Labor and Employment Law Commons^™

Household Specialization And The Male Marriage Wage Premium, Joni Hersch, Leslie S. Stratton

Vanderbilt Law School Faculty Publications

Empirical research has consistently shown that married men have substantially higher wages, on average, than otherwise similar unmarried men. One commonly cited hypothesis to explain this pattern is that marriage allows one spouse to specialize in market production and the other to specialize in home production, enabling the former - usually the husband - to acquire more market-specific human capital and, ultimately, earn higher wages. The authors test this hypothesis using panel data from the National Survey of Families and Households. The data reveal that married men spent virtually the same amount of time on home production as did single …

Working Without Rights: Recognizing Housestaff Unionization--An Argument For The Reversal Of "Cedars-Sinai Medical Center And St. Clare's Hospital", Jennifer A. Shorb

Vanderbilt Law Review

Increased competition in today's health care industry has contributed to the industry's growing emphasis on cost-containment. Concerns about this focus on the bottom line have motivated some caregivers to attempt to improve working conditions and the quality of patient care through unionization. One such group, "housestaff' or "house officers," is comprised of hospital interns, residents, and fellows. These individuals are medical school graduates seeking additional training for licensure and specialization. Housestaff are often overworked, underpaid, and forced to deal with working conditions that adversely affect patient care. Such conditions force many house officers to join union organizations and seek the …

Free Competition Or Corporate Theft?: The Need For Courts To Consider The Employment Relationship In Preliminary Steps Disputes, Scott W. Fielding

Vanderbilt Law Review

The scenario occurs daily in many different businesses. A disgruntled employee decides to use her talents, skills, and knowledge of the industry to start a rival enterprise. She plans to do things differently-offer lower prices, a different sales approach, a more service-oriented style. To minimize the risk involved, the employee decides to investigate potential markets, possible locations for the business, and financing. She would also like to discuss first-hand with current clients or fellow employees the possibility that they would follow her into the new business. Concerned with breaching fiduciary obligations, the employee contacts her attorney and asks for advice-specifically, …

Compulsory Arbitration Agreements In Employment Contracts From Gardner-Denver To Austin: The Legal Uncertainty And Why Employers Should Choose Not To Use Preemployment Arbitration Agreements, John-Paul Motley

Vanderbilt Law Review

In Gilmer v. Interstate/Johnson Lane Corp. the Supreme Court enforced a mandatory arbitration clause in a securities registration application and barred the employee from seeking relief in federal court for his Age Discrimination in Employment Act ("ADEA") claim.' Since the Court's decision compelling arbitration of an employee's statutory claim, labor and employment lawyers have encouraged employers to include binding arbitration clauses covering all potential employer-employee claims in employment applications, handbooks, and collective bargaining agreements ("CBAs"). As one commentator wrote after the Gilmer decision, "[t]he only thing remaining is for employers to begin writing compulsory arbitration clauses into their employment contracts." …

Gray Power In The Gray Area Between Employer And Employee: The Applicability Of The Adea To Members Of Limited Liability Companies, Alan R. Haguewood

Vanderbilt Law Review

The American populace is aging.' At the same time, modern medicine enables Americans to remain productive members of the workforce for a longer period of time. The confluence of these two trends augurs increased use of the Age Discrimination in Employment Act ("ADEA), as companies try to force aging employees to retire despite their prolonged productivity. Another trend within the past decade has been the rise of various hybrid corporate forms that combine the beneficial aspects of partnerships and corporations, one example of which is the limited liability company ("LLC"). This increase in the number of different types of corporate …

Teen Prostitution In Japan: Regulation Of Telephone Clubs, Andrew D. Morrison

Vanderbilt Journal of Transnational Law

The history of prostitution in Japan may be traced to the eighth century. Originally, prostitutes carried on their trade individually and independently. Around the thirteenth century, however, the nature of prostitution changed, as prostitutes formed small enterprises located in red-light districts. By the seventeenth century, red-light districts existed throughout Japan.

In 1900, the Japanese government, realizing the widespread proliferation of the prostitution industry, passed the Regulation for Control of Prostitutes. The law regulated prostitution nationwide by requiring prostitutes to register with local government authorities and to undergo regular health inspections. This system continued until the end of World War Two, …

Realigning Corporate Governance: Shareholder Activism By Labor Unions, Randall Thomas, Stewart J. Schwab

Vanderbilt Law School Faculty Publications

This paper investigates the increased shareholder activism by labor unions and their pension funds, who are now the most aggressive institutional shareholders. Sometimes unions propose traditional corporate-governance measures through procedures familiar to shareholders. Only the union sponsor is novel. But recently unions have pushed innovative methods to get corporations to listen to shareholder complaints. These methods include mandatory amendment of corporate by-laws by shareholders and floor proposals submitted for a shareholder vote at the annual meeting. Unions as shareholders have conflicting roles. We distinguish union-shareholder initiatives designed to further unions' traditional organizing and collective bargaining goals from those that enhance …

Mandating English Proficiency For College Instructors: States' Responses To "The Ta Problem", Kenneth King

Vanderbilt Journal of Transnational Law

This Note examines the background, provisions, effects, and constitutionality of state legislation mandating English proficiency assessment for college instructors. Such legislation responds to complaints about the comprehensibility of international instructors--particularly teaching assistants--at U.S. colleges and universities. U.S. universities employ large numbers of international instructors in scientific, technical, and business fields. Such employment is only one aspect of a broader U.S. importation of scientific and technical talent. This Note first considers the background and legitimacy of complaints about international instructors, and then examines the background and details of specific state provisions. It discusses the statutes' effects and particular concerns they raise, …

God, Labor, And The Law: The Pursuit Of Religious Equality In Northern Ireland's Workforce, Jane H. Thorpe

Vanderbilt Journal of Transnational Law

In Northern Ireland, a Catholic man is twice as likely to be unemployed as his Protestant counterpart. This employment differential can be attributed directly to the religious sectarianism that has plagued Northern Ireland for almost 400 years. Traditionally, the Protestant community has used economic rights and employment opportunities to maintain its power and authority over the Catholic community. Resolution of this employment differential would be a key step toward achieving peace and unity in Northern Ireland; however, no progress can be made toward this goal until both communities share economic benefits and hardships. In 1989, the British Parliament passed the …

Compensating Differentials For Gender-Specific Job Injury Risks, Joni Hersch

Vanderbilt Law School Faculty Publications

Women have largely been excluded from analyses of compensating differentials for job risk since they are predominantly employed in safer, white-collar occupations. New data reveal that their injury experience is considerable. One-third of the total injury and illness cases with days away from work accrue to female workers. Adjusted for employment, women are 71 percent as likely as men to experience an injury or illness. As one would predict on theoretical grounds, these risks generate compensating differentials. Based on gender-specific injury incidence rates for both industry and occupation, I find strong evidence of compensating wage differentials for the job risk …

A Straitjacket For Employment At-Will: Recognizing Breach Of Implied Contract Actions For Wrongful Demotion, Gregory M. Munson

Vanderbilt Law Review

For over a century, employment at-will has been the law in almost all American jurisdictions.' As a result, employers can fire their employees, and employees can quit, with or without reason. In addition, employers have the authority under the at-will rule to regulate all terms and conditions of employment. During the past two decades a series of judicial exceptions to the at-will rule that prohibit termination of an employee for a variety of reasons have eroded the at-will doctrine. These exceptions fall into two categories. First, an employer may not terminate an employee for reasons that violate public policy Second, …

Mahoney V. Rfe/Rl: An Unexpected Direction For The Foreign Laws Defense, Thomas Wang

Vanderbilt Journal of Transnational Law

A law is only as good, or as powerful, as its exceptions allow it to be. Unless carefully drawn, an exception intended to avoid unjust or impractical applications of a rule can consume the rule itself. In the case of the Age Discrimination in Employment Act and Title VII, which were amended to apply to U.S. citizens working abroad, the "foreign laws defense," as interpreted in Mahoney v. RFE/RL, threatens to defeat the application of the general rule prohibiting discrimination. This Note briefly traces the history of the extraterritorial application of U.S. law and the interests that were served by …

Rethinking Independence: The Lack Of An Effective Remedy For Improper For-Cause Removals, Tracey A. Hardin

Vanderbilt Law Review

Despite persistent constitutional questions, United States administrative agencies have grown in influence during this century.' Much of this controversy has centered around Congress's ability to control the removal of administrative officials constitutionally. In an effort to retain control of administrative agencies and in recognition of the need to conduct certain adjudicative functions outside the executive's domain, Congress has sought to create some agencies free from presidential influence. In particular, Congress has focused on at- tempting to limit the President's power to remove administrative officials. Although such limitations have always been controversial, the Supreme Court is generally thought to have resolved …

Kalanke V. Freie Hansestadt Bremen: The Significance Of The Kalanke Decision On Future Positive Action Programs In The European Union, Rebecca Means

Vanderbilt Journal of Transnational Law

In the landmark case Kalanke v. Freie Hansestadt Bremen, the European Court of Justice held that a German state law giving women an "absolute and unconditional priority" in the labor market was inconsistent with the European Equal Treatment Directive. Although many Europeans vehemently criticized the Kalanke decision initially, the furor now appears to have subsided. As a result of this decision, however, the European Union is currently re-examining equal treatment policies and will likely provide further guidance to Member States attempting to formulate positive action programs.

This Note first discusses the institutions of the European Union as they relate to …

Using Agency Principles For Guidance In Finding Employer Liability For A Supervisor's Hostile Work Environment Sexual Harassment, Glen A. Staszewski

Vanderbilt Law Review

Title VII of the Civil Rights Act of 1964, as amended 'Title VII," prohibits sexual harassment in the workplace.' The courts have created two categories of sexual harassment. The first, quid pro quo sexual harassment, occurs when a supervisor requires sexual consideration from an employee in exchange for job benefits. The second, hostile work environment sexual harassment, occurs when an employee is subjected to unwelcome sexual harassment that affects a term, condition, or privilege of employment. The victim must prove that the harassment is sufficiently severe or pervasive to alter the conditions of hers employment and create an abusive working …

The Forgotten Interest Group: Reforming Title Vii To Address The Concerns Of Workers While Eliminating Sexual Harassment, Hannah K. Vorwerk

Vanderbilt Law Review

Since 1980, Equal Employment Opportunity Commission ("EEOC") guidelines have made employers liable for harassment perpetrated by their agents and supervisory employees, and, in some cases, for harassment occurring between co-workers in their employ. In 1991, Congress amended Title VII (the "Act") to provide compensatory and punitive damages for victims of sexual harassment. The increased damages heightened the stakes in lawsuits concerning employer liability for sexual harassment, and thus provided increased incentives for employers to implement sexual harassment policies and to discipline harassers.

The extant EEOC guidelines already had defined sexual harassment broadly to include "verbal or physical conduct of a …

Hooters: Should There Be An Assumption Of Risk Defense To Some Hostile Work Environment Sexual Harassment Claims?, Kelly C. Timmons

Vanderbilt Law Review

In 1993 several former waitresses at the restaurant "Hooters" sued the chain for sexual harassment. The lawsuits alleged that Hooters established a work environment in which its customers felt free to make sexual comments and advances to its waitresses.' Examples of the offensive nature of the work environment included the name of the restaurant ("Hooters," a slang term for women's breasts) and the sexually provocative uniforms the waitresses were required to wear. Responses to the lawsuits varied widely. Some individuals took the view that Hooters should be found liable for the sexual harassment of its waitresses by its customers, while …

A Draft Labor Code For Minsk: From Byelorussia With Love?, Lucas G. Paglia

Vanderbilt Journal of Transnational Law

Belarus, a former Eastern bloc country located between Russia and Poland, has drafted a comprehensive labor code to govern employment relations. This Note presents the historical underpinnings of the legislation, its major provisions, and its prospects for successfully handling labor disputes as well as encouraging foreign investment. The author first explores the current labor environment in Belarus, especially focusing on the recent privatization of industry, and its amenability to such regulation. The Note then analyzes specific provisions of the labor code and compares them to the National Labor Relations Act in the United States, as well as the conditions under …

Changing The Approach To Ending Child Labor: An International Solution To An International Problem, Timothy A. Glut

Vanderbilt Journal of Transnational Law

A recent study by the United States Department of Labor has revealed that oppressive child labor is a serious problem in many countries. This Note begins by examining the international scope of the child labor problem, including the underlying reasons for its continued existence. The Note then discusses measures, both unilateral and multilateral, for curtailing child labor. The author determines that these measures are insufficient to end the child labor problem and discusses potential solutions to the problem. The author concludes that the most effective measure to end child labor would be a multilateral agreement with clear standards and an …

Economic Globalization: The Challenge For Arbitrators, Ranee K.L. Panjabi

Vanderbilt Journal of Transnational Law

CHOICE OF LAW IN INTERNATIONAL COMMERCIAL ARBITRATION

By Okezie Chukwumerije

Westport, Connecticut: Quorum Books, 1994. Pp. 219.

Arbitration at the municipal level is becoming more frequently used because it is regarded as a more expeditious process for resolving disputes. In the realm of labor relations, for instance, arbitration is often the dispute resolution method of choice and is incorporated in numerous collective agreements. In an arbitration the two parties usually select an arbitrator and jointly pay the costs of the process. In the collective agreement or contract, the parties stipulate the terms of the procedure that generally bind the arbitrator, …

Rethinking Financial Information Disclosure Under The National Labor Relations Act, Brent Robbins

Vanderbilt Law Review

The National Labor Relations Act's ("NLRA") central purpose is to reduce industrial strife and stimulate economic growth by promoting collective bargaining between employers and unions.' The 1947 amendments to the Act make clear that collective bargaining must be conducted in good faith. Under the Act, as interpreted by the National Labor Relations Board ("NLRB") and the courts, labor and management must bargain collectively in good faith over the "mandatory" subjects of "wages, hours, and other terms and conditions of employment." From its earliest days, the NLRB has interpreted the duty to bargain collectively as requiring companies to bargain collectively with …

Job Matching And Women's Wage-Tenure Profile, Joni Hersch, Patricia Reagan

Vanderbilt Law School Faculty Publications

Recently, researchers have challenged the validity of the dominant theories of wage growth, claiming that the observed positive relation between wages and tenure is an artefact of omitted job match quality. In sharp contrast to the human capital theory, job match theory implies that women's wages are not directly affected by their discontinuous labour force participation. Using samples of women workers from three data sets, the authors estimate structural models of the wage-tenure relation which control directly for job match quality, and find evidence of a strong positive relation between wages and tenure.

Housework, Wages, And The Division Of Housework Time For Employed Spouses, Joni Hersch, Leslie S. Stratton

Vanderbilt Law School Faculty Publications

While the popular press may have declared housework passe with the advent of the two-income household (see "Housework is Obsolescent" by Barbara Ehrenreich [1993] for one such example), the facts indicate that housework continues to consume a substantial amount of time, particularly for women. While estimates vary widely depending on the sample examined and the methods used to generate the information, representative values of housework time range around 6-14 hours per week for men and 20-30 hours for women. Since wages are likely to be influenced both directly and indirectly by the time and effort devoted to other activities, and …

Tempering Title Vii's Straight Arrow Approach: Recognizing And Protecting Gay Victims Of Employment Discrimination, Marie E. Peluso

Vanderbilt Law Review

Consider the following scenario: Jerry, an outstanding graduate of Superior University's business school, has worked for Moneytree & Cashdollar, a prestigious investment banking firm, for three years. In that period, Jerry's hard work and keen instincts helped increase Moneytree's revenues by several million dollars. In addition, Jerry received two awards for landing important new clients. The firm's managing partners have discussed promoting Jerry to junior vice president, an executive position typically reserved for qualified fifth year employees. Jerry's supervisors and peers enthusiastically commend his dedication and skill. Two weeks before the vote on his promotion, Jerry lured a particularly valuable …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Extraterritorial Employment Standards of the United States: The Regulation of the Overseas Workplace

By James Michael Zimmerman

New York, New York: Quorum Books, 1992. Pp.206.

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Fact-Finding before International Tribunals

Edited by Richard B. Lillich

Irvington-on-Hudson, New York: Transnational Publishers Inc., 1992, Pp. 338.

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International Human Rights Law in the Commonwealth Caribbean

Edited by Angela D. Byre and Bevereley Y. Byfield

Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991. Pp. 398.

Employer Sexual Harassment Liability Under Agency Principles:A Second Look At Meritor Savingsbank, Fsb V. Vinson, Michael J. Phillips

Vanderbilt Law Review

With its 1986 decision in Meritor Savings Bank, FSB v. Vinson,the United States Supreme Court put its imprimatur on the Title VII sexual harassment cause of action that had emerged over the preceding decade. Early commentary on the case tended to emphasize this aspect of the Court's decision or to speculate about Meritor's impact on the future course of Title VII sexual harassment litigation. Getting relatively short shrift in this early commentary, however, was the Court's command that "agency principles" --the common law of agency-- be consulted to determine an employer's liability for harassment committed by its employees.' As subsequent …

Male-Female Differences In Hourly Wages: The Role Of Human Capital, Working Conditions, And Housework, Joni Hersch

Vanderbilt Law School Faculty Publications

This study uses a new data set from a 1986 survey of workers to examine simultaneously the wage effects of human capital, household responsibilities, working conditions, and on-the-job training. The analysis suggests that household responsibilities had a negative effect on women's earnings, but the unexplained difference between the earnings of men and women is not greatly reduced by inclusion in the explanatory model of information on either housework or working conditions. The presence of children appears to have had a positive effect on the wages of both men and women.

The Impact Of Nonmarket Work On Market Wages, Joni Hersch

Vanderbilt Law School Faculty Publications

The purpose of this paper is to examine the direct effect on market productivity of the dual responsibilities of market and nonmarket work.

Reversing The Presumption Of Employment At Will, Peter S. Partee

Vanderbilt Law Review

The doctrine of employment at will has been a fixture of American common law for approximately a century. In its pristine form, the doctrine is a rule of construction, establishing a rebuttable presumption that the terms of an employment agreement permit either the employer or the employee to terminate the relationship at any time and for any reason.' Unless the employee rebuts the at-will presumption by adducing evidence of an explicit agreement to the contrary, an employer may fire the employee for good cause, no cause, or bad cause without incurring any legal liability.' Experts have estimated that up to …

Exploring A Second Level Of Parity: Suggestions For Developing An Analytical Framework For Forum Selection In Employment Discrimination Litigation, Susan E. Powley

Vanderbilt Law Review

In April 1990 in Yellow Freight System, Inc. v. Donnelly, the United States Supreme Court resolved a split among the circuit courts and held that state and federal courts have concurrent jurisdiction over Title VII claims." This decision strengthens a presumption that state courts, as a whole, can be equal to their federal counterparts in adjudicating federal employment discrimination claims. It also further complicates the process of forum selection for employment discrimination litigants. Because plaintiffs now may present Title VII claims in state court, the doctrine of res judicata will bar any subsequent presentation of Title VII claims in federal …