor costs to the workers. Many of these workers operate more as employees rather than genuine independent contractors or self-employed entrepreneurs, causing lost employee labor benefits and costing the government billions of lost tax dollars. Legal attempts continue to classify these …

How To Establish Labor Protection Standards For Kenyan Local Workers In Chinese Multinational Corporations, Qun Zhao

Washington International Law Journal

China has increased investment into Kenya since it proposed the Belt and Road Initiative. Many Chinese State-Owned-Enterprises (“SOEs”) and private companies have established their presence in Kenya; most of them engage in labor-intensive industries like infrastructure building or manufacturing. Labor-intensive work requires companies to hire many local workers, which gives rise to labor conflicts between Chinese employers and Kenyan employees. Major conflicts between the two parties stem from several factors including informal hiring, wrongful termination, and tense relations with Kenyan labor unions. This article suggests that Chinese companies in Kenya should comply with Kenyan labor law to resolve labor issues …

China-Eu Bit And Fta: Building A Bridge On The Silk Road Not Detoured By Labor Standard Provisions, Ronald C. Brown

Washington International Law Journal

It is time for European Union and Chinese leaders to build on the existing EU-China 2020 Strategic Agenda for Cooperation, quickly conclude on-going negotiations on their EU-China Bilateral Investment Treaty, and begin substantive negotiations on an EU-China Free Trade Agreement? China is now the European Union's second-biggest trading partner behind the United States, and the European Union is China's biggest trading partner. China is reaching to become the leader in globalism and is investing heavily to make it happen. One of the world’s largest projects, the Belt and Road Initiative is a primary driver of China's larger development strategy. A …

Platform Pleading: Analyzing Employment Disputes In The Technology Sector, Joseph A. Seiner

Washington Law Review

The technology sector has created thousands of new jobs for workers across the country in an emerging multi-billion dollar industry. Many companies in this platform-based sector are attempting to characterize their workers as independent contractors rather than employees, thus stripping them of both federal and state workplace protections—including the right to bargain collectively, receive fair compensation, and avoid discrimination. The federal courts, which have always grappled with the question of worker classification, are now struggling to define employment with respect to these gig sector jobs. The result has been scattered court decisions with inconsistent and conflicting analyses. This Essay seeks …

The Return Of The Technical Mcdonnell Douglas Paradigm, Katie Eyer

Washington Law Review

For many anti-discrimination plaintiffs, the McDonnell Douglas paradigm will determine the success or failure of their claims. And yet, for decades, most lower courts have applied a technical version of McDonnell Douglas—under which plaintiffs invariably lose. Thus, instead of asking the factual question of whether the defendant’s action was “because of” protected class status, the lower courts rely on a host of technical rules to dismiss even factually strong anti-discrimination claims. This is not the first time the lower courts have attempted to adopt a technical version of the McDonnell Douglas paradigm. In the 1970s and 1980s, the lower courts …

Regulating Wage Theft, Jennifer J. Lee, Annie Smith

Washington Law Review

Wage theft costs workers billions of dollars each year. During a time when the federal government is rolling back workers’ rights, it is essential to consider how state and local laws can address the problem. As this Article explains, the pernicious practice of wage theft seemingly continues unabated, despite a recent wave of state and local laws to curtail it. This Article provides the first comprehensive analysis of state and local anti-wage theft laws. Through a compilation of 141 state and local anti-wage theft laws enacted over the past decade, this Article offers an original typology of the most common …

An Empirical Study Of Fast-Food Franchsing Contracts: Towards A New "Intermediary" Theory Of Joint Employment, Kati L. Griffith

Washington Law Review

The “Fight for Fifteen and a Union” movement among fast-food workers and their allies has raised awareness about wage inequality in the United States. Rather than negotiating for better wages and working conditions with economically weak restaurant-level franchisees, the movement aims to affect the practices of what they view as the all-powerful brands—the franchisors. Few would dispute the notion that the franchisor brands, not their franchisees, set industry-wide standards and, thus, have the ability to offset rising wage inequality and improve working conditions. And yet, the movement has raised controversial law and policy questions about the legal responsibilities of these …

Employees As Regulators: The New Private Ordering In High Technology Companies, Jennifer S. Fan

Articles

There is mounting public concern over the influence that high technology companies have in our society. In the past, these companies were lauded for their innovations, but now as one scandal after another has plagued them, from being a conduit in influencing elections (think Cambridge Analytica) to the development of weaponized artificial intelligence, to their own moment of reckoning with the #MeToo movement, these same companies are under scrutiny. Leaders in high technology companies created their own sets of norms through private ordering. Their work was largely unfettered by regulators, with the exception of the Securities and Exchange Commission’s oversight …

Disrupting Adhesion Contracts With #Metoo Innovators, Xuan-Thao Nguyen

Articles

Adhesion contracts are everywhere. Take it or leave it, the dominant party holds the leverage while the weaker party adheres. Ninety percent of employment contracts contain mandatory arbitration clauses, and attempts to challenge arbitration requirements meet with judicial indifference or hostility. Ultimately, arbitration clauses eviscerate the employee's right to a jury trial and access to the court system in general. In recent years, employers in the tech sector have faced unexpected resistance from innovators. Just as innovators are known for disrupting old business models through technological innovations, #MeToo reformers are disrupting the seemingly insurmountable adhesion contract regime. They organize, protest, …

Permitted Incentives For Workplace Wellness Plans Under The Ada And Gina: The Regulatory Gap, Elizabeth Pendo

Articles

Although workplace wellness plans have been around for decades, they have flourished under the Patient Protection and Affordable Care Act (“PPACA”) into a $6 billion-dollar industry. Under PPACA, a “wellness plan” is a program of health promotion or disease prevention offered by an employer that is designed to promote health or prevent disease and which meets the other applicable requirements of that subsection. Employers look to these programs to promote healthy lifestyles, improve the overall health of employees and beneficiaries, and reduce rising healthcare costs.

PPACA’s amendments to the Health Insurance Portability and Accountability Act (“HIPAA”) permit employers to offer …

The Multiple Justifications Of Occupational Licensing, Nick Robinson

Washington Law Review

Nearly a quarter of all workers in the United States are currently in a job that requires an occupational license. As the prevalence of occupational licensing has grown, so have claims that its overuse is causing increased consumer costs and impairing labor mobility and economic freedom. To address these concerns, many policymakers and academics argue that licensing restrictions should be more closely tailored to the goal of protecting the public from harm and that, to guard against capture, practitioners should not regulate their own licensing. Federal courts, in turn, have drawn on this vision of the proper role of occupational …