Labor and Employment Law Commons^™

Union Salts As Administrative Private Attorneys General, Michael C. Duff

All Faculty Scholarship

The legitimacy of union salting campaigns has been debated frequently and bitterly over the last several years. Salts, the agents of these campaigns, are professional union organizers who apply for, and sometimes obtain – often surreptitiously – employment with non-union employers in furtherance of union objectives. Although recent decisions of the National Labor Relations Board (NLRB), under the influence of the W. Bush administration, have erected administrative and legal roadblocks to the conduct of salting campaigns, it is likely that the “Obama Board” will revisit the issues surrounding them. This article argues that salts have served a legitimate function by …

Relieving (Most Of) The Tension: A Review Essay Of Samuel R. Bagenstos, Law And The Contradictions Of The Disability Rights Movement, Nicole Buonocore Porter

Faculty Publications

This Review Essay reveals the considerable contribution made by Professor Samuel Bagenstos in his book, Law and the Contradictions of the Disability Rights Movement, where he acknowledges and tackles most of the contradictions and tensions within the disability law field. Instead of repeating familiar arguments about a backlash against the Americans with Disabilities Act (ADA), Bagenstos recognizes and explains that much of the lack of success of the ADA can be attributed to tensions in the goals and projects of the disability rights movement. He makes a very convincing argument that the anti-discrimination and accommodation model of the ADA, …

Assessing The Regulation Of Temporary Foreign Workers In Canada, Sarah Marsden

Osgoode Hall Law Journal

There has been an increase in the number of incoming temporary migrant workers to Canada over the past decade. In this article, I critically assess recent changes in the law governing temporary migration to Canada by using theoretical tools from the fields of sociology, geography, and legal geography. A multidisciplinary framework to understand Canada's labour migration policies is provided. Within the socio-historical context of migrant labour regulation in Canada, I argue that political and regulatory developments function to further entrench segregation and exclusion of foreign workers by maintaining a subclass of flexible labour. Specifically, I show that Canada's current temporary …

Employment, Sexual Orientation, And Religious Beliefs: Do Religious Educational Institutions Have A Protected Right To Discriminate In The Selection And Discharge Of Employees?, Ralph D. Mawdsley

Brigham Young University Education and Law Journal

No abstract provided.

Data Note: Examining Collaboration Between State Intellectual And Developmental Disabilities Agencies And State Vocational Rehabilitation Agencies, Kelly Haines, Heike Boeltzig, Jean E. Winsor

Data Note Series, Institute for Community Inclusion

Since Fiscal Year 1988, the Institute for Community Inclusion has administered the National Survey of State Intellectual and Developmental Disabilities Agencies' Day and Employment Services. The FY 2009 survey included a module to assess the ways in which state intellectual and developmental disabilities (IDD) agencies collaborate with their state vocational rehabilitation (VR) agencies to support integrated employment outcomes for adults with IDD. A total of 40 agencies responded to the module. Their responses provide a broader understanding of the relationship between the two types of state agencies, and the ways in which they work together to provide integrated employment services.

Comparing Ceo Employment Contract Provisions: Differences Between Australia And The United States, Randall Thomas, Jennifer G. Hill, Ronald W. Masulis

Vanderbilt Law School Faculty Publications

The results of our comparison of U.S. and Australian contracts offer some interesting contrasts with several earlier studies that compare U.S. and U.K. CEO compensation. In those prior studies, the authors conclude that U.S. CEOs' compensation is significantly higher than U.K. CEOs' compensation. What is interesting about our initial results is that U.S. CEOs clearly do not have higher base salaries in comparison to Australia. On the other hand, U.S. contracts are much more likely to include restricted stock and stock option features, which generally require payment after a CEO remains at the firm a fixed number of years, typically …

Executive Compensation In The Courts: Board Capture, Optimal Contracting, And Officers' Fiduciary Duties, Randall Thomas, Harwell Wells

Vanderbilt Law School Faculty Publications

This Article proposes a new approach to monitoring executive compensation. While the public seems convinced that executives at public corporations are paid too much, so far attempts to rein in executive compensation have met with little success. Several approaches have been tried - requiring large pay packages to consist predominantly of incentive pay, new procedures for approving pay, mobilization of public outrage at giant compensation packages. None, however, has stemmed the growth of executive compensation, or convinced opponents of large pay packages that such pay is either fair or deserved. Here we suggest a new approach, one that turns to …

Goldilocks And The Three-Judge Panel: Spencer V. World Vision, Inc. And The Religious Organization Exemption Of Title Vii, Brandon S. Boulter

BYU Law Review

No abstract provided.

Religion Anti-Discrimination And The Decline Of Labor Law, Nathan B. Oman

Popular Media

No abstract provided.

Will Cutting The Payroll Tax Increase Jobs In The U.S.? Empirical Evidence From The Eu Vat, Richard Thompson Ainsworth

Faculty Scholarship

Red Ink Rising, the Peterson–Pew Commission on Budget Reform’s report presents the country with a fiscal/employment dilemma – Congress must act immediately to stem the federal debt, but it must move carefully lest it harm employment in the fragile economy. In short, we must act fast and slow – we must decrease the debt and increase employment. This is a difficult task.

The Peterson-Pew dilemma (notably its jobs-creation aspect) was taken to heart by both of the reform commissions that issued reports soon thereafter (National Commission on Fiscal Responsibility and Reform, The Moment of Truth and The Debt Reduction Task …

Does The Workforce Investment Act Work?, Kevin Hollenbeck

Conference Papers

No abstract provided.

Is The Breast Best For Business?: The Implications Of The Breastfeeding Promotion Act, Brit Mohler

William & Mary Business Law Review

In June of 2009, the 111th Congress was asked again to consider the Breastfeeding Promotion Act. During that year, for the first time in history, the Senate also took up consideration of the issue, and the President of the United States signed into legislation a portion of the Act as included in a healthcare bill. The Breastfeeding Promotion Act is meant to protect a woman’s right to breastfeed in the workplace. The Act accomplishes this goal by: amending the Civil Rights Act to ensure that breastfeeding will be considered a protected act in the workplace, amending the Fair Labor Standards …

Hoisted By Their Own Petard: Struve Applies Pretext Analysis To The Court, Finds Justices’ Motives Questionable, Martin J. Katz

Sturm College of Law: Faculty Scholarship

In her new article, Catherine Struve questions the Court’s motives in Gross. And she does so using a pretext analysis that is deliciously reminiscent of a McDonnell Douglas pretext analysis. Like the skilled employment lawyer she is, Professor Struve divides and conquers each of the arguments advanced by the Court for its action. First, she considers the Court’s argument that the Civil Rights Act of 1991 does not apply to ADEA claims. While she concedes that this argument might be correct, she also notes that it is irrelevant. Then, she considers the Court’s textual argument: that there is no …

Brief For Respondent, Duryea, Pa. V. Guarnieri, 564 U.S. 379 (2011) (No. 09-1476), 2011 Wl 175871, Cynthia L. Pollick, Eric Schnapper

Court Briefs

No abstract provided.

"Don't Ask, Don't Tell" - Except In A Job Interview: The Discriminatory Effect Of The Policy On A Veteran's Employment, Amanda Alquist Pope

Legislation and Policy Brief

A United States military veteran’s ability to receive benefits, such as preference in federal employment is, in part, based upon the reason for discharge. Lesbian, gay, or bisexual (LGB) members of the military may be dishonorably discharged under the “policy concerning homosexuality in the armed forces,” commonly referred to as “Don’t Ask, Don’t Tell” (DADT). Under this policy, the reason for discharge on a service member’s papers may be listed as “homosexual conduct,” “homosexual act,” or “homosexual admission.” One major discriminatory effect of this policy is that, given the narrative reason that appears on the dis-charge form, this policy effectively …

The Risk Of Complaining- Retaliation, Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

Money, Sex, And Sunshine: A Market-Based Approach To Pay Discrimination, Deborah Thompson Eisenberg

Faculty Scholarship

The Equal Pay Act had a distinct market purpose. Congress made a policy choice to modify the existing compensation market so that employees who perform jobs requiring substantially “equal skill, effort, and responsibility” earn equal wages, regardless of sex. The Act aimed not simply to promote individual fairness, but to foster a more efficient, equitable wage market on a systemic level. Congress recognized that paying lower wages to women constituted “an unfair method of competition,” burdened “commerce and the free flow of goods in commerce,” and prevented the “maximum utilization of available labor resources.” Over time, however, the “market” in …

Curb Your Enthusiasm: A Note On Employment Discrimination Lawsuits In China, Jiefeng Lu

Richmond Journal of Global Law & Business

No abstract provided.

Taking Away An Employer's Free Pass: Making The Case For A More Sophisticated Sex-Plus Analysis In Employment Discrimination Cases, Heather M. Kolinsky

Scholarly Articles

In this article the author advocates for a broader interpretation of sex-plus theory to encompass the concept of mother as a gender identified category.

Labor Contract Formation, Tenuous Torts, And The Realpolitik Of Justice Sotomayor On The 50th Anniversary Of The Steelworkers Trilogy: Granite Rock V. Teamsters, David L. Gregory, Rowan Foley Reynolds, Nadav Zamir

Labor & Employment Law Forum

No abstract provided.

Unpaid Internships & The Department Of Labor: The Impact Of Underenforcement Of The Fair Labor Standards Act On Equal Opportunity, Andrew Mark Bennett

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Statutory Supplement To Employment Discrimination: A Context And Practice Casebook, Susan Grover, Sandra F. Sperino, Jarod S. Gonzalez

Faculty Articles and Other Publications

No abstract provided.

Rethinking Discrimination Law, Sandra F. Sperino

Faculty Articles and Other Publications

In the 1970s, federal courts began identifying categories of discrimination, such as disparate impact, disparate treatment and harassment. They then created elaborate, multi-part rubrics tied to each category. Modern employment discrimination law is defined by these frameworks. They serve as gatekeepers that control the substantive discrimination narratives juries hear and also structure the ways that judges and litigants think about discrimination.

Legal scholarship is replete with excellent articles challenging specific frameworks courts use to evaluate discrimination claims. This Article does not challenge any particular framework. Instead it challenges whether courts should even use frameworks to conceptualize discrimination in the first …

Federal Disability Discrimination Law And The Toxic Workplace: A Critique Of Ada And Section 504 Case Law Addressing Impairments Caused Or Exacerbated By The Work Environment, John E. Rumel

Articles

No abstract provided.

Ducks And Decoys: Revisiting The Exit-Voice-Loyalty Framework In Assessing The Impact Of A Workplace Dispute Resolution System, Zev J. Eigen, Adam Seth Litwin

Faculty Working Papers

Until now, empirical research has been unable to reliably identify the impact of organizational dispute resolution systems (DRSs) on the workforce at large, in part because of the dearth of data tracking employee perceptions pre- and post- implementation. This study begins to fill this major gap by exploiting survey data from a single, geographically-expansive, US firm with well over 100,000 employees in over a thousand locations. The research design allows us to examine employment relations and human resource (HR) measures, namely, perceptions of justice, organizational commitment, and perceived legal compliance, in the same locations before and after the implementation of …

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

Sex Equality's Unnamed Nemesis, Veronica Percia

Michigan Journal of Gender & Law

Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours …

Social Media, Trade Secrets, Duties Of Loyalty, Restrictive Covenants And Yes, The Sky Is Falling, Marisa Warren, Arnie Pedowitz

Hofstra Labor & Employment Law Journal

No abstract provided.

Shortcuts In Employment Discrimination Law, Kerri Lynn Stone

Faculty Publications

Are employment discrimination plaintiffs viewed by society and by judges with an increased skepticism? This article urges that the same actor inference, the stray comment doctrine, and strict temporal nexus requirements, as courts have applied them, make up a larger and dangerous trend in the area of employment discrimination jurisprudence- that of courts reverting to special, judge-made "shortcuts" to curtail or even bypass analysis necessary to justify the disposal or proper adjudication of a case. This shorthand across different doctrines reveals a willingness of the judiciary to proxy monolithic assumptions for the individualized reasoned analyses mandated by the relevant antidiscrimination …

Private Ordering Of Employee Privacy: Protecting Employees' Expectations Of Privacy With Implied-In-Fact Contracts, Lindsay Noyce

Labor & Employment Law Forum

No abstract provided.