Labor and Employment Law Commons^™

Why Bivens Won't Die: The Legacy Of Peoples V. Cca Detention Centers, Lumen N. Mulligan

Faculty Works

Interpreting recent Supreme Court precedent, the Tenth Circuit, in Peoples v. CCA Detention Centers, held that a federal prisoner confined in a privately run prison may not bring a Bivens suit against the employees of the private prison for violations of his constitutional rights when alternative state-law causes of action are available. The author first reviews the Supreme Court's evolving Bivens jurisprudence and turns next to an overview of the Tenth Circuit's opinion. Third, the author argues that, despite the Tenth Circuit's new approach, putative constitutional claims brought under state-law theories of recovery will often be re-federalized, producing uniform federal …

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 …

Which Side Are You On? Unionization In Social Service Nonprofits, Eduardo R.C. Capulong

Faculty Law Review Articles

This article examines nonprofit union organizing from an institutional perspective. Specifically, the author asks a basic question: do unions belong in social service nonprofits or are such efforts somehow misguided? To answer the question, the article examines the dual institutional role social service nonprofits play and explores strategies to harmonize their conflicting tendencies. The author argues that the industry-wide unionization of social service nonprofits is the best means by which to actualize the nonprofit ethos and counteract these organizations' tendency to lower wages and working conditions, thereby facilitating cuts in social spending.

Part I discusses the factors that have led …

Bringing Sense To Incentives: An Examination Of Incentive Payments To Named Plaintiffs In Employment Discrimination Class Actions, Nantiya Ruan

Scholarly Works

Employment discrimination class actions (EDCA) are complex creatures for many reasons. One complexity involves the resolution of EDCAs, which typically includes a provision for an incentive award or "bonus" for named plaintiffs. This Article describes five models under which courts struggle with awarding incentive awards to named plaintiffs in EDCAs. It examines how (under which model) and why (upon what justification) courts award or refuse to award incentive payments. This examination illustrates that courts have failed to differentiate between incentive payments that further Title VII's statutory goal of workplace fairness and other litigation matters, such as securities litigation or consumer …

Harassment Of Sex(Y) Workers: Applying Title Vii To Sexualized Industries, Ann C. Mcginley

Scholarly Works

Like the women blackjack dealers at the Hard Rock, cocktail servers, exotic dancers, and prostitutes in legal brothels are vulnerable to sexual harassment by customers. The content of the four jobs reveals the fallacy of the "good girl"/"bad girl" dichotomy, because all four jobs require behavior that falls into both categories if we expand the definition of good and bad girls to include gendered behavior as well as sexual behavior. Once the defense applies to discrimination in sexualized environments, it could logically apply to sexual or racial harassment cases in companies that permit their employees to harbor and act upon …

From North To South Country: Race, Gender And Immigration And The Role Of Unions In The Sanitized Workplace, Ruben J. Garcia

Scholarly Works

Professor Vicki Schultz's ground-breaking article, The Sanitized Workplace, questions whether all sexual conduct is inappropriate in the workplace, whether sexually-charged work environments necessarily disadvantage women, and whether sanitizing the workplace of sexuality impedes gender equality. Her article proposes that a less sanitized workplace with less over-reaction to sexuality would allow for more freedom of sexual expression and be more advantageous to women. According to Professor Schultz, the misuse of sexual harassment law may lead to increased segregation and employers' unwillingness to hire women. In many workplaces today, where office romances are seen as a litigation threat instead of a …

Labor As Property: Guestworkers, International Trade, And The Democracy Deficit, Ruben J. Garcia

Scholarly Works

In the 1914 Clayton Act, Congress declared: "The labor of a human being is not a commodity or an article of commerce." The practical reason for this section of the Clayton Act was to exempt collusion in labor negotiations from antitrust liability. The law also gave effect to the rejection of the commodification of human labor. Since the passage of the Clayton Act, developments in law and society have chipped away at the law's symbolic anti-commodification message. This paper examines the commodification of labor in the international trade and guestworker debates. Historically, the concept of "comparative advantage" in international trade …

Labor’S Fragile Freedom Of Association Post-9/11, Ruben J. Garcia

Scholarly Works

The fragility of civil liberties in the United States became evident after the terrible attacks of September 11, 2001 (9/11). Labor's freedom of association, which is the right to form unions, bargain collectively, and engage in concerted activities, is one of the civil liberties at risk in the post-9/11 period. This Article focuses specifically on post-9/11 limitations of labor's freedom of association conducted by the executive branch and the Congress, and the ways that the courts have adjudicated labor rights in the post-9/11 era. Domestic labor law and constitutional rights alone, however, will not stop the collision of security and …

Pension Power: Unions, Pension Funds, And Social Investment In Canada, Jinyan Li

Articles & Book Chapters

This is a review of the book Pension Power: Unions, Pension Funds, and Social Investment in Canada.

Buying White Beauty, Imani Perry

Cardozo Journal of Equal Rights & Social Justice

The article argues that the global phenomenon of skin-bleaching is a manifestation of structural inequality rooted in race, poverty, and globalization. It critiques how the marketing and use of skin-whitening products perpetuate racial hierarchies and reflects broader societal power dynamics, emphasizing the need for legal and regulatory responses to address the health and social implications of this practice.

Matters Of Public Concern Standard In Free Speech Cases, Ann C. Hodges

Law Faculty Publications

The public concern standard has operated primarily in two categories of free-speech cases: those involving speech by government employees and those involving defamation.

The National Employment Law Project, Joshua N. Leonardi

NYLS Law Review

No abstract provided.

Working America, Lauren Snyder

NYLS Law Review

No abstract provided.

Fugitive Slaves And Ship-Jumping Sailors: The Enforcement And Survival Of Coerced Labor, Jonathan M. Gutoff

Law Faculty Scholarship

This article explores the relationship between the law of maritime labor and the law of slavery. In the eighteenth century, both sailors and slaves were part of a broad regime of unfree labor relations, with slaves, of course, the most oppressed. In the nineteenth century, an era otherwise supposedly devoted to the ideal of "free" labor, sailors and slaves instead remained unfree, subject to federal laws providing for the forced return to their toils if they deserted - the Merchant Seaman's Act and the Fugitive Slave Act. Both of those statutes were deemed to be within Congress' authority, despite questionable …

Cultural, Economic And Legal Factors Underlying Trafficking In Thailand And Their Impact On Women And Girls From Burma, Christa Foster Crawford

Cardozo Journal of Equal Rights & Social Justice

The article examines the complex factors underlying human trafficking in Thailand, particularly focusing on the trafficking of women and girls from Burma. It argues that while Thailand has made efforts to address the issue, the root causes, including cultural attitudes, economic interests, and legal frameworks, remain unaddressed. The analysis highlights the shift in trafficking patterns from Thai women to Burmese migrants due to improved socio-economic conditions for Thai nationals and worsening conditions in Burma. The article emphasizes the need for comprehensive solutions addressing both supply and demand factors, including legal reforms and policy changes.

Big Box Vetoed... What's Next? The Future Of Living Wages In Chicago, Michelle Kaplan

Public Interest Law Reporter

No abstract provided.

Skepticism And Expertise: The Supreme Court And The Eeoc, Melissa Hart

Publications

The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission's interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court's lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation. But this essay argues that the Court's lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court's attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view …

Miller V. Department Of Corrections: The Application Of Title Vii To Consensual, Indirect Employer Conduct, Stephen Dacus

Oklahoma Law Review

No abstract provided.

Erisa: No Further Inquiry Into Conflicted Plan Administrator Claim Denials, Don Bogan, Benjamin Fu

Oklahoma Law Review

No abstract provided.

Getting The Skinny: Fast Food Litigation Is Not A Legal Threat To Business, But It Should Be, J. Brad Reich

Hofstra Labor & Employment Law Journal

No abstract provided.

Hostile Environment Sexual Harassment & First Amendment Content-Neutrality: Putting The Supreme Court On The Right Path, Peter Caldwell

Hofstra Labor & Employment Law Journal

No abstract provided.

Inspecting The Mine Inspector: Why The Discretionary Function Exception Does Not Bar Government Liability For Negligent Mine Inspections, Jay Lapat, James P. Notter

Hofstra Labor & Employment Law Journal

No abstract provided.

Shoring Up The Citadel (At-Will Employment), Matthew W. Finkin

Hofstra Labor & Employment Law Journal

The third draft of parts three and four of the proposed Restatement of Employment Law was circulated in April, 2006. The draft was prefaced by a statement of the Executive Director of the American Law Institute explaining the project's purpose: to simplify the law, to clarify the doctrine underpinning it, and to bring the law into line with evolving economic and social developments. This essay takes a hard look at these two parts - governing contractual job security and discharge for reasons violative of public policy - from the perspective of these desiderata. It argues that the rules set out …

Labor-Management Relations During The Clinton Administration, Robert B. Moberly

Hofstra Labor & Employment Law Journal

No abstract provided.

Unilateral-Modification Provisions In Employment Arbitration Agreements, Michael L. Demichele, Richard A. Bales

Hofstra Labor & Employment Law Journal

Unilateral-modification clauses give one party the unfettered right to amend or reject the underlying contract, often with neither notice to nor consent from the other party. State and federal courts are divided on the issue of whether employment arbitration agreements subject to such clauses are enforceable (and the courts holding the arbitration agreements are unenforceable are divided on which of several contract law doctrines apply). The majority of courts refuse to compel arbitration when the employer's unilateral-modification rights create a lack of consideration, a non-mutual agreement, an illusory promise to arbitrate, or an unconscionable agreement. A minority of courts find …

Be Our Guest: Synthesizing A Realistic Guest Worker Program As An Element Of Comprehensive Immigration Reform, Dennis J. Loiacono, Jillian Maloff

Hofstra Labor & Employment Law Journal

No abstract provided.

The Suspension Of The Davis Bacon Act And The Exploitation Of Migrant Workers In The Wake Of Hurricane Katrina, Haley E. Olam, Erin S. Stamper

Hofstra Labor & Employment Law Journal

No abstract provided.

Organizations, Movements, And Networks, Charles Heckscher

NYLS Law Review

No abstract provided.

Renewing And Maintaining Union Vitality: New Approaches To Union Growth, Fred Feinstein

NYLS Law Review

No abstract provided.

Overcoming Obstacles To Worker Representation: Insights From The Temporary Agency Workforce, Danielle D. Van Jaarsveld

NYLS Law Review

No abstract provided.