Labor and Employment Law Commons^™

The Importance Of Immutability In Employment Discrimination Law, Sharona Hoffman

Faculty Publications

This article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 29 two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.

The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment …

Dedications To The Memory Of Eric J. Schmertz, Distinguished Professor Of Law And Dean Emeritus, Hofstra University School Of Law (1982-1989) - In Rememberence Of Eric J. Schmertz, Stuart Rabinowitz, Nora V. Demleitner, Malachy T. Mahon, Eric Lane, Alan N. Resnick, John Dewitt Gregory, David B. Feldman, Jeffrey P. Englander, Joanne F. Goldstein

Hofstra Labor & Employment Law Journal

No abstract provided.

The Judiciary's Efforts To Save Public Employers From The Bargains They Have Made: The Non-Delegability And Against Public-Policy Doctrines, James A. Shaw

Hofstra Labor & Employment Law Journal

No abstract provided.

Putting A Plug In America's Brian Drain: A Proposal To Increase The U.S. Retention Of Foreign Students Post-Graduation, Christine Chester, Amanda Cully

Hofstra Labor & Employment Law Journal

No abstract provided.

The Strongest Defense You've Never Heard Of: The Constitution's Federal Enclave Doctrine And Its Effect On Litigants, States, And Congress, Emily S. Miller

Hofstra Labor & Employment Law Journal

No abstract provided.

Speak The Truth And Tell No Lies: An Update For The Employee Polygraph Protection Act, David Barnhorn, Joey E. Pegram

Hofstra Labor & Employment Law Journal

No abstract provided.

Whistleblower Protection And The Challenge To Public Employment Law, Robert Vaughn

Contributions to Books

Whistleblowers who are public employees are protected by statutes which vary in scope and character, but authorise employees to disclose information outside of the chain of command and under standards that replace internal agency rules or guidelines. During the last decade a number of countries enacted whistleblower statutes that protect public employees who disclose various types of misconduct or incompetence. At the same time, a number of international treaties and conventions addressing governmental corruption have included provisions protecting whistleblowers. The recent activity in providing protection for public sector whistleblowers as well as movements for honesty and transparency in government present …

The Who Global Code Of Practice On The International Recruitment Of Health Personnel: The Evolution Of Global Health Diplomacy, Allyn L. Taylor, Ibadat S. Dhillon

Georgetown Law Faculty Publications and Other Works

The May 2010 adoption of the World Health Organization Global Code of Practice on the International Recruitment of Health Personnel created a global architecture, including ethical norms and institutional and legal arrangements, to guide international cooperation and serve as a platform for continuing dialogue on the critical problem of health worker migration. Highlighting the contribution of non-binding instruments to global health governance, this article describes the Code negotiation process from its early stages to the formal adoption of the final text of the Code. Detailed are the vigorous negotiations amongst key stakeholders, including the active role of non-governmental organizations. The …

Convergences And Divergences In International Legal Norms On Migrant Labor, Chantal Thomas

Cornell Law Faculty Publications

This essay will argue that even where disparate treaties converge doctrinally, they may diverge normatively and that normative divergence may be significant in its own right. Section I of this essay seeks to chart out an initial such analysis, conducting a concise comparison of particular rules affecting migrant workers from different realms of international law. Section I concludes with both a graphic representation of doctrinal convergences and divergences, and a further discussion the doctrinal relationships among treaties as elucidated through consideration of hypothetical legal disputes.

Section II considers the normative implications of divergent rule systems. In particular, Section II raises …

Labor Law, The Left, And The Lure Of The Market, Michael Fischl

Faculty Articles and Papers

No abstract provided.

A Taxonomy Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

The blockbuster movie Avatar begins as humans circle the planet Pandora in search of an element, unobtainium, which will boost the profits of their employer, a mining corporation. Pandora, however, is already inhabited by the Na'vi, an alien species of tall, skinny, blue beings, who live in harmony with the natural environment. With the goal of learning more about the Na'vi and their world, a team of human scientists controls and inhabits vat-grown bodies, using these avatars to interact with the Na'vi. Jake, the protagonist, is a former soldier who has become a paraplegic. When Jake's identical twin, a …

Card Check Labor Certification: Lessons From New York, William A. Herbert

Publications and Research

During the debate over the card check proposal in the Employee Free Choice Act of 2009 (EFCA), there has been a notable lack of discussion about New York’s fifty-year history and experience with card check certification. This article challenges and contradicts much of the prior scholarship and debate over EFCA by examining New York’s development and administration of card check procedures. The article begins with an overview of the history of New York public sector labor relations prior to the establishment of collective bargaining rights. As part of that historical overview, it examines the development of informal employee organization representation, …

Some Think Of The Future: Internet, Electronic, And Telephonic Labor Representation Electionslabor Representation Elections, William A. Herbert, Sara Slinn

Publications and Research

Amid the scholarly dialogue regarding amending labor certification procedures, there have been calls for the adoption of internet, electronic and/or telephonic representation voting (IETV) procedures in representation elections. To date, most labor relations agencies in the United States and Canada have not implemented IETV. Three notable exceptions are the National Mediation Board (NMB) and the Federal Labor Relations Authority (FLRA) in the United States, and the Canada Industrial Relations Board (CIRB). This article explores the strengths and weaknesses of IETV and the potential for wider adoption of this technology in the representation election context. The article examines NMB’s rationale in …

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

Publications and Research

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 …

A Solution To Holdouts In The National Football League: How Salary Arbitration Can Limit A Growing Problem, Roger Quiles

Cardozo Journal of Conflict Resolution

This Note will explore the intricacies of Major League Baseball's salary arbitration system, as established in the league's CBA with the MLB Players' Association (hereinafter, "MLBPA"), in order to create a suitable and similar forum for the NFL. The MLB salary arbitration model is not perfectly transposed to the NFL, but can be slightly modified to reflect the differences between the sports. The primary difference is that the NFL establishes a salary cap that a team's payroll may not exceed, whereas MLB teams can carry as big of a payroll as they want. Though the salary cap raises several questions …

The Iqbal Effect: The Impact Of New Pleading Standards In Employment And Housing Discrimination Litigation, Raymond H. Brescia

Kentucky Law Journal

No abstract provided.

Salary Caps In Professional Sports: Closing The Kovalchuk Loophole In National Hockey League Player Contracts, Simon Bernstein

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Did The Mlbpa Strike Out? An Analysis Of Union Liability In Major League Baseball's Anonymous 2003 Steroid Testing, David Adelsberg

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Consensus, Dissensus, And Enforcement: Legal Protection Of Working Women From The Time Of The Triangle Shirtwaist Factory Fire To Today, Marcia L. Mccormick

All Faculty Scholarship

The Triangle Shirtwaist Factory tragedy mobilized the labor movement and progressive reformers, and provided part of the political will to enact significant protective health and safety legislation for workers. And while the Triangle Shirtwaist Factory fire has been cited in legal literature as an important event in the movement for workplace safety standards, however, the gendered nature of the tragedy and its place in the development of laws protecting women as women, rather than as beneficiaries of laws protecting all workers, has not been as fully explored. This contribution to the New York University Journal of Legislation and Public Policy's …

Employees And The Boundaries Of The Corporation, Matthew T. Bodie

All Faculty Scholarship

Employees have no formal role in U.S. corporate law. According to most theories of the firm, however, employees play a critical role in differentiating firms from markets. This essay examines the disparity in treatment and seeks to understand the ramifications of the separation of employees from the corporation. After discussing the absence of employees from the corporate structure, the essay looks at the role of the employees in theories of the firm. In contrast to corporate law, these theories generally include employees within the core of the firm, and they often explain the nature and purpose of the firm in …

The Maritime Labour Convention, 2006 – Reflections On Challenges For Flag State Implementation, Moira Mcconnell

Articles, Book Chapters, & Popular Press

This paper begins by providing a brief overview of the International Labour Organization’s Maritime Labour Convention, 2006 (MLC, 2006), noting that this Convention, often called the “Seafarers’ bill of rights”, seeks to achieve both social and labour rights (“decent work”) for seafarers and fair competition (achieving a level-playing field) for shipowners. It has been described as the “fourth pillar” of the international maritime regulatory regime complementing the major International Maritime Organization conventions. The paper provides a brief update on international efforts to achieve the 30/33 formula needed to bring the Convention into force [at present, the tonnage element, 33% …

The Estimated Value Of A Premium Division One Football Player: The Argument Supporting Pay For Play, Travis S. Roher

CMC Senior Theses

Abstract

The gap between the revenue generated by division one football players and the value of an athletic scholarship is the marginal revenue product of these athletes.  Because of the monopsonistic behavior of the NCAA, division one institutions capture an economic rent from their student athletes. This paper measures the rents generated by NCAA division one football players in the six powerhouse conferences by using linear regressions based on variables such as university revenue, future NFL draft picks, undergraduate population, and weekly AP Top-25 rankings. This paper will inform its readers on how much money these student athletes are generating …

Expanding Frames Of Reference In The Work Life Policy Debate, Theodore Hall

Student Works

No abstract provided.

Embracing Caregiving And Respecting Choice: An Essay On The Debate Over Changing Gender Norms, Nicole Buonocore Porter

Faculty Publications

This Essay is the third piece of my project to resolve what I call the "caregiver conundrum" for working caregivers. I define the "caregiver conundrum" broadly, to include all of the workplace norms, rules and practices that make it difficult for working caregivers to successfully balance work and family.

In conceptualizing my ideas, I realized that one of the critiques of my proposal would be that it does nothing to change the gender norms, or stated another way, it accepts the gendered division of work and family with which most people live. I do nothing to get women to do …

Following In Paul Miller's (Very Large) Footsteps, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

A tribute to Paul Miller, former Commissioner of the Equal Employment Opportunity Commission (EEOC). Miller was a leader on disability rights and on ensuring that the EEOC was effectively and forcefully implementing the Americans with Disabilities Act (ADA) of 1990. The author discusses Miller's work as EEOC Commissioner.

Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux

Publications

The Supreme Court has recently decided to hear argument in the largest private-employer civil rights case in American history, Dukes v. Wal-Mart Stores, Inc. This historic case involves up to 1.5 million women suing Wal-Mart, one of the largest companies in the world, for alleged gender discrimination in pay and promotions, in violation of Title VII of the Civil Rights Act of 1964. Like many employees who challenge companywide employment discrimination, the plaintiffs in Dukes brought their case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and sought injunctive and declaratory relief, …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux

Publications

No abstract provided.

Excluding Unemployed Workers From Job Opportunities: Why Disparate Impact Protections Still Matter, Helen Norton

Publications

No abstract provided.

Section 5 Constraints On Congress Through The Lens Of Article Iii And The Constitutionality Of The Employment Non-Discrimination Act, Craig Konnoth

Publications

The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.

However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key …