Labor and Employment Law Commons^™

Statements Illustrating The Legislative Intent Of These Laws, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

Based on statements in the legislative history, these laws were meant to provide:

1. Overarching Benefits in the Current Economy
2. Benefits to Families
3. Benefits to Management
4. Equality for Women
5. Protection of the Environment

Telework In The Federal Government: The Overview Memo, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

Flexible Work Arrangements (FWAs) alter the time and/or place that employees work on a regular basis in a manner that is manageable and predictable for both employees and employers.1 Telework, also called telecommuting, refers to an FWA that enables an employee to work from an alternative place to the employer’s usual worksite, typically home or a satellite work center. Telework technically refers to work performed with the use of a telecommunications connection to the workplace (e.g., computer, telephone), but the term is also

An Overview Of Early Laws Increasing Access To Flexible Scheduling And Reduced Hours In The Federal Workforce, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

The Federal Employees Flexible and Compressed Work Schedules Act (FEFCWA) authorizes, but does not require, agencies to offer alternative work schedules to employees. FEFCWA permits employees to designate non-traditional arrival and departure times, centered around core agency hours, and to experiment with four-day workweeks or other compressed schedules. Under the law, implementation and employee utilization of alternative work schedules depends on management support and leadership.

The Role Of Erisa Preemption In Health Reform: Opportunities And Limits, Peter D. Jacobson

O'Neill Institute Papers

The Employee Retirement Income Security Act (ERISA) is a federal law regulating the administration of private employer-sponsored benefits including health benefits (i.e., health insurance offered by an employer). In general, since the federal government has exercised its authority to preempt state regulation of the administration of private employer-sponsored health plans, states are blocked from enforcing laws interfering with ERISA.

As many states pursue health care reform experiments, ERISA preemption becomes relevant as a potential limit on the scope and type of reforms states are able to enact. The dominant trend in ERISA litigation has been to preempt state legislation and …

Vol. 26, No. 2, Lewis Maltby

The Illinois Public Employee Relations Report

Contents:

Brave New Workplace: Genetic Discrimination, by Lewis Maltby

Recent Developments

Harassment Handbook, Jovon Bell, Kevin Blanch, Vashon Broadnax, Dallas Cline, Candi Lee

Parameters of Law in Student Affairs and Higher Education (CNS 670)

Harassment presents itself as a challenging annoyance, which most everyone will have to confront over a period of time. As defined by the Equal Employment Opportunity Commission, harassment is commonly transferred via some type of unwelcome communicated behavior, which includes discrimination (2007). There are several motives for which harassment can occur, including race, gender, religion, sexual orientation, and disability. Titles VI and VII of the Civil Rights Act of 1964, and Title IX of the Educational Amendments of 1972 are two federal discrimination laws that help protect residents of the United States from occurrences including both discrimination and harassment, that …

Leaving Maryland Workers Behind: A Comparison Of State Employee Leave Statutes, Michael Hayes

All Faculty Scholarship

Maryland law is not quite a blank slate for employee leave rights-but it is close. While the state forbids employers from terminating employees for job time lost for jury service or attending a court proceeding in response to a subpoena or pursuant to victim's rights laws, Maryland is one of a "select few" that does not require any breaks for adult workers, including time off for meals. Maryland law does not require family or medical leave for private sector workers. In fact, the state's most generous leave law stems from repealing antiquated "blue laws" that required businesses to be closed …

Jamie L. Bronstein's Caught In The Machinery: Workplace Accidents And Injured Workers In Nineteenth-Century Britain, Robert J. Steinfeld

Book Reviews

No abstract provided.

Article 14 Of China's New Labor Contract Law: Using Open-Term Contracts To Appropriately Balance Worker Protection And Employer Flexibility, Jovita T. Wang

Washington International Law Journal

China’s economy rapidly developed as it shifted from a planned economy to a market economy. Cheap labor encouraged foreign companies to conduct business in China, but that business came at the expense of labor protection. Workers who had previously enjoyed lifetime employment suddenly faced rampant layoffs, labor abuse, and unemployment. Despite China’s implementation of the Labor Law in 1994, labor abuse continued, especially by employers refusing to follow written contract requests to define the employment relationship. Many workers were left unprotected. In response to these problems, China passed the Labor Contract Law in 2007 to clarify requirements of employment contracts …

Erisa Does Not Give Employers A Free Pass: Refusing To Place The Burden Of Careless Drafting On The Employee, Charles R. Peterson

Nevada Law Journal

No abstract provided.

Invalidity Of Covenants Not To Compete In California Affects Employers Nationwide, Sheri Wardwell

Washington Journal of Law, Technology & Arts

In Edwards v. Arthur Andersen LLP, the Supreme Court of California rejected the Ninth Circuit Court of Appeals’ “narrow restraint” exception to California Business and Professional Code section 16600 regarding the unenforceability of covenants not to compete (CNCs). Edwards affirms that, unless the agreement falls within a statutory exception, CNCs in employment agreements are invalid as a matter of law in California because of California's strong interest in protecting employee mobility as codified in section 16600. Despite California’s strong public policy against CNCs, an employee who wins the race to a California courthouse may not necessarily benefit from section …

Diversity And Discrimination: A Look At Complex Bias, Minna J. Kotkin

William & Mary Law Review

Multiple claims have become a fixture of employment discrimination litigation. It is common, if not ubiquitous, for court opinions to begin with a version of the following litany: 'Plaintiff brings this action under Title VII and the ADEA for race, age, and gender discrimination. "Equal Employment Opportunity Commission (EEOC) statistics show exponential growth in multiple claims in part because its intake procedures lead claimants to describe their multiple identities, at a time when they have little basis upon which to parse a specific category of bias. But increased diversity in workplace demographics suggests that frequently, disparate treatment may in fact …

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.

Gender Equality In Reconciling Work And Childcare In South Korea, Kook Hee Lee

Cornell Law School Inter-University Graduate Student Conference Papers

This paper presents an ideal legislative model for South Korea to realize gender equality in reconciling work and childcare. The comparative study on the U.S. and German system is the basis for the legislative model. This paper selects the U.S. and German systems as a comparison group because they are representing the equal treatment approach and special treatment approach in the feminist legal theory. The current system in South Korea fails to realize gender equality because it provides maternity leave exclusive to women to limit women’s right to work and lacks financial support for parental leave. Maternity leave limits women’s …

Jurisdictions And Causes Of Action In Bullying, Stress And Harassment Cases Part 1, Niall Neligan

Articles

This is the first of a two part article in which the author will critically evaluate the different causes of action and myriad of jurisdictions for bringing a claim in the inter-related fields of bullying, stress and harassment in the workplace from a commercial law perspective. The author will define and trace the separate headings under which the law governing bullying, stress and harassment has evolved. In the second part of the article (which will
appear in the next edition of the journal), the author will examine recent developments in tortious claims for psychiatric injuries arising from bullying, stress and …

You Can Send This But Not That: Creating And Enforcing Employer Email Policies Under Sections 7 And 8 Of The National Labor Relations Act After Register Guard, Nicole Lindquist

Washington Journal of Law, Technology & Arts

The National Labor Relations Board’s decision in Register Guard Company (Register Guard) set new precedent regarding employee rights to use employer email systems to discuss protected activities under Section 7 of the National Labor Relations Act. The decision established two new rules of law regarding employer email policies: first, employers have a property interest in their email systems, and may, therefore, create email policies prohibiting non-work related emails including Section 7 related communications. Second, employers may enforce email limitations differently between union and non-union related emails, so long as the enforcement is not made “along Section 7 lines.” …

Text Message Monitoring After Quon V. Arch Wireless: What Private Employers Need To Know About The Stored Communications Act And An Employee's Right To Privacy, Jennifer Heidt White

Washington Journal of Law, Technology & Arts

In June 2008, the Ninth Circuit Court of Appeals held that public employees have a reasonable expectation of privacy in the content of text messages sent from employer-owned devices. The court concluded that the expectation of privacy arises vis-à-vis the text-message service provider, even where an employee has signed an explicit waiver of such an expectation. The decision, Quon v. Arch Wireless, raises difficult questions about the limitations placed on text-message service providers by the Stored Communications Act, and an employer’s ability to regulate and monitor employee use of technology in the workplace. Although Quon only applies to public …

Agency, Code, Or Contract: Determining Employees' Authorization Under The Computer Fraud And Abuse Act, Katherine Mesenbring Field

Michigan Law Review

The federal Computer Fraud and Abuse Act ("CFAA ") provides for civil remedies against individuals who have accessed a protected computer without authorization or in excess of their authorization. With increasing numbers of employees using computers at work, employers have turned to the CFAA in situations where disloyal employees have pilfered company information from the employer's computer system. The vague language of the CFAA, however, has led courts to develop three different interpretations of "authorization" in these CFAA employment cases, with the result that factually similar cases in different courts can generate opposite outcomes in terms of employee liability under …

Is Labor Really Cheap In China - Compliance With Labor And Employment Laws, Marisa Anne Pagnattaro

San Diego International Law Journal

This Article details China’s the growing body of labor and employment laws. Specifically, this research analyzes major labor and employment law developments in China, including the newly adopted Labor Contract Law, employment discrimination sexual harassment, wages, workplace health and safety, worker privacy, and dispute resolution. The ramifications of this developing legal landscape on U.S. companies doing business in China are also discussed.

Labor Standards Regarding Flexible Work Arrangements In The U.S. And Abroad, Workplace Flexibility 2010, Georgetown University Law Center

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

A chart of labor standards regarding flexible work arrangements in the U.S. and abroad (United Kingdom, New Zealand, New South Wales, Netherlands, and Germany). Flexible Work Arrangements (FWAs) alter the time and/or place that work is conducted on a regular basis -- in a manner that is as manageable and predictable as possible for both employees and employers.

Federal Tails And State Puppy Dogs: Preempting Parallel State Wage Claims To Preserve The Integrity Of Federal Group Wage Actions , Rachel K. Alexander

American University Law Review

This article addresses the flood of litigation washing through United States federal courts on wage-and-hour group actions and the divergent corresponding district-court rulings. The rapidly growing split in authority relates to the fact that federal law requires that a group wage action be maintained as an opt-in "collective action" while state wage laws may be pursued through an opt-out "class action." With little circuit-court authority on the matter, the parties' arguments and courts' analysis fall all over the map. Despite the myriad of arguments in support of and in opposition to maintaining a state-law opt-out class action in the same …

A Lawyer's Worst Nightmare: The Story Of A Lawyer And His Nurse Clients Who Were Both Criminally Charged Because The Nurses Resigned En Mass, Mitchell H. Rubinstein

NULR Online

No abstract provided.

Re Farmers Co-Operative Dairy Ltd And Unifor, Local 40n (Giles), Innis Christie

Innis Christie Collection

The Grievor was discharged due to theft, fraud and breach of trust. The Union believes the discharge was unjust since an addiction to gambling suggests accommodation would be appropriate. The Grievor seeks reinstatement with full compensation for lost wages and benefits.

The grievance fails. The theft was premeditated and repeated. There is no evidence that the behaviour would not be repeated.

Employer Reputation At Work, Samuel Estreicher

Hofstra Labor & Employment Law Journal

Employer reputational costs - that is, the loss in value of the firm's reputational assets if the firm reneges on its promises to workers, both express and implied, - has played an important role in the economic literature of employment contracts, but this factor has itself generated little sustained analysis. Reputation is often offered as a late-appearing deus ex machina explaining why opportunistic behavior by employers even in internal labor markets is likely to be relatively unimportant. This standard explanation for the enforceability of implicit labor contracts in internal labor markets is problematic for at least three reasons. It assumes …

The Antidiscrimination Paradox: Why Sex Before Race?, Kimberly A. Yuracko

Faculty Working Papers

This paper seeks to explain a paradox: Why does Title VII's prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory—the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. …

The Paradox Of Public Sector Labor Law, Martin H. Malin

All Faculty Scholarship

No abstract provided.

Of Labor Inspectors And Labors Judges: Chilean Labor Law Enforcement After Pinochet (And What The United States Can Do To Help) (Symposium), César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Pirates Of The Caribbean: The Seiu's Failed Bid In Puerto Rico, César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Employee Fiduciary Duties: One Size Does Not Fit All, Leslie Larkin Cooney

Faculty Scholarship

This article examines the law surrounding the fiduciary duties owed by non-officer employees to their employers and the remedies imposed for a breach of those duties. It is the author's contention that applying the same agency principles to all employees regardless of their level of power or ability to exercise discretion or affect the employer's interests generates an uncalled for advantage to the employer.

Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab

Cornell Law Faculty Publications

This Article utilizes the Administrative Office's data to convey the realities of federal employment discrimination litigation. Litigants in these "jobs" cases appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs. These troublesome facts help explain why today fewer plaintiffs are undertaking the frustrating route into federal district court, where plaintiffs must pursue their claims relatively often all the way through trial and where at both pretrial and trial these plaintiffs lose unusually often.