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Articles 31 - 60 of 152
Full-Text Articles in Labor and Employment Law
Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan
Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan
Washington Law Review
The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, …
Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan
Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan
Washington Law Review
The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, …
Preempting State E-Verify Regulations: A Case Study Of Arizona's Improper Legislation In The Field Of "Immigration-Related Employment Practices", Rachel Feller
Washington Law Review
In 1996, Congress established E-Verify, a program that allows employers to confirm the employment eligibility of new hires by using a federal electronic database. Although the federal government makes the program voluntary for employers, some states and municipalities have enacted legislation requiring the program’s use to prevent the employment of undocumented workers. Some of these state laws have been challenged in federal court on the grounds that they are preempted by federal law, particularly the Immigration Reform and Control Act of 1986 (IRCA). Courts have divided on this issue. This Comment explains the boundaries of preemption in the context of …
Reading Too Much Into What The Court Doesn't Write: How Some Federal Courts Have Limited Title Vii's Participation Clause's Protections After Clark County School District V. Breeden, Lawrence D. Rosenthal
Reading Too Much Into What The Court Doesn't Write: How Some Federal Courts Have Limited Title Vii's Participation Clause's Protections After Clark County School District V. Breeden, Lawrence D. Rosenthal
Washington Law Review
In 2001, the Supreme Court issued its opinion in Clark County School District v. Breeden, in which it refused to determine what a plaintiff must prove to demonstrate that she engaged in “protected activity” under Title VII’s anti-retaliation provision’s opposition clause. Although the Court declined to answer this question, courts have interpreted Breeden as requiring an opposition-clause plaintiff to prove a good-faith, objectively reasonable belief of an unlawful employment practice. Although Breeden involved Title VII’s opposition clause, some courts are now applying Breeden to cases involving Title VII’s participation clause. This is baffling for two reasons. First, Breeden involved …
Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote
Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote
Washington Law Review
Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects …
Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote
Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote
Washington Law Review
Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects …
The Myth Of The Student-Athlete: The College Athlete As Employee, Robert A. Mccormick, Amy Christian Mccormick
The Myth Of The Student-Athlete: The College Athlete As Employee, Robert A. Mccormick, Amy Christian Mccormick
Washington Law Review
Grant-in-aid athletes in revenue-generating sports at Division I National Collegiate Athletic Association (NCAA) institutions are not "student-athletes" as the NCAA asserts, but are, instead, "employees" under the National Labor Relations Act (NLRA). To be an employee under that Act, these athletes must meet both the common law test and a statutory test applicable to university students. In applying the common law test to athletes, we describe their daily lives through interviews with current and former Division I grant-in-aid athletes. These interviews demonstrate that their daily burdens and obligations not only meet the legal standard of employee, but far exceed the …
Stealing The Public Purse: Why Washington's Collective Bargaining Law For State Employees Violates The State Constitution, Christopher D. Abbott
Stealing The Public Purse: Why Washington's Collective Bargaining Law For State Employees Violates The State Constitution, Christopher D. Abbott
Washington Law Review
In 2002, the Washington legislature passed the Personnel System Reform Act (PSRA), which gives state employees the right to collectively bargain over wages and other economic terms of their employment. Section 302(3) of the PSRA further provides that once the Governor and collective bargaining units reach a proposed collective bargaining agreement, the legislature may not amend the agreement. Instead, the legislature may only express disapproval with any portion of the agreement by rejecting funding of the agreement as a whole. This Comment argues that section 302(3) of the PSRA, now codified at RCW 41.80.010(3), violates the separation of powers doctrine …
Whistling In The Dark? Corporate Fraud, Whistleblowers, And The Implications Of The Sarbanes-Oxley Act For Employment Law, Miriam A. Cherry
Whistling In The Dark? Corporate Fraud, Whistleblowers, And The Implications Of The Sarbanes-Oxley Act For Employment Law, Miriam A. Cherry
Washington Law Review
Passed in 2002 in the wake of the accounting scandals that resulted in billions of dollars of lost value to shareholders, the Sarbanes-Oxley Act has as its major goal the prevention of corporate corruption. This Article analyzes the impact of section 806, the portion of the Sarbanes-Oxlcy Act that provides protections for employees who report securities fraud, and describes the effect that Sarbanes-Oxley has on existing employment law. In addition, this Article contributes to the debate over the general effectiveness of the Sarbanes-Oxley Act, a topic of contention among both academics and press commentators. This Article argues that the Act …
Sex And The Workplace: "Consenting" Adolescents And A Conflict Of Laws, Jennifer Ann Drobac
Sex And The Workplace: "Consenting" Adolescents And A Conflict Of Laws, Jennifer Ann Drobac
Washington Law Review
According to the Equal Employment Opportunity Commission, sexual harassment of adolescents at work may constitute a serious, but to date largely undocumented, problem. Courts respond inconsistently to adolescent "consent" in sexual harassment employment cases. This Article reviews state criminal statutory rape law, federal civil law, and tort law to reveal the conflicting legal treatment of adolescent capacity to consent to sex. It highlights conflicts not only between the criminal and civil systems, but also between sister states' laws and laws within states. For example, this Article finds that despite criminal sexual abuse laws, courts permitted employers to use adolescent "consent" …
Failure To Accommodate, Discriminatory Intent, And The Mcdonnell Douglas Framework: Distinguishing The Analyses Of Claims Arising From Subparts (A) And (B) Of § 12112(B)(5) Of The Ada, Aaron Matthew Laing
Failure To Accommodate, Discriminatory Intent, And The Mcdonnell Douglas Framework: Distinguishing The Analyses Of Claims Arising From Subparts (A) And (B) Of § 12112(B)(5) Of The Ada, Aaron Matthew Laing
Washington Law Review
The Americans with Disabilities Act (ADA) creates and protects employment opportunities for disabled persons by prohibiting adverse employment actions in the form of disparate treatment and disparate impact. Additionally, subparts (A) and (B) of § 12112(b)(5) of the ADA place distinct duties on employers to accommodate disabled persons, protecting, respectively, existing and future employment opportunities. Because the ADA protects both existing and future opportunities, the duty to accommodate may be breached in two distinct manners. When a plaintiff alleges failure to accommodate, a court must determine which section of the ADA applies and select an appropriate analytical framework for the …
Closing A Discrimination Loophole: Using Title Vii's Anti-Retaliation Provision To Prevent Employers From Requiring Unlawful Arbitration Agreements As Conditions Of Continued Employment, Sidney Charlotte Reynolds
Closing A Discrimination Loophole: Using Title Vii's Anti-Retaliation Provision To Prevent Employers From Requiring Unlawful Arbitration Agreements As Conditions Of Continued Employment, Sidney Charlotte Reynolds
Washington Law Review
Courts have long viewed mandatory arbitration agreements (MAAs) as contract provisions that employees may accept or decline based on the common law doctrine of employment at-will. However, employees may see such MAAs as attempts to curtail Title VII rights and may refuse to sign them. Title VII prohibits employers from retaliating against employees who oppose discriminatory employment practices. A legal loophole has developed where some employers seek explicitly or implicitly to exempt themselves from Title VII's provisions by drafting MAAs that eliminate statutory rights and remedies from the arbitration process or deter employees from filing discrimination claims altogether. The U.S. …
Echazabal V. Chevron: A Direct Threat To Employers In The Ninth Circuit, Deborah Leigh Bender
Echazabal V. Chevron: A Direct Threat To Employers In The Ninth Circuit, Deborah Leigh Bender
Washington Law Review
Although Congress enacted the Americans with Disabilities Act (ADA) in part to protect disabled individuals from paternalism, the ADA permits employers to adopt a requirement that individuals not pose a direct threat to others in the workplace. The Equal Employment Opportunity Commission (EEOC) has determined that this direct threat defense also protects an employer who discharges or refuses to hire individuals who pose a direct threat to their own health or safety in the workplace. In Echazabal v. Chevron, the Ninth Circuit struck down the EEOC interpretation of direct threat on the ground that it was paternalistic and inconsistent …
A Shield, Not A Sword: Involuntary Leave Under The Family And Medical Leave Act, Megan E. Blomquist
A Shield, Not A Sword: Involuntary Leave Under The Family And Medical Leave Act, Megan E. Blomquist
Washington Law Review
Under the Family and Medical Leave Act of 1993 (FMLA), covered employers must grant an eligible employee's request for up to twelve weeks of unpaid leave to care for a new baby or an ill family member, or to accommodate the employee's own serious health condition. The statute prohibits employers from interfering with, restraining, or denying an employee's right to FMLA leave. Neither the statute itself nor its regulations directly address the practice of involuntary leave, a term that has been used to describe instances where an employer designates the leave of a qualifying employee as FMLA leave without an …
Two Wrongs Do Not Make A Defense: Eliminating The Equal-Opportunity-Harasser Defense, Shylah Miles
Two Wrongs Do Not Make A Defense: Eliminating The Equal-Opportunity-Harasser Defense, Shylah Miles
Washington Law Review
Sexual harassment is a prevalent problem in the American workplace that accounts for nearly sixty-four percent of all gender discrimination claims under Title VII. The equal-opportunity-harasser defense allows harassers who target both males and females to escape liability. Courts have allowed the defense because they have interpreted the "because of sex" element of a sexual harassment claim to require disparate treatment or a showing that the plaintiffs would not have been harassed if they were members of the opposite sex. An equal-opportunity harasser harasses both sexes and, therefore, plaintiffs cannot prove disparate treatment. This Comment argues that the disparate-treatment requirement …
Qualifying Immunity: Protecting State Employees' Right To Protect Their Employment Rights After Alden V. Maine, Raymond J. Farrow
Qualifying Immunity: Protecting State Employees' Right To Protect Their Employment Rights After Alden V. Maine, Raymond J. Farrow
Washington Law Review
Recent U.S. Supreme Court decisions have barred state employees from bringing private suits against their state employers to recover back wages due them as a result of having been paid in violation of the Fair Labor Standards Act (FLSA). This Comment proposes that the only method by which state employees may protect their FLSA rights on their own behalf is to bring suits against responsible state supervisory personnel in their individual capacities. Although such actions are not barred by sovereign immunity, the potential ability of state agents to invoke a defense of "qualified immunity" would severely impair state employees' ability …
Roberts V. Dudley: An Unnecessary Broadening Of The Public Policy Exception To The Employment-At-Will Doctrine In Washington, Brian Hersey
Roberts V. Dudley: An Unnecessary Broadening Of The Public Policy Exception To The Employment-At-Will Doctrine In Washington, Brian Hersey
Washington Law Review
In Roberts v. Dudley, the Supreme Court of Washington dramatically expanded the previously narrow public policy exception to the employment-at-will doctrine and created a dangerous precedent. The court held that small employers, explicitly exempt from the Washington Law Against Discrimination (VLAD), could be liable at common law for the tort of wrongful discharge in violation of Washington's public policy against sex discrimination as found in the WLAD. The tort of wrongful discharge in violation of public policy requires a finding of a "clear mandate of public policy." This Note argues the court should not have found in the WLAD …
Appearance Matters: A Proposal To Prohibit Appearance Discrimination In Employment, Elizabeth M. Adamitis
Appearance Matters: A Proposal To Prohibit Appearance Discrimination In Employment, Elizabeth M. Adamitis
Washington Law Review
The consideration of appearance in employment decisionmaking context is prevalent and widely accepted. Nonetheless, statutory protection against such discrimination remains limited. Federal protection applies only to claims related to already-protected categories of discrimination, including disability, race, color, religion, sex, national origin, and age. Only one state and a small number of cities and counties explicitly prohibit appearance discrimination in employment. This Comment argues that consideration of appearance in employment decisions is not justified, rational, or beneficial to society unless a bona fide occupational qualification or reasonable business purpose exists. States should adopt statutory protection for appearance to.protect otherwise qualified applicants …
Personal Liability For Sexual Harassment Under The Washington Law Against Discrimination, Darya V. Swingle
Personal Liability For Sexual Harassment Under The Washington Law Against Discrimination, Darya V. Swingle
Washington Law Review
Personal liability for sexual harassment stands at the forefront of employment law and the American political conscience. Title VII of the Civil Rights Act and the Washington Law Against Discrimination both enjoin employers from engaging in sexual harassment. The federal circuit courts have uniformly held that individual employees are exempt from personal liability for sexual harassment under Title VII because they do not fit the statutory definition of "employer." Washington courts have yet to address the issue under state law. This Comment argues that the correct interpretation of the Washington Law Against Discrimination bars individuals from personal liability for sexual …
The "Same Actor Inference" In Employment Discrimination: Cheap Justice?, Julie S. Northup
The "Same Actor Inference" In Employment Discrimination: Cheap Justice?, Julie S. Northup
Washington Law Review
In Proud v. Stone, a 1991 age-related employment discrimination case, the Fourth Circuit established the evidentiary principle that a "strong inference" of nondiscrimination arises when the same person hires and then fires the plaintiff within a short period of time. This "same actor inference" has been adopted in varying degrees by six other circuits. Only the Third Circuit has expressly declined to recognize the hirer-firer relationship as more than evidence from which the trier of fact may draw a reasonable inference. Courts invoking the "inference" have extended its applicability far beyond the original context so as to permit theoretically …
A Legal Roadmap To Privatizing Government Services In Washington State, Nancy Buonanno Grennan
A Legal Roadmap To Privatizing Government Services In Washington State, Nancy Buonanno Grennan
Washington Law Review
Government employers contract out and privatize some of their functions as one way of meeting the public's need for more efficient and effective services. The Washington State Supreme Court, in Washington Federation of State Employees v. Spokane Community College, interpreted the state's civil service laws as imposing a nearly complete bar on contracting out at the state level. That decision was later extended to local public sector employers, who already face complex collective bargaining rules that require them to bargain with unions about contracting out work that has been done or that could be done by their unionized employees. …
The Jurisidctional Shadowland Between The Nlrb And The National Mediation Board: Who's In Charge?, Shaunta M. Knibb
The Jurisidctional Shadowland Between The Nlrb And The National Mediation Board: Who's In Charge?, Shaunta M. Knibb
Washington Law Review
The National Labor Relations Act exempts all persons subject to the Railway Labor Act (RLA) from its jurisdiction. As a result, for over fifty years the National Labor Relations Board (NLRB) has referred challenges to its jurisdiction based on the RLA to the National Mediation Board, the RLA's administering agency. In 1995, however, the NLRB's decisions in Federal Express Corp. and United Parcel Service, Inc. cast doubt on this policy. Even though the Court of Appeals for the District of Columbia then affirmed the NLRB's decision in United Parcel Service, the question of whether the NLRB has the authority …
Crafting A New Means Of Analysis For Wrongful Discharge Claims Based On Promises In Employee Handbooks, Gabriel S. Rosenthal
Crafting A New Means Of Analysis For Wrongful Discharge Claims Based On Promises In Employee Handbooks, Gabriel S. Rosenthal
Washington Law Review
Over the past twenty years, the concept of employment at will has been eroded through exceptions permitting employees to sue employers for wrongful discharge under various theories. One such theory, implied-in-fact contract, grants employees the ability to sue based on promises made in employee handbooks. Although forty-seven states allow such claims, their legal analyses have been murky and varied. The reasons for this ambiguity are twofold. First, courts still feel compelled by the looming presence of employment at will to base exceptions on traditional theories of contract law. Second, the role of disclaimers has not been precisely defined. This Comment …
"Overpaid" Older Workers And The Age Discrimination In Employment Act, Stacey Crawshaw-Lewis
"Overpaid" Older Workers And The Age Discrimination In Employment Act, Stacey Crawshaw-Lewis
Washington Law Review
Congress passed the Age Discrimination in Employment Act (ADEA) to prohibit discrimination against older workers. The legislative history of the ADEA shows that Congress recognized that this discrimination most commonly stemmed from inaccurate stereotypes about the older worker. A review of ADEA cases decided between 1984 and 1995 demonstrates the frequent incidence of cases in which older workers allegedly were fired or not hired because of the higher salaries typically earned by these relatively experienced workers. This review also reveals that, applying an unduly mechanical version of the McDonnell Douglas/Burdine test, courts did not effectively identify (1) employment actions purportedly …
Straight-Time Overtime And Salary Basis: Reform Of The Fair Labor Standards Act, Garrett Reid Krueger
Straight-Time Overtime And Salary Basis: Reform Of The Fair Labor Standards Act, Garrett Reid Krueger
Washington Law Review
The Fair Labor Standards Act (FLSA) was passed in 1938 in response to oppressive working conditions and a depressed economy. While FLSA's overtime provisions may have been responsive to the workplace of the 1930s, they are now outdated in the flexible, service-oriented economy of the 1990s and in need of revision. FLSA's salary basis test and corresponding inconsistent treatment of straight-time overtime payments are examples of excessively wooden provisions. Originally adopted to separate well-compensated white-collar employees from blue-collar line workers in need of statutory protection, the salary basis test no longer effectively serves as a gatekeeper for FLSA's overtime provisions. …
Without Distinction: Recognizing Coverage Of Same-Gender Sexual Harassment Under Title Vii, Trish K. Murphy
Without Distinction: Recognizing Coverage Of Same-Gender Sexual Harassment Under Title Vii, Trish K. Murphy
Washington Law Review
Federal court decisions conflict regarding the applicability of Title VII of the Civil Rights Act of 1964 to sexual harassment cases where the alleged harasser and victim are members of the same gender. This Comment examines the courts' treatment of same-gender sexual harassment claims and argues that same-gender sexual harassment claims fall within the purview of Title VII as impermissible discrimination. In reaching this position, this Comment demonstrates that Title VII lacks gender-based limitations. It then argues that no valid justification exists for distinguishing between same-gender sexual harassment and sexual harassment involving members of different genders. Finally, this Comment suggests …
Enough Is Enough: Pre Se Constructive Discharge For Victims Of Sexually Hostile Work Environments Under Title Vii, Sarah H. Perry
Enough Is Enough: Pre Se Constructive Discharge For Victims Of Sexually Hostile Work Environments Under Title Vii, Sarah H. Perry
Washington Law Review
In Title VII sexual harassment cases based on hostile work environments, application of the constructive discharge doctrine imposes unfair burdens on claimants. A finding of constructive discharge requires a greater severity or pervasiveness of harassment than that required for finding a hostile work environment. This forces many hostile environment victims to remain in abusive and intolerable conditions because they cannot afford to resign. Unless found constructively discharged by their employers, victims who quit their jobs cannot recover back pay for the period between resignation and judgment. The incorrect and inconsistent application of the constructive discharge doctrine in sexually hostile environment …
Bravo V. Dolsen Cos.: Shoring Up Employer Bargaining Power By Sandbagging Nonunion Workers, Peter B. Gonick
Bravo V. Dolsen Cos.: Shoring Up Employer Bargaining Power By Sandbagging Nonunion Workers, Peter B. Gonick
Washington Law Review
In Bravo v. Dolsen Cos., the Washington Court of Appeals held that the public policy provision of Washington's little Norris-LaGuardia Act applied only in cases involving union activity, thus depriving nonunion workers of protection from discharge for engaging in concerted activities. This Note argues that the court misconstrued both the public policy provision and Washington case law to reach a result contrary to sound labor policy and federal interpretations of a similar act. It suggests an alternative interpretation of the public policy provision that provides adequate protection for workers to engage in concerted activities.
Burdening The Plaintiff: Proving Employment Discrimination After Kastanis V. Educational Employees Credit Union, Andrea J. Menaker
Burdening The Plaintiff: Proving Employment Discrimination After Kastanis V. Educational Employees Credit Union, Andrea J. Menaker
Washington Law Review
In Kastanis v. Educational Employees Credit Union, the Washington Supreme Court held that a plaintiff who presents direct, undisputed evidence of discrimination bears the burden of persuading the jury that the employer's actions were not justified by business necessity. By substantially increasing the plaintiff's burden, this decision will make it more difficult for plaintiffs to successfully litigate employment discrimination claims in Washington State. Not only is the court's reasoning contrary to existing state and federal law, but there are also strong policy reasons arguing against the continued application of the court's rule.
The Worker Participation Conundrum: Does Prohibiting Employer-Assisted Labor Organizations Prevent Labor-Management Cooperation?, Robert B. Moberly
The Worker Participation Conundrum: Does Prohibiting Employer-Assisted Labor Organizations Prevent Labor-Management Cooperation?, Robert B. Moberly
Washington Law Review
Worker participation and labor-management cooperation have been important concepts in labor relations for more than a decade. Recently, some proponents of labor management cooperation have argued that the statutory prohibition against employer assistance to labor organizations contained in section 8(a)(2) of the National Labor Relations Act has hampered the development of worker participation programs and ought to be repealed or modified. Others are opposed both to repealing the prohibition and to labor-management cooperation in general. This Article argues that worker participation and labor-management cooperation are beneficial and ought to be encouraged; nonetheless, the prohibition against employer-assisted labor organizations is important …