Labor and Employment Law Commons^™

In Defense Of Public-Sector Unions, Anne Marie Lofaso

Hofstra Labor & Employment Law Journal

The United States is currently in a heated debate over the extent to which public-sector workers should be permitted to band together for mutual aid or protection, to form, join or assist unions, and to bargain collectively. This debate was sparked when, shortly after the 2010 midterm elections, politicians in states with large public deficits blamed public-sector unions for budget shortfalls. Public unions are not, however, the cause of the states’ ills. After all, public unions are not the source of wages and benefits — governments are. Furthermore, the evidence shows that, in general, public-sector-union pay is lower than the …

Author Meets Reader, Scholar Meets Worker: An Introduction To The Section On Labor Relations And Employment Law 2011 Aals Panel Presentation, Rachel Arnow-Richman

UF Law Faculty Publications

This article introduces the AALS Section on Labor Relations & Employment’s January 2011 Program, 'Author Meets Reader: Jack Getman’s Restoring the Power of Unions,' while exploring the significance of the contemporaneous union boycott of the Union Square Hilton, the primary site of the AALS 2011 Meeting. When the national leadership of the AALS proved unresponsive to UNITE HERE’s entreaties, a group of interested law professors undertook to convince the organization to relocate its conference using a combination of direct appeals to AALS leadership and grassroots mobilization of faculty attendees. Like many of the union movements described in Jack Getman’s monograph …

Mandatory Disclosure In The Market For Union Representation, Matthew T. Bodie

All Faculty Scholarship

For over sixty years, the National Labor Relations Board has followed the “laboratory conditions” doctrine in its regulation of representation elections. According to the doctrine, the Board must provide workers with an electoral “laboratory” in order to determine the “uninhibited desires” of the employees. Elections are vacated and conducted anew if the winning party violated the laboratory conditions. The laboratory conditions doctrine suggests an active and vigorous role for the Board in providing employees with the proper election environment. However, the Board’s regulation has largely focused on keeping out electoral impurities and has done little to make sure employees have …

Promoting Employee Voice In The American Economy: A Call For Comprehensive Reform, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

It has become apparent that there are serious deficiencies in the American model of production. Our model of corporate governance has recently come under intense scrutiny in the academic literature and the popular press. There are increasing concerns that American corporations are too focused on short-run profits and stock prices, at the expense of long-term strategies and investments that would benefit the long-run value of the firm, employees, and the American economy at large. In the pursuit of short-run shareholder interests, American corporations have bestowed on senior executives enormous compensation packages that seem increasingly divorced from any notion of rationality, …

Merit Pay And Pain: Linking Congressional Pay To Performance, Jonathan D. Mcpike

Indiana Law Journal

No abstract provided.

The Supreme Court’S Open-Ended Protection Against Third-Party Retaliation Doctrine, Jessica Fink

Faculty Scholarship

In January 2010, the Supreme Court finally had the opportunity to express its view regarding the viability and scope of the third-party retaliation doctrine. In Thompson v. North American Stainless, LP, the Court contradicted the federal appellate courts and unanimously held that Title VII prohibits employers from engaging in third-party retaliation. This article analyzes the consequences of this decision.

Data Note: State Intellectual And Developmental Disability Agencies' Service Trends, Jean E. Winsor, Frank A. Smith

Data Note Series, Institute for Community Inclusion

Since Fiscal Year 1988, the Institute for Community Inclusion has administered the National Survey of Day and Employment Programs for People with Developmental Disabilities to state Intellectual and Developmental Disability (IDD) Agencies. The work is funded by the Administration on Developmental Disabilities and is designed to describe the nature of day and employment services for individuals with intellectual and developmental disabilities.

Constitutional Contracts Clause Challenges In Public Pension Litigation, Paul M. Secunda

Hofstra Labor & Employment Law Journal

The recent spate of high profile efforts by state governors to roll back public employee pension rights in light of recent budgetary challenges has shone the light directly on the importance to public employees of the Contracts Clause provisions of the federal and state constitutions. Using as an example the controversial budget repair bill in Wisconsin and the application of the bill’s pension provisions to Milwaukee City employee pension rights, this article has sought to show how, under certain specified circumstances, such legislative attempts may be constitutionally impermissible if such laws substantially impair employee contracts with the state without the …

Public Sector Labor Law And History: The Politics Of Ancient History?, William A. Herbert

Hofstra Labor & Employment Law Journal

This article discuss three books that address various aspects of public sector labor history. It seeks to contextualize the current debate over public sector labor law and relations through the lessons of relevant history. The first book discussed is entitled The Man Who Saved New York: Hugh Carey and the Great Fiscal Crisis of 1975, by Seymour P. Lachman and Robert Polner. It recounts the leadership of Governor Carey and public sector labor leaders in reaching negotiated solutions through collective bargaining that helped solve New York City's fiscal crisis in 1975. The second book is a long-forgotten 1948 treatise Government …

Negotiating The People's Capital Revised, Samuel Estreicher

Hofstra Labor & Employment Law Journal

Editor's Note: What follows is the second part of an unofficial transcript of an off-the-record conversation among three of the labor movement's leading strategists. (The first installment appeared under the title “Strategy for Labor,” 22 J. Labor Research 569 (Summer 2001), and has been updated as “Strategy for Labor Revisited,” available www.ssrn.com). This second meeting was also convened by C, or "cooperationist," who had been for over ten years the president of a local union, part of a major industrial union, representing 3,000 employees who had been hired to staff a new manufacturing plant in a Southern town ("Newplant"). Newplant …

O My Sons And Daughters, How Do I Immiserate Thee: Let Me Count The Ways, Kenneth Casebeer

Hofstra Labor & Employment Law Journal

This article argues that Neo-liberal policies of both action and inaction support the most virulent form of globalized Finance Capitalism. It outlines how such promotion is structured to reinforce fifteen patterns of economic consequences that reduce the standard of living of the great majority of American families, especially those headed by and including workers. These consequential patterns do not usually result from a single government action, but rather from reinforcements of specific decisions with one another. As a result political and economic elites from the United States become indifferent or worse to working family welfare, constituting an abandonment of Americans …

Waging War On "Unemployables"? Race, Low-Wage Work, And Minimum Wages: The New Evidence, Harry G. Hutchison

Hofstra Labor & Employment Law Journal

Capturing both popular and academic imaginations, recent literature contributions contest the standard treatment of minimum wage statutes as vehicles that enlarge the economic and social dislocation of vulnerable workers. A persistent strain of the current scholarship dedicated to progressive labor ideology implies that minimum wages or, alternatively, living wage statutes are necessary to preclude the degradation of low-wage workers. The publication of Simon Deakin and Frank Wilkinson’s recent article, Minimum Wage Legislation, constitutes yet another effort to destabilize the neoclassical consensus that emphasizes the adverse employment effects of wage regulation. Prescinding from orthodox economic analysis, Deakin and Wilkinson insist that …

The Time Has Come For A Sustainable Theory Of Fiduciary Duty In Investment, Jay Youngdahl

Hofstra Labor & Employment Law Journal

No abstract provided.

Coming Out To Fight For Our Country: Achieving Equality For Gay Service Members In A Post-"Dont Ask, Don't Tell" Military, Ashley L. Behre

Hofstra Labor & Employment Law Journal

No abstract provided.

Genetic Information Nondiscrimination Act Of 2008: It's In Title Vii's Genes, Phillip K. Vacchio, Joshua L. Wolinsky

Hofstra Labor & Employment Law Journal

No abstract provided.

Reemployment Under Userra Sections 4312 & 4313: At Will Employment Vs. Temporary Employment, Richard L. Pate

WCBT Faculty Publications

As thousands of service members return to the U.S., severe economic conditions render acclimation to civilian life especially difficult. In 2010, as the combat mission in Iraq approached an end, the unemployment rate of Iraq and Afghanistan era veterans had reached 13.1 percent. The Uniform Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301-4333 (1994) ("USERRA"), was enacted, in great part, to mitigate harms such as those caused by the aforementioned perfect storm. Among other things, USERRA protects service members by entitling them to reemployment after military service. More specifically, USERRA Sections 4312 & 4313 entitle returning service members …

The Echoes Of Slavery: Recognizing The Racist Origins Of The Agricultural And Domestic Worker Exclusion From The National Labor Relations Act., Juan F. Perea

Faculty Publications & Other Works

No abstract provided.

Unions & The Great Recession: Is Transnationalism The Answer?, Michael J. Zimmer

Faculty Publications & Other Works

No abstract provided.

Unilateral Alteration Of Public Sector Collective Bargaining Agreements And The Contract Clause, Stephen F. Befort

Buffalo Law Review

No abstract provided.

Independent Contractors, Employees, Andentrepreneurialism Under The Nationallabor Relations Act: A Worker-By-Worker Approach, Micah Prieb Stoltzfus Jost

Washington and Lee Law Review

No abstract provided.

Ricci V. Destefano: Diluting Disparate Impact And Redefining Disparate Treatment, Ann C. Mcginley

Scholarly Works

Title VII of the Civil Rights Act of 1964 permits plaintiffs to bring discrimination cases under two different theories: disparate treatment, which requires a showing of the employer’s discriminatory intent, and disparate impact, which holds the employer liable absent intent to discriminate if it uses neutral employment policies or practices that have a disparate impact on a protected group. Ricci v. DeStefano significantly affects the interpretation of both of these theories of discrimination.

Ricci adopts a restrictive interpretation of the disparate impact theory that is inconsistent with Congressional intent and purpose, and signals that intentional discrimination is more important than …

Employee Or Entrepreneur?, Jeffrey M. Hirsch

Washington and Lee Law Review

No abstract provided.

Mancession Or Momcession? Good Providers, A Bad Economy, And Gender Discrimination, Allison Anna Tait

Law Faculty Publications

Against this backdrop of precarious and disappearing work, two new elements became important: who was out of work, and how those still employed were navigating bad jobs. These questions laid the foundation for a flood of stories concerning unemployment and bad employment. Unsurprisingly, gender played a leading role in the debates. This article will discuss these two concerns--employment and workplace discrimination-as they intersect with gender and gender stereotypes.

Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier

Dianne Pothier Collection

The author concludes that the Supreme Court of Canada's narrow interpretations in Wal-Mart and Honda undermine the purposes of collective bargaining and human rights legislation, respectively Wal-Mart involves an unfair labour practice complaint following the closing of a store in Jonquibre, Quebec. The author contests the analysis of the Supreme Court of Canada, as being far removed from the context of the real difficulties in dealing with determined anti-union employers, instead facilitating statutory evasion. Honda involves a claim for wrongful dismissal, where the issue at the Supreme Court of Canada level is one of remedy, premised on the dismissal amounting …

Sub-Minimum Wage Or Sub-Human? The Potential Impact On The Civil Rights Of People With Disabilities In Employment, Laura C. Hoffman

Public Interest Law Reporter

No abstract provided.

Outsourcing Liability: Are The True Causes Of Unemployment Hiding Behind The Corporate Veil? , Cynthia Herrera

Public Interest Law Reporter

No abstract provided.

The New Old Legal Realism, Tracey E. George, Mitu Gulati, Ann C. Mcginley

Scholarly Works

Do the decisions of appellate courts matter in the real world? The American judicial system, legal education, and academic scholarship are premised on the view that they do. The authors want to reexamine this question by taking the approach advocated by the original Legal Realists. The current project seeks to add to our knowledge of the relevance of case law by focusing on an area that has received little examination: how pronouncements about employment discrimination law by appellate courts translate into understandings and behavior at the ground level. As our lens, we use evidence of how people talk about the …

Ambivalence And Activism: Employment Discrimination In China, Timothy Webster

Vanderbilt Journal of Transnational Law

Chinese courts have not vigorously enforced many human rights, but a recent string of employment discrimination lawsuits suggests that, given the appropriate conditions, advocacy strategies, and rights at issue, victims can vindicate constitutional and statutory rights to equality in court. Specifically, carriers of the hepatitis B virus (HBV) have used the 2007 Employment Promotion Law to ground legal challenges against employers who discriminate against them in the hiring process. Plaintiffs' relatively high success rate suggests official support for making one prevalent form of discrimination illegal. Central to these lawsuits is a broad network of lawyers, activists, and scholars who actively …

Keeping Hope Alive, David K. Millon

Washington and Lee Law Review

No abstract provided.

Lawyers Suing Law Firms: The Limits On Attorney Employment Discrimination Claims And The Prospects For Creating Happy Lawyers, Nancy Levit

Faculty Works

It is more than a mild irony that anti-discrimination law fails lawyers in particular. This article addresses doctrinal and pragmatic limits on employment discrimination lawsuits by lawyers against their law firms. It considers the failures of the Title VII template to remedy the sorts of discrimination and dissatisfactions lawyers face in the practice of law, and concludes that many of the things that make lawyers unhappy are simply not reachable through employment discrimination lawsuits. The latter portion of the article turns to the recently emerging science of happiness literature. It suggests that the interests of lawyers and their firms may …