Labor and Employment Law Commons^™

Sharing Is Airing: Employee Concerted Activity On Social Media After Hispanics United, Ryan Kennedy

Duke Law & Technology Review

Section 7 of the United States’ National Labor Relations Act allows groups of American workers to engage in concerted activity for the purposes of collective bargaining or for “other mutual aid or protection.” This latter protection has been extended in cases such as Lafayette Park Hotel to workers outside the union context. Starting in 2005, the National Labor Relations Board increasingly signaled to employers that concerted activity may take place on social media such as Facebook. However, the Board proper delivered its first written opinion articulating these rules in the 2012 case of Hispanics United of Buffalo, Inc. There, the …

European Economic Community - Free Movement Of Workers - European Court Of Justice Determines That In A Case Of Temporary Movement Of Workers Member States In Whose Territory The Work Is To Be Carried Out May Not Impose Conditions Related To The Recruitment Of Man-Power Or Procurement Of Work Permits. Case C-113/89, Rush Portuguesa Lda V. Office National D'Immigration, 1990 E.C.R. I-1439, 2 C.M.L.R. 818 (1991)., Kimberly Marshall

Georgia Journal of International & Comparative Law

No abstract provided.

Gender Discrimination - European Economic Community - European Court Of Justice Determines That A Non-Contributory Occupational Pension Scheme Should Not Discriminate On The Basis Of Sex. Barber V. Royal Exchange Assurance Group, 1990 E. Comm. Ct. J. Rep. ___, [1990] 2 Comm. Mkt. L. Rep. 513., R. Mace Flournoy

Georgia Journal of International & Comparative Law

No abstract provided.

Summary Of Terry V. Sapphire Gentlemen’S Club, 130 Nev. Adv. Op. 87, Walter Fick

Nevada Supreme Court Summaries

The Court adopted the “economic realities” test of the Fair Labor Standards Act, and held as a matter of law that performers at the Sapphire Gentlemen’s Club were “employees within the meaning of NRS 608.010, and thus entitled to the minimum wages guaranteed by NRS Chapter 608.”

To Enforce A Privacy Right: The Sovereign Immunity Canon And The Privacy Act’S Civil Remedies Provision After Cooper, Daniel J. Dimatteo

Florida Law Review

In 2005, a joint investigation between separate government agencies revealed that Stanmore Cooper, a pilot, failed to disclose to the Federal Aviation Administration that he was HIV positive. Cooper sued the agencies in the United States District Court for the Northern District of California, claiming that they violated the Privacy Act by disclosing his medical records to one another without his consent. Alleging that the unlawful disclosure of his condition caused him severe emotional distress, Cooper sought monetary relief under the Privacy Act’s civil remedies provision, which establishes a cause of action against the government for “actual damages.” The dispositive …

Seventh Circuit Allows American Subsidiary To Avoid Title Vii Liability By Asserting Fcn Treaty Rights Of Japanese Parent - American Employees Treated As Second Class Citizens - Court Cites Reciprocal Benefits For American Firms Operating Abroad - Fortino V. Quasar Co., 950 F.2d 389 (7th Cir. 1991)., Steven J. Lewengrub

Georgia Journal of International & Comparative Law

No abstract provided.

The Best Of Times And The Worst Of Times: Lessons From Recent Reforms Of The French Retirement, Kathryn L. Moore

Georgia Journal of International & Comparative Law

No abstract provided.

Don't Touch That Grapefruit!: Prohibiting The Encouragement By U.S. Unions Of Secondary Boycotts Abroad, George E. James

Georgia Journal of International & Comparative Law

No abstract provided.

Yamaha V. Calhoun: The Supreme Court Allows State Remedies In Certain Wrongful Death Cases In Admiralty, Nicolas R. Foster

Georgia Journal of International & Comparative Law

No abstract provided.

Alt-Labor, Secondary Boycotts, And Toward A Labor Organization Bargain, Michael C. Duff

Catholic University Law Review

Recently, workers led by non-union labor advocacy groups, popularly labeled “ALT-Labor,” staged strikes and other job actions across the low-wage economy. Some observers see this activity as the harbinger of a reinvigorated labor movement or as audacious dissent by low-wage workers with nothing to lose. Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food restaurant or big box retail worker. This article presumes that employers will respond to ALT-Labor in a historically typical manner—by seeking labor injunctions and civil damages in courts. …

Labour Law And Triangular Employment Growth, Timothy John Bartkiw

LLM Theses

This thesis is concerned with understanding the relationship between labour law and triangular employment growth, and particularly in "staffing services" contexts. A review of alternative explanations for growth in triangular employment within three theoretical paradigm (neoclassical, institutionalist, and critical) illustrates the theoretical space for conceiving of a relationship between the particularities of labour law and triangular employment growth. To this end, the thesis develops the concept of a regulatory differential, or ways in which a legal regime may produce differential regulatory effects as between direct and triangular forms of employment. A typology of regulatory differentials is outlined. Further, a discussion …

Toward A Federal Constitutional Right To Employment, R. George Wright

Seattle University Law Review

This Article outlines an argument for a federal constitutional right to employment. The Article begins by examining the harms and costs of involuntary long-term unemployment. It then discusses the historical contributions to our understanding of the value of work, before drawing on several well-established jurisprudential distinctions to explain why, and to justify initial optimism regarding a constitutional employment right.

A Matter Of Compliance: How Do U.S. Multinational Corporations Deal With The Discrepancies In The Family And Medical Leave Act Of 1993 And The European Union Directive On Parental Leave; Is An International Standard Practical Or Appropriate In This Area Of Law?, Kathryn L. Morris

Georgia Journal of International & Comparative Law

No abstract provided.

Career Advice For New In-House Lawyers, Faraz Choudhry

Hamline Law Review

abstract

Vol. 31, No. 4, Gary Bailey

The Illinois Public Employee Relations Report

The Workplace Bully in the Spotlight, by Gary Bailey

Recent Developments

Summers V. Altarum: Broadening The Definition Of Disability Under The Ada, And The Impact O The New Definition On Employers, Sidney Minter

North Carolina Central Law Review

No abstract provided.

Inherent Incompatibility Doctrine Circles The Drain In Knepper V. Rite Aid Corp.: "Hybrid" Wage & Hour Claims Float In Third Circuit, Chad Odhner

Villanova Law Review (1956 - )

No abstract provided.

Mandating The Supersize Option: The Legality Of Government Intervention In The Fast Food Industry To Address Insufficient Wages And Close The Public Assistance Gap, Joshua A. Berman

University of Miami Business Law Review

Several prominent studies have recently highlighted how the federal government tacitly subsidizes insufficient wages paid in certain industries–notably, major corporations within the fastfood sector. Historically, the government addressed insufficient wages by implementing a minimum standard-of-living wage. Since the New Deal inception of this remedy, the Judiciary has regularly upheld the minimum wage in the face of challenges to its constitutionality. Given the recent passage of a substantial increase in the minimum wage and the toxic political cloud hovering over the United States Congress, President Obama likely will have a difficult time in passing another increase, as he has promised since …

Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz

Michigan Journal of Race and Law

Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and …

Invisible No More: Domestic Workers Organizing In Massachusetts And Beyond, Natalicia Tracy, Tim Sieber, Susan Moir Scd

Labor Studies Faculty Publication Series

Domestic workers across the country are making it clear that, even in a difficult political environment, it is possible to make gains for low-wage workers. For the first time in many, many decades, domestic workers are finding ways to win. They are creat
ing policy change that will improve the lives of hundreds of thousands of workers in tangible and substantial ways. The 2014 Massachusetts Domestic Workers’ Bill of Rights is the most expansive codification of rights for this long-overlooked part of the labor force ever to be enacted. In one sense, there is nothing new about domestic workers organizing …

Rights In Recession: Toward Administrative Antidiscrimination Law, Stephanie Bornstein

UF Law Faculty Publications

This Article documents how, over the past six years and coinciding with the “Great Recession of 2008,” both public and private antidiscrimination enforcement mechanisms have become increasingly constrained, such that the ability to enforce the mandate of Title VII of the Civil Rights Act of 1964 - the main federal law prohibiting employment discrimination - may be facing a crisis point. While enforcement mechanisms for federal antidiscrimination law have long left room for improvement, recent developments in the economy, due to the 2008 recession, and in federal case law, due to a series of procedural decisions by the Roberts Court, …

Labour Rights As Human Rights: Turning Slogans Into Legal Claims, Judy Fudge

Dalhousie Law Journal

What does it mean to say that labour rights are human rights? What is the role of the courts in transforming a political manifesto into a legal claim? The answers to these questions are developed in three parts. The first places the rights to organize, to bargain collectively, and to strike in the social and political context in which they are claimed, contested, and recognized. The second part examines what it means to say that labour rights are human rights with an eye to teasing out the significance ofthis characterization. Third, the role of the courts when it comes to …

Breastfeeding On A Nickel And A Dime: Why The Affordable Care Act's Nursing Mothers Amendment Won't Help Low-Wage Workers, Nancy Ehrenreich, Jamie Siebrese

Michigan Journal of Race and Law

As part of the Patient Protection and Affordable Care Act of 2010 (also known as “Obamacare”), Congress passed a new law requiring employers to provide accommodation to working mothers who want to express breast milk while at work. This accommodation requirement is a step forward from the preceding legal regime, under which federal courts consistently found that “lactation discrimination” did not constitute sex discrimination. But this Article predicts that the new law will nevertheless fall short of guaranteeing all women the ability to work while breastfeeding. The generality of the Act’s brief provisions, along with the broad discretion it assigns …

The Use And Misuse Of Econometric Evidence In Employment Discrimination Cases, Joni Hersch, Blair Druhan Bullock

Vanderbilt Law School Faculty Publications

Experts routinely criticize three aspects of regression analyses presented by the opposing party in employment discrimination cases: omitted explanatory variables, sample size, and statistical significance. However, these factors affect the reliability of the regression results only in very limited circumstances. As a result, valid regression analyses do not provide the critical guidance that they should in employment discrimination cases. Our own statistical analyses of seventy-eight Title VII employment discrimination cases find that merely raising these critiques, even if spurious, reduces plaintiffs’ likelihood of prevailing at trial. We propose that courts adopt a peer-review system in which court-appointed economists, compensated by …

Protecting Whistleblower Protections In The Dodd-Frank Act, Samuel C. Leifer

Michigan Law Review

In 2008, the United States fell into its worst economic recession in over seventy years. In response, Congress enacted the near-comprehensive Dodd–Frank Wall Street Reform and Consumer Protection Act. Section 922 of Dodd–Frank, in particular, includes specific provisions designed to incentivize and protect corporate whistleblowers. These provisions demonstrated Congress’s belief that a comprehensive and robust whistleblower protection scheme was essential to preventing many of the abuses that caused the financial crisis. Unfortunately, this section’s inconsistent language has produced conflicting decisions within the federal judiciary. In accordance with the Securities and Exchange Commission (“SEC”)’s own reading of Section 922, several district …

Designing Law School Externships That Comply With The Flsa, Niki Kuckes

Law Faculty Scholarship

No abstract provided.

Incorporating Rights: Child Labor In African Agriculture And The Challenge Of Changing Practices In The Cocoa Industry, Erika George

Faculty Scholarship

Millions of children around the world are working.¹ Many youth are fortunate to enjoy age-appropriate employment and learn valuable skills through work. Unfortunately, too many children labor under abusive conditions-some are trafficked, others are enslaved . These unfortunate children are denied the opportunity to enjoy the fundamental human rights essential to their development and guaranteed under international law.

This essay offers an overview of the issues associated with child labor eradication, a review of the legal instruments regulating the work of children, and an assessment of recent initiatives to address the worst forms of child labor in the cocoa …

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

Journal Articles

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, 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.

Drafting Chapter 2 Of The Ali's Employment Law Restatement In The Shadow Of Contract Law: An Assessment Of The Challenges And Results, Robert A. Hillman

Cornell Law Faculty Working Papers

The American Law Institute (ALI) has just completed the Restatement of the Law Third, Employment Law. Chapter 2 is entitled "Employment Contracts: Termination." As the name suggests, the Chapter focuses on the law's difficult challenge of applying contract law to distinguish lawful terminations of employees from wrongful ones. The question is especially problematic because, on the one hand, employment law's long-existing default rule allows employers to terminate employees "at will" and without cause. Advocates of the at-will doctrine present several policies to support it, including freedom of contract and efficiency. On the other hand, employers seek to attract talented employees …

The Evolution And Decline Of The Effective-Vindication Doctrine In U.S. Arbitration Law, Okezie Chukwumerije

Pepperdine Dispute Resolution Law Journal

This article offers information on the history, significance and role of the effective-vindication doctrine in U.S. arbitration law in promoting access to justice. It analyzes the significance of broad policy implications regarding the interpretation of the Federal Arbitration Act (FAA) by the Court facilitating the arbitration of commercial disputes and protecting the statutory rights of consumers in the context of the U.S. Supreme Court's decision in Green Tree Financial Corp. v. Randolph.