Labor and Employment Law Commons^™

Multiracial Matrix: The Role Of Race Ideology In The Enforcement Of Antidiscrimination Laws, A United States-Latin America Comparison, Tanya K. Hernandez

Faculty Scholarship

This Article examines the role of race ideology in the enforcement of antidiscrimination laws. Professor Hernandez demonstrates the ways in which the U.S. race ideology is slowly starting to resemble the race ideology of much of Latin America. The evolving U.S. race ideology is a multiracial matrix made up of four precepts: (1) racial mixture and diverse racial demography will resolve racial problems; (2) fluid racial classification schemes are an indicator of racial progress and the colorblind abolition of racial classifications an indicator of absolute racial harmony; (3) racism is solely a phenomenon of aberrant racist individuals; and (4) focusing …

Disability, Federalism, And A Court With An Eccentric Mission, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

This article examines the Supreme Court's recent Eleventh and Fourteenth Amendment decisions constraining Congress's power to impose legal obligations on state governments. The context for this examination is the Court's consideration this Term of the constitutionality of the provision of the Americans with Disabilities Act authorizing individual suits against states by persons alleging they have been victimized by state disability discrimination. This article was written while the fate of the ADA case was unknown. But the Court issued its decision just as this article was going to press. A postscript has been added describing that decision and its implications. The …

Wellington’S Labors, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

My first class as a student at Yale Law School was the first class Harry Wellington taught there. It was the Fall of 1956. The course was Contracts. Harry entered the classroom, looking no older than the students (in truth, he 'wasn't much older), but surely better dressed. He settled himself on the corner of the desk, and the magic began. Without introduction or fanfare, Harry embarked on a monologue about a magazine that kept arriving, uninvited, in his mailbox each month. He confessed to leafing through the pages from time to time, and wondered if this obligated him to …

Non-Legislative Labor Law Reform And Pre-Recognition Labor Neutrality Agreements: The Newest Civil Rights Movement, Roger C. Hartley

Scholarly Articles

A central component of the overhauled union organizing strategy is greater reliance on the pre-recognition neutrality agreement negotiated with an employer whose employees a union is attempting to organize. This article examines these neutrality agreements. Part I locates the neutrality agreement within unions' revitalized approach to organizing." This discussion shows that neutrality agreements can redress four disadvantages unions confront when organizing: employer intimidation, harmful delay, inadequate access to employees, and inability to secure a first contract. These disadvantages, widely understood as contributing significantly to the decline in union membership during the last quarter of the twentieth century, constitute the core …

Equal Opportunity For Employers: Elevating The Adverse Employment Action Standard To Allow Only Meritorious Retaliation Claims, Wendy Hyland

Kentucky Law Journal

No abstract provided.

Designated Diffidence: District Court Judges On The Courts Of Appeals Papers Of General Interest, James J. Brudney, Corey Distlear

Faculty Scholarship

Since 1980, District CourtJudges, designated pursuant to federal statute, have helped decide over 75,000 court of appeals cases-nearly one of every five merits decisions. Although scholars and judges have warned that the presence of these visitors on appellate panels may undermine consistency, legitimacy, or collegiality, little empirical evidence exists related to such concerns. Working with an especially complete data set of labor law opinions, the authors found that district court visitors perform in a much more diffident fashion than their appellate colleagues. They contribute notably fewer majority opinions and dissents. In addition, their participations do not reflect their professional or …

The Employment Law Decisions Of The October 2000 Term Of The Supreme Court: A Review And Analysis, Ann C. Hodges, Douglas D. Scherer

Scholarly Works

During the October 2000 Term, the Supreme Court delivered major setbacks for employees in Circuit City Stores, Inc. v. Adams,' which upheld mandatory and binding arbitration of federal and state employment discrimination claims through arbitration clauses forced upon employees as a condition of employment, and in Board of Trustees of the University of Alabama v. Garrett, which shielded state employers from federal court law suits brought under the Americans with Disabilities Act by victims of disability discrimination in employment. Employees escaped harm in Pollard v. E.I du Pont de Nemours & Co., in which the Court followed nearly unanimous circuit …

Discrimination Cases In The 2000 Term, Eileen Kaufman

Scholarly Works

No abstract provided.

"Sometimes The Road Less Traveled Is Less Traveled For A Reason": The Need For Change In Georgia's Employment-At-Will Doctrine And Refusal To Adopt The Public Policy Exception, Nancy Baumgarten

Georgia Law Review

This Note calls for the adoption of the public policy exception to the employment-at-will doctrine in the state of Georgia. Georgia employees need a viable claim at the state level since federal relief may not always be an option for a Georgia plaintiff. Furthermore, the adoption of this exception is directly in line with Georgia's policies in other areas of law. Finally, since it is the same employers who have placed Georgia in the bottom twenty-five percent of the nation for the highest rate of job discrimination that can terminate Georgia' employees for reasons which violate public policy, the need …

With All Due Deference: What Constitutes The Exercise Of "Independent Judgment" In The Workplace? An Analysis Of Nlrb V. Kentucky River Community Care, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). The author expected the Court to examine two issues: (1) What is the appropriate interpretation of the statutory phrase "independent judgment" as used in § 2(11) of the National Labor Relations Act in defining which individuals are supervisors; and (2) Who has the burden of proving that an employee meets the definition of supervisor?

Can Contested Disciplinary Actions Be Considered In Subsequent Termination Proceedings? An Analysis Of United States Postal Service V. Gregory, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case U.S. Postal Service v. Gregory, 534 U.S. 1, 2001. The author expected the case to examine whether, under the Civil Service Reform Act, the Merit Systems Protection Board (MSPB) abuse its discretion when it considers prior discipline that is currently being challenged by the employee in ongoing grievance proceedings?

Re-Interpreting The Effect Of Rights: Career Narratives And The Americans With Disabilities Act, David Engel, Frank W. Munger

Articles & Chapters

This article examines how the employment rights guaranteed by the Americans

with Disabilities Act (ADA) affect the careers of individuals with disabilities. The

article draws on in-depth interviews with sixty adults who provided extended life

story narratives, describing early family and educational experiences and later

experiences with employment. Their detailed accounts offer insights into the

sometimes subtle role rights play in peoples lives and careers. Relatively few

rights violations actually lead to explicit or formal invocations of the law. The

effect of the ADA on careers can be profound but is primarily indirect or

symbolic. Moreover, other factors affect the …

Foreword, Maria O'Brien

Faculty Scholarship

Over the past twenty or so years, the range of employee benefits offered by employers - both large and small - has expanded dramatically. The old (and relatively short) list of "fringes" typically included health insurance, a pension plan, paid holidays and group life insurance. There was, of course, some variation in this list, especially across industries. But, by and large, employers did not concern themselves in a formal way with "modern" benefits such as elder care, child care, legal assistance, flex time, and parental leaves. As a recent study by the Society for Human Resource Management' suggests, employers have …

A Framework For The Rejuvenation Of The American Labor Movement, Michael C. Harper

Faculty Scholarship

No abstract provided.

Conflating Scope Of Right With Standard Of Review: The Supreme Court's Strict Scrutiny Of Congressional Efforts To Enforce The Fourteenth Amendment, Melissa Hart

Publications

No abstract provided.

The Nlra: A Call To Collective Bargaining, Theodore J. St. Antoine

Other Publications

A century ago the legal specialty of most members of this audience would have been known as Master and Servant Law. By the time my generation entered law school, the Decennial Dgest had just added a new topic - Labor Relations Law. That of course dealt with collective bargaining and union-management relations generally. Now, a half century further along, we might seem to have come full circle, to judge by the lectures of the two eminent jurists who inaugurated this series. Both Abner Mikva and Richard Posner spoke on highly important and timely subjects, and yet those would be classified, …

Restrictive Covenants, Employee Training, And The Limits Of Transaction-Cost Analysis, Gillian Lester

Faculty Scholarship

Restrictive covenants are an increasingly common feature of employment, used across a wide range of industries, occupations, and employees. In its most common form, a restrictive covenant prohibits an employee from competing with the employer within a certain geographic area fora specified period of time after departure, usually one or two years. Sometimes these clauses are drawn more narrowly, proscribing specific activities such as continued dealings with former customers. Regardless of scope, the typical remedy when an employee breaches such a covenant is injunctive relief.

A substantial literature within law and economics debates the merits of restrictive covenants from an …

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

Articles

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

Articles

Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

No Pain, No Gain, No Compensation: Expoliting Professional Athletes Through Substandard Medical Care Administered By Team Physician, Nick Dicello

Cleveland State Law Review

This note discusses the role of the team physician and the unique conflicts he or she faces when providing medical care to athletes. In particular, the note describes the pressure team doctors experience from team management, the coaching staff, and the players themselves. Next, the note discusses the types of claims professional athletes have brought against their doctors and team employers and how the terms of collective bargaining agreements (CBA) and workers' compensation laws create obstacles to their recovery. The note will explore the need for a specialized legal standard within the practice of sports medicine and identify the disincentive …