Labor and Employment Law Commons^™

The Wild West Of Supreme Court Employment Discrimination Jurisprudence, Henry L. Chambers, Jr.

Law Faculty Publications

This Essay considers three cases decided in the Supreme Court's 2008-2009 term and notes some of the major issues that are left open for discussion after these cases; its purpose is not to catalog every issue that these cases raise. Taken together, these cases challenge employment discrimination doctrine in a fundamental way. This provides the Fourth Circuit in particular the opportunity to continue doing what it has often done-think creatively about employment discrimination doctrine. This is an observation, not a criticism of the Fourth Circuit. It suggests that the Fourth Circuit can make a difference. Of course, the Fourth Circuit's …

The Potential Of Rulemaking By The Nlrb, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The National Labor Relations Act At 75: In Need Of A Heart Transplant, Charles B. Craver

Hofstra Labor & Employment Law Journal

When the NLRA was enacted in 1935, 13.2% of workers were union members. Industrial unions used the power provided in the NLRA to organize manufacturing workers and achieve a union membership of 35% by the mid-1950s. Although the NLRA was significantly amended in 1947 and 1959, it has not been meaningfully changed since then. As a result, a statute designed for mass production industries is no longer relevant to the service and white-collar positions occupied by most individuals today. The NLRA must be modified to include independent contractors who work like regular employees and perma-temps hired from employment agencies on …

Evaluating The Legality Of Employer Surveillance Under The Family And Medical Leave Act: Have Employers Crossed The Line?, Brandon Sipherd, Christopher Volpe

Hofstra Labor & Employment Law Journal

No abstract provided.

Some Current Thinking At The Board From Brooklyn And Beyond, Alvin P. Blyer

Hofstra Labor & Employment Law Journal

No abstract provided.

Express Yourself: Striking A Balance Between Silence And Active, Puposive Opposition Under Title Vii's Anti-Retaliation Provision, Matthew W. Green Jr.

Hofstra Labor & Employment Law Journal

No abstract provided.

People Are Not Bananas: How Immigration Differs From Trade, Jennifer Gordon

Faculty Scholarship

No abstract provided.

Reluctance And Remorse: The Covenant Of Good Faith And Fair Dealing With American Employment Law Good Faith And Fair Dealing In The Individual Employment Relationship, James J. Brudney

Faculty Scholarship

The covenant of good faith and fair dealing ("the covenant" or "Good Faith") is now an accepted feature of contractual relations in the United States. Essentially undeveloped until the 1960s, the obligation to act in good faith during contract performance and enforcement gained traction once it was written into the Uniform Commercial Code (UCC) and adopted by state legislatures. The covenant achieved broader recognition when included in 1981 as a new section in the Restatement (Second) of Contracts ("Restatement"). In the employment setting, however, the covenant has not fared nearly so well. The majority of states have declined to apply …

Response To Working Group On Chapter 2 Of The Proposed Restatement Of Employment Law: Putting The Restatement In Its Place, Rachel Arnow-Richman

UF Law Faculty Publications

Like most of the contributors to this symposium, I come to bury the Restatement, not to praise it. A fair reading of the ALI’s proposed Chapter 2, on termination and employment at will, reveals a document deeply, if not irretrievably, flawed in both its conception and execution. Principal among my complaints is that the draft neither presents an integrated approach to contractual terms of employment, nor takes a position on the appropriateness of contract as a vehicle for creating employment terms. Thus, in the most benign terms, the draft repackages the common law, adding nothing of value in the process.

The Causation Standard In Federal Employment Law: Gross V. Fbl Financial Services, Inc., And The Unfulfilled Promise Of The Civil Rights Act Of 1991, Michael C. Harper

Buffalo Law Review

No abstract provided.

Discrimination Redefined, Ann C. Mcginley

Scholarly Works

In this Response to Professor Natasha Martin's article Pretext in Peril, Professor Ann McGinley argues that courts' retrenchment in cases interpreting Title VII of the 1964 Civil Rights Act results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of “pretext." Moreover, she posits that the recent Supreme Court case of Ricci v. DeStefano redefines discrimination in an ahistorical and acontextual …

In Search Of The Reasonable Woman: Anti-Discrimination Rhetoric In The United States, Francis J. Mootz Iii

Scholarly Works

This article emerged from my participation in a Symposium addressing global perspectives on the topic, "Anti-Discrimination Discourse and Practices," sponsored by The Jean Monnet Chair of European Law at Cagliari University, Sardinia. The article examines the rhetorical development of the "reasonable woman" standard of hostile work environment sexual harassment under Title VII. I argue that the rhetorical framing of the standard has unnecessarily limited its impact, perhaps to the point of undermining its potential to radically revise our understanding of gender discrimination. I suggest how the rhetorical power of the standard might be recovered.

Ricci V. Destefano: A Masculinities Theory Analysis, Ann C. Mcginley

Scholarly Works

This Article applies masculinity theory to explore the aspects Ricci v. Destefano and its political reverberations. Empirical evidence showed that virtually all written tests have a disparate impact on minorities, that a neighboring city had reached less discriminatory results using a different weighting system, and that other fire departments used assessment centers to judge firefighters' qualifications for promotions. While the black male and all female firefighters were made invisible by the case and the testimony, the fact that Ricci's and Vargas' testimony lionized a particularly traditional form of heterosexual masculinity was also invisible. While the command presence required of a …

The Uses And Misuses Of Statistical Proof In Age Discrimination Claims, Thomas Tinkham

Faculty Scholarship

When it comes to statistics, age discrimination is different than other forms of discrimination. In most discrimination cases we can take the protected population and make appropriate adjustments for necessary characteristics like education and compare the results to the other employee groups.

With age discrimination this method does not work. It doesn’t work because the normal patterns of aging and promotion or wage increase distort the statistical result. Employees typically are promoted more quickly and receive the highest percentage wage increases in early years. However, they generally retain those benefits for life. Employees reach a high point in their careers …

Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges

Law Faculty Publications

First, the article will review the history of arbitration of statutory employment claims, including the Pyett decision. Second, the article will look at the history and causes of legalism in arbitration. Then the article will consider the probable responses of employers and unions to Pyett. While predictions are necessarily speculative, it is likely that some unionized employers will seek to require employees to arbitrate statutory claims, perhaps in higher percentages than in the nonunion workplace. While unions may, and perhaps should, resist, many future collective bargaining agreements (CBAs) may contain such provisions. The article then discusses the alternative dispute resolution …

Honest-Services Fraud: A (Vague) Threat To Millions Of Blissfully Unaware (And Non-Culpable) American Workers, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The author believes that statute 18 U.S.C. § 1346 is unconstitutionally vague, at least as applied to cases in which employees of private entities are prosecuted for depriving their employers of a right to their honest services (so-called “private cases”). Objections to vagueness rest on due process. “Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.” The Supreme Court’s vagueness precedents do not provide much …

Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability And The Political Question Doctrine, Chris Jenks

Faculty Journal Articles and Book Chapters

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political …

Port Development Labor Issues, Alastair Deans

Sea Grant Law Fellow Publications

No abstract provided.

Facilitating Wage Theft: How Court Use Procedural Rules To Undermine Substantive Rights Of Low-Wage Workers, Nantiya Ruan

Scholarly Works

In race and sex discrimination class actions, if a defendant employer makes a Rule 68 offer of judgment to the named plaintiffs, courts routinely refuse to dismiss the class claims. In stark contrast, in collective actions for failure to pay lawful wages, if a defendant employer makes a Rule 68 offer of judgment, courts will often dismiss the entire collective action as having been mooted by the named plaintiffs’ recovery. The outcome of such a dichotomy is that low-wage workers are increasingly unable to challenge unlawful wage violations successfully because the aggregation mechanism is too easily defeated. Without an ability …

Pemakaian Peraturan-Peraturan Kumpulan Wang Simpanan Pekerja (Kwsp) 2001 Dalam Tuntutan Dan Agihan Harta Tanpa Penamaan : Pelaksanaannya Di Kwsp Kuala Lumpur., Siti Fatimah Azzura Mohd Yusof

Student Works (2010-2019)

This research generally examines the concept of property without nomination and its administration in Malaysia. In order to examine the administration of the property, the Employees Provident Fund (EPF) institution was selected. The main discussion of this research focuses on the EPF claim application and its distribution aspects. Both of the aspects are stated in the EPF Regulations 2001. Furthermore this research is concentrated on the administrative issues of the claim and distribution of the property. This qualitative research had used methods of library research, documentation, sampling (Purposive Sampling) and interviewing in the collection of the data. In analyzing the …

Business-Like: The Supreme Court's 2009-2010 Labor And Employment Decisions, Melissa Hart

Publications

The 2009-10 Term at the Supreme Court was a relatively quiet one for labor and employment law. While the Justices were in the news for decisions on corporate political donations and the Second Amendment, the Court’s work-related docket grabbed no headlines. In fact, though, the Court considered 7 work law cases this Term, in areas ranging from standards for arbitration agreements to employee privacy rights in new technology to time limitations for filing Title VII disparate impact claims. This article discusses the Court’s labor and employment cases for the Term. While they may not have made much news, several of …

"No Man Can Be Worth $1,000,000 A Year": The Fight Over Executive Compensation In 1930s America, Harwell Wells

University of Richmond Law Review

No abstract provided.

Missouri's Public Defender Crisis: Shouldering The Burden Alone, Sean O'Brien

Faculty Works

No abstract provided.

Supreme Court Tips Against Individual Rights-Again, Roger B. Jacobs

Hofstra Labor & Employment Law Journal

No abstract provided.

The 45th Anniversary Of Title Vii: Where We Are, Where We've Been, And Where We May Go, Sarah Crabtree, Daphnie Stock

Hofstra Labor & Employment Law Journal

No abstract provided.

Labor Law: Labor Initiatives In The New Administration, Holly B. Fechner, Hon. William J. Kilberg, James A. Paretti, William Samuel, Timothy M. Tymkovich

Hofstra Labor & Employment Law Journal

No abstract provided.

Labor Law During Hard Times: Challenges On The 75th Anniversary Of The National Labor Relations Act, Wilma B. Liebman

Hofstra Labor & Employment Law Journal

No abstract provided.

Broadening Low-Wage Workers' Access To Justice: Guaranteeing Unpaid Wages In Targeted Industries, Hina B. Shah

Hofstra Labor & Employment Law Journal

There was a significant period in early American history where unlimited liability coexisted with limited liability and certain industries or creditors received more favorable treatment. Limited liability was originally conceived as an extraordinary privilege granted to a select few. In the Twentieth Century, it has been transformed into the default rule for all corporations and entities. The prevalence of limited liability in modern times has undermined fundamental labor protections guaranteeing workers’ their wages. The tension between the limited liability rule and labor rights is fundamentally about who the law favors. Limited liability is risk allocation – shifting to the creditors …

Solomon And Strikes: Labor Activity, The Contract Doctrine Of Impossibility Or Impracticability Of Performance, And Federal Labor Policy, Daniel P. O'Gorman

Hofstra Labor & Employment Law Journal

No abstract provided.

The Nlrb's Deferral Policy Under Fire: The D.C. Circuit's Criticism And The Future Of The Deferral Policy, Celeste J. Mattina

Hofstra Labor & Employment Law Journal

No abstract provided.