Labor and Employment Law Commons^™

The Organizational Ombudsman's Quest For Priviledged Communications, Kendall D. Isaac

Hofstra Labor & Employment Law Journal

The role of organizational ombudsman has grown tremendously in the past couple of decades. Organizations have come to rely upon their ombuds offices to provide value-added dispute resolution services aimed at improving the corporate ethical and cultural environment while simultaneously staving off unwanted turnover and potential litigation from disgruntled employees. While employees have enjoyed ‘being heard’ by their ombudsman, the ombudsmen have struggled to keep the information they have heard confidential and away from the public forum via subsequent litigation and motions to compel them to disclose this information. This article explores the current state of the ombudsman confidentiality privilege, …

The Tort Label, Sandra F. Sperino

Faculty Articles and Other Publications

Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.

While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes …

Policing The Social Media Water Cooler: Recent Nlrb Decisions Should Make Employers Think Twice Before Terminating An Employee For Comments Posted On Social Media Sites, Eric Raphan, Sean Kirby

Journal of Business & Technology Law

No abstract provided.

The Thirty-Third Annual John Marshall Law School International Moot Court Competition In Information Technology And Privacy Law: Bench Memorandum, 31 J. Marshall J. Computer & Info. L. 237 (2014), Adam Florek, Anisha Mehta, Danielle Young, Michael Greene

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Thirty-Third Annual John Marshall Law School International Moot Court Competition In Information Technology And Privacy Law: Brief For The Petitioner, 31 J. Marshall J. Computer & Info. L. 251 (2014), Amany Awad, Kelly O'Neill, Arlo Walsman

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Thirty-Third Annual John Marshall Law School International Moot Court Competition In Information Technology And Privacy Law: Brief For The Respondent, 31 J. Marshall J. Computer & Info. L. 285 (2014), Sara Schroeder, Austin Hoffman, Becky Fey

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Do You Believe He Can Fly? Royce White And Reasonable Accommodations Under The Americans With Disabilities Act For Nba Players With Anxiety Disorder And Fear Of Flying, Michael Mccann

Law Faculty Scholarship

This Article examines the legal ramifications of Royce White, a basketball player with general anxiety disorder and obsessive compulsive disorder, playing in the NBA. White's conditions cause him to have a fear of flying, thus making it difficult to play in the NBA. This subject is without precedent in sports law and, because of the unique aspects of an NBA playing career, lacks clear analogy to other employment circumstances. This dispute also illuminates broader legal and policy issues in the relationship between employment and mental illness.

This Article argues that White would likely fail in a lawsuit against an NBA …

Plaintiffs’ Comments On Defendant’S Remand Results And Motion For Second Remand, Former Employees Of Boeing Co. V. U.S. Sec'y Of Labor, Docket No. 1:13-Cv-00281-Gwc, 6 F.Supp.3d 1348 (United States Court Of International Trade 2014), Steven D. Schwinn

Court Documents and Proposed Legislation

No abstract provided.

An Evolving Ncaa Leading To An Expanding Client List, 13 J. Marshall Rev. Intell. Prop. L. 463 (2014), Frank Battaglia

UIC Review of Intellectual Property Law

On the heels of the popular March Madness National Collegiate Athletic Association (“NCAA”) Basketball tournament, and following Northwestern University student-athletes’ success in unionizing, the extent of student-athlete publicity rights is now more contentious than ever. The divide between an ever-profiting NCAA and exploited NCAA student-athletes has sparked an evolving class-action lawsuit by former student-athletes, who challenge the licensing of their images and likenesses. This lawsuit has become a landmark test of the NCAA’s governance and notions about amateurism in college athletics. The outcome of this case will be a possible sign that compensation for both current and former student-athletes may …

Child Labor In America: A History By Chaim M. Rosenberg, Joel E. Black

Book Reviews

No abstract provided.

The Conventional Wisdom Of Discharge Arbitration Outcomes And Remedies: Fact Or Fiction, Mario F. Bognanno, Jonathan E. Booth, Thomas J. Norman, Laura J. Cooper, Stephen F. Befort

Cardozo Journal of Conflict Resolution

This study examines some of the arbitration community's commonly accepted beliefs about arbitration outcomes and remedies in employee discharge cases, with the findings revealing that some beliefs are likely fact, while others, perhaps, are fiction. With data from 1432 Minnesota discharge awards and 74 arbitrators who decided them, eight truisms are examined pertaining to the following: the frequency that arbitrators use Daugherty's Seven Tests rubric to analyze case evidence and whether its use affects award outcomes; the distribution of varying quanta of required proof by arbitrators and how different quanta affects award outcomes; and the effect of employee job tenure …

Comments On The John Marshall Law School's Employee Benefits Program, 47 J. Marshall L. Rev. 853 (2014), Kathryn J. Kennedy

UIC Law Review

No abstract provided.

How Much Is Too Much? Employer-Sponsored Plan Notice And Reporting Requirements Under Ppaca, 47 J. Marshall L. Rev 855 (2014), Carrie Byrnes, Brian Berglund

UIC Law Review

No abstract provided.

Tenure, The Aberrant Consumer Contract, James J. White

Chicago-Kent Law Review

The tenure contract that prevails among the faculty at nearly all American colleges and universities is unusual, for the employee, who is normally the weaker, is favored by the contract over the employer, who is normally the stronger. The first part of the paper explains what tenure means and how it came about in the early twentieth century. The second part of the paper argues that the contract protects not only academic freedom but also bad teaching and weak scholarship. Finally the paper argues that the tenure contract should be abolished or restricted to minimize the inefficiencies that are now …

The Seventh Circuit Got It Wrong: Supervisors Should Not Face Individual Liability Under Section 1981, Emily Aleisa

Chicago-Kent Law Review

In Smith v. Bray, the Seventh Circuit, on a case of first impression, determined that supervisors with retaliatory motives can and should be individually liable under section 1981 when they cause the employer to retaliate against an employee. This article argues against the Seventh Circuit’s holding for four reasons. First, courts are required to analyze section 1981 the same way they analyze Title VII, and Title VII does not allow for individual supervisor liability. Second, the Seventh Circuit justified its decision based on a flawed comparison between section 1981 and section 1983, a similar but distinct civil rights statute. Third, …

The International Sugar Trade And Sustainable Development: Curtailing The Sugar Rush, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Corporate Social Responsibility For Enforcement Of Labor Rights: Are There More Effective Alternatives?, Barbara J. Fick

Global Business Law Review

This article addresses the concept of corporate social responsibility (hereinafter CSR) as it relates to labor rights. It considers the following issues: is the CSR model, as evidenced by the adoption of corporate codes of conduct (hereinafter CoC), effective in protecting labor rights; and is this model the best way to protect labor rights? These issues are examined from two perspectives: practical and philosophical. Lastly, some alternative enforcement mechanisms are considered and their respective advantages and disadvantages for purposes of ensuring labor rights are discussed.

It's Complicated: Age, Gender, And Lifetime Discrimination Against Working Women - The United States And The U.K. As Examples, Susan Bisom-Rapp, Malcolm Sargeant

Faculty Scholarship

This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.

To capture the phenomenon, the article …

In Defense Of Snooping Employers, Jessica Fink

Faculty Scholarship

The Article describes the means through which employers gather information about their employees, including through some recent, rather novel approaches to collecting such data. In addition, this Article discusses the financial, legal, and practical concerns that motivate employers to snoop in the first place, arguing that employers engage in this conduct for what frequently amount to very legitimate reasons. More significantly, this article places substantial responsibility for employer snooping with the courts themselves, highlighting particular decisions and doctrines that not only permit, but in fact encourage, employers to engage in these efforts to monitor employees.

Riding The Wave: Uplifting Labor Organizations Through Immigration Reform, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

In recent years, labor unions in the United States have embraced the immigrants’ rights movement, cognizant that the very future of organized labor depends on its ability to attract immigrant workers and integrate them into union ranks. At the same time, the immigrants’ rights movement has been lauded for its successful organizing models, often drawing upon the vitality and ingenuity of immigrant-based worker centers, which themselves have emerged as alternatives to traditional labor unions. And while the labor and immigrants’ rights movements have engaged in some fruitful collaborations, their mutual support has failed to radically reshape the trajectory of either …

Here We Are Now, Entertain Us: Defining The Line Between Personal And Professional Context On Social Media, 35 Pace L. Rev. 398 (2014), Raizel Liebler, Keidra Chaney

UIC Law Open Access Faculty Scholarship

Social media platforms such as Facebook, Twitter, and Instagram allow individuals and companies to connect directly and regularly with an audience of peers or with the public at large. These websites combine the audience-building platforms of mass media with the personal data and relationships of in-person social networks. Due to a combination of evolving user activity and frequent updates to functionality and user features, social media tools blur the line of whether a speaker is perceived as speaking to a specific and presumed private audience, a public expression of one’s own personal views, or a representative viewpoint of an entire …

Employment Discrimination Against Ex-Offenders: The Promise And Limits Of Title Vii Disparate Impact Theory, Tammy R. Pettinato

Marquette Law Review

none

Bottom Up Workplace Law Enforcement: An Empirical Analysis, Charlotte S. Alexander, Arthi Prasad

Faculty Publications By Year

This article presents an original analysis of newly-available data from a landmark survey of 4,387 low-wage, front-line workers in the three largest U.S. cities. We analyze data on worker claims, retaliation, and legal knowledge to investigate what we call “bottom up” workplace law enforcement, or the reliance of many labor and employment laws on workers themselves to enforce their rights. We conclude that bottom up workplace law enforcement may fail to protect the workers who are most vulnerable to workplace rights violations, as they often lack the legal knowledge and incentives to complain that are prerequisites for enforcement activity.

The Law And Economics Of Corporate Social Responsibility And Greenwashing, Miriam A. Cherry

All Faculty Scholarship

In this symposium article, I explore the concept of greenwashing in more depth. In the first part of the article, I start with first principles, looking at the origins of greenwashing, its definitions, and identifying theeconomic incentives that lead firms into the practice. The second part of this article examines the legal structure that allows greenwashing to occur, and with it, explores the pervasiveness and extent ofgreenwashing. The third part of this article articulates the harms of greenwashing. Intuitively, greenwashing involves deception, falsity, and hypocrisy that reflexively seem problematic. Precisely identifying the actual harm inflicted by some forms of greenwashing, …

The Free Labor Standards Act? A Look At The Ongoing Discussion Regarding Unpaid Legal Internships And Externships, Lauren K. Knight

University of Baltimore Law Review

No abstract provided.

Trilogy Redux: Using Arbitration To Rebuild The Labor Movement, Ann C. Hodges

Law Faculty Publications

This Article analyzes the possibility of creating a program to provide representation to workers bound to arbitrate their legal disputes with their employers, while at the same time building a movement to challenge the practice of compulsory arbitration and its impact on workers' rights. First, I briefly review the Supreme Court's recent arbitration jurisprudence and its impact on workers, with a particular focus on the limitations on class actions. Then I move to a discussion of the advantages and challenges to the creation of such a program. Finally, I examine some alternative visions of what such a program might look …

Title Vii At 50: Contemporary Challenges For U.S. Employment Discrimination Law, Trina Jones

Faculty Scholarship

No abstract provided.

The Diversity Feedback Loop, Patrick Shin, Devon Carbado, Mitu Gulati

Faculty Scholarship

At some point in the near future, the Supreme Court will weigh in on the permissible scope of affirmative action to increase workplace diversity. Undoubtedly, many scholars will argue that if affirmative action is good for colleges and universities, it is good for workplaces as well. One cannot assess whether this “transplant” argument is right without understanding the complex ways in which diversity initiatives at colleges and universities interact with diversity initiatives at work. The university and the workplace are not separate and distinct institutional settings in which diversity is or is not achieved. They are part of an interconnected …

The Pay Or Play Penalty Under The Affordable Care Act: Emerging Issues, Kathryn L. Moore

Law Faculty Scholarly Articles

The Affordable Care Act does not require that employers provide employees with health care coverage. It does, however, impose an excise tax on large employers that fail to offer their employees affordable employer-sponsored health care coverage. The excise tax, commonly referred to as a “pay-or-play penalty,” was scheduled to go into effect beginning in 2014. The United States Treasury Department (“Treasury”), however, has delayed enforcement of the penalty until 2015 for employers with 100 or more full-time employees, and until 2016 for employers with 50 to 99 employees.

Implementation of the pay-or-play penalty has given rise to a host of …

The Many Lanes Out Of Court: Against Privatization Of Employment Discrimination Disputes, Theresa M. Beiner

Maryland Law Review

No abstract provided.