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Articles 61 - 90 of 152
Full-Text Articles in Labor and Employment Law
The Making Of The Model Employment Termination Act, Theodore J. St. Antoine
The Making Of The Model Employment Termination Act, Theodore J. St. Antoine
Washington Law Review
Courts in about 45 states have ameliorated the harshness of employment at will, but the common-law modifications still exhibit serious deficiencies. Legislation is needed. The Model Employment Termination Act proposes a balanced compromise. It would protect most employees against discharge without good cause and it would relieve employers of the risk of devastating financial losses When liability is imposed. Arbitration procedures under the Model Act would also be simpler, faster, and cheaper than existing court proceedings.
Enforcing Lawyers' Covenants Not To Compete, Glenn S. Draper
Enforcing Lawyers' Covenants Not To Compete, Glenn S. Draper
Washington Law Review
Courts uphold most post-employment covenants not to compete if they meet a three part reasonableness test that balances the interests of the employer, the employee, and the public. Lawyers' covenants not to compete, however, are treated differently. Courts hold lawyers' agreements that prohibit competition with their former firms per se invalid, in order to preserve clients' unrestricted freedom to choose their attorneys. Courts have split on whether to apply the per se rule to invalidate lawyers' agreements that discourage rather than prohibit post-employment competition. The California Supreme Court's recent decision in Howard v. Babcock, applying the familiar reasonableness test to …
Insulating Sexual Harassment Grievance Procedures From The Chilling Effect Of Defamation Litigation, Ruth A. Kennedy
Insulating Sexual Harassment Grievance Procedures From The Chilling Effect Of Defamation Litigation, Ruth A. Kennedy
Washington Law Review
The threat of defamation liability may undermine the push to encourage private employers to establish internal grievance procedures for handling sexual harassment complaints. Courts have recognized two defenses to defamation claims arising out of employers' sexual harassment investigations: the qualified privilege and the intracorporate immunity rule. Neither of these defenses adequately balances the need to insulate grievance procedures against the desire to protect the reputation of the employee accused of harassment. This Comment proposes the adoption of a new grievance procedure privilege which would ensure the integrity of grievance procedures while maximizing the protection afforded an accused employee.
Complete Justice: Upholding The Principles Of Title Vii Through Appropriate Treatment Of After-Acquired Evidence, Jennifer Miyoko Follette
Complete Justice: Upholding The Principles Of Title Vii Through Appropriate Treatment Of After-Acquired Evidence, Jennifer Miyoko Follette
Washington Law Review
Congress enacted Title VII of the 1964 Civil Rights Act to combat employment discrimination and to provide relief to discrimination victims. The 1972 and 1991 amendments strengthened the statute and delineated a clear congressional commitment to the statute's purposes. In most cases the courts have utilized the statutes remedial provisions to deter further discriminatory conduct and to provide relief to victims. However, the majority of federal circuit courts which have addressed the issue deny a remedy to plaintiffs in cases where an employer discovers evidence of an employee's misrepresentations on a resume or evidence of misconduct on the job after …
Statistical Proof Of Discrimination: Beyond "Damned Lies", Kingsley R. Browne
Statistical Proof Of Discrimination: Beyond "Damned Lies", Kingsley R. Browne
Washington Law Review
Evidence that an employer's work force contains fewer minorities or women than would be expected if selection were random with respect to race and sex has been taken as powerful—and often sufficient—evidence of systematic intentional discrimination. In relying on this kind of statistical evidence, courts have made two fundamental errors. The first error is assuming that statistical analysis can reveal the probability that observed work-force disparities were produced by chance. This error leads courts to exclude chance as a cause when such a conclusion is unwarranted. The second error is assuming that, except for random deviations, the work force of …
Deterring Egregious Violations Of Public Policy: A Proposed Amendment To The Model Employment Termination Act, Dawn S. Perry
Deterring Egregious Violations Of Public Policy: A Proposed Amendment To The Model Employment Termination Act, Dawn S. Perry
Washington Law Review
The Model Employment Termination Act (Model Act), if enacted by state legislatures, would provide good cause protection to private sector employees. In exchange for this increased job security, the Model Act limits the range of remedies available for wrongful discharges. This Comment compares the remedies available under common law to those embodied in the Model Act and concludes that the Model Act does not adequately deter abusive discharges in violation of public policy. By amending the Model Act to include a capped punitive damages provision for egregious violations of public policy, state legislatures can achieve deterrence without undermining the compromise …
In-House Counsel's Wrongful Discharge Action Under The Public Policy Exception And Retaliatory Discharge Doctrine, Raymis H.C. Kim
In-House Counsel's Wrongful Discharge Action Under The Public Policy Exception And Retaliatory Discharge Doctrine, Raymis H.C. Kim
Washington Law Review
Most courts hold that in-house counsel have no cause of action under public policy or retaliatory discharge exceptions to the at-will employment rule. This is true even when they are discharged in contravention of a clearly mandated public policy. These courts have rationalized that such recognition would be contrary to the at-will nature of attorney-client employment and would have an adverse effect on the attorney-client relationship. This Comment proposes that courts should extend the public policy exception and retaliatory discharge doctrine to in-house counsel to protect the public from illegal corporate acts and provide relief to in-house counsel.
Penetrating Doctrinal Camouflage: Understanding The Development Of The Law Of Wrongful Discharge, Cornelius J. Peck
Penetrating Doctrinal Camouflage: Understanding The Development Of The Law Of Wrongful Discharge, Cornelius J. Peck
Washington Law Review
American courts developed the employment-at-will doctrine during the post-Civil War period of industrial and commercial expansion. Under that doctrine, either an employer or an employee could terminate an employment contract for any reason, good or bad. In the early 1980s, state supreme courts increasingly recognized exceptions to the employment-at-will doctrine to provide greater job protection for employees. In creating those exceptions, state courts have manipulated and stretched traditional legal doctrine to camouflage their reformist program. But that camouflage which facilitated changes in the law now often obscures the original reason for departing from the employment-at-will doctrine. Some state courts, including …
Determining Just Cause: An Equitable Solution For The Workplace, Wendi J. Delmendo
Determining Just Cause: An Equitable Solution For The Workplace, Wendi J. Delmendo
Washington Law Review
A majority of courts now recognize that an employer's implied promise to discharge an employee only for just cause is an exception to the at-will employment doctrine. These courts, however, have not articulated a clear definition ofjust cause nor have they established a consistent standard for a jury's review of employer discharge decisions. This Comment suggests that courts develop strict guidelines for determining if an employee's conduct is just cause for discharge. Further, this Comment proposes that courts adopt a standard of review that requires the jury to balance employer and employee interests.
Misconduct In Washington Unemployment Compensation Law—Henson V. Employment Security Department, 113 Wash. 2d 374, 779 P.2d 715 (1989), Karen L. Forner
Misconduct In Washington Unemployment Compensation Law—Henson V. Employment Security Department, 113 Wash. 2d 374, 779 P.2d 715 (1989), Karen L. Forner
Washington Law Review
Unemployment compensation may be denied to employees dismissed for misconduct. In Henson v. Employment Security Department, the Washington Supreme Court misapplied the misconduct doctrine by blurring the distinction between on-duty and off-duty misconduct. This Note compares past Washington misconduct doctrine with its application in Henson and discusses the potential equal protection implications of this decision. The author concludes that Henson adversely affects employees and confuses the misconduct doctrine in Washington. Further, while there was no equal protection violation in Henson, the court's result opens the door to future equal protection challenges and violations.
Federal Labor Law Preemption Of State Anti-Takeover Law: A Case Of First Impression—Air Line Pilots Association, International V. Ual Corp., 874 F.2d 439 (7th Cir. 1989), Patrick M. Madden
Federal Labor Law Preemption Of State Anti-Takeover Law: A Case Of First Impression—Air Line Pilots Association, International V. Ual Corp., 874 F.2d 439 (7th Cir. 1989), Patrick M. Madden
Washington Law Review
Federal labor laws generally preempt state laws that conflict with or frustrate the federal labor scheme. In Air Line Pilots Association, International v. UAL Corp., the Seventh Circuit held that federal law did not preempt an anti-takeover statute that invalidated anti-takeover provisions in a collective bargaining agreement. This Note analyzes the court's holding and suggests that the court misapplied judicial precedent. Because state anti-takeover laws as applied to labor agreements conflict with and frustrate the federal labor scheme, this Note concludes that these state laws should be preempted.
Postemployment Restrictive Covenants: Client Base Protection In Washington—Perry V. Moran, 109 Wash. 2d 691, 748 P.2d 224 (1987), Modified, 111 Wash. 2d 885, 766 P.2d 1096, Cert. Denied, 109 S. Ct. 3228 (1989), Susan E. Corisis
Washington Law Review
Most jurisdictions enforce postemployment noncompetition covenants that reasonably prevent an employee from using his or her relationship with the employer's clients to take the clients. In Perry v. Moran, the Washington Supreme Court enforced an employment agreement that prevented the employee from taking her employer's clients, regardless of whether she had personal contact with each of the clients or whether the clients had left the employer's services for reasons other than to follow the employee. This note concludes that a postemployment noncompetition covenant is not reasonable if it prevents an employee from serving an employer's clients with whom the employee …
The Personnel Manual Exception To Employment-At-Will: Is Job Security Merely An Illusion?—Stewart V. Chevron Chemical Co., 111 Wash. 2d 609, 762 P.2d 1143 (1988), Marilou Rickert
Washington Law Review
Washington recognizes the personnel manual exception to the employment-at- will doctrine but applies the exception restrictively. In Stewart v. Chevron Chemical Co., the Washington Supreme Court reversed a plaintiff's judgment for wrongful discharge. This Note analyzes the court's decision and finds it a step backward from previous Washington law establishing exceptions to the employment-at-will doctrine. After Stewart, Washington provides less protection for employees than do other states. This Note suggests that a better rule would allow the trier of fact to decide whether a personnel manual is contractually binding.
Specific Incident Polygraph Testing Under The Employee Polygraph Protection Act Of 1988, Ryan K. Brown
Specific Incident Polygraph Testing Under The Employee Polygraph Protection Act Of 1988, Ryan K. Brown
Washington Law Review
The Employee Polygraph Protection Act of 1988 was enacted to protect private individuals from unjust termination or denial of job opportunities resulting from unwarranted polygraph tests. The Act, however, allows private employers to continue using polygraphs as part of "ongoing investigations" of employee misconduct. This Comment examines the ambiguous language of this exemption that courts will encounter when determining whether employers have violated the Act. The Comment proposes that, unless legislative history or federal regulations indicate otherwise, ambiguities in the specific incident exemption should be broadly construed to avoid employer liability.
The National Labor Relations Act And Undocumented Workers: Local 512 V. Nlrb After The Immigration Reform And Control Act Of 1986, Daniel R. Fjelstad
The National Labor Relations Act And Undocumented Workers: Local 512 V. Nlrb After The Immigration Reform And Control Act Of 1986, Daniel R. Fjelstad
Washington Law Review
In Local 512 v. NLRB, the Ninth Circuit Court of Appeals ordered the National Labor Relations Board (NLRB or Board) to award backpay to undocumented workers who had been unlawfully laid off by their employer. The court decided Local 512 before enactment of the Immigration Reform and Control Act of 1986 (IRCA). One of the aims of the IRCA is to keep undocumented aliens out of the workplace by making it illegal to knowingly employ undocumented aliens. Because protection of undocumented workers like that granted in Local 512 might undermine pursuit of this IRCA objective, apparent conflict arises between National …
The Nlrb And The Negotiation Process: A Proposal For A Procedural Fairness Standard Of Review For Unfair Labor Practice Settlements, Andrew F. Fuller
The Nlrb And The Negotiation Process: A Proposal For A Procedural Fairness Standard Of Review For Unfair Labor Practice Settlements, Andrew F. Fuller
Washington Law Review
This Comment will show that the Board's policy of stringent review of the substantive terms of formal settlements is contrary to the purpose of the NLRA. The policy discourages and causes rejection of settlement agreements. In addition, the policy is inconsistent with the negotiation process and with other Board policies. As an alternative to its present policy of stringent substantive review, this Comment proposes that the Board implement a procedural fairness standard of review. This proposed standard would further the purposes of the NLRA and would provide for a realistic degree of review in terms of the negotiation process. Moreover, …
Employment At Will: Just Cause Protection Through Mandatory Arbitration, Warren Martin
Employment At Will: Just Cause Protection Through Mandatory Arbitration, Warren Martin
Washington Law Review
Employees' primary interest in wrongful termination litigation is job security. Job security has many meanings. It may imply a tenure system with discharge for exceptional circumstances only. On the other hand, it may refer to a limited training and transfer system for reassigning displaced employees. The question is what type of "security" the average employee needs. Employers, by contrast, are primarily interested in management freedom. Restricting management's freedom to terminate employees affects the employer by increasing costs and reducing productivity. Productivity is reduced when management retains incompetent or unnecessary employees for fear of litigation. Costs are increased through both litigation …
Rights For Canadian Members Of International Unions Under The (U.S.) Labor-Management Reporting And Disclosure Act, Alan Hyde
Washington Law Review
This article addresses the question of whether the short answer makes sense; whether, in other words, Canadian members of international unions based in the United States acquire any rights under the Labor-Management Reporting and Disclosure Act (LMRDA) which they can enforce in the courts of the United States. It concludes that Canadian members of United States-based international unions may sue their internationals in United States courts for violation of the LMRDA.
Labor Costs And Midterm Work Relocation: Unfair Labor Practice Or Breach Of Contract?—International Union, United Automobile Workers V. National Labor Relations Board, 765 F.2d 175 (D.C. Cir. 1985), Bryan E. Lee
Washington Law Review
In International Union, United Automobile Workers v. National Labor Relations Board (UAW v. NLRB), the United States Court of Appeals for the District of Columbia Circuit held that it was not an unfair labor practice under the National Labor Relations Act (NLRA) when an employer threatened to relocate certain operations from a union plant to a nonunion plant in order to coerce the union into making midterm wage concessions. Nor was it an unfair labor practice when the employer then carried out the threat to relocate after the union refused to make the wage concessions. The D.C. Circuit decision affirmed …
Comparable Worth Claims Under Title Vii: Does The Evidence Support An Inference Of Discriminatory Intent?—American Federation Of State, County, And Municipal Employees V. Washington, 770 F.2d 1401 (9th Cir. 1985), Brendan Mangan
Washington Law Review
This Note suggests that comparable worth theory, as a means of proving discrimination under Title VII, has been fully explored and charted, and observes that comparable worth claims have gained virtually no ground in legal battles against sex-based wage discrimination. Where courts have upheld such claims, their decisions have turned on the accompanying evidence of discriminatory intent, rather than on the inference of intent drawn from comparable worth studies. Moreover, since many factors provide plausible explanations of wage differentials, courts are correct in rejecting comparable worth claims that are unsupported by additional evidence of intentional discrimination. The Ninth Circuit was …
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Washington Law Review
In American Federation of Labor-Congress of Industrial Organizations v. Eu (AFL-CIO), the California Supreme Court removed a proposed initiative from the ballot prior to the election. The proposed initiative would have compelled the California legislature to apply.to Congress for a limited constitutional convention. The court recognized a general rule against pre-election review of initiatives, but nevertheless found pre-election review appropriate under an exception to the rule. The exception invoked in AFL-CIO allows pre-election review where the challenger alleges that the proposed measure is "beyond the power of the people to enact." This Note analyzes the AFL-CIO court's exercise of pre-election …
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Pre-Election Review Of Voter Initiatives—American Federation Of Labor-Congress Of Industrial Organizations V. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984), Carol Sue Hunting
Washington Law Review
In American Federation of Labor-Congress of Industrial Organizations v. Eu (AFL-CIO), the California Supreme Court removed a proposed initiative from the ballot prior to the election. The proposed initiative would have compelled the California legislature to apply.to Congress for a limited constitutional convention. The court recognized a general rule against pre-election review of initiatives, but nevertheless found pre-election review appropriate under an exception to the rule. The exception invoked in AFL-CIO allows pre-election review where the challenger alleges that the proposed measure is "beyond the power of the people to enact." This Note analyzes the AFL-CIO court's exercise of pre-election …
A Proposal To End Nlrb Deferral To The Arbitration Process, Cornelius J. Peck
A Proposal To End Nlrb Deferral To The Arbitration Process, Cornelius J. Peck
Washington Law Review
In January 1984 the NLRB, reconstituted by President Reagan's appointees, announced significant changes in the Board's policies concerning deferral to the arbitration processes established by employers and unions in their collective bargaining agreements. The new policies are redolent with the politics of a changed administration rather than expertise in labor relations. The changes continue the Board's uncertain treatment of the relationship between its jurisdiction to prevent unfair labor practices and arbitrators' decisions concerning collective bargaining agreements. The newly announced policies are consistent with the conviction that the federal government should sharply reduce its regulatory activities, transferring its previous responsibilities to …
Three New Exceptions To The Employment At Will Doctrine—Thompson V. St. Regis Paper Co., 102 Wn. 2d 219, 685 P.2d 1081 (1984), Susan Ward
Washington Law Review
In Thompson v. St. Regis Paper Company, the Washington Supreme Court limited the employer's right to discharge at will employees by carving out three specific exceptions to the at will rule. This approach is a tentative step toward protection of the interests of employees in Washington. However, because many unjustly discharged employees will be unable to frame a complaint that falls within one of these narrow exceptions, the Thompson decision falls short of a comprehensive solution to the problem of unfair discharge.
Wildcat Strikes In Health Care Institutions—East Chicago Rehabilitation Center, Inc. V. Nlrb, 720 F.2d 397 (7th Cir. 1983), Cert. Denied, 104 S. Ct. 1414 (1984), Crissa Cugini
Washington Law Review
In 1974, Congress added section 8(g) to the National Labor Relations Act (NLRA), requiring labor organizations in health care institutions to give ten days' notice before striking. In East Chicago Rehabilitation Center, Inc. v. NLRB, the Seventh Circuit Court of Appeals interpreted the ten day notice provision in the context of a wildcat strike by seventeen nurse's aides. A divided court held that the wildcat strikers were not required to give ten days' notice because they were not a "labor organization." The court further held that the strikers were protected even though theirs was a wildcat strike not authorized by …
Labor Unions—Vicarious Liability For Torts Committed By Members—Buchanan V. International Brotherhood Of Teamsters, 94 Wn. 2d 508, 617 P.2d 1004 (1980), Paul M. Feinsod
Labor Unions—Vicarious Liability For Torts Committed By Members—Buchanan V. International Brotherhood Of Teamsters, 94 Wn. 2d 508, 617 P.2d 1004 (1980), Paul M. Feinsod
Washington Law Review
This note first considers major developments in the law which preceded Buchanan. The reasoning of the Washington Supreme Court in this case then will be explicated, together with an analysis of the disparate views of the members of the court. This analysis will show that the majority position has unnecessarily excluded tort actions from the purview of RCW § 49.32.070. The note will conclude with a proposal for an alternative approach for the Washington courts to follow in future union-related tort cases.
Toward A Theory Of Rights For The Employment Relation, Robert Brousseau
Toward A Theory Of Rights For The Employment Relation, Robert Brousseau
Washington Law Review
It is my argument that much thinking in the area of labor law has been grafted upon an individualistic stock where it ought not grow; in fact, the considerations embodied in that diverse corpus we call labor law draw heavily upon a tradition of collective jurisprudence, and it is in collective terms that we ought to seek the solution of concrete cases. I shall attempt first to demonstrate the disarray in the treatment of labor rights, to show the origins of the conflict between collective and individualistic traditions, and then to propose a mode of analysis for the reconciliation of …
United Steelworkers Of America V. Weber: An Exercise In Understandable Indecision, George Schatzki
United Steelworkers Of America V. Weber: An Exercise In Understandable Indecision, George Schatzki
Washington Law Review
It is well known to those involved in the world of employment-discrimination law that in 1974 the United Steelworkers of America and Kaiser Aluminum & Chemical Corporation entered into a collective-bargaining agreement which provided for a new on-the-job training program designed solely to correct the virtually total absence of blacks in Kaiser's craft workforce. Fifty percent of the trainees were to be black. Brian Weber, a white production worker who failed to obtain a position in the program, instituted a class action suit alleging that the affirmative action plan discriminated against him and his white colleagues in violation of Title …
Toward A Theory Of Rights For The Employment Relation, Robert Brousseau
Toward A Theory Of Rights For The Employment Relation, Robert Brousseau
Washington Law Review
It is my argument that much thinking in the area of labor law has been grafted upon an individualistic stock where it ought not grow; in fact, the considerations embodied in that diverse corpus we call labor law draw heavily upon a tradition of collective jurisprudence, and it is in collective terms that we ought to seek the solution of concrete cases. I shall attempt first to demonstrate the disarray in the treatment of labor rights, to show the origins of the conflict between collective and individualistic traditions, and then to propose a mode of analysis for the reconciliation of …
United Steelworkers Of America V. Weber: An Exercise In Understandable Indecision, George Schatzki
United Steelworkers Of America V. Weber: An Exercise In Understandable Indecision, George Schatzki
Washington Law Review
It is well known to those involved in the world of employment-discrimination law that in 1974 the United Steelworkers of America and Kaiser Aluminum & Chemical Corporation entered into a collective-bargaining agreement which provided for a new on-the-job training program designed solely to correct the virtually total absence of blacks in Kaiser's craft workforce. Fifty percent of the trainees were to be black. Brian Weber, a white production worker who failed to obtain a position in the program, instituted a class action suit alleging that the affirmative action plan discriminated against him and his white colleagues in violation of Title …