Labor and Employment Law Commons^™

Student-Athletes Put Full-Court Pressure On The Ncaa For Their Rights, 15 J. Marshall Rev. Intell. Prop. L. 276 (2016), Taylor Riskin

UIC Review of Intellectual Property Law

The struggle between the NCAA and student-athletes is one that will not slow down. The issue is whether the mandatory student-athlete agreement is reasonable and, further, if student-athletes should be compensated for the use of their likeness? The answers to these questions are crucial with over a century of tradition on the line. This comment analyzes the recent Ninth Circuit decision through an antitrust and right of publicity lens. Additionally, this comment proposes a solution that allows student-athletes to receive some type of compensation while the NCAA preserves amateurism.

Protective Plan Provisions For Employer-Sponsored Employee Benefit Plans, Kathryn J. Kennedy

Marquette Benefits and Social Welfare Law Review

Federal case law has provided plan sponsors of the

Employee Retirement Income Security Act of 1974 (ERISA)

covered plans with the ability to insert plan provisions that are

more favorable to the plan sponsor rather than the plan

participant or beneficiary (so-called “protective plan provisions”).

This Article first examines what is the “plan document” for

purposes of ERISA and what protective plan provisions should

be considered for insertion into the plan document and its

related “instruments.”

The Student-Athlete's Right To Organize: How The United States Is Violating The International Labor Organization Constitution And Declaration Of Fundamental Rigths, Matthew Phifer

American University International Law Review

No abstract provided.

Angry Employees: Revisiting Insubordination In Title Vii Cases, Susan Carle, Susan D. Carle

Faculty Collected Scholarship and Works

In too many Title VII cases, employees find themselves thrown out of court because they reacted angrily to reasonable perceptions of employer discrimination. In the race context, supervisors repeatedly call employees the n-word and use other racial epithets, order African American employees to perform work others in the same job classification do not have to do, and impose discipline white employees do not face for the comparable conduct. In the gender context, courts throw out plaintiffs’ cases even where supervisors engage in egregious sexual harassment. Employees who react angrily to such demeaning treatment—by cursing, shouting, refusing an order or leaving …

Protecting The Compromised Worker: A Challenge For Employment Discrimination Law, Peter Siegelman

Faculty Articles and Papers

Only the very best workers are completely satisfactory, and they are not likely to be discriminated against-the cost of discrimination is too great. The law tries to protect average and even below average workers against being treated more harshly than would be the case if they were of a different race, sex, religion, or national origin, but it has difficulty achieving this goal because it is so easy to concoct a plausible reason for not hiring, or firing, or failing to promote, or denying a pay raise to, a worker who is not superlative.

Upsteam Advocacy: Addressing Cancer Survivors' Employment Problems Through Medical-Legal Partnerships, Barbara Hoffman

Washington Law Review Online

This is a response to Ann C. Hodges, Working with Cancer: How the Law Can Help Survivors Maintain Employment, 90 Wash L. Rev. 1039.

Internal Disciplinary Procedures – Internet And Social Media. Dilemmas Of Bilateral Relations, Adrian Berski

Reports

Nowadays, Social Media and the Internet are useful and powerful tools within society. It provides great convenience to conduct activities within the job market such as: free web advertising, talent hunting or collecting precious marketing data. However, in some cases, Social Media and the Internet can be a “bone of contention” between the employer and employee relationship.

The main purpose of this essay is to demonstrate bilateral relations between internal disciplinary procedures between Companies and the Internet – Social Media, in light of the Unfair Dismissals Acts 1977-2007. It will be presented in relation to the following determinants[1]: …

Food Stamps, Unjust Enrichment And Minimum Wage, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

A number of large retail chains with monopsony power, such as Walmart, pay their low level employees so little that these employees are eligible for food stamps and other governmental benefits. In addition to paying low wages, these chains often have hourly restrictions so that their employees are not eligible for overtime pay. At times the chains violate the wage and hour provisions of the Fair Labor Standards Act (FLSA) by making hourly employees work “off the clock,” a practice known as wage theft.

One of the reasons these low wage retailers can pay so little is because their employees …

Race-Based Reverse Employment Discrimination Claims: A Combination Of Factors To The Prima Facie Case For Caucasian Plaintiffs, Shirley W. Bi

Cardozo Law Review de•novo

This Note discusses the practical impact resulting from the different modifications of the first prong of the McDonnell Douglas burden-shifting framework in reverse discrimination cases. Part I of this Note will provide background information on traditional Title VII racial discrimination claims, when a minority plaintiff alleges racial discrimination in her workplace. Then, it will introduce the three step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, which is the foundation for reverse racial discrimination cases. This Note focuses on the first of the four prongs of the prima facie analysis used by federal courts. Part II will …

The Road To Adopting And Implementing Systemic Disclosure Changes In The Dallas County District Attorney’S Office, Susan Hawk, Patricia J. Cummings

Cardozo Law Review de•novo

Discovery and Brady are currently two of the most discussed and debated topics in our criminal justice system. Americans have become more and more aware of the number of individuals convicted and incarcerated for crimes they did not commit. In 2007, in a very bold and innovative move, the Dallas County District Attorney’s Office created the Conviction Integrity Unit (CIU) to reexamine questionable convictions to determine if a particular defendant was in fact guilty.

Lifetime Disadvantage, Susan Bisom-Rapp, Malcolm Sargeant

Faculty Scholarship

Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women's labor force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards …

Stripping Away Employment Rights: The Unconscionability Of Class Waivers In Employment Agreements, Nikki Clark

Journal of Dispute Resolution

As support for arbitration clauses began to grow, employers began to include arbitration clauses in employment agreements because it lowers the cost and uncertainty of litigation. Many of these arbitration clauses contain waivers of the right to class action. This Note argues that a waiver of collective action, whether express or unknowing, should be per se unconscionable to provide consistency and to resolve the inconsistency between and even within federal circuits.

The Wages Of Human Trafficking, Rana M. Jaleel

Brooklyn Law Review

This article asks a deceptively straightforward question: What is the wrong of human trafficking? If the answer seems obvious, a closer look at anti-trafficking law reveals a doctrinal crisis. Human trafficking law has traditionally concerned itself with movement and how compelled or chosen migration estranges vulnerable people from the locales, customs, and resources that might otherwise shield them from exploitation. According to the U.S. State Department, however, movement is no longer a central element of human trafficking. Instead, “many forms of enslavement” are thought to comprise the core of the crime. The revocation of the movement requirement and the equation …

Student-Athletes Vs. Ncaa: Preserving Amateurism In College Sports Amidst The Fight For Player Compensation, Audrey C. Sheetz

Brooklyn Law Review

While student-athletes are the backbone of the $11 billion college sports industry, they do not currently receive any of this revenue derived from the use of their names, images, and likenesses. The National College Athletic Association’s mission is to maintain the amateur status of student-athletes. In doing so, it precludes student-athletes from receiving any type of compensation outside of the actual cost of tuition. Amateurism, as a concept, promotes the distinction between professional and student athletes, and is the crux of the NCAA’s argument for prohibiting the compensation of student-athletes. Recently, however, the controversy surrounding the amateur status of college …

Towards Reasonable: The Rise Of State Pregnancy Accommodation Laws, Stephanie A. Pisko

Michigan Journal of Gender & Law

In light of the recent Supreme Court decision Young v. UPS, pregnancy accommodation in the workplace is once again at the forefront of employment law. Pregnancy is not considered a disability under the ADA, nor is it within the scope of Title VII protections, but states are passing their own pregnancy accommodation laws. These laws will affect employers and employees alike, but exactly how is uncertain. Perhaps the most natural (and obvious) result of the explosion of state pregnancy accommodation laws will be a federal law, or an amendment to the ADA categorizing pregnancy as a disability. But there …

The Minefield: Designing And Implementing Human Resource Policies In The Age Of Social Media, Christopher R. Mcmillan

The Graduate Review

Human resource managers have had to navigate a minefield of laws and regulations while continuing to manage the traditional business functions of the employer. Now, human resource departments across the nation are tasked with managing the traditional employee-employer relationship in light of an ever-changing technological and legal landscape. Businesses across the nation have had to adjust to a rise in the use of social-media and have suffered the consequences of instantaneous communication between employees and the media. These same businesses must reconcile the need to protect its goodwill and livelihood, while incorporating the safeguards provided by legislation and regulations in …

Wage Theft As Public Larceny, Elizabeth J. Kennedy

Brooklyn Law Review

Home care for the elderly and disabled is a rapidly expanding industry in which structural and regulatory factors contribute to worker vulnerability and exploitation. Systemic exclusion from core federal employment and labor laws, as well as many state and local regulations, results in minimal consequences for employers who violate standards. Despite recent movement at the federal level to create a “new mindset” of rights and regulations, home care workers must be equipped with creative ways to enforce these new rights and to challenge existing gaps in enforcement. With the understanding that two-thirds of the home care industry is financed by …

Millenial Feminisms: How The Newest Generation Of Lawyers May Change The Conversation About Gender Equality In The Workplace, Meghan M. Boone

University of Baltimore Law Review

Much has been written about the "Millennial generation" and how they are re-shaping the modem workplace, including the legal profession. This body of literature ranges from heralding the Millennial generation as the vanguard for a new age of optimistic, creative team-players, to decrying Millennials as technology-obsessed, entitled, and lazy. Because Millennials have only recently begun to enter the legal profession en masse, the question of how Millennials will change the modem legal profession is still an open one-although one that has already attracted considerable attention. Less attention, however, has been paid to how Millennials unique approach to their professional lives …

Using The Nfl As A Model? Considering Zero Tolerance In The Workplace For Batterers, Deseriee A. Kennedy

University of Baltimore Law Review

"Domestic abuse is a workplace issue. '

The impact of domestic violence can increasingly be felt in the workplace, and it can adversely affect the safety and productivity of employees. Legislators and employers have begun to recognize the effect of domestic violence on employment, and many have adopted policies to protect the interests of domestic violence survivors. This article suggests that wider adoption of domestic violence policies are needed and these policies should be broadened to directly address batterers in the workplace. The article argues that employer based sanctions would increase batterer accountability and workplace safety. It uses the newly …

Blind Justice: The Need To Introduce Diverse Perspectives Into Our Legal System, Edward H. Richardson

University of Baltimore Law Review

Peggy Young was finally pregnant. This was the third time that she attempted in vitro fertilization. The first time, in 2005, the procedure was successful, but Young suffered a miscarriage. The second attempt at in vitro fertilization, in February 2006, failed. The third round, in July of 2006, was a success. Each time that Young underwent an in vitro fertilization attempt, she requested, and received, a leave of absence from her job at United Parcel Service (UPS).

But what should have been a joyous occasion-a pregnancy resulting in the birth of Young's daughter Triniti- turned into a battle with UPS …

Protecting Common Law Rights Of The Unionized Worker: Demystifying Section 301 Preemption, Phillip Closius

University of Baltimore Law Review

Employers are frequently subject to employee lawsuits alleging a tort. Non-unionized employees may seek damages for such conduct by their employers in state court. Unionized employees, however, face the risk that employers will seek to transfer the case to a federal district court in an attempt to immunize tort liability by claiming the complaint is preempted by § 301 of the Labor Management Relations Act of 1947 (LMRA). Although § 301 remains essentially unchanged from the date of its adoption, judicial confusion over the scope of its preemptive effect frequently has broadened an employer’s ability to defeat state tort claims …

Portlandia, Ridesharing, And Sex Discrimination, Ari Herbert

Michigan Law Review Online

This Essay discusses and assesses the legal hurdles that See Jane Go and SafeHer may face. Part I of this Essay explains how the plain text of Title VII and the pertinent Equal Employment Opportunity Commission (EEOC) guideline can fairly be read either to allow or condemn See Jane Go and SafeHer’s hiring practices. Part II then highlights precedent that supports See Jane Go’s and SafeHer’s discriminatory driver–passenger practices. Part III concludes by arguing that the legal system ought to make room for apps like See Jane Go and SafeHer in the current framework.

"Other Than Honorable" Discrimination, Marcy L. Karin

Journal Articles

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the most comprehensive federal civil rights law that exists related to the workplace. Its goal is to help people who serve in the military reintegrate back into civilian work and remain attached to the workforce. It does so by offering a mix of anti-discrimination protection and labor standards. Despite the promise of robust reemployment rights and post-service assistance, Congress has excluded people with a certain “character of service,” including those with “other than honorable” separations, from these protections. This statutory exclusion has a disparate impact on people with service-connected disabilities, …

Employment Law, Theodore Goloff

The International Lawyer

No abstract provided.

Poached Eggs: The Misclassification Of Egg Donors As Independent Contractors And How Egg Donors Can Contribute To The Argument For A New Category Of Worker-The Dependent Contractor, Carol L. Williamson

Georgia Law Review

As the growth in demand for egg donors is met with an
increasing number of women willing to supply their eggs,
changes need to be made to the way egg donors, and other
similarly situated workers, are classified in the
employment context. Most donor contracts are employer-
created forms that designate the donors as independent
contractors and thus spare the clinic the duty of providing
employment benefits. Unlike other on-demand service
providers, such as Uber-drivers, that have recently sought
re-classification as employees, women who donate eggs are
subject to physically invasive procedures and long-term
health risks that particularly obviate the …

Deficiencies In The Agricultural Labor Market, Rafael Rodriguez

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Too Much Information!: The Need For Stronger Privacy Protection For The Online Activities Of Employees And Applicants, Ralph Carter

Journal of Civil Rights and Economic Development

No abstract provided.

A Law Of Just Transitions?: Putting Labor Law To Work On Climate Change, David J. Doorey

Osgoode Legal Studies Research Paper Series

Climate change will dramatically affect labor markets, but labor law scholars have mostly ignored it. Environmental law scholars are concerned with climate change, but they lack expertise in the complexities of regulating the labor relationship. Neither legal field is equipped to deal adequately with the challenge of governing the effects of climate change on labor markets, employers, and workers. This essay argues that a legal field organized around the concept of a 'just transition' to a lower carbon economy could bring together environmental law, labor law, and environment justice scholars in interesting and valuable ways. "Just transitions" is a concept …

Sweat Makes The Green Grass Grow: The Precarious Future Of Quatar's Migrant Workers In The Run Up To The 2022 Fifa World Cup Under The Kafala System And Recommendations For Effective Reform, Paula Renkiewicz

American University Law Review

No abstract provided.

Lies, Damned Lies, And Statistics: The Case To Require “Practical Significance” To Establish A Prima Facie Case Of Disparate Impact Discrimination, Katie Eissenstat

Oklahoma Law Review

No abstract provided.