Labor and Employment Law Commons^™

The Defense Case For Rico Reform, Terrance G. Reed

Vanderbilt Law Review

Frequent use of the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO)' by government and private litigants has prompted a chorus of criticism during the last five years. This criticism has not been restricted to the narrow confines of the legal profession;many respectable newspapers recently have issued calls for the outright repeal of RICO. Attorneys who regularly defend against criminal or civil RICO allegations cannot take credit for the increasing dissatisfaction with RICO. Rather, it is the successes, and indeed the excesses, of RICO's proponents that have tarnished the statute's image. RICO's revolutionary application to increasingly broad areas of …

A Conceptual, Practical, And Political Guide To Rico Reform, Gerard E. Lynch

Vanderbilt Law Review

RICO is nearing its twentieth birthday,' but it may not be a happy one. In fact, 'tis the season for critics of RICO to be, if not jolly, at least highly active. A House subcommittee and the Senate Judiciary Committee have held hearings on RICO reform, the popular and business press has published numerous debates and criticisms involving fairly arcane points of civil and criminal law, scholars and lawyers have filled law reviews and legal newspapers with articles often critical of the statute, and the pressure has been building for statutory changes.

As the pressure for change has intensified, and …

Education Match And Job Match, Joni Hersch

Vanderbilt Law School Faculty Publications

Using a new data set, this paper gives evidence in support of the intuitive notion that overqualified workers are less satisfied with their jobs and are more likely to quit. However, training time is inversely related to overqualification, which suggests why such seeming mismatches occur and may in fact be optimal.

The Eeoc Is Meeting The Challenge: Response To David Rose R., R. Gaull Silberman

Vanderbilt Law Review

In his recent article, Twenty-Five Years Later: Where Do We Stand On Equal Employment Opportunity Law Enforcement?, David Rose declares, "The time is ripe for review." Mr. Rose argues that "effective enforcement of the equal employment opportunity law in the next decade is a necessary, if not sufficient, predicate for the social and economic well being of the Nation."' From my perspective as Vice Chairman of the Equal Employment Opportunity Commission (EEOC or Commission), I heartily agree with both points. I must take issue,however, with Mr. Rose's assessment of developments in federal equal employment opportunity law over the last twenty-five …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Agency for International Development's Adoption of Policy Placing Abortion-Related Restrictions on Grants to Nongovernmental Organizations Upheld DKT Memorial Fund Ltd. v. Agency for International Development 887 F.2d 275 (D.C. Cir.1989)

Federal Long-Arm Statute Authorizes Assertion of Personal Jurisdiction over Foreign Holder of United States Patent in Patent Ownership Suit National Patent Development Corporation v. T.J. Smith & Nephew Ltd. 877 F.2d 1003 (D.C. Cir.1989) (en banc)

Venue over Alien Defendants in Antitrust Suit Proper in any United States Federal District Court under Alien Venue AcT-Go-Video, Inc. v. Akai Electric Co., Ltd. 885 F.2d 1406(9th Cir. 1989)

INS Oral Notice to …

Reflections On The House Of Labor, Lee Modjeska

Vanderbilt Law Review

Much has been said of the deteriorating condition and possible fall of the house of labor.' This Essay contains some idiosyncratic reflections on certain aspects of the situation. Contrary to the mainstream of thought, my suspicion, to use Justice Frankfurter's words, is that those"economic and social concerns that are the raison d'etre of unions"remain dominant in our society, that unionism may be inevitable if not indispensable, and that our days of relative labor calm may be ending.National labor policy repeatedly has recognized the reality of modern society, viewed against a long history of industrial unrest, that a union is essential …

The Constitutional Exercise Of The Federal Police Power: A Functional Approach To Federalism, Alan N. Greenspan

Vanderbilt Law Review

The Employee Polygraph Protection Act of 19881 (Polygraph Act) prohibits the use of polygraph examinations by private employers actively participating in commerce or producing goods for interstate commerce. Prior to this federal action, forty-one states had addressed the issue of employer use of polygraph examinations. Twelve states and the District of Columbia prohibit employer use of polygraph tests altogether. Of the remaining states, some require licensing of examiners and others regulate the circumstances under which an employer may require polygraph examination of an employee. According to the legislative history, federal legislation is necessary because state regulations are ineffective: existing state …

Hybrid Employees: Defining And Protecting Employees Excluded From The Coverage Of The National Labor Relations Act, Patrick S. Bryant

Vanderbilt Law Review

Any discussion of labor-management relations naturally assumes two parties: labor and management. Fundamental to both the industrial philosophy and labor legislation of the United States has been the assumption of mutually exclusive and largely adversarial camps of "employers" and "employees." This rigid dichotomy, however, fails to recognize the existence of a third group of workers that fits neither the labor nor the management typology. These workers are best described as hybrid employees: workers who arguably deserve many of the statutory protections afforded to labor but who may be aligned too closely with the employer's interests to warrant the protection of …

The Future Of Labor-Management Cooperative Efforts Under Section 8(1)(2) Of The National Labor Relations Actfff, David H. Brody

Vanderbilt Law Review

Much of the current debate concerning labor-management cooperative efforts centers on section 8(a)(2) of the National Labor Relations Act (the Act), which makes dominating, interfering with, or contributing to the formation or administration of any labor organization an unfair labor practice. On its face, this section may inhibit cooperative efforts through a prohibition of management support for employee organizations. The effect of section 8(a)(2), however, need not be so restrictive because of the Act's underlying concern for the effectuation of employee freedom of choice. A concern for employee free choice provides a means for permitting positive cooperative efforts, consistent with …

Introduction: Special Project - Labor Management Cooperation, Journal Staff

Vanderbilt Law Review

In the midst of the industrial strife and upheaval of the 1930s, the United States Congress, with the passage of the National Labor Relations Act (NLRA), established the legal framework that regulates the rights and interests of both labor and management through an adversarial collective bargaining process.' As domestic businesses have expanded to serve a worldwide market, however, the modern labor-management relationship is experiencing intense pressure from foreign competition that is rattling the adversarial process' foundations. In an attempt to raise productivity and quality, many American businesses have participated in cooperative efforts with employees, focusing one employee participation in the …

The Viability Of Distinguishing Between Mandatory And Permissive Subjects Of Bargaining In A Cooperative Setting: In Search Of Industrial Peace, Thomas T. Crouch

Vanderbilt Law Review

In July 1985 General Motors entered into an agreement with the United Auto Workers (UAW) setting forth the terms and conditions of a future automobile facility, known as the Saturn Corporation, in Spring Hill, Tennessee. General Motors and the UAW view this project as an unprecedented achievement in "union-management partnership." The goal of the Saturn project is to maintain General Motors'viability as a domestic enterprise through an agreement to build a new subcompact car in the United States. This partnership between the corporation and the UAW will include employee participation and enhanced job security. Faced with mounting competition from overseas …

Alternatives To The United States System Of Labor Relations: A Comparative Analysis Of The Labor Relations Systems In The Federal Republic Of Germany, Japan, And Sweden, Linda L. Rippey, David H. Brody, Patrick S. Bryant, Thomas T. Crouch

Vanderbilt Law Review

This Special Project Note analyzes the labor relations systems of the Federal Republic of Germany, Japan, and Sweden, focusing on the statutory developments as well as the social, political, and economic factors that shape those systems. Parts II through IV discuss the general structure and operation of each of these systems. Part V compares and contrasts these systems to the American system by applying them to a hypothetical corporate merger. Finally, Part VI discusses the feasibility of a partial or total adoption of any of the three foreign systems by the United States.

Equal Pay Acts: A Survey Of Experience Under The British And American Statutes, Robert N. Covington

Vanderbilt Journal of Transnational Law

The United States Congress passed the Equal Pay Act in 1963 as an amendment to the Fair Labor Standards Act. Its British parallel, the Equal Pay Act 19702, took effect at the very end of 1975 and was much amended by the Sex Discrimination Act 1975. The five year delay between enactment and enforcement provided time for employers and labor unions to adjust to the new requirements. The drafters of the British statute were aware of the United States statute, and United States cases interpreting that act were relied on quite early in United Kingdom litigation. Now that the British …

Recent Decision, R. Christian Hutson

Vanderbilt Journal of Transnational Law

Two dismissed employees, through their collective bargaining agent, sought reinstatement through the arbitration process. Relying on a California statute which made knowing employment of an illegal alien unlawful, the employer determined that the employees resided in the United States illegally and dismissed them." The collective bargaining representative argued that the employer lacked "just cause" to make the dismissal. The arbitrator adopted the representative's position, ruling that continued employment of the two illegal aliens would not subject the employer to criminal liability and holding the California statute "dormant." Based on this finding, the arbitrator awarded reinstatement to each employee and backpay …

The Structure And Enforcement Of Job Safety Regulation, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

For more than a decade, the Occupational Safety and Health Administration (OSHA) has been regulating the technology and work practices of employers. This governmental function is relatively new and is quite different from the usual governmental involvement in labor market policies. Some government efforts, such as job training and unemployment compensation, involve no direct impact on workplace operations, except that which may be induced indirectly through the incentives these policies generate. Even the minimum wage law does not directly lead to any governmental intrusion into the nature of the work relationship. In contrast, OSHA regulations specify what safety guards must …

Moral Hazard And Merit Rating Over Time: An Analysis Of Optimal Intertemporal Wage Structures, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

In situations of uncertain worker productivity and risk aversion, labor market contracts have a dual objective of promoting incentives and risk spreading. A trade-off between these objectives is present in single period models as well as in the multi-period models that were the focus of this paper. When there is more than a single period, there will be a divergence between the within period expected productivity and the spot expected wage rate as the wage structure is utilized to promote the creation of work incentives. In effect, firms will merit rate workers on an actuarially unfair basis when viewed within …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Act of State Doctrine and Foreign Sovereign Immunities Act Do Not Necessarily insulate a Foreign Government from Civil Liability for the Assassination of a Person on United States Soil - Liu v. Republic of China, slip op. No. 85-7461 (N.D. Cal. Aug. 11, 1986)

Political Offense Exception does not Apply to Bar Extradition if Offenses are Committed Where no Uprising Exists--Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986).

United States Courts have no Authority to Enforce Foreign Judgments when the Request for Judicial Assistance is made via Letters Rogatory Filed Directly in the Court, In Re Civil Rogatory Letters …

The Supreme Court Takes One Step Forward And The Nlrb Takes One Step Backward: Redefining Constructive Concerted Activities, Christina A. Karcher

Vanderbilt Law Review

The National Labor Relations Act (NLRA or the Act) governs the relationship between employers and employees in the United States. Specifically, section 7 of the Act 3 defines the basic rights of employees and section 8(a)4 defines employer unfair labor practices. Section 8(a)(1) generally proscribes employers from interfering with employees in the exercise of section 7 rights.' Thus,many unfair labor practice cases turn on whether section 7 of the Act protects the employee activity. Section 7 protects "concerted activities" engaged in "for the purpose of collective bargaining or other mutual aid or protection."' Courts frequently struggle to determine whether given …

Allocation Of Time And Human Energy And Its Effects On Productivity, Joni Hersch

Vanderbilt Law School Faculty Publications

The supply of effort on the job has been virtually ignored as a component of the effective supply of labour. Typically, labour supply models assume the worker chooses the utility-maximizing number of hours to supply on the job as a function of a fixed wage rate which is independent of the worker's effort. This paper generalizes the worker's choice problem to include the situation in which the worker's income depends on effort exerted on the job as well as time spent on the job.

Protecting A Union Member's Right To Resign-Resolution Of The Conflict Between Dalmo Victor And Rockford-Beloit, Laura A. Norman

Vanderbilt Law Review

This Recent Development contends that a union restriction on a member's right to resign constitutes an unfair labor practice under section 8(b)(1)(A). Part II of this Recent Development focuses on judicial and Board treatment of the inherent conflict between an employee's section 7 right to refrain from collective activity and a union's authority to regulate internal affairs.

Part III examines three recent decisions addressing a union's authority to restrict a member's right to resign. Finally, part IV suggests that the Supreme Court should apply the Scofield v. NLRB three-part test to union rules restricting resignation. Part IV also asserts that …

The Strange New World Of United States Export Controls Under The International Emergency Economic Powers Act, Joel B. Harris, Jeffrey P. Bialos

Vanderbilt Journal of Transnational Law

This Article examines whether the President's reauthorization of the Regulations is within the scope of the authority provided by IEEPA and explores the potential long term consequences of "life under IEEPA" for the United States system of export and boycott-related controls.

Section I analyzes whether the President's emergency powers under the IEEPA permit the maintenance of regulations originally promulgated under a statute that has since lapsed (i.e. the EAA). The Article demonstrates that when Congress promulgated the IEEPA, Congress expressly evinced its intent to give the President broad emergency authority to regulate exports and boycott-related practices during periods of the …

The National Labor Relations Act Does Not Preempt A Discharged Permanent Replacement Worker's State Cause Of Action, Stephanie L. Stromire

Vanderbilt Law Review

The purpose of this Recent Development is to examine the issues surrounding discharged permanent replacement workers and to discuss problems confronting state courts that try to implement the Belknap decision. Part II of this Recent Development analyzes the legal background leading up to Belknap. Part III examines the Belknap opinion. Part IV criticizes the decision on three fronts and suggests possible ways of addressing the problems that Belknap presents.

Working Class Hero: A New Strategy For Labor, David L. Gregory

Vanderbilt Law Review

It is very rare to find a worthwhile book so fraught with fundamental weaknesses. Fortunately, Aronowitz' flawed conclusions readily can be separated from his fine historical and political analysis of the American labor movement. The first two sections of the book are a legitimate contribution to historical progressive labor scholarship. The broader perspective posited by Aronowitz, the union organizer, may enhance future labor scholarship. The crucial task, however, remains: Progressive labor scholars must move from criticism of conventional labor relations modalities to a formulation of realistic plans for the achievement of full human dignity in the employment environment. Working Class …

The Export-Import Bank Of The United States And South Africa: The Effects Of The Evans Amendment, Anthony N. Vance

Vanderbilt Journal of Transnational Law

The Evans Amendment is an example of legislation that had the opposite effect of that which was congressionally intended. The Amendment was designed as a compromise to keep the Eximbank in South Africa, but its effect has been the termination of Eximbank activity in that country.

The United States exporters that expected to be hurt by the termination of Bank activity have apparently been largely unaffected because of the availability of other financing sources, particularly within South Africa. As a result, foreign competitors with uninterrupted financing support from their own governments have failed to make significant inroads into the business …

Book Review: The Winding-Up Of Insolvent Companies In England And France, Keith M. Lundin

Vanderbilt Journal of Transnational Law

Livadas provides an especially adept analysis and comparison of the treatment of employees of insolvent companies in the two countries. The author convincingly demonstrates that a French "liquidation des biens" protects employee wages, benefits, and claims more extensively than an English winding-up proceeding. The French requirement of compulsory insurance to protect the wages of employees and the special privilege afforded employees against the immovable assets of a French company are without analogy in English winding-up law. Livadas punctuates the chapters on the liabilities of officers and directors, which are generally more strict in France than in England, and the priorities …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Japan's Reshaping of American Labor Law By William B. Gould Cambridge, Massachusetts: The MIT Press, 1984. Pp.xii, 166. $19.95.

World Economic Outlook By The Staff of the International Monetary Fund Washington, D.C.: International Monetary Fund,1984. Pp. ix, 162. $15.00.

Recent Multilateral Debt Restructurings With Official and Bank Creditors By E. Brau and R.C. Williams Washington, D.C.: International Monetary Fund, 1983. Pp. vii, 28. $5.00.

The Fund, Commercial Banks, and Member Countries By Paul Mentre Washington, D.C.: International Monetary Fund, 1984. Pp. v, 35. $5.00.

International Law and the New States of Africa By Yilma Makonnen New York: Unipub, 1983. Pp. …

The First Amendment And Nonpicketing Labor Publicity Under Section 8(B)(4)(Ii)(B) Of The National Labor Relations Act, Lee Goldman

Vanderbilt Law Review

This Article attempts to provide the appropriate constitutional analysis of restrictions on nonpicketing labor publicity. Part II describes the relevant statute and illustrative cases, including the Supreme Court's DeBartolo decision, that have raised but not resolved the first amendment issues concerning nonpicketing labor publicity. The cases focus attention on two restrictions the courts have imposed on nonpicketing labor publicity-the "producer-distributor" and the "for the purpose of" requirements. Part III analyzes the protected status of the nonpicketing labor speech by comparing nonpicketing labor publicity with labor picketing and commercial speech-two areas that bear superficial similarity to nonpicketing labor publicity and that …

National Labor Relations Act: The Roles Of The Nlrb And The Courts Of Appeals After Pullman-Standard In Determining Employer Motivation In Section 8 (A)(3) Dual Motive Cases, William E. Anderson

Vanderbilt Law Review

This Note advocates use of the Pullman-Standard Title VII model to define the proper roles of the Board and the courts of appeals in determining discriminatory intent in section 8 (a)(3) dual motive cases. Part II of this Note discusses the current confusion concerning the amount of discretion a court of appeals owes the Board's finding of discriminatory intent in dual motive cases. Part II also traces the Supreme Court's failure to define clearly the proper roles of the Board and the courts of appeals in finding discriminatory intent, the confusion this failure has caused, and the Board's unsuccessful attempt …

The Deductibility Of Daily Transportation Expenses To And From Distant Temporary Work Sites, Michael D. Rose

Vanderbilt Law Review

In the Article Professor Rose addresses the uncertainty that has characterized judicial application of Internal Revenue Code provisions to daily transportation expenses to and from distant temporary work sites. Although the Internal Revenue Code disallows deductions for commuting expenses to and from work, transportation expenses between work sites are deductible. The courts have had some difficulty applying these principles to distant temporary work sites. Professor Rose argues that the United States Tax Court in Turner v. Commissioner has fomented much of this confusion. Although the court reached the correct determination on the facts, its rationale is flawed. According to Professor …

United States Employment Taxation Of German Nationals Working In The United States, John L. Gornall, Jr., Kevin Conboy

Vanderbilt Journal of Transnational Law

This Article begins with a discussion of the general application of FICA, SECA, and FUTA to nonresident aliens. Knowledge of the ordinary United States employment taxation scheme is necessary for an understanding of how the totalization agreement works.

The second part of this Article explains how totalization agreements between the United States and certain foreign countries--including the Federal Republic of Germany--have altered the United States employment taxation of nonresident aliens. These agreements generally provide the following: (1) the foreign worker and employer may pay taxes and receive benefits from either the home country or the temporary host country, but in …