Labor and Employment Law Commons^™

#Metoo Vs. Anti-Dei, Nicole Porter

Faculty Publications

Nine years ago, the entire country was talking about the #MeToo movement, which can be credited with the unseating of hundreds of powerful men and changing the way we talk about and address sexual harassment in the workplace. In 2026, continued progress of the #MeToo movement might be threatened by a new movement-the Trump Administration's attack on Diversity, Equity, and Inclusion (DEI) initiatives. This article discusses the ways in which the #MeToo movement conflicts with the anti-DEI movement. Specifically, it addresses how employers will respond to pressure to dismantle DEI programs, offices, and training, and how those responses will affect …

Abuse Of Contract: A Proposal For A New Cause Of Action, Miriam A. Cherry

Faculty Publications

With the growth of online commerce and the platform economy, many companies are including provisions in their online terms and conditions that extend far beyond what reasonable consumers would expect. Some terms and conditions purport to bind customers to separate contracts in future transactions that have little to do with the first contract. Other boilerplate purports to cover family members of the customer who created an account. Some retailers have argued that people shopping in their brick-and-mortar stores are subject to terms and conditions because those shoppers had at some point previously created an online account. For example, Disney argued …

Textualism Wins?: The Supreme Court’S 2024 Labor & Employment Law Cases, Nicole B. Porter

Faculty Publications

The Supreme Court decided five primary labor and employment law cases in 2024—two discrimination cases, two arbitration cases, and one labor law case. This article also discusses a sixth case, Loper Bright Enterprises v. Raimondo, because it will undoubtedly affect labor and employment law despite the facts and underlying issue having nothing to do with the workplace.

I was initially underwhelmed with this year’s cases. None of them addresses any major substantive labor and employment law issue. However, upon further consideration, the cases are noteworthy for three reasons. First, three of them are pro-plaintiff with outcomes that benefit workers— …

The Criminal System Under Racial Capitalism, Sandeep Singh Dhaliwal

Faculty Publications

In 2021, major segments of the business lobby converged around a consensus for criminal system reform. As the United States experienced historic levels of labor market tightness, business groups argued for removing “barriers” to employment that system-involved people face. Just a few months later, the orientation of business to the criminal system was decidedly more mixed. By March 2022, the U.S. Chamber of Commerce, the country’s most powerful business lobby, had stepped to the forefront of the national moral panic around retail theft, launching a vigorous campaign to defend and even strengthen criminal punishment across the country.

Anchoring its analysis …

What’S Left Of The New Deal State?, Sandeep Singh Dhaliwal

Faculty Publications

(Excerpt)

A vast body of scholarship situates itself in the New Deal era. Another extensive collection explores the history of criminal justice in the United States. To date, however, there has been little effort to bring these conversations together. New Deal Law and Order, written by legal historian Anthony Gregory, fills this conspicuous gap. Gregory remarkably narrates the New Deal era through the lens of President Franklin Roosevelt’s “war on crime” (p. 1), challenging how we think about both the New Deal’s legacy and the foundations of the modern security state.

In recent years, scholars have called on their …

The Case For Specific Performance Of Personal Service Contracts, Kimberly D. Krawiec, Nathan B. Oman

Faculty Publications

The per se rule against specific enforcement of personal service contracts is well established under Anglo-American contract law. At the same time, there is a well-developed literature suggesting that specific performance is often a superior remedy to money damages, and those arguments apply with equal or greater force to personal service contracts. We, therefore, argue that this per se rule is mistaken. The per se rule has been justified by the need to avoid involuntary servitude, preserve personal autonomy, and husband judicial resources. We argue that these claims cannot justify a per se rule against specific performance, particularly as at-will …

Troubling Trends: Ada Definition-Of-Disability Cases 2019-2023, Nicole Buonocore Porter

Faculty Publications

This empirical Article continues my every-five-year tradition of examining every federal case discussing the definition of disability since the Americans with Disabilities Act (ADA) was amended, effective 2009. The results of this research from the third five-year period (2019–2023) are disappointing in both familiar and surprising ways. Similar to the 2014–2018 period, we continue to see way too many courts incorrectly applying (or not even citing to) the ADA Amendments Act. Moreover, I discovered several new troubling trends in this dataset that raise the possibility that we might be heading toward another backlash against ADA plaintiffs. This Article presents my …

By Any Other Name: Dei Is Not What You Think It Is, Nicole Porter

Faculty Publications

In this moment, Diversity, Equity, and Inclusion (DEI) programs are hotly debated and very misunderstood. Contrary to popular belief, DEI programs do not drastically change an employer’s hiring practices. They are, to some extent, performative. In this essay, I explain what DEI really is and why a rebranding (or at least a new name) might be in order.

Bostock And The Forgotten Eeoc, Sandra F. Sperino

Faculty Publications

In Bostock v. Clayton County, Georgia, the Supreme Court formally recognized that federal discrimination law prohibits discrimination based on sexual orientation and gender identity. The opinion barely mentioned the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal discrimination law. Reading Bostock, it would be easy to get the impression that the EEOC played little to no role in the outcome. This Essay reclaims and restores the EEOC's role.

In restoring the EEOC's role in this story, two themes emerge. First, Bostock's methodology erases the administrative agency tasked with enforcing Title VII in ways that are inconsistent …

Toward A Better Understanding Of Mail Balloting: The Case Of U.S. Labor Union-Representation Elections, Rafael Gely, Leonard Bierman, Timothy Chandler

Faculty Publications

The issue of how people vote in elections is important and timely. This Article examines this issue from the perspective of whether people vote by mail - i.e., mail balloting - or in person on a designated election day i.e., in-person voting. It explores the pros and cons of mail balloting versus in-person voting from a general political perspective and in the context of elections for labor union representation in the United States. It presents heretofore unreported data on the use of mail balloting in union-representation elections. It then draws lessons from these data concerning how mail balloting-which has increased …

New Vision, Old Model: How The Ftc Exaggerated Harms When Rejecting Business Justifications For Noncompetes, Alan J. Meese

Faculty Publications

The Federal Trade Commission has rejected consumer welfare and the Rule of Reason—standards that drove antitrust for 50 years—in favor of a “NeoBrandeisian” vision. This approach seeks to enhance democracy by condemning abuses of corporate power that restrict the autonomy of employees and consumers, regardless of impact on prices or wages. Pursuing this agenda, the Commission has proposed banning all employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the FTC Act.

The Notice of Proposed Rulemaking (“NPRM”) articulating the Commission’s rationale found that NCAs reduce aggregate wages, harm traditionally recognized by the Rule of Reason. …

Are Employee Noncompete Agreements Coercive? Why The Ftc's Wrong Answer Disqualifies It From Rulemaking (For Now), Alan J. Meese

Faculty Publications

The Federal Trade Commission recently proposed a rule banning nearly all employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the Federal Trade Commission Act. The proposed rule reflects two complementary pillars of an aggressive new enforcement agenda championed by Commission Chair Lina Khan, a leading voice in the Neo-Brandeisian antitrust movement. First, such a rule depends on the assumption, rejected by most prior Commissions, that the Act empowers the Commission to issue legislative rules. Proceeding by rulemaking is essential, the Commission has said, to fight a “hyperconcentrated economy” that injures employees and consumers alike. Second, …

Symposium Introduction: The Effect Of Dobbs On Work Law, Nicole Buonocore Porter

Faculty Publications

In March 2023, Chicago-Kent College of Law hosted a symposium—The Effect of Dobbs on Work Law—to explore the ways that the Dobbs abortion decision has affected the workplace. The presenters at that live symposium wrote articles that are being published in this journal. As the host of the symposium and the Editor of this Journal, I use this Article to introduce the articles in this symposium issue and to provide my reflections on them. I also briefly address the topic that I presented at the symposium—the effect of Dobbs on people with disabilities.

Mothers With Disabilities In The Workplace Post-Pandemic & Post-Dobbs, Nicole Buonocore Porter

Faculty Publications

Between when I wrote Mothers with Disabilities and Fall 2023, two major developments have occurred that justify revisiting this topic. The first is the COVID-19 pandemic, which dramatically changed all aspects of our work lives and home lives. The second is the Supreme Court’s landmark decision in 2022, Dobbs v. Jackson Women’s Health Organization, which overturned a woman’s constitutional right to have an abortion. Both of these developments have unique, sometimes conflicting effects on mothers with disabilities.

Accordingly, this Article explores the workplace effects of the pandemic and the Dobbs decision on mothers with disabilities. Drawing on my prior …

Irreconcilable: Mcdonnell Douglas And Summary Judgment, Sandra F. Sperino

Faculty Publications

The McDonnell Douglas framework is the most important analytical structure in employment discrimination law. Scholars and judges have regularly criticized the three-part burden-shifting test. Despite decades of criticism, a central feature of the framework remains unexamined - its second step is incompatible with the summaryjudgment standard.

In employment discrimination cases courts often grant summaryjudgment in the employer's favor. Scholars have offered various accounts of why this happens, including docket pressures and published case law that focuses on grants of summary judgment. The second step of the inquiry has largely escaped scrutiny because it appears to be a quirky, but somewhat …

Regulation By (Bad) Proxy: How Selective Application Of Transaction Cost Economics Tainted The Ftc's Proposed Ban Of Employee Noncompete Agreements, Alan J. Meese

Faculty Publications

Agencies have imperfect information about conduct they regulate. This problem is particularly acute when identical conduct has differing effects in various markets. Determining the economy-wide impact of such conduct can be difficult or impossible.

The FTC faces such a challenge. The Commission has announced a rule banning the nation’s 30 million employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the FTC Act. The Commission determined that NCAs likely reduce aggregate wages, helping to establish a presumptive violation. The Commission also found that nearly all NCAs are both procedurally coercive—because employers use overwhelming bargaining power to …

Political Polarization In America: Its Impact On Industrial Democracy And Labor Law, Rafael Gely

Faculty Publications

This article explores the impact that political polarization is having in the social, legal, and regulatory space, particularly on American worker-management relations. Polarization is affecting decisions involving social relationships and market transactions, the ability of institutions built to generate debate and discussion to successfully complete these missions, and people's willingness to listen to and engage with views contrary to their own.

Achieving The Achievable: Realistic Labor Law Reform, Rafael Gely

Faculty Publications

A common reprise among labor activists and scholars has been that for the fortunes of labor to change, the law must change. Prompted perhaps by a seeming surge in labor movement activity over the past few years, including headline-grabbing strikes and recent union victories at several U.S. Starbucks locations, various labor law activists and scholars have called to seize the moment and proposed the enactment of comprehensive labor law reform. We argue in this Article that broad-scale labor law reform is unlikely to be enacted by the current U.S. Congress or even have all its provisions pass muster when potentially …

Investing In Abolition, Sandeep Singh Dhaliwal

Faculty Publications

This Article situates the prison within a broader macro-financial trend, what I call “community capture.” As private equity firms have consolidated the market for carceral services, they have also gained control over other essential social infrastructure, like housing and healthcare. By layering debt, fees, and aggressive profit expectations over companies or assets that provide for basic needs, their strategies intensify the economic pressures communities face. These strategies rely on various forms of coordination and legal protection from contestation. To demonstrate this process in the context of mass incarceration, this Article tells the story of Securus, a dominant carceral service company …

Working Through The Supreme Court's 2021 Term, Nicole Buonocore Porter

Faculty Publications

Despite the controversy surrounding the Supreme Court's 2021 term, the labor and employment cases, in comparison, might seem relatively uneventful. Although there are several cases summarized below, most of them deal with relatively minor issues surrounding arbitration, or with lesser litigated statutes, such as USERRA and ERISA. This review also includes a summary of the administrative law case regarding the Environmental Protection Act because it could (and perhaps likely will) have ramifications for labor and employment law.

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This review proceeds in two additional parts. Part II of this review summarizes the opinions from the 2021 term. At the end …

Subordination Through Schedules, Nicole Buonocore Porter

Faculty Publications

Our jobs are not only about the work we do—they are also about when and where we do that work. For a variety of reasons, employees with disabilities often seek modifications of their employers’ policies regarding when and where work is performed. These accommodations are often necessary for the employee to remain employed. The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to employees with disabilities, and these accommodations can include schedule changes. But research demonstrates that when responding to accommodation requests under the ADA, employers are often reluctant to grant requests to modify the rules regarding …

Employment Status For "Essential Workers": The Case For Gig Worker Parity, Miriam A. Cherry

Faculty Publications

The continuing misclassification of gig workers as independent contractors has been problematic for over a decade. Several misconceptions have contributed to this marginalization of on-demand workers: technology that often obscures the work that is being performed; the view that platform work is a side hustle; or that platform work exists only for customer convenience or frivolous requests. During the coronavirus pandemic these myths about gig work were turned upside down as on-demand workers were recognized for their efforts and labeled essential workers. With that recognition came newly-awarded benefits, like pandemic unemployment assistance and paid sick leave. As such, the events …

#Metoo And The Process That's Due: Sexual Misconduct Where We Live, Work, And Learn, Nicole Buonocore Porter

Faculty Publications

The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of the confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the …

Disability Diversity And Identity Capitalism, Nicole Buonocore Porter

Faculty Publications

I first read Professor Nancy Leong’s compelling book Identity Capitalists: The Powerful Insiders Who Exploit Diversity to Maintain Inequality when I was asked to provide a pre-publishing peer review. I was equal parts captivated and troubled by the numerous examples of identity capitalism (and its counterpart, identity entrepreneurialism) that I had never thought about, and perhaps even acquiesced in.

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But in all honesty, I was troubled after my initial review of the manuscript because I had the sense that Leong was suggesting that diversity itself is bad, or at least that concentrating on diversity is bad. Upon my review …

Don't Abolish Employee Noncompete Agreements, Alan J. Meese

Faculty Publications

For over three centuries, Anglo-American courts have assessed employee noncompete agreements under a Rule of Reason. Despite long-standing precedent, some now advocate banning all such agreements. These advocates contend that employers use superior bargaining power to impose such "contracts of adhesion," preventing employees from selling their labor to the highest bidder and reducing wages. Abolitionists also contend that such agreements cannot produce cognizable benefits and that employers could achieve any benefits via less restrictive alternatives without limiting employee autonomy.

This Article critiques the Abolitionist position. Arguments for banning noncompete agreements echo hostile critiques of other nonstandard contracts during antitrust law's …

Working While Mothering During The Pandemic And Beyond, Nicole Buonocore Porter

Faculty Publications

Although combining work and family has never been easy for women, working while mothering during the pandemic was close to impossible. When COVID-19 caused most workplaces to shut down, many women were laid off. But many women were forced to work from home alongside their children, who could not attend daycare or school. Mothers tried valiantly to combine a full day’s work on top of caring for young children and helping school-aged children with remote school. But many found this balance difficult, leading to women’s lowest workforce participation rate in over forty years. And even women who did not quit …

Proposition 22: A Vote On Gig Worker Status In California, Miriam A. Cherry

Faculty Publications

(Excerpt)

In the shadow of the 2020 United States Presidential election, an important vote was also taking place about the employment status of gig workers. In 2019, the California Legislature had enacted AB5, a bill that expanded the definition of “employees” to include workers in the on-demand economy. In response, gig platforms like Uber, Lyft, and Postmates backed a direct ballot initiative, California’s Proposition 22, which asked voters to undo the work of the Legislature. Gig workers would be reclassified as independent contractors, but they would also receive certain benefits, including, among others, the ability to sue for discrimination under …

Relationships And Retaliation In The #Metoo Era, Nicole Buonocore Porter

Faculty Publications

In this #MeToo era, so much important work is being done (and so many stories are being told and listened to), but very little of the work focuses on retaliation. And none of the work focuses on situations where the fear of retaliation is not necessarily job loss (although that certainly happens) but rather, it is the fear of harming workplace relationships. This Article will use a real-life story of harassment to demonstrate how much workplace relationships matter-especially to women-and how the fear of harming those relationships often affects an employee's willingness to report harassment. Thus, this Article argues for …

Gig Workers As Essential Workers: How To Correct The Gig Economy Beyond The Covid-19 Pandemic, Miriam A. Cherry, Ana Santos Rutschman

Faculty Publications

(Excerpt)

During the early stages of the COVID-19 pandemic in 2020, estimates suggest that approximately forty percent of U.S. workers shifted to working remotely from home. But for many gig workers, who performed grocery shopping for Instacart, delivered food and restaurant meals for DoorDash, or who picked up and delivered packages for Shipt, they were working in person and busier than ever. In fact, many of these gig jobs were considered "essential work," and the rules of state lockdowns across the country classified gig workers as "essential workers."

Paid by the task, and managed by algorithms that can automatically deactivate …

A Global System Of Work, A Global System Of Regulation?: Crowdwork And Conflicts Of Law, Miriam A. Cherry

Faculty Publications

(Excerpt)

The on-demand economy has truly gone global. Consider online platform TaskRabbit, a U.S.-based site for odd jobs. A high number of TaskRabbit’s users were seeking help with the construction of furniture they purchased at IKEA, and skilled carpenters started using the platform to find customers. Corporate management at Swedish company IKEA noticed the trend, and as a result acquired TaskRabbit in 2017. As a result, a Swedish company now owns a platform labor service in the United States and Britain, with plans to expand the TaskRabbit platform to twenty-seven more countries where IKEA currently owns brick and mortar stores. …