Labor and Employment Law Commons^™

Employment As Fiduciary Relationship, Matthew T. Bodie

All Faculty Scholarship

Under traditional agency law doctrine, employees are agents of their employers and owe an agent’s concomitant fiduciary duties. Employers, in turn, are merely principals and have no corresponding fiduciary duties. A new wave of thinking has unsettled this approach by concluding that only high-level employees have fiduciary responsibilities to their employers. Taking this controversy as a starting point, this Article reconceives the employment relationship as a mutual fiduciary relationship in which both employers and employees are fiduciaries of one another. Even though current law does not consider employers to be fiduciaries of their employees, employers have long had significant statutory …

Teaching Law As A Vocation: Local 1330, Promissory Estoppel, And The Critical Tradition In Labour Scholarship, Michael Fischl

Faculty Articles and Papers

A central feature of early work associated with critical legal studies was an effort to ‘break the seal’ between teaching and writing, the supposedly dichotomous dimensions of academic life. This essay locates the link in a ‘demystification’ project – a relentless focus on the recurring rhetorical structures of legal reasoning and argument – and nowhere is it more evident than in critical labour scholarship. The essay offers an extended illustration by deploying a series of critical classroom techniques in a study of Local 1330 v. U.S. Steel, a tragically unsuccessful effort by a union to prevent the closing of a …

The Uberization Of Arbitration Clauses, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

In the early part of this decade, the Supreme Court’s decisions interpreting the Federal Arbitration Act (FAA) strictly enforced predispute arbitration clauses (PDAAs) with class action waivers and so-called “delegation” provisions in consumer contracts. Just after the Court’s 2013 ruling that clauses with class action waivers did not prevent claimants from vindicating their statutory rights, Uber— a company at the heart of the “gig economy”—started inserting PDAAs in agreements with its drivers and passengers. Uber’s move has generated dozens of challenges to its clause in lawsuits across the country, and thus dozens of federal court opinions contributing to modern FAA …

California Must Be Specified In Venue And Choice Of Law Employment Contract Provisions, Chris Micheli

University of the Pacific Law Review

No abstract provided.

It Is Time For Something New: A 21st Century Joint-Employer Doctrine For 21st Century Franchising, Steven A. Carvell, David Sherwyn

American University Business Law Review

No abstract provided.

The Joint-Employer Standard After Browning-Ferris Ii & The 21st Century American Dream, Jay Forester

American University Business Law Review

No abstract provided.

Justice Scalia's Labor Jurisprudence- Justice Denied, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Lessons From The Dramatists Guild For The Platform Economy, Matthew T. Bodie

All Faculty Scholarship

Are platform workers part of a firm or are they working as individual businesses? Are they providing their labor as part of a team, or do they hold on to individual capital throughout their transactions? This essay explores the question of employee versus independent contract through the specific examples of dramatists and screenwriters. Dramatists have chosen to conduct their work as separate artists; they maintain copyright over their work, and they retain control over its use. Screenwriters, on the other hand, work as part of a team; they hand over their copyright to the production company and cede control over …

Workplace Freakonomics, Matthew T. Bodie

All Faculty Scholarship

Data analytics has revolutionized our economy, and employment is no exception. Sometimes called people analytics or HR analytics, the study of worker behavior and activity now includes the collection of massive amounts of data that is then crunched by algorithms looking for both expected and unexpected patterns. This work is akin to the "freakonomics" approach, which asks unusual questions and is prepared to find answers that may upset conventional wisdom. This paper explores the possibility of a "workplace freakonomics" approach to using big data in the workplace, and considers the legal and ethical ramifications for wide-ranging explorations of employee data.

The Interaction Of The Pregnancy Discrimination Act And The Americans With Disabilities Act After Young V. Ups, Deborah A. Widiss

Articles by Maurer Faculty

Pregnant women sometimes ask employers for accommodations – such as being able to sit on a stool or avoid heavy lifting – to permit them to work safely and productively. In 2015, in Young v. United Parcel Service, the Supreme Court held that the Pregnancy Discrimination Act (PDA) requires courts to scrutinize carefully denial of such requests. The facts in Young arose prior to the effective date of the ADA Amendments Act of 2008 (ADAAA); accordingly, the Court did not address how the ADAAA, which expanded the range of health conditions that qualify as disabilities, affects claims for accommodations under …

Introduction: The American Law Institute's Restatement Of Employment Law: Comments And Critiques, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

No abstract provided.

The Impact Of Emerging Information Technologies On The Employment Relationship: New Gigs For Labor And Employment Law, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

The technology of production has always shaped the employment relationship and the issues that are important in labor and employment law. Since at least the late 1970s the American economy has adopted information technology that promises to change the employment relationship in ways at least as profound as those wrought by the other revolutions in general production technology, such as the adoption of steam power, electricity, or methods of mass production. The global network of programmable machines of the information age allows us to communicate and process much more information, much more quickly than ever previously imagined. This increased informational …

The Impact Of Teacher Collective Bargaining Agreements On High School Coaches, Harvey M. Shrage, Curt Hamakawa

Marquette Sports Law Review

None

The Limitation Of Labor Preemption: Survivability Of Contract Rights During Employer Lockouts, Andrew F. Gann, Jr.

Marquette Sports Law Review

None

The Waiting Game: Examining Labor Law And Reasons Why The Wnba Needs To Change Its Age/Education Policy, Jessica L. Hendrick

Marquette Sports Law Review

None

Mixed Martial Artists: Challenges To Unionization, Genevieve F.E. Birren, Tyler J. Schmitt

Marquette Sports Law Review

None

Partnerships In Employment: State Self-Assessment Toolkit For Systems Change In The Transition Of Youth And Young Adults With Intellectual And Developmental Disabilities From High School, Cady Landa, Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

This self-assessment tool was developed for those who wish to embark on state-wide governmental systems change to improve high school transition and employment outcomes for youth and young adults with intellectual and developmental disabilities (IDD). Its purpose is to aid in the development of a work plan that is based on a review of the state policies, practices, and strategies that impact transition from school and opportunities for competitive integrated employment of youth and young adults with IDD.

This tool incorporates research identifying elements of state government that support high rates of participation in integrated employment (Hall et al., 2007), …

Partnerships In Employment Brief: Influencing Changes In State Policy And Practice With Data On Subminimum Wages, Evelyn Doxey, Leslie Jaehning, Elise Mcmillan, Kristin Vandagriff, Jean Winsor

All Institute for Community Inclusion Publications

Subminimum wage is a pervasive and controversial issue. In many states there are individuals with disabilities who earn as little as seven cents an hour and workers who do not earn any wages because they do not produce enough products to be paid wages for their work according to the 14(c) Certificate holder.

There are many ways that data on wages earned under Section 14(c) of the Fair Labor Standards Act, i.e., 14(c) Certificates can be used to influence changes in state policy and practice. This brief describes examples from Partnerships in Employment grantee states.

Ethical Decision Making: Balancing The Rights And Needs Of Stakeholders, Sarah Becker

Richard T. Schellhase Essay Prize in Ethics

No abstract provided.

Invisible Bosses For Invisible Workers, Or Why The Sharing Economy Is Actually Minimally Disruptive, Deepa Das Acevedo

Faculty Articles

Because the idea that sharing economy companies operate as invisible bosses is central to many critiques of this new approach to labor exchange, Part I begins by explaining just what it is about their authority that makes it “invisible.” Part II extends this discussion to two earlier developments that, like the sharing economy, also significantly transformed the way Americans work: the franchise explosion of the 1950s and the spread of the independent contractor model in the late twentieth century. This article is the first to offer a detailed comparison of work practices used by sharing economy companies, franchises, and some …

Addressing The Retirement Crisis With Shadow 401(K)S, Deepa Das Acevedo

Faculty Articles

The United States has been juggling a handful of socio-economic crises lately. The subprime mortgage crisis, the auto industry crisis, the education crisis, the obesity crisis—the list isn’t short and shows no signs of becoming so. Within this group of economically and socially disruptive developments, the “retirement crisis”—the idea that most Americans will lack the financial resources to be secure and relatively satisfied in their golden years—seems somewhat banal because, for the most part, it has yet to hit. Even though baby boomers first started to age out of the workforce in 2011,the real cost of underfunded retirement is far …

Labor And The Origins Of Civil Procedure, Luke P. Norris

Law Faculty Publications

A series of changes within civil procedure over the past few decades—including the rise of private arbitration, the accompanying decline of public adjudication, and the erection of barriers to class actions—have diminished the economic power of workers, consumers, and diffuse economic actors. This Article demonstrates that avoiding these economic consequences was a central goal of those who crafted American federal civil procedure in the first place. Driven to action by the procedural issues involved in labor injunction cases, leading procedural reformers behind the modern regime strove to make American federal civil procedure sensitive to questions of political economy and designed …

State Labor Law And Federal Police Reform, Stephen Rushin, Allison Garnett

Faculty Publications & Other Works

No abstract provided.

Corporate Masters & Low-Wage Servants: The Social Control Of Workers In Poverty, Nantiya Ruan

Scholarly Works

The Article describes and analyzes how the state’s control over low-wage workers has been relegated to private employers. While the state has historically controlled and limited the lives of poor people, today, people in poverty are subjugated through the privatizing of poverty governance by corporate masters who control the lives and shape the behaviors of their low-wage worker servants. The policies of these employers ensures that low-wage work is precarious, unpredictable, and insufficient.

This Article starts an important conversation about how today’s low-wage employers are corporate masters that control their servants through poverty-level pay and precarious positions. Work is scheduled …

Where's The Power - Defamation And Wrongful Interference In The Restatement Of Employment Law, Ruben J. Garcia

Scholarly Works

In this article, Professor Ruben Garcia argues that the Restatement of Employment Law ("REL") misses the opportunity to address power relations between employers and employees as part of the "law as a whole" in the torts of the workplace. He argues that the omission shows the limits of restatements generally. However, there were other roads not taken by the drafters that might have acknowledged these power differentials in the final draft. Professor Garcia also argues that the normative choices that are made by the REL about the doctrine of compelled self-publication are based on questionable footings. "[A]cceptance of the doctrine …

Foreword: The Workplace Law Agenda Of The Obama Administration, Ruben J. Garcia

Scholarly Works

Professor Ruben Garcia introduces a Symposium issue of the Employee Rights and Employment Policy Journal focused on an assessment of several key aspects of the workplace law record thus far of President Barack Obama.

Public Policy And Workers’ Rights: Wrongful Discharge Discipline Actions And Reasonable Good Faith Beliefs, Ann C. Mcginley, Nicole Buonocore Porter

Scholarly Works

In this paper, Professor Ann McGinley responds to Chapter 5 of the ALI's Restatement of the Law: Employment Law ("Restatement of Employment Law"), concerning "The Tort of Wrongful Discharge in Violation of Public Policy."' It proceeds in five parts. Following an introduction in Part I, Part II summarizes generally the provisions of Chapter 5, the Working Group's objections to the earlier version and recommendations for changes, and explains (when appropriate) where the final version deviated from the prior version. Part III argues that this chapter should have kept the prior version's protection against wrongful discipline instead of protecting only against …

Five Myths About Public Sector Labor Law In Nevada, Ruben J. Garcia

Scholarly Works

The forces of collective bargaining reform in the 78th Nevada Legislative Session primarily set about to: (1) make it easier for employees not to pay anything to the unions that are required to represent them in negotiations and grievance handling and (2) eliminate the kinds of agreements and practices that purportedly have caused financial turmoil to the state as it emerges from the depths of the Great Recession. Unfortunately, many of these “reforms” were based on misconceptions about the role and effects of public sector collective bargaining in Nevada and in American society generally. In this article, I describe five …

Fixed-Term Contracts And Principle Of Equal Treatment In Canada, Eric M Tucker, Alec Stromdahl

Articles & Book Chapters

Canada is best characterized as a liberal market economy which lightly regulates employment relations and, in particular, the duration of employment contracts.1 As such, many of the kinds of protections that might be found in other countries included in this dossier are not present in Canada. There are, however, a few older statutory provisions that limit the length of fixed-term contracts and impose formalities for their creation because of a concern about the creation of disguised forms of unfree labour. There is also a small body of common law that reflects a preference for contracts of indefinite hiring over fixed …

On Writing Labour Law History: A Reconnaissance, Eric M Tucker

Articles & Book Chapters

Labour law historians rarely write about the theoretical and methodological foundations of their discipline. In response to this state of affairs, this article adopts a reconnaissance strategy, which eschews any pretense at providing a synthesis or authoritative conclusions, but rather hopes to open up questions and paths of inquiry that may encourage others to also reflect on a neglected area of scholarship. It begins by documenting and reflecting on the implications of the fact that labour law history sits at the margins of many other disciplines, including labour history, legal history, labour law, industrial relations and law and society, but …