Labor and Employment Law Commons^™

“Big Data” And The Risk Of Employment Discrimination, Allan G. King, Marko Mrkonich

Oklahoma Law Review

No abstract provided.

Religious Accommodations For Sabbatarian Observance Among Library Staff, Paul A. Hartog

The Christian Librarian

Over the last twenty-five years, litigation related to religious discrimination in the workplace has been on the rise. One of the tension points has been the religious practice of Sabbath keeping, leading to employment scheduling conflicts. Title VII and its subsequent amendments require that employers seek “reasonable accommodations” for Sabbatarian observance. Such adjustments should not cause “undue hardship” to the employer, who is required to make a “good faith effort” at accommodation. This article discusses creative alternatives that managers of public libraries and nonsectarian academic libraries may implement when accommodating Seventh-Day Adventist and similar Sabbatarian staff members.

Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos

Indiana Law Journal

In this Essay, I hope to do two things: First, I try to put the current labor-disability controversy into that broader context. Second, and perhaps more important, I take a position on how disability rights advocates should approach both the current contro-versy and labor-disability tensions more broadly. As to the narrow dispute over wage-and-hour protections for personal-assistance workers, I argue both that those workers have a compelling normative claim to full FLSA protection—a claim that disability rights advocates should recognize—and that supporting the claim of those workers is pragmatically in the best interests of the disability rights movement. As to …

Modifying At-Will Employment Contracts, Rachel Arnow-Richman

UF Law Faculty Publications

Long-term employment relationships are constantly in flux: terms of compensation, company policies, and a variety of other conditions of work are routinely altered over the course of an employee’s job. In cases involving at-will employment, the economic realities and power dynamics are such that changes in terms are likely to be introduced unilaterally by the employer, often without advance notice. To date, however, neither courts nor commentators have holistically considered this problem of “midterm modifications” - contractual documents imposed post-hire on implicit or explicit threat of termination. Bringing together the law of noncompetes, arbitration agreements, and employee handbooks, this Article …

Scaling Carnegie: Four Iterations Of Teaching Transactional Workplace Law Skills, Rachel Arnow-Richman

UF Law Faculty Publications

The post-Recession demand for increased skills education in law school has spawned rich experimentation in course development and pedagogy. Less progress has been made, however, in developing holistic and sustainable curricula. Among the many challenges is the high per-student cost of delivering hands-on skills-oriented learning. The success of many law school initiatives to improve practice-readiness will depend in large part on the viability of merging skills education into the traditional large-class format. This published presentation, delivered at the Emory Law School Center for Transactional Law & Practice, examines four models of teaching transactional workplace law skills, based on the author’s …

Statehood, Power, And The New Face Of Consent, Sheldon Leader

Indiana Journal of Global Legal Studies

Individuals and groups are often subjected to power, both public and private, by eliciting their consent. Debate usually focuses on whether or not that consent is freely given or is vitiated by imbalances of strength between the bargaining parties. This essay focuses on a different issue, one that is largely passed over in legal and moral analyses: how far does and should consent bind one to accepting in advance changes in the future? There are signs of a fundamental shift in answering this question-a shift that particularly concerns the control of power in the economy. Industrial democracies may be abandoning …

Crowdwork, Corporate Social Responsibility, And Fair Labor Practices, Miriam A. Cherry, Winifred R. Poster

All Faculty Scholarship

Crowdwork, in which large numbers of workers find and perform paid tasks through online platforms, is a paradox. It can make job-matching and production processes more efficient, but it can also lead to a decline in labor standards. We seek to link ethical labor practices in virtual work with well-established notions of corporate social responsibility, that include concerns for worker well-being and fair treatment. We present a typology of trends in labour, and argue that the new phase of ‘crowdwork’ is distinct from previous eras of ‘industrial’ and ‘digital’ employment. The chapter then outlines three best practices for crowdwork. First …

Hidden From View: Disability, Segregation And Work, Elizabeth Pendo

All Faculty Scholarship

The employment provisions of the Americans with Disabilities Act of 1990 were intended to bring working-age people with disabilities into the workplace by providing options for them to seek and gain meaningful, integrated employment. Although the ADA has made significant gains, the rate of progress in employment has been disappointing. While the lack of progress of people with disabilities in the traditional workplace has received attention, the work done by many, especially those with severe disabilities in segregated workplaces, remains hidden in sheltered workshops. This chapter explores the intersection of the concepts of disability, invisibility, and work and identifies the …

Gig Economy: Settlements Leave Labor Issues Unsettled, Miriam A. Cherry

All Faculty Scholarship

This short paper, which appeared on the Law360 blog, is an effort to think through the consequences of the proposed April 2016 settlement of the Uber drivers' lawsuits. This paper makes reference to the special issue of the Journal of Comparative Labor Law & Policy that is dedicated to the legal and economic issuessurrounding crowdwork.

College Football Coaches’ Pay And Contracts: Are They Overpaid And Unfairly Treated?􀀃, Randall Thomas, Lawrence Van Horn

Indiana Law Journal

College football coaches’ employment contracts and compensation garner public attention and scrutiny in much the same way as those of corporate CEOs. In both cases, the public perception is that they must be overpaid and pampered. Economic theory claims that for coaches and CEOs to be overpaid, they must be receiving compensation in excess of the value they create for their organizations. However, both receive pay-for-performance compensation, which structurally aligns their compensation with value creation. This means we need to examine the underlying structure of the contract that gives rise to the observed compensation to determine whether they are appropriately …

Rethinking Employment Discrimination Harms, Jessica Roberts

Indiana Law Journal

Establishing harm is essential to many legal claims. This Article urges the law to adopt a more expansive notion of the harms of employment discrimination to better reflect the cognitive functions of individuals who face discrimination. While the effect of implicit bias on the mental state of potential discriminators is well-worn territory in antidiscrimination scholarship, little has been written about a sister theory: stereotype threat. More than a decade’s worth of social psychology research indicates that when a person is conscious of her membership in a particular group and the group is the subject of a widely recognized stereotype, that …

The Behavioral Economic Case For Paternalistic Workplace Retirement Plans, Paul M. Secunda

Indiana Law Journal

Dependence on 401(k) retirement accounts continues to cause a massive retirement crisis in the United States by leaving most workers unprepared for retirement. The voluntary, inaccessible, employer-centered, expensive, and consumer-driven natures of these plans have combined to make retirement a type of corporate-inspired elder abuse in America.

Behavioral economics considers the utility of permitting individual choice in decision-making settings. Many, however, have been misled to believe that greater choice is always better. Yet, according to one prominent commentator, this consumer-driven paradigm will lead to 48% of current workers between the ages of fifty and sixty-four being poor when they reach …

It Saves To Be Healthy: Using The Tax Code To Incentivize Employer-Provided Wellness Benefits, Hilary R. Shepherd

Indiana Law Journal

With lifestyle-related disease on the rise and an increasing number of employers being held responsible for providing health insurance to their employees, we as a society have incentives to promote wellness, even if only to cut health care costs. Part I of this Note outlines a brief history of employer-provided wellness benefits and provides a concise summary of the employer-provided wellness benefits available. Part II analyzes the relevant federal income tax law, specifically, the fringe benefits provision of the Internal Revenue Code, and concludes that under existing tax law, on-premises gym facilities do not yield any taxable income to employees, …

Diy Solutions To The Hobby Lobby Problem, Kristin Haule

Loyola of Los Angeles Law Review

No abstract provided.

Post Quon: An Analysis Of The Evolution Of New Media And The Employment Relationship, John H. Shannon, Susan A. O’Sullivan-Gavin

Journal of Business & Technology Law

No abstract provided.

Associational Discrimination: How Far Can It Go?, Jessica Vogele

Touro Law Review

No abstract provided.

Addressing Employee Use Of Personal Clouds, Philip Favro

Richmond Journal of Law & Technology

Cloud computing is one of the most useful innovations in the digital age. While much of the attention on recent advances has focused on smartphones, tablet computers, and wearable technology, the cloud is perhaps unrivaled in its utility for organizations. From simplified data storage to innovative software platforms, enterprise-grade cloud solutions provide cost-effective alternatives to acquiring expensive computer hardware and software. Enterprise clouds also offer a collaborative work environment for a mobile and widespread work force, enabling businesses to maximize worker productivity.

Just Jobs, Anita Bernstein

University of Baltimore Law Review

Activists who pursue gender justice in the United States have always focused on work, both the paid and unpaid kind. In her magisterial Sex Equality, Catharine MacKinnon chose "Work" as her first section, or illustrative locus, in the chapter titled "Sex and Sexism."' At the workplace, MacKinnon wrote, begins "the mosttraveled terrain" of sex equality law.2 Unpaid work fills the waking hours of most women. Women's labor makes the domestic economies of nation-states possible, even though it continues almost entirely uncounted in measurements of national output.' Injustices in both categories of work, the paid and unpaid, buttress each other.4

Mindful …

The Future Of The Cadillac Tax, Kathryn L. Moore

Law Faculty Scholarly Articles

The Affordable Care Act includes a 40 percent excise tax on high-cost employer-sponsored health care coverage. Often referred to as the “Cadillac tax,” this excise tax is one of the most controversial elements of the Affordable Care Act.

Currently scheduled to go into effect in 2020, the Cadillac tax poses serious challenges and uncertainty for employers. On the one hand, recent estimates suggest that the Cadillac tax may hit as many as 20 percent of employers with health care plans in 2020. On the other hand, there is a serious question as to whether the tax will be repealed before …

'And Ain't I A Woman?': Feminism, Immigrant Caregivers, And New Frontiers For Equality, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

This Article argues that feminist and other critical legal theories can address the profound inequalities that immigrant workers face. Part I draws from a body of feminist, political, and social science theories regarding social reproduction to assess the situation of immigrant domestic workers and their recent efforts to claim inclusion in workplace laws and protections. It locates the increasingly carceral dynamics that are expressed in the law and in state infrastructure and continuously undermine immigrant women's economic and social stability, as explained in further detail in Parts L.A and I.B.2, infra. Unbeknownst to many, the present period is the most …

Workers' Compensation: Necessary Changes In Favor Of The Injured Worker

Nova Law Review

Florida's workers' compensation is intended to provide a "reasonable alternative to tort litigation" by providing medical and wage- loss benefits to injured workers.

Politics At Work After Citizens United, Ruben J. Garcia

Scholarly Works

There are seismic changes going on in the political system. The United States Supreme Court has constitutionalized the concentration of political power in the "one percent" in several recent decisions, including Citizens United v. FEC. At the same time, unions are representing a shrinking share of the workforce, and their political power is also being diminished. In order for unions to recalibrate the balance of political power at all, they must collaborate with grassroots community groups, as they have done in several recent campaigns. There are, however, various legal structures that make coordination between unions and nonunion groups difficult, …

Workplace Law Cases In The Tenth Term Of The Roberts Court: Between The Usual Ideological Lines, Ruben J. Garcia

Scholarly Works

My review of the Supreme Court's October 2014 Term will focus on cases involving workplace law statutes such as the Fair Labor Standards Act of 1938 (FLSA), Title VII of the Civil Rights Act of 1964 (Title VII), the Labor Management Relations Act of 1947 (LMRA) and the Whistleblower Protection Act of 1989 (WPA). These cases can be viewed through the lens of the following trends: 1) the Court continues its judicial narrowing of the Fair Labor Standards Act and federal labor law; 2) plaintiffs who have the backing of the administrative agencies are more likely to be successful; and …

"An Equally Divided Court": Workplace Law In The U.S. Supreme Court 2015-2016, Ruben J. Garcia

Scholarly Works

The 2015-2016 Term of the United States Supreme Court was scarcely halfway over when Justice Antonin Scalia passed away on February 12, 2016. This event and the political gridlock over his successor defined the Term in some ways more than the actual decisions of the Court, particularly when the resulting vacancy led an “equally divided” Supreme Court to affirm the courts below in a one sentence judgment. The most watched of these cases in workplace law was Friedrichs v. California Teachers Association, where the Supreme Court’s 4-4 tie avoided the overruling of decades of precedent upholding the constitutionality of agency …

Controlling Health Care Spending: More Patient "Skin In The Game?", David Orentlicher

Scholarly Works

In this article, Professor Orentlicher explores the high cost of healthcare and the trend in health insurance to shift the cost of health care to patients in an attempt to influence their behavior and health decisions. He examines such strategies as reference pricing, scaled cost-sharing, and employee wellness programs.

Subsidized Egg Freezing In Employment: Autonomy, Coercion, Or Discrimination?, Ann C. Mcginley

Scholarly Works

In 2014, Apple and Facebook announced that they would provide up to $20,000 for female employees to freeze their eggs as an employment benefit. These announcements raised mixed reviews. Some applauded the decision because they believe that egg freezing may offer to women more control over their reproductive choices. Others argued that the new benefit sends the wrong message to women and that encouraging good parenting by giving better parental leave and child care policies would be more beneficial to families. Others were concerned that this “benefit” applies only to professional or managerial-class women, but may not be helpful to …

Fired Anti-Gay Atlanta Fire Chief Strikes Back In Lawsuit, Arthur S. Leonard

Other Publications

No abstract provided.

Outsourcing And Supply Chains In Canada, Eric Tucker, Leah F. Vosko, John Grundy, Alec Stromdahl

Articles & Book Chapters

While data on the extent of outsourcing by Canadian businesses is scant, there is general agreement that over the last several decades the phenomenon has increased and taken a variety of forms including the use of global supply-chains (offshoring) and domestic subcontracting (outsourcing).175 In this way, large businesses have been able to shed responsibility for the employees who actually perform the work. David Weil has aptly characterized this phenomenon as “fissuring”, which can take a variety of forms including sub-contracting, franchising, and other arrangements.176 A related phenomenon that will be addressed here is the use of temporary employment agencies through …

Workplace Rumors About Women's Sexual Promiscuity As Gender-Based Insults Under Title Vii, Wendy Hess

Faculty Publications

No abstract provided.

Union Representation In Employment Arbitration, Ann C. Hodges

Law Faculty Publications

Employers in recent years have promulgated arbitration programs to resolve disputes with their present and former employees. Arbitration may in many cases provide a lower-cost forum than litigation for resolving such disputes. But the problem of representation of Americans of modest incomes still remains. Ann Hodges explores in this chapter whether labor unions can help address that representation gap.