Labor and Employment Law Commons^™

From Queen Bees And Wannabes To Worker Bees: Why Gender Considerations Should Inform The Emerging Law Of Workplace Bullying, Kerri Lynn Stone

Faculty Publications

This Article submits that the documented phenomenon of workplace bullying operates to stymie the retention and advancement of women in the workplace Research documented in books like Queen Bees and Wannabes shows that as early as the schoolyard, males and females tend to socialize differently, engage in and resolve conflict with peers differently, and absorb bullying behavior differently. Girls often believe or are taught to believe that direct conflict or confrontation is unpalatable and tend to employ more passive aggressive means of engagement with foes. They often internalize and repress feelings that boys are more likely to express. Viewing the …

Victorian Tort Liability For Workplace Injuries, Michael Ashley Stein

Faculty Publications

The first decision of an injured worker suing his master for a workplace accident was reported in 1837, the year of Queen Victoria's ascension. The second Workman's Compensation Act, a comprehensive social insurance scheme, was passed in 1900, a few months before her death. The Article provides an initial account of the development of employers' liability to their servants for work-related injuries during the Victorian era. It demonstrates that English judges, and especially the Barons of the Exchequer, interpreted the law to resist employers' liability. The means these judges used included creating the defence of common employment, widely applying the …

The Application Of Rfra To Override Employment Nondiscrimination Clauses Embedded In Federal Social Services Programs, Carl H. Esbeck

Faculty Publications

General federal employment nondiscrimination legislation permits religious organizations to take religion into account when making employment decisions. However, some federal social service programs have embedded in their authorizing legislation a nondiscrimination clause binding on recipients of program grants. And a few of these embedded clauses require that grantees (including religious grantees) not discriminate in employment on the basis of religion. This extended essay demonstrates how the Religious Freedom Restoration Act of 1993 overrides these employment nondiscrimination clauses when applied to faith-based social service grantees. Not only is this the conclusion of the U.S. Department of Justice in its policy announced …

Monetizing Diaspora: Liquid Sovereigns, Fertile Workers, And The Interest-Convergence Around Remittance, Jose M. Gabilondo

Faculty Publications

No abstract provided.

Settling The Matter: Does Title I Of The Ada Work?, Sharona Hoffman

Faculty Publications

Analysis of cases decided under Title I of the Americans with Disabilities Act (ADA), which addresses employment discrimination, reveals that defendants have consistently prevailed in well over 90% of cases since the ADA's inception. This empirical evidence has led many commentators to conclude that the ADA's Title I has failed to improve workplace conditions for individuals with disabilities.

This article attempts to assess the efficacy of Title I through a different lens. It focuses on several data sets that have previously received little attention. It examines Equal Employment Opportunity Commission merit resolutions, lawsuit settlement statistics, and reports concerning reasonable accommodation …

Card Check Recognition: New House Rules For Union Organizing?, Rafael Gely, Timothy D. Chandler

Faculty Publications

A significant policy debate has been occurring regarding union organizing methods in the United States. This debate focuses on the appropriateness of granting union recognition based on majority support as demonstrated by union authorization card signatures, also known as “card checking.” Critics describe the practice as anathema to basic democratic principles and accuse unions of wanting to deal from the bottom of the deck to secure undeserved representation of employees. Proponents of card check recognition argue that reliance on National Labor Relations Board (“NLRB”) organizing procedures fails to protect employees' rights to organize, and forces unions to compete against a …

Emerging Issues In North American Trade - Labor Law, Chios Carmody, Kevin Banks, Robert Strassfeld

Faculty Publications

The Proceedings of the Canada-United States Law Institute Conference on an Example of Cooperation and Common Cause: Enhancing Canada-United States Security and Prosperity Through the Great Lakes and North American Trade, Panel on Emerging Issues in North American Trade - Labor Law, Cleveland, Ohio April 2-4, 2009.

Working (With) Workers: Implementing Theory, Miriam A. Cherry

Faculty Publications

(Excerpt)

The topic of this symposium issue sponsored by the Association of American Law Schools (AALS) is the role of the labor and employment law professor as a public intellectual. Despite the baggage accompanying the phrase "public intellectual," the symposium topic is an important one, for the term carries more meaning than a mere "talking head" or "media figure" can express. To make theoretical ideas more accessible to others, to connect theory and practice, to explain academic or scholarly ideas in a way that the public can understand—these ideas resonate with my philosophy of the law professor's role. In fact, …

The Perfect Compromise: Bridging The Gap Between At-Will Employment And Just Cause, Nicole Buonocore Porter

Faculty Publications

The debate [between the at-will employment rule and termination for just cause] has been raging for years, but it is not the primary purpose of this Article to rehash the debate over the value of employment at-will. Instead of taking sides, I find fault with both at-will employment and the just cause standard. Accordingly, the main purpose of this Article is to provide the perfect compromise between at-will employment and the just cause standard.

Under this proposed statute (which I have named the "Employment Termination Equity Act (ETEA)"), employers would be free to terminate without the burden of proving just …

Consenting Adults? Why Women Who Submit To Supervisory Sexual Harassment Are Faring Better In Court Than Those Who Say No…And Why They Shouldn’T, Kerri Lynn Stone

Faculty Publications

Today, as a sexual harassment plaintiff who failed to report harassment before bringing suit, you likely will fare better under the law if you submitted to your harasser and engaged in relations with him, than you would if you had passively resisted until you were driven out of your employment. This Article examines the law’s illogical preference for plaintiffs who acquiesced to the propositions of their supervisors over those who resisted harassment but nonetheless failed to report it. It explores the roots of such a preference in society, as well as its consequences. Ultimately, this Article asks critical questions that …

License To Harass: Holding Defendants Accountable For Retaining Recidivist Harassers, Kerri Lynn Stone

Faculty Publications

Harassment victims who suffer a "tangible employment action," which the Supreme Court defines as a "significant change in employment status such as hiring, firing, failure to promote, reassignment, or a decision causing a significant change in benefits," enjoy unfettered recourse when they sue their employers. However, victims who do not endure what a court will deem a "tangible employment action" will have their prima facie case of harassment then rendered vulnerable to the interposition of an affirmative defense by a defendant-employer, who will escape liability if it can show "(a) that the employer exercised reasonable care to prevent and correct …

Social Isolation And American Workers: Employee "Blogging" And Legal Reform, Rafael Gely, Leonard Bierman

Faculty Publications

This article further demonstrates that state common law exceptions to the employment-at-will doctrine are not providing significant redress to employees fired or otherwise disciplined for blogging.

The Law And Economics Of Identity, Rafael Gely

Faculty Publications

A growing number of legal scholars have written about the demands that society and particular employers have placed on non-traditional employees to perform their identities, “or make themselves palatable” to their employers, by comporting with the criteria that the institution values. These authors have forcefully made the argument that some of these requirements are actually a form of class subordination; as a response, they argue for various forms of legal intervention.

The Future Of Labor Through The Prism Of Bankruptcy, G. Ray Warner, David L. Gregory

Faculty Publications

(Excerpt)

On Friday, September 28, 2008, St. John's University School of Law was very honored to host "The Future of Labor Through the Prism of Bankruptcy" Symposium. St. John's Institute of Bankruptcy Policy, the American Bankruptcy Institute Law Review, and the Labor Relations and Employment Society at the School of Law co-sponsored this landmark symposium.

Many of the structural changes in contemporary labor-management relationships emanate from the intersections of labor law and bankruptcy law. Many of the nation's major "legacy" industries—including, but not limited to, the unionized auto makers and many airlines—are compelling case studies. Indeed, only a few …

Reasonable Burdens: Resolving The Conflict Between Disabled Employees And Their Coworkers, Nicole Buonocore Porter

Faculty Publications

This Article addresses one of the most difficult issues under the reasonable accommodation provision of the Americans with Disabilities Act (ADA): how to resolve the conflict that arises when accommodating a disabled employee negatively affects or interferes with the rights of other employees. Several scholars and the Supreme Court (in U.S. Airways, Inc. v. Barnett) have weighed in on this debate, but their analyses fall short of the ultimate goal of this Article--to achieve equal opportunity for individuals with disabilities without unnecessarily interfering with the rights of other employees. In order to achieve that goal, this Article proposes a …

Workplace Blogs And Workers' Privacy, Rafael Gely, Leonard Bierman

Faculty Publications

In this article we focus on a related issue. We discuss the development of blogs, and the virtual “space” where blogs and bloggers interact the “blogosphere” and their impact on the issue of workers' privacy. To some extent it would seem a bit of a contradiction to talk about privacy and blogging in the same article. Blogging, as we will discuss below, does not appear to be the most private of enterprises. There are, we argue, a number of interesting privacy issues raised by the development of blogs as an employee communication tool and by the way employers have reacted …

Re-Defining Superwoman: An Essay On Overcoming The "Maternal Wall" In The Legal Workplace, Nicole Buonocore Porter

Faculty Publications

As Professor Joan Williams comments, most women never even approach the glass ceiling; they are "stopped dead, long beforehand, by the maternal wall." The maternal wall affects women with children in many aspects of their jobs, including hiring, promotions, pay, and even terminations. It is difficult for mothers to perform as ideal workers, because pregnancy, maternity leave, and the continual demands of child-rearing inevitably cause them to be absent from work. In addition, because mothers are not similarly situated to men or women without children, courts permit employers to treat them differently, which usually means they are treated more poorly. …

Disability And Employment Discrimination At The Rehnquist Court, Anita Silvers, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.

Understanding The Unrest Of France’S Younger Workers: The Price Of American Ambivalence, Joseph Seiner

Faculty Publications

The youth of France refer to themselves as the “throwaway generation,” in part because they perceive that their value to the labor market is simply disregarded by the government. Against this backdrop, young French workers recently took to the streets in riot to protest a newly enacted employment law that stripped employees under the age of twenty-six of many of their employment protections. The protests persisted after the French Constitutional Council held that the law did not violate France's constitution. The continued violent opposition ultimately forced French President Jacques Chirac to abandon the law, resulting in an embarrassing defeat for …

Transforming Discriminatory Corporate Cultures: This Is Not Just Women's Work, Cheryl L. Wade

Faculty Publications

(Excerpt)

The Symposium on Women and the "New" Corporate Governance began with an opening address by Sheila Wellington, the President of Catalyst. "Don't change women," she said, "change corporations." I agree with Ms. Wellington, but I would go one step further by observing that companies will change only if men change. The overwhelming majority of the directors and officers who manage and govern large public companies in the United States are white men. Public companies will enjoy healthy relationships with their women employees only to the extent encouraged and facilitated by the men who control these corporations. But how does …

Decentering The Firm: The Limited Liability Company And Low-Wage Immigrant Women Workers, Miriam A. Cherry

Faculty Publications

(Excerpt)

Imagine the following scenario: a group of immigrant women clean houses and offices in the suburbs of a large northeastern city. These workers speak languages other than English. Therefore they depend on an intermediary, another immigrant who has been in the United States for a longer period of time, to solicit jobs, negotiate schedules, and communicate with customers. Although this “intermediary” does not actually perform any of the cleaning work, the intermediary’s “cut,” or share of the income generated, is substantial. The immigrant workers are typically paid a low wage, often averaging below the minimum wage set by the …

Emergency Preparedness And Disability, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.

Deferred Compensation Reform: Taxing The Fruit Of The Tree In Its Proper Season, Eric D. Chason

Faculty Publications

Executive pensions (or deferred compensation) grabbed headlines after Enron's collapse and fresh concerns over ever-increasing executive pay. They also grabbed the attention of Congress, which reformed executive pensions legislatively in 2004 with § 409A of the Internal Revenue Code. Section 409A merely tightens and clarifies the doctrines that had already governed executive pensions, leaving the basic economics of executive pensions unchanged. Executives can still defer taxation on current compensation until actual payment is made in the future. Deferral still comes at the same price to the employer, namely the deferral of its deduction for the compensation expense. Thus, the timing …

Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone

Faculty Publications

Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons …

Victimizing The Abused?: Is Termination The Solution When Domestic Violence Comes To Work?, Nicole Buonocore Porter

Faculty Publications

Domestic violence occurs in the workplace more frequently than one might presume. Workplace violence is the number one cause of death for women in the workplace in part because of domestic violence spillover, where an abuser harms his victim as well as any co-workers who try to intervene.

The conflict between domestic violence and the workplace is often exposed in its rawest state when a victim of domestic violence is considered to be a threat to the workplace by her employer.

The initial reaction of most people when hearing of [a] hypothetical [in which an employer fires a domestic violence …

How To Succeed In Business Without Really Trying (Cases): Gender Stereotypes And Sexual Harassment Since The Passage Of Title Vii, Miriam A. Cherry

Faculty Publications

(Excerpt)

Last year I was invited to an undergraduate revival of the musical "How to Succeed in Business Without Really Trying," a comedy about the workplace, which I thought, as a teacher of employment law, I would enjoy. Written in the early 1960s and made into a 1967 movie, "How to Succeed" follows the adventures of J. Pierrepont Finch, a window washer who, with the aid of a sarcastic self-help book, schemes his way up the corporate ladder. Although ostensibly a humorous look at the corporate world of the late 1950s and early '60s, I found myself cringing throughout the …

Book Review Of The Home Office And The Dangerous Trades: Regulating Occupational Disease In Victorian And Edwardian Britain, Michael Ashley Stein

Faculty Publications

No abstract provided.

Is There A Place For Race As A Legal Concept, Sharona Hoffman

Faculty Publications

What does "race" mean? The word "race" is omnipresent in American social, political, and legal discourse. The concept of "race" is central to contemporary debate about affirmative action, racial profiling, hate crimes, health inequities, and many other issues. Nevertheless, the best research in genetics, medicine, and the social sciences reveals that the concept of "race" is elusive and has no reliable definition.

This article argues that "race" is an unnecessary and potentially pernicious concept. As evidenced by the history of slavery, segregation, the Holocaust, and other human tragedies, the idea of "race" can perpetuate prejudices and misconceptions and serve as …

Love, Sex And Politics? Sure. Salary? No Way: Workplace Social Norms And The Law, Rafael Gely, Leonard Bierman

Faculty Publications

A recent article in the New York Times captioned “Love, sex and politics? Sure. Salary? No way” discusses Americans' strong aversion to talking about their salaries. The piece notes that while discussion of financial matters is often acceptable in some parts of the world, it is generally considered “crass” in the United States. In short, discussion by individuals of their salaries and related matters can be seen as violating an American “social norm.” One-third of United States private sector employers have reinforced this norm by adopting specific rules prohibiting employees from discussing their wages with co-workers, rules known as pay …

Avoiding Regulatory Mismatch In The Workplace: An Informational Approach To Workplace Safety Regulation, Thom Lambert

Faculty Publications

The purpose of this article is to do just that. As it turns out, there is fertile middle ground between the pure libertarian “do nothing” approach and the paternalistic command-and-control approach OSHA tends to favor. Even the middle ground “information-provision” approach a number of theorists have advocated (in imprecise terms) could be implemented several different ways, some of which would be more effective than others. It is therefore possible to make some systematic policy prescriptions that may aid regulators attempting to avoid regulatory mismatch.In the course of exploring the range of regulatory options, this article attempts to make several contributions …