Labor and Employment Law Commons^™

Sadowski V. United States Postal Service: One Step Closer To Delivering A Resolution To The Dispute On Individual Liability For Public Employees Under The Family And Medical Leave Act Of 1993, Leila Early

North Carolina Central Law Review

No abstract provided.

Reforming The United States' Economic Model After The Failure Of Unfettered Financial Capitalism, Richard B. Freeman

Chicago-Kent Law Review

This Article is based on the 2009 Kenneth M. Piper Lecture at the Chicago-Kent College of Law. The 2008–2009 financial meltdown and ensuing economic developments have shown three things about modern capitalism: First, that unfettered financial markets remain the Achilles heel of capitalism with the capability of destroying economic stability and bringing misery to all. Second, that high-powered incentives paid to "talent" in finance are a fundamental cause of the excessive risk-taking, chicanery, and financial fraud that contributes to instability. Without a new compensation system that rewards banking and finance for contributing to sustainable economic progress rather than for economic …

Pitfalls Of Fmla And Collective Bargaining Agreements, Karin Mika

Law Faculty Articles and Essays

Mika discusses union contracts and how employers must be aware of family and medical leave rights when applying contract provisions.

(Re)Constructing The Framework Of Work/Family, Nancy E. Dowd

UF Law Faculty Publications

When we talk about the connections between work, family, and marriage, what are our assumptions or our implicit model? In this essay, I hope to expose the importance of questioning the framework within which we operate. Marriage continues to be a core focus of the typical family law course. As a matter of public policy, supporting and valuing marriage, and concern about the conflict between work and family because of the strains it imposes on marriage, makes balancing work and family within a marital framework a focus of law and policy.

In this essay, I argue that we need to …

Heeding "The Best Of Prophets": Historical Perspective And Potential Reform Of Public Sector Collective Bargaining In Indiana, Todd C. Dvorak

Indiana Law Journal

No abstract provided.

Extending The Vision: An Empowerment Identity Approach To Work-Family Regulation As Applied To School Involvement Leave Statuses, Kirsten K. Davis

William & Mary Journal of Race, Gender, and Social Justice

Using school involvement leave legislation as the focus for analysis, this article proposes the “empowerment identity” approach to work-family legislation as an alternative or complement to the commonly used accommodation and antidiscrimination approaches. In many households, working parents struggle to meet routine demands of parenting, such as caring for a sick child or attending a child’s school activity. Interestingly, one of the most common forms of state-level legislation designed to address the routine demands of parenting is school involvement leave legislation. Although state school involvement leave statutes vary widely in how and for what reasons they permit time away from …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

Scholarly Works

This Article analyzes the application of employment discrimination law to sexual minorities--lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities. While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

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

Vanderbilt Law Review

This Article examines this rising phenomenon by first outlining the pressing societal need for collective litigation to ensure 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 …

Synergistic Solutions: An Integrated Approach To Solving The Caregiver Conundrum For "Real" Workers, Nicole Buonocore Porter

Faculty Publications

This Article is the second part of a project aimed at ending caregiver discrimination for all workers who are struggling to balance work and family. The first part of the project argued that the communitarian theory supports the broad reform envisioned, and this piece articulates that vision. This reform project utilizes a synergy of solutions, taking a comprehensive and creative approach to ending the caregiver conundrum for all working caregivers. The proposal includes the use of various statutory provisions that work together to avoid some of the deficiencies created by other proposals. Specifically, the proposal attempts to address the three …

A New Board Policy On Deferral To Arbitration: Acknowledging And Delimiting Union Waiver Of Employee Statutory Rights, Michael C. Harper

Faculty Scholarship

This article considers the extent to which the National Labor Relations Board should defer in its protection of statutory rights to the private arbitration process under collective bargaining. The article explains and criticizes the theory of implied union waiver advanced by the District of Columbia Circuit Court of Appeals under the leadership of Judge Harry Edwards. It posits a reformulation of Board deferral doctrine for waivable substantive rights. The article also consider the relevance of the Supreme Court’s 2009 decision in 14 Penn Plaza, LLC v. Pyett to Board deferral to arbitration in cases involving § 7 rights that are …

Phased Retirement Data Sheet, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

This data sheet includes information on current coverage and participation by American workers in pension and retirement plans. It also includes information on what employees say they want in terms of flexible work arrangements and access to pension and retirement funds, as well as what employers say they need with regard to the workforce of the future.

Early Retirement Incentive Plans And The Age Discrimination In Employment Act, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

Early retirement incentive plans (ERIP) “seek to give incentives to older employees to retire before conventional retirement age. The purpose of these programs is to cut back on salaries and benefits to make way for younger workers.” While some ERIPs might constitute a prohibited act under the Age Discrimination in Employment Act (ADEA), the statute provides an affirmative defense for employers who can prove that the plan is voluntary and “consistent with the purposes” of the Act.

Some commentators have suggested that one way to encourage employers to establish bona fide phased retirement programs within their qualified pension plans is …

Benefits, Rights And Features Nondiscrimination Testing And Phased Retirement Programs, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

Various studies indicate that formal phased retirement programs within defined benefit plans are wanted and needed by both employers and employees. Phased retirement programs may be useful for employees who want to reduce their hours during later stages of their careers, but who wish to remain in the workforce. For employers, a phased retirement program may be a useful tool to retain talented employees who may otherwise fully retire.

In designing phased retirement programs, It is not surprising that many employers wish to have significant discretion in deciding which employees they will seek to retain through a phased retirement program. …

Phased Retirement Benefits And Final Full Retirement Calculations: Open Issues, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

This document briefly describes two issues relating to the final, full retirement benefit for individuals who receive a phased retirement distribution from a defined benefit plan: 1) whether and how any phased retirement distribution would offset the final full retirement benefit, and 2) the form of the payment of the final, full retirement benefit.

A Timeline Of The Evolution Of Retirement In The United States, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

This document provides key highlights in the history of retirement in the United States. It provides some background on how the concept of retirement, and its legal treatment, has evolved. This time-line does not include every law related to pension and retirement plans. Rather, it emphasizes those laws that have come to shape how we view retirement, particularly the tax laws that encouraged employers to establish pension and retirement plans in the first place.

Selected Resources On Flexible Work Arrangements For Lower-Wage Workers, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

A list of resources for low-wage workers regarding flexible work arrangements.

Faqs About Employees And Employee Benefits, Pamela Perun

Memos and Fact Sheets

This primer is an introduction to the basic laws of employee benefits. It is often assumed that there are legal impediments to employers providing benefits to phased retirees, part-time workers and the contingent workforce. From a benefits law perspective, this is really not true. By statute, self-employed workers are sometimes excluded from plans required to be employee-only but employers face few other prohibitions when designing their plans.

From an employer’s perspective, there are far more impediments to excluding these workers from their benefit plans than including them. Tax law provides incentives to employers who sponsor plans and to workers who …

Legal And Research Summary Sheet: Phased Retirement, Chantel Sheaks J.D., Marcie Pitt-Catsouphes Phd, Michael A. Smyer Phd

Memos and Fact Sheets

During the first decade of the 21st century, significant attention has been paid to the widely anticipated retirement of the Baby Boom generation from the U.S. workforce. Employers and policymakers have considered important questions such as:

• What percentage of older workers are likely to retire on a full-time basis between the ages of 62-65?

• What might the implications of a “mass exodus” of Baby Boomers mean for different types of businesses?

• Which types of policies and practices might encourage some older workers to extend their labor force participation, thereby enabling employers to retain the knowledge and skills of these experienced …

Workplace Flexibility: A Norm Of The American Workplace, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

A PowerPoint slide-show that outlines the challenges, options, policies, solutions, and innovations associated with Flexible Work Arrangements.

Family And Medical Leave: Selective Background Information, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

Topics covered:

Who is currently working for a “covered employer” under the FMLA and, of those employees, how many are eligible for FMLA-related leave?

Of eligible individuals who work for covered employers, how many used leave rights under the FMLA?

Who needed the type of leave offered by the FMLA but did not take such leave?

What percentage of private sector establishments are covered under the FMLA?

Flexible Work Arrangements: The Fact Sheet, Jean Flatley Mcguire, Kaitlyn Kenney, Phyllis Brashler

Memos and Fact Sheets

A "flexible work arrangement" (FWA) is any one of a spectrum of work structures that alters the time and/or place that work gets done on a regular basis. The term includes (but is not limited to):

1. flexibility in the scheduling of hours worked, such as alternative work schedules (e.g., flex time and compressed workweeks), and arrangements regarding shift and breack schedules:

2. flexibility in the amount of hours worked, such as part-time work and job shares; and

3. flexibility in the place of work, such as working at home or at a satellite location.

Did Congress Authorize The Nlrb To Decide Cases With Only Two Sitting Board Members, Where The Nlra’S Statutory Language Provides For A Three-Member Board Quorum?, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Contracts, Custom, And The Common Law: Towards A Renewed Prominence For Contract Law In American Wrongful Discharge Jurisprudence, Timothy J. Coley

Brigham Young University Journal of Public Law

No abstract provided.

The Public Policy Exception To Employment At-Will: Time To Retire A Noble Warrior?, Kenneth R. Swift

Mercer Law Review

I. INTRODUCTION

An armored car driver leaves his truck in violation of company rules to help save a woman from a knife-wielding attacker and is terminated.

A campus security guard is called to a scene where a man is lifting a woman; he mistakenly believes it is an attack, arrests the man, and is terminated.

A nurse is invited on a camping weekend by her supervisor, refuses to take part in a bawdy dance, and is terminated.

A woman, asked by her employer to sign a statement indicating she acted inappropriately at work, requests to meet with a lawyer first …

A Miscarriage Of Justice: Pregnancy Discrimination In Sectarian Schools, Lauren E. Fisher

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Golden Gate And The Ninth Circuit’S Threat To Erisa’S Uniformity And Jurisprudence , Landon Wade Magnusson

BYU Law Review

No abstract provided.

Transforming The Public Employee Speech Standard In Posey V. Lake Pend Oreille: More Than Meets The Eye , Benjamin M. Smith

BYU Law Review

No abstract provided.

Measuring The Success Of Bivens Litigation And Its Consequences For The Individual Liability Model, Alexander A. Reinert

Articles

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U. S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called "Bivens "cause of action—initially extended to other constitutional provisions and then sharply curtailed over the past two decades—has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens—one that has been repeated in different venues for thirty years— is that the Court's individual liability model, in …

The Fluctuating Workweek: How It Works, How It’S Treated, How It’S Perceived, Anthony J. Galdieri

The University of New Hampshire Law Review

[Excerpt] “This article argues that the fluctuating workweek method of overtime compensation is a viable alternative to the traditional method of overtime compensation. First, it will explain how the fluctuating workweek works and how state courts have treated it. Second, it will debunk several misconceptions about the fluctuating workweek. Finally, it will show that employers are working small numbers of employees for long hours because paying overtime is cheaper today than hiring new employees.

Data Note: Vocational Rehabilitation Employment Outcomes For Transition-Age Youth With Autism And Other Disabilities, Frank A. Smith, Jaime Lugas

Data Note Series, Institute for Community Inclusion

Youth with autism, like youth from other disability subgroups, often participate in state Vocational Rehabilitation (VR) programs to obtain employment. While youth with autism represent a small percentage of all VR closures, the number with autism who closed out of VR more than tripled between 2003 and 2008 (see figure). In this Data Note, we compare employment outcomes for two subgroups of youth who exited VR in FY 2008, those with autism and those with all other disabilities.