Labor and Employment Law Commons^™

Essay: Setting The Bases Of A Policy Framework To Cover Old-Age Risk

Marquette Benefits and Social Welfare Law Review

This Essay proposes a coherent vision about the protection of old-age pensions and establishes a public policy strategy that allows the protection of a country's entire population. If attempts to connect the action of the State, through the notion of the welfare state, with the protection of pension systems. It proposes three levels of protection: (1) the welfare state, (2) state regulation, and (3) pension scheme regulation. The first Section of this Essay reviews welfare states, explains their categories, and discusses their protective effects. The second Section examines how to structure the various pension schemes into a coherent pension system …

Erisa Preemption After Gobeille V. Liberty Mutual: Completing The Retrenchment Of Shaw, Edward A. Zelinsky

Hofstra Labor & Employment Law Journal

Gobeille v. Liberty Mutual Insurance Co. is the U.S.Supreme Court’s most recent preemption decision under the Employee Retirement Income Security Act of 1974 (ERISA). In Gobeille, the Court completed the process of reconciling the restrained approach to ERISA preemption announced in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. with the Court’s literal and expansive approach adopted earlier in Shaw v. Delta Air Lines, Inc. Gobeille consummated this reconciliation by confirming the sub silentio retrenchment of Shaw and its “plain language” approach in favor of Traveler’s broader construction of ERISA preemption.

Gobeille held …

All Quiet On The Employment Front: Mandatory Arbitration Under The Userra, Bradford J. Kelley

Hofstra Labor & Employment Law Journal

No abstract provided.

Not Every Cloud Has A Silver Lining: The Implications Of Cloud-Based Computing And Bring Your Own Devices On Employee Monitoring And The Dynamic Shift In The Definition Of The Workplace, Ashtyn Hemendinger

Hofstra Labor & Employment Law Journal

No abstract provided.

Taking Care Of The Fmla: Traveling With Family Members Under The Family And Medical Leave Act, Lindsay Korn

Hofstra Labor & Employment Law Journal

No abstract provided.

The Uber Million Dollar Question: Are Uber Drivers Employees Or Independent Contractors?, Richard A. Bales, Christian Patrick Woo

Mercer Law Review

It was a snowy evening in Paris when 2008 LeWeb Technology Conference attendees Travis Kalanick and Garrett Camp were trying to catch a taxicab. Frustrated with being stuck in the cold without a ride, the two eventually found a way back to their apartment on the outskirts of the city and started talking with a few other entrepreneurs about potential start-ups. Not surprisingly, an idea they discussed that night was a smartphone application, or app, that could pick up passengers the moment they requested a ride. Although neither Kalanick nor Camp probably knew it at the time, this simple idea …

Compliance Requires Inspection: The Failure Of Gender Equal Pay Efforts In The United States, Renalia Dubose

Mercer Law Review

On Friday, January 29, 2016, President Barack Obama expanded a previous executive order by requiring the Department of Labor to collect wage data based on gender, race, and ethnicity from contractors with at least 100 employees doing business with the federal government. That previous executive order was the April 8, 2014 Executive Order 13665 entitled Non-Retaliation for Disclosure of Compensation Information and was designed to amend the September 24, 1965 Executive Order 11246 entitled Equal Employment Opportunity by President Lyndon Johnson. Executive Order 13665 was issued to require transparency concerning compensation among private entities doing business with the federal government …

Public Employee Speech: Answering The Unanswered And Related Questions In Lane V. Franks, John E. Rumel

Hofstra Labor & Employment Law Journal

No abstract provided.

Title Ix Sexual Assault Investigations In Public Institutions Of Higher Education: Constitutional Due Process Implications Of The Evidentiary Standard Set Forth In The Department Of Education's 2011 Dear Colleague Letter, Lance Toron Houston

Hofstra Labor & Employment Law Journal

This Article examines the constitutional due process impact of the vastly opposite and conflicting standards of review in Title IX sexual assault investigations. Thousands of unionized public employees are subject to the terms and conditions of a public university collective bargaining agreement, which requires a heightened standard of "clear and convincing evidence" to discipline employees. At the same timeperhaps unknowingly-the employee is also held to the strict federally mandated standard of a "preponderance of the evidence," which has a lower standard of review. In short, under the same facts and within the same Title IX investigation, the employee is subject …

Law-And-Economics Approaches To Labour And Employment Law, Stewart J. Schwab

Cornell Law Faculty Publications

This article describes the distinctive approaches that law and economics takes to labour and employment law. The article distinguishes between ‘economic analysis of law’ and ‘law and economics’, with the former applying economic models to generally simple legal rules while the latter blends messier institutional detail with legal and economic thought. The article describes three eras of law-and-economics scholarship, recognizing that economics teaches that markets work and markets fail. Era One emphasizes that labour laws and mandatory employment rules might reduce overall social welfare by preventing a benefit or term from going to the party that values it most highly. …

Incomprehensible Discrimination, James Grimmelmann, Daniel Westreich

Cornell Law Faculty Publications

The following (fictional) opinion of the (fictional) Zootopia Supreme Court of the (fictional) State of Zootopia is designed to highlight one particularly interesting issue raised by Solon Barocas and Andrew Selbst in Big Data’s Disparate Impact. Their article discusses many ways in which data-intensive algorithmic methods can go wrong when they are used to make employment and other sensitive decisions. Our vignette deals with one in particular: the use of algorithmically derived models that are both predictive of a legitimate goal and have a disparate impact on some individuals. Like Barocas and Selbst, we think it raises fundamental questions about …

Some Thoughts On "Healthism" And Employee Benefits In The Age Of Trump, Brendan S. Maher

Faculty Scholarship

I look forward to the publication of HEALTHISM: HEALTH STATUS DISCRIMINATION AND THE LAW (hereinafter Healthism), by Jessica L. Roberts of the University of Houston Law Center and Elizabeth Weeks Leonard of the University of Georgia Law School.

On November 4, 2016, at the invitation of Professors Roberts and Weeks, I participated in a conference in which the discussants commented on Roberts and Weeks' forthcoming book and shared thoughts about the relevance of that work to various related fields. What follows here is somewhat different than those comments-although the general themes are the sameand is so in part because, four …

Prosecutorial Discretion Power At Its Zenith: The Power To Protect Liberty, Peter L. Markowitz

Articles

On November 20, 2014, President Obama, frustrated by congressional inaction on immigration, announced an ambitious and potentially transformative prosecutorial discretion policy to forego the deportations of millions of low priority undocumented immigrants. That announcement immediately sparked legal challenges, which quickly wound their way to the Supreme Court, and a nationwide debate about the limits of the President’s prosecutorial discretion authority. President Obama’s actions are part of a larger trend whereby modern presidents have increasingly used robust assertions of prosecutorial discretion powers to achieve policy goals that they could not realize through legislation.

There are clear dangers in allowing a president …

Petitioner's Reply Brief. Riley V. Elkhart Community Schools, 137 S.Ct. 1328 (No. 16-533), 2017 U.S. S. Ct. Briefs Lexis 593, 2017 Wl 712023, Eric Schnapper, Robin Remley

Court Briefs

QUESTIONS PRESENTED (1) To establish a prima facie case of discrimination in promotion or hiring, is a plaintiff required to show that the position in question was filled by someone outside his or her protected group? (2) In Patterson v. McLean Credit Union, this Court held that in a case of alleged discrimination in hiring or promotion, a plaintiff “might seek to demonstrate that [the employer's] claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position.” Ash v. Tyson Foods, Inc. recognized that the …

Corporate America And "The Perks" Of Being A Woman: Increasing Gender Diversity In Corporate Boardrooms, Enkelena Gjuka

Journal of Civil Rights and Economic Development

No abstract provided.

English-Only Policies: The Need For And Benefits Of The Employment Language Fairness Act, Nick Stratouly, Esq.

Journal of Civil Rights and Economic Development

No abstract provided.

Murray Energy Corporation V. Mccarthy, Sarah M. Danno

Public Land & Resources Law Review

Holding that the widespread effects of environmental regulation on the coal industry constituted sufficient importance, the Northern District of West Virginia ordered the Environmental Protection Agency to conduct analysis on employment loss and plant reduction resulting from regulatory effects. In admonishing the EPA’s inaction, the court ruled that the Agency had a non-discretionary duty to evaluate employment and plant reduction. Furthermore, the court held that the EPA’s attempt to put forth general reports in place of required evaluations was an invalid attempt to circumvent its statutory duty.

Trott V. H.D. Goodall Hospital: When Analyzing Employment Discrimination Cases Under Maine Law, Should Maine Courts Continue To Apply The Mcdonnell Douglas Analysis At The Summary Judgment Stage?, Ari B. Solotoff

Maine Law Review

Since 2003, the Maine Supreme Judicial Court has applied the Supreme Court’s McDonnell Douglas burden-shifting analysis on summary judgment in employment discrimination claims brought under Maine law. Recently, however, some justices of the Law Court have questioned McDonnell Douglas’s continuing application to summary judgment determinations. They argue that the framework is outdated, overly mechanical, and unnecessary. In Trott v. H.D. Goodall Hospital, the court set forth three guiding principles for lawyers and judges to follow in employment discrimination cases facing disposition at summary judgment. In doing so, the court signaled that McDonnell Douglas should continue to be applied at summary …

Partnerships In Employment Brief: Guidance On How To Obtain Data On The Use Of Subminimum Wages Within A State To Inform Systems Change Activities, Evelyn Doxey, Leslie Jaehning, Elise Mcmillan, Kristin Vandagriff, Jean Winsor

All Institute for Community Inclusion Publications

In October 2011, the Administration on Intellectual and Developmental Disabilities awarded grants to lead agencies in six states: California, Iowa, Mississippi, Missouri, New York, and Wisconsin. Two additional states, Alaska and Tennessee, received grants in October 2012. These states proposed activities to spur improved employment and postsecondary outcomes for youth with intellectual and developmental disabilities (IDD). Until the end of September 2016 the Institute for Community Inclusion and the National Association of State Directors of Developmental Disabilities Services provided training and technical assistance (TA) to the eight state projects through the Partnerships in Employment (PIE) Training and TA Center.

PIE …

Data-Driven Discrimination At Work, Pauline T. Kim

William & Mary Law Review

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback …

Labour Protection For The Vulnerable: An Evaluation Of The Salary And Injury Claims System For Migrant Workers In Singapore, Tamera Fillinger, Nicholas Harrigan, Stephanie Chok, Amirah Amirrudin, Patricia Meyer, Meera Rajah, Debbie Fordyce

Research Collection School of Social Sciences

This research seeks to review and analyze the protections afforded to migrant workers in Singapore who bring salary and injury claims to the Ministry of Manpower for resolution. Our focus is male Work Permit holders from Bangladesh, China, and India who make up the majority of the workforce in Singapore’s construction and marine sectors. Work Permit holders are the lowest wage category of foreign workers and comprise nearly a third of the overall workforce. While these workers play an important role in building the nation, they face workplace issues that many would not associate with a modern economy.

The Right To Improvise In Low-Wage Work, Michael M. Oswalt

Cardozo Law Review

The resurgence of strikes in the non-union fast food and retail sectors has created unprecedented momentum for increases in state, local, and company-specific minimum wages. The once fantastical demand for a $15 an hour wage floor has been legislated into life in two states, four major cities, and counting. Early work, drawing from organizational studies, identified "improvisation" as the theoretical engine of the walkouts, and while that strategy remains, the ground has since shifted. Today's strikes are no longer just about McDonald's or Walmart but low-wage jobs generally, from child care, to adjunct teaching, to security, and beyond. This Article …

The Matriculation Of The Micro-Unit On The College Campus, Barnett L. Horowitz

Journal of Collective Bargaining in the Academy

To the extent the world of higher education was following the National Labor Relations Board there was probably limited focus on the Board’s Specialty Healthcare case allowing for the so-called “micro-unit”. Board decisions as to the employee status of tenure track faculty or football players or graduate teaching or research assistants were likely to be of greater interest. Yet the recent holding in Columbia University that students providing instructional services were also employees subject to the Act’s coverage put the micro-unit in play on the college campus. Almost immediately after this decision petitions were filed at Yale seeking representation of …

Bare Minimum: Stripping Pay For Independent Contractors In The Share Economy, Michael H. Leroy

William & Mary Journal of Race, Gender, and Social Justice

My study explores a small but revealing corner of the share economy, where an individual’s private resources are bartered for limited use by others in exchange for compensation. Strip clubs create value for owners by commoditizing sexual labor. Clubs avoid employment in favor of independent contracting with dancers. They pay no wages or benefits; patrons pay dancers with fees and tips. But clubs extract entry fees from dancers who work; require them to rent dressing rooms and stage time; and compel them to share tips with DJs, emcees, house moms, bouncers, and bartenders. My research identified seventy-five federal and state …

Newroom: Yelnosky: Future Of Public Sector Union 'Dues' 01-14-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Sixth Circuit Undermines Labor Statute, Angela B. Cornell

Cornell Law Faculty Publications

No abstract provided.

Connecting Nineteenth-Century Antislavery And Labor Movements With Twenty-First-Century Workers’ Rights, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Rwu First Amendment Blog: Dean Michael Yelnosky's Blog: The First Amendment And Public Sector Union "Dues" 1-9-2017, Michael J. Yelnosky

Law School Blogs

No abstract provided.

Exhausted Yet? Stephens V. Pension Benefit Guaranty Corporation And The Application Of The Exhaustion Doctrine To Statute-Based Erisa Claims, Carson D. Phillips-Spotts

Maine Law Review

By 1974, the U.S. Congress recognized that employer-provided retirement pension plans had “become an important factor affecting the stabilization of employment and the successful development of industrial relations” and enacted the Employee Retirement Income Security Act (ERISA) with the aim of protecting “the interests of participants in employee benefit plans and their beneficiaries.” In enacting ERISA, Congress established “standards of conduct, responsibility, and obligation[s] for fiduciaries of employee benefit plans” and provided for “appropriate remedies, sanctions and ready access to the Federal courts.” Apart from creating federal causes of action to ensure efficient and equitable administration of private pension plans, …

Newsroom: Yelnosky On 'Persuader Rule' 01-03-2017, Pat Murphy, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.