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Full-Text Articles in Labor and Employment Law

Of Courage, Tumult, And The Smash Mouth Truth: A Union Side Apologia, Michael C. Duff Jun 2011

Of Courage, Tumult, And The Smash Mouth Truth: A Union Side Apologia, Michael C. Duff

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In this paper I argue that no labor movement is possible until workers understand and accept the inevitability of labor-management conflict. I support my contention drawing broadly on history surrounding the New Deal and on my own experiences as a union organizer and labor lawyer.


Terms Matter: Reflections On The Wyoming Debate Over The Teachers’ “Union” And Teacher “Tenure”, Michael C. Duff Apr 2011

Terms Matter: Reflections On The Wyoming Debate Over The Teachers’ “Union” And Teacher “Tenure”, Michael C. Duff

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Invariably, in Wyoming, as in other states, the educational debate swirls around two topics: the extent to which school teachers’ unions influence educational policy, and the related, but distinct, question of whether teachers are unreasonably entrenched in their jobs through systems of “tenure.” These questions in turn are closely intertwined with the broader national debate over public employee unionism. In Wyoming, however, the broader debate is not at issue, a fact that will be revealed in this article through close scrutiny of the terms “union” and “tenure.”


Union Salts As Administrative Private Attorneys General, Michael C. Duff Apr 2011

Union Salts As Administrative Private Attorneys General, Michael C. Duff

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The legitimacy of union salting campaigns has been debated frequently and bitterly over the last several years. Salts, the agents of these campaigns, are professional union organizers who apply for, and sometimes obtain – often surreptitiously – employment with non-union employers in furtherance of union objectives. Although recent decisions of the National Labor Relations Board (NLRB), under the influence of the W. Bush administration, have erected administrative and legal roadblocks to the conduct of salting campaigns, it is likely that the “Obama Board” will revisit the issues surrounding them. This article argues that salts have served a legitimate function by …


Mandatory Disclosure In The Market For Union Representation, Matthew T. Bodie Jan 2011

Mandatory Disclosure In The Market For Union Representation, Matthew T. Bodie

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For over sixty years, the National Labor Relations Board has followed the “laboratory conditions” doctrine in its regulation of representation elections. According to the doctrine, the Board must provide workers with an electoral “laboratory” in order to determine the “uninhibited desires” of the employees. Elections are vacated and conducted anew if the winning party violated the laboratory conditions. The laboratory conditions doctrine suggests an active and vigorous role for the Board in providing employees with the proper election environment. However, the Board’s regulation has largely focused on keeping out electoral impurities and has done little to make sure employees have …


Employees And The Boundaries Of The Corporation, Matthew T. Bodie Jan 2011

Employees And The Boundaries Of The Corporation, Matthew T. Bodie

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Employees have no formal role in U.S. corporate law. According to most theories of the firm, however, employees play a critical role in differentiating firms from markets. This essay examines the disparity in treatment and seeks to understand the ramifications of the separation of employees from the corporation. After discussing the absence of employees from the corporate structure, the essay looks at the role of the employees in theories of the firm. In contrast to corporate law, these theories generally include employees within the core of the firm, and they often explain the nature and purpose of the firm in …


Federal Regulation And The Problem Of Adjudication, Marcia L. Mccormick Jan 2011

Federal Regulation And The Problem Of Adjudication, Marcia L. Mccormick

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After decades of deregulation, the United States seems to be entering a period of re-regulation, regulation to prevent harm that many activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the crises of tomorrow, this …


Consensus, Dissensus, And Enforcement: Legal Protection Of Working Women From The Time Of The Triangle Shirtwaist Factory Fire To Today, Marcia L. Mccormick Jan 2011

Consensus, Dissensus, And Enforcement: Legal Protection Of Working Women From The Time Of The Triangle Shirtwaist Factory Fire To Today, Marcia L. Mccormick

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The Triangle Shirtwaist Factory tragedy mobilized the labor movement and progressive reformers, and provided part of the political will to enact significant protective health and safety legislation for workers. And while the Triangle Shirtwaist Factory fire has been cited in legal literature as an important event in the movement for workplace safety standards, however, the gendered nature of the tragedy and its place in the development of laws protecting women as women, rather than as beneficiaries of laws protecting all workers, has not been as fully explored. This contribution to the New York University Journal of Legislation and Public Policy's …


Reinventing The Eeoc, Nancy M. Modesitt Oct 2010

Reinventing The Eeoc, Nancy M. Modesitt

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The Equal Employment Opportunity Commission (EEOC) has struggled to be a meaningful force in eradicating employment discrimination since its inception. The primary reasons for this are structural in nature. The EEOC was designed to react to discrimination complaints by investigating and conciliating all of the thousands of complaints filed annually. The EEOC has never been able to investigate all these complaints despite using the vast majority of its resources attempting to do so. The devotion of resources to managing and investigating the huge volume of complaints prevents the EEOC from taking more effective steps to eliminate discrimination. This article proposes …


The Evolving Schizophrenic Nature Of Labor Arbitration, Martin H. Malin Jan 2010

The Evolving Schizophrenic Nature Of Labor Arbitration, Martin H. Malin

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No abstract provided.


The Canadian Auto Workers--Magna International 'Framework For Fairness' Agreement: A U.S. Perspective (Symposium), Martin H. Malin Jan 2010

The Canadian Auto Workers--Magna International 'Framework For Fairness' Agreement: A U.S. Perspective (Symposium), Martin H. Malin

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No abstract provided.


Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo Jan 2010

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

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The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …


A Taxonomy Of Virtual Work, Miriam A. Cherry Jan 2010

A Taxonomy Of Virtual Work, Miriam A. Cherry

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Millions of people worldwide entertain themselves or supplement their incomes – or both – by meeting with fellow employees as avatars in virtual worlds such as Second Life, solving complicated problems on websites like Innocentive, or casually “clicking” to make money for simple tasks on Amazon.com’s Mechanical Turk. Virtual work has great promise – increasing efficiency by reducing the time and expense involved in gathering workers who live great distances apart, and allowing for efficient use of skills so that the whole is truly greater than the sum of its parts. At the same time, virtual work presents its own …


Back To Color Blindness: Recent Developments In Race Discrimination Law In The United States, Marcia L. Mccormick Jan 2010

Back To Color Blindness: Recent Developments In Race Discrimination Law In The United States, Marcia L. Mccormick

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The United States has a long and somewhat conflicted history of espousing egalitarian values and yet tolerating a certain level of subordination of particular groups to a greater or lesser extent at the same time. Like many countries, it struggles with reconciling the goals of equality, pluralism, and liberty, and the balance has been struck differently at different times. In the current wave of such efforts, the Supreme Court is marking an increasingly formalist approach to the question of discrimination, while Congress appears to be pushing a slightly more substantive approach to discrimination. This short paper analyzes the Court’s recent …


Canaries In The Coal Mine: The Tactical Use Of The National Labor Relations Act To Aid In The Protection Of Non-Union Workers Exposed To Pollutants, Michael C. Duff Jan 2010

Canaries In The Coal Mine: The Tactical Use Of The National Labor Relations Act To Aid In The Protection Of Non-Union Workers Exposed To Pollutants, Michael C. Duff

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Canaries were used in times past to alert miners to the presence of dangerous gases in a mine. A canary would die, and the miners would thereby become aware of deadly, but sometimes odorless, gases. Just as canaries have alerted miners to the presence of dangerous gases in mines, workers exposed to dangerous pollutants and conditions in workplaces may function as societal canaries warning the broader public of environmental dangers; but hopefully without having to die in the process. To perform this role, the workers must live to work (and protest) another day. Section 7 of the National Labor Relations …


The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt Oct 2009

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt

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Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left …


Leaving Maryland Workers Behind: A Comparison Of State Employee Leave Statutes, Michael Hayes Apr 2009

Leaving Maryland Workers Behind: A Comparison Of State Employee Leave Statutes, Michael Hayes

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Maryland law is not quite a blank slate for employee leave rights-but it is close. While the state forbids employers from terminating employees for job time lost for jury service or attending a court proceeding in response to a subpoena or pursuant to victim's rights laws, Maryland is one of a "select few" that does not require any breaks for adult workers, including time off for meals. Maryland law does not require family or medical leave for private sector workers. In fact, the state's most generous leave law stems from repealing antiquated "blue laws" that required businesses to be closed …


The Paradox Of Public Sector Labor Law, Martin H. Malin Jan 2009

The Paradox Of Public Sector Labor Law, Martin H. Malin

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No abstract provided.


Of Labor Inspectors And Labors Judges: Chilean Labor Law Enforcement After Pinochet (And What The United States Can Do To Help) (Symposium), César F. Rosado Marzán Jan 2009

Of Labor Inspectors And Labors Judges: Chilean Labor Law Enforcement After Pinochet (And What The United States Can Do To Help) (Symposium), César F. Rosado Marzán

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No abstract provided.


Pirates Of The Caribbean: The Seiu's Failed Bid In Puerto Rico, César F. Rosado Marzán Jan 2009

Pirates Of The Caribbean: The Seiu's Failed Bid In Puerto Rico, César F. Rosado Marzán

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No abstract provided.


Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff Jan 2009

Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff

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This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on …


Foreword Symposium: Having It Our Way: Women In Maryland's Workplace Circa 2027, Margaret E. Johnson Jan 2009

Foreword Symposium: Having It Our Way: Women In Maryland's Workplace Circa 2027, Margaret E. Johnson

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On November 14, 2007, the University of Baltimore School of Law, the University of Maryland School of Law and the Women's Law Center of Maryland co-sponsored a symposium entitled "Having it Our Way: Women in Maryland's Workplace Circa 2027." The insightful collection of papers in this volume of the University of Maryland Law Journal of Race, Religion, Gender and Class represents the work of employment law scholars, public policy specialists, and activists who presented on the current state of Maryland employment law and discussed Maryland's future. This distinguished group of experts and scholars present several themes: the hope of new …


Labor Injunctions In Bankruptcy: The Norris-Laguardia Firewall, Michael C. Duff Jan 2009

Labor Injunctions In Bankruptcy: The Norris-Laguardia Firewall, Michael C. Duff

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This article considers whether federal courts, including bankruptcy courts, are authorized to issue injunctions in connection with various kinds of labor disputes arising after the filing of a petition in bankruptcy. The question takes on renewed importance in light of the record number of Chapter 11 bankruptcy filings in 2008, including filings by two of the three major American automakers, which are unionized. Given the increasing complexity of some of these notorious reorganizations, the likelihood of post-petition labor disputes appears to have correspondingly increased. In agreement with the few federal circuits that have considered the question, the article concludes that, …


Working Sick: Lessons Of Chronic Illness For Health Care Reform, Elizabeth Pendo Jan 2009

Working Sick: Lessons Of Chronic Illness For Health Care Reform, Elizabeth Pendo

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Although chronic illness is generally associated with the elderly or disabled, chronic conditions are widespread among working-age adults and pose significant challenges for employer-based health care plans. Indeed, a recent study found that the number of working-age adults with a major chronic condition has grown by 25 percent over the past 10 years, to a total of nearly 58 million in 2006. Chronic illness imposes significant costs on workers, employers, and the overall economy. This population accounts for three-quarters of all personal medical spending in the United States, and a Milken Institute study recently estimated that lost workdays and lower …


Working For (Virtually) Minimum Wage: Applying The Fair Labor Standards Act In Cyberspace, Miriam A. Cherry Jan 2009

Working For (Virtually) Minimum Wage: Applying The Fair Labor Standards Act In Cyberspace, Miriam A. Cherry

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As more work enters cyberspace, takes place in virtual worlds, and collapses traditional nation-state barriers, we are entering a new era of “virtual work.” In this article, I use “virtual work” as an umbrella term to encompass work in virtual worlds, crowdsourcing, clickworking, even sweeping in, to some degree, the commonplace telecommuting and “mobile executives” that have become ubiquitous over the past decade.Are such new forms of “work” entitled to the minimum payment standards mandated under the FLSA? As the United States enters another economic crisis, and with advances in technology key to continued economic growth and stability, these questions …


Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat Jan 2008

Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat

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Labor arbitrators were presented with four cases to decide, each involving a challenge to discipline or discharge of an employee resulting from a work-family conflict. Arbitrators were randomly given versions of the cases in which the gender and one other characteristivc of the employee were varied. The results showed little evidence of direct gender bias in decision-making but did reflect bias against single parents and employees with eldercare, as opposed to childcare, responsibilities. Implications for other adjudicators, including judges, jurors and administrative agency officials are discussed.


Revisiting The Meltzer-Howlett Debate On External Law In Labor Arbitration: Is It Time For Courts To Declare Howlett The Winner?, Martin H. Malin Jan 2008

Revisiting The Meltzer-Howlett Debate On External Law In Labor Arbitration: Is It Time For Courts To Declare Howlett The Winner?, Martin H. Malin

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No abstract provided.


Information And The Market For Union Representation, Matthew T. Bodie Jan 2008

Information And The Market For Union Representation, Matthew T. Bodie

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In its oversight of union representation elections, the National Labor Relations Board seeks to create laboratory conditions to determine "the uninhibited desires" of employees. Despite its comprehensive regulation of union and employer campaign conduct, however, the Board fails to insure that employees get basic information relating to their decision. This Article proposes a new paradigm for the representation decision: that of a purchase of representation services. This "purchase of services" model demonstrates that the market for union representation lacks the standard features required under economic theory to drive information into the marketplace. The resulting information deficiencies may render employees poorly …


Mother Jones Meets Gordon Gekko: The Complicated Relationship Between Labor And Private Equity, Matthew T. Bodie Jan 2008

Mother Jones Meets Gordon Gekko: The Complicated Relationship Between Labor And Private Equity, Matthew T. Bodie

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In 2007 private equity firms came under increasing scrutiny for the favorable tax treatment accorded to their fund managers' compensation. Labor, particularly the Service Workers International Union (SEIU), was instrumental in bringing this issue to the attention of the media and the public. However, SEIU's private equity campaign is just one way in which the union is pursuing its primary concern: increasing the ranks of its members. This Article examines the role that the SEIU private equity campaign plays both in the overall debate about private equity taxation as well as the union's negotiations with private equity firms. It argues …


Workers, Information, And Corporate Combinations: The Case For Non-Binding Employee Referenda In Transformative Transactions, Matthew T. Bodie Jan 2008

Workers, Information, And Corporate Combinations: The Case For Non-Binding Employee Referenda In Transformative Transactions, Matthew T. Bodie

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Employees present a curious puzzle for corporate law. The success of a corporation depends on its employees, from the chief executive officer down to the front-line production or service worker. But for the most part, corporate law relegates employees to the sidelines. Perhaps nowhere is this difference as dramatic as in the realm of mergers, acquisitions, and other transformative transactions. Such transactions are usually negotiated at the highest levels of management, approved by the board, and ultimately approved by the shareholders. In contrast, employees at most may be able to bargain about the effects of the merger through union representatives; …


The Truth Is Out There: Revamping Federal Antidiscrimination Enforcement For The Twenty-First Century, Marcia L. Mccormick Jan 2008

The Truth Is Out There: Revamping Federal Antidiscrimination Enforcement For The Twenty-First Century, Marcia L. Mccormick

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Employment discrimination laws in the United States have not created full equality in the workplace, although that was their goal. Real change requires greater accountability for those who make employment decisions and greater transparency to bolster that accountability. To provide that transparency and accountability, we need greater federal involvement in enforcement and a mechanism to publicize the state of the nation's workplaces. To accomplish this, I propose taking private sector employment discrimination disputes away from the Equal Employment Opportunity Commission entirely, and starting with a new agency. The current model, with the EEOC writing compliance guidelines, encouraging mediation, and acting …