Labor and Employment Law Commons^™

A Religious Organization’S Autonomy In Matters Of Self-Governance: Hosanna-Tabor And The First Amendment, Carl H. Esbeck

Faculty Publications

In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required. Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during …

Before Wisconsin And Ohio: The Quiet Success Of Card-Check Organizing In The Public Sector, Rafael Gely, Timothy D. Chandler

Faculty Publications

Card-check laws, which have been unsuccessfully pursued by private-sector unions, mandate that employers recognize the union as the representative of employees on the basis of signed authorization cards without reliance on a representation election. Card check authorization benefits unions because it short circuits the usual organizing process by eliminating the union's need to further prove majority support in a secret ballot election.' But by doing so, it imposes costs on employers by restricting their efforts to erode union support through aggressive campaign tactics. Our paper seeks to better understand the development of these laws and their effects, and in that …

Overcoming Our Global Disability In The Workforce: Mediating The Dream, Elayne E. Greenberg

Faculty Publications

The unparalleled global support for the 2008 United Nations Convention on the Rights of Persons with Disabilities ("CRPD") highlights the global schism between the public extolling of human rights for individuals with disabilities and the private castigating of such individuals in their daily lives and in the workforce. The CRPD explicitly mandates that work is a right accorded to individuals with disabilities, and global employers are now being challenged to implement that right. Yet, in order to ensure meaningful, universal compliance with its directives, the CRPD imposes affirmative duties on Supporting States to develop a customized, workable plan that effectively …

Virtual Whistleblowing, Miriam A. Cherry

Faculty Publications

(Excerpt)

In approximately 2004, Michael DeKort, a forty-one-year-old Lockheed Martin project manager, became concerned about security flaws in ships his employer was selling to the United States Coast Guard. The new ships were part of a planned $24 billion equipment upgrade that would make the United States Coast Guard a more active part of the war on terror. However, according to DeKort, the vessels featured security cameras with significant blind spots and communications equipment that was not secure. Further, DeKort alleged that other equipment on board could not operate at the extreme temperatures required by Lockheed's contract with the government. …

The Gamification Of Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

In the science fiction novel Ender's Game, a young boy, Andrew "Ender" Wiggin, believes that he is at military school, learning how to play a computer war simulation game. In reality, Ender has been genetically engineered to excel in military tactics and is the final hope of humanity, which is under attack by the Formics, an alien insect species. For his final examination, Ender must defend the Earth from a series of attacks. He passes the exam by attempting a desperate aggressive maneuver, which utterly wipes out the attacker's home world but which also destroys part of his …

Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone

Faculty Publications

This Article traces the genesis of this misguided doctrine, its proliferation, and it’s many flaws. It explains what the doctrine has come to mean and which facets of a comment can render it “stray” as a matter of law. Part II evaluates this unwieldy and untenable doctrine and its haphazard and misguided application over the past two decades. Specifically, it was never intended to be a formal doctrine. As employed by courts, the term “stray” means too many things and is too ambiguous for the doctrine to be coherent or effective. Moreover, courts ascribe varying degrees of significance to the …

Title Vii Works - That's Why We Don't Like It, Chuck Henson

Faculty Publications

In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …

Card-Check Laws And Public-Sector Union Membership In The States, Rafael Gely, Timothy D. Chandler

Faculty Publications

We examine the impact of state card-check legislation on public-sector union membership. Based on an empirical analysis of data from 2000 to 2009, a time during which eight states enacted card-check legislation for public employees, we find significantly higher levels of public-sector union membership for states that passed card-check legislation in years after the laws were enacted relative to states that did not pass such laws. Moreover, average public-sector union membership increased for the states that passed card-check legislation after the laws were passed relative to their precard-check law union-membership levels.

Assessing Post-Ada Employment: Some Econometric Evidence And Policy Considerations, John J. Donohue Iii, Michael Ashley Stein, Christopher L. Griffin Jr., Sascha Becker

Faculty Publications

This study looks at whether the Americans with Disabilities Act of 1990 (ADA) helped or hurt job opportunities for people with disabilities. The researchers used long-term survey data following the same individuals from 1981 to 1996 to see changes in work hours, yearly pay, and hourly wages. For the larger group studied, employment for people with disabilities dropped after the ADA took effect, but their pay compared to other workers stayed about the same. For a smaller group of workers tracked every year, job levels did not show the same drop, though wages for people with disabilities were already falling …

Debunking The Market Myth In Pay Discrimination Cases, Nicole Buonocore Porter, Jessica R. Vartanian

Faculty Publications

Several things have been said about the Equal Pay Act (EPA) in recent years--not many of them have been very nice. The Equal Pay Act has been described as "broken" and suffering from an "identity crisis." Another scholar has claimed that the EPA fails to prevent wage discrimination for women in professional and leadership positions, stating that: "[i]n short, the EPA is increasingly becoming an empty promise, unworkable and ineffective to remedy wage discrimination for many women." Some authors assert that winning a case under the EPA is "nearly impossible."

It is clear that the EPA is failing (and maybe …

Relieving (Most Of) The Tension: A Review Essay Of Samuel R. Bagenstos, Law And The Contradictions Of The Disability Rights Movement, Nicole Buonocore Porter

Faculty Publications

This Review Essay reveals the considerable contribution made by Professor Samuel Bagenstos in his book, Law and the Contradictions of the Disability Rights Movement, where he acknowledges and tackles most of the contradictions and tensions within the disability law field. Instead of repeating familiar arguments about a backlash against the Americans with Disabilities Act (ADA), Bagenstos recognizes and explains that much of the lack of success of the ADA can be attributed to tensions in the goals and projects of the disability rights movement. He makes a very convincing argument that the anti-discrimination and accommodation model of the ADA, …

Shortcuts In Employment Discrimination Law, Kerri Lynn Stone

Faculty Publications

Are employment discrimination plaintiffs viewed by society and by judges with an increased skepticism? This article urges that the same actor inference, the stray comment doctrine, and strict temporal nexus requirements, as courts have applied them, make up a larger and dangerous trend in the area of employment discrimination jurisprudence- that of courts reverting to special, judge-made "shortcuts" to curtail or even bypass analysis necessary to justify the disposal or proper adjudication of a case. This shorthand across different doctrines reveals a willingness of the judiciary to proxy monolithic assumptions for the individualized reasoned analyses mandated by the relevant antidiscrimination …

Organizing Principles: The Significance Of Card-Checks Laws, Rafael Gely, Timothy D. Chandler

Faculty Publications

The use of “card checks” as a method of union organizing has recently garnered a lot of attention, much of it surrounding the proposed Employee Free Choice Act. If passed, this legislation would amend the National Labor Relations Act by requiring employers to recognize a union when the employer is presented with evidence of majority support for union recognition via union authorization cards. Although the proposed bill has had difficulty gaining traction in the U.S. Congress, several states have recently passed similar legislation covering state and local public employees. In this article, we compare card-check organizing by public sector employees …

The Importance Of Immutability In Employment Discrimination Law, Sharona Hoffman

Faculty Publications

This article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 29 two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.

The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment …

A Taxonomy Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

The blockbuster movie Avatar begins as humans circle the planet Pandora in search of an element, unobtainium, which will boost the profits of their employer, a mining corporation. Pandora, however, is already inhabited by the Na'vi, an alien species of tall, skinny, blue beings, who live in harmony with the natural environment. With the goal of learning more about the Na'vi and their world, a team of human scientists controls and inhabits vat-grown bodies, using these avatars to interact with the Na'vi. Jake, the protagonist, is a former soldier who has become a paraplegic. When Jake's identical twin, a …

Embracing Caregiving And Respecting Choice: An Essay On The Debate Over Changing Gender Norms, Nicole Buonocore Porter

Faculty Publications

This Essay is the third piece of my project to resolve what I call the "caregiver conundrum" for working caregivers. I define the "caregiver conundrum" broadly, to include all of the workplace norms, rules and practices that make it difficult for working caregivers to successfully balance work and family.

In conceptualizing my ideas, I realized that one of the critiques of my proposal would be that it does nothing to change the gender norms, or stated another way, it accepts the gendered division of work and family with which most people live. I do nothing to get women to do …

Clarifying Stereotyping, Kerri Lynn Stone

Faculty Publications

This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It …

Consider The Source: When The Harasser Is The Boss, Susan Grover, Kimberly Piro

Faculty Publications

In Consider the Source, Susan Grover and Kim Piro argue for a change in the analysis that courts apply to determine whether actionable workplace harassment has occurred. They identify a gap in current doctrine, which allows courts to ignore the status of the harasser as co-worker or supervisor. The authors argue that harassment at the hands of a supervisor is necessarily more severe and pervasive than the same harassment by a coworker. As a result, they recommend that the harasser's identity as a supervisor or co-worker be treated as a necessary consideration when courts assess whether actionable harassment has occurred.

Redressing All Erisa Fiduciary Breaches Under Section 409 (A), Eric D. Chason

Faculty Publications

No abstract provided.

Erisa Preemption Doctrine As Health Policy, Joshua P. Booth, Larry I. Palmer

Faculty Publications

No abstract provided.

Synergistic Solutions: An Integrated Approach To Solving The Caregiver Conundrum For "Real" Workers, Nicole Buonocore Porter

Faculty Publications

This Article is the second part of a project aimed at ending caregiver discrimination for all workers who are struggling to balance work and family. The first part of the project argued that the communitarian theory supports the broad reform envisioned, and this piece articulates that vision. This reform project utilizes a synergy of solutions, taking a comprehensive and creative approach to ending the caregiver conundrum for all working caregivers. The proposal includes the use of various statutory provisions that work together to avoid some of the deficiencies created by other proposals. Specifically, the proposal attempts to address the three …

Understanding Card-Check Organizing: The Public Sector Experience, Rafael Gely, Timothy D. Chandler

Faculty Publications

The use of “card checks” as a method of union organizing has recently garnered considerable attention, much of it surrounding the proposed Employee Free Choice Act. The proposed legislation seeks to amend the National Labor Relations Act by requiring employers to recognize a union when the employer is presented with evidence of majority support for union recognition via card checks. Despite this recent interest in card checks, there is little empirical research on the topic due, in part, to the lack of available data. Although card-check organizing in the private sector is not rare, such organizing is voluntary, and does …

The Global Dimensions Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

Recently, unusual “factories” have appeared in Third World countries; these factories do not manufacture goods, but instead feature computer workers, typing and clicking away, playing video games, collecting coins and swords, and fighting monsters. Known as “gold farmers,” these workers are paid to harvest virtual treasures for online gamers in the developed world. First World gamers want to advance quickly within their online role-paying games of choice and, tired of the repetitive tasks necessary to build a high-level character, would prefer to pay others to do the work. As a result, gold farming operations have appeared in many countries …

Why Care About Caregivers? Using Communitarian Theory To Justify Protection Of "Real" Workers, Nicole Buonocore Porter

Faculty Publications

What is the caregiver conundrum? Simply put, it is the difficulty caregivers face when trying to balance their caregiving responsibilities with their work responsibilities. Caregivers face conflicts both at home and at work when work responsibilities clash with responsibilities at home. In many cases, these conflicts create serious hardships on the caregivers and their loved ones.

Finding a solution to this pressing problem is puzzling because courts and scholars disagree on the scope of the problem. Thus far, courts only protect employees who experience caregiver discrimination because the employer incorrectly assumes the employee will not meet the workplace requirements. In …

Executive Compensation And Tax Neutrality: Taxing The Investment Component Of Deferred Compensation, Eric D. Chason

Faculty Publications

No abstract provided.

Educating The United States Supreme Court At Summers' School: A Lesson On The "Special Character Of The Animal", Rafael Gely, Ramona L. Paetzold, Leonard Bierman

Faculty Publications

In this article, we explore the implications that Professor Summers' insights regarding public employment have for the Garcetti and Davenport decisions. In particular, we focus on the extent to which the political nature of public employment affects public employees' rights to freedom of speech as well as matters regarding the representational functions of public employee unions.

Book Review - Hiring And Firing, Rebekah K. Maxwell

Faculty Publications

No abstract provided.

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Publications

No abstract provided.

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

Faculty Publications

(Excerpt)

Months after insurance giant American International Group (AIG) faltered and the federal government provided financial assistance to keep the company afloat, executive compensation and bonus practices at the company came under scrutiny. Taxpayers balked when evidence came to light that large bonuses were being paid to executives—the same executives, in certain instances, who had been responsible for AIG's losses. The disconnect between AIG's huge losses and the multi-million dollar bonus payments is a striking example of "pay without performance," a phenomenon that Professors Jesse Fried and Lucian Bebchuk documented in their book of the same name. Responding to public …

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

Faculty Publications

(Excerpt)

When Congress passed the Fair Labor Standards Act ("FLSA")' in 1938 to help relieve the downward spiral of wages in the Great Depression, America's workers commonly showed up to an employer's place of business, leaving little doubt if they were "working" and thus entitled to the statute's minimum wage. Times, and technologies, have changed. With modem computers, individuals often perform work on someone else's behalf while sitting at home, using not their employer's factory machinery, but rather a computer they purchased for themselves, as well as their own Internet connection. The work is often engaging and is far more …