Labor and Employment Law Commons^™

The Delusion Of Amateurism In College Sports: Why Scholarship Student Athletes Are Destined To Be Considered "Employees" Under The Nlra, Michael Pego

FIU Law Review

No abstract provided.

“Sex” Is Messy (And Always Has Been): A Textualist Argument For Application Of Title Vii To Sexual Orientation Discrimination, Rebecca J. Ok

Lewis & Clark Law Review

Three recent cases have created a circuit split as to whether Title VII’s prohibition on discrimination “because of . . . sex” applies to sexual orientation discrimination, priming this issue for Supreme Court review. Events suggesting a textualist turn on the Supreme Court mean the advocate must consider whether a textualist argument can be made for application of Title VII to sexual orientation discrimination. Treatment of the topic of sexual orientation by the medical community, the commercial film industry, and the mainstream news media in the 1960s is examined. It is argued that treatment of the topic of sexual orientation …

Collective Struggles: A Comparative Analysis Of Unionizing Temporary Foreign Farm Workers In The United States And Canada, Robert Russo

All Faculty Publications

The use of temporary foreign migrant workers in the labor sector is part of a vibrant political and legal discussion in both the United States and Canada. Current reforms of temporary foreign worker programs in both countries call for an analysis of this workforce. This article focuses on documented temporary foreign workers performing agricultural labor in both countries. It is a comparative study of alleged violations of documented temporary foreign farm workers' rights relating to unionization in the United States and Canada.

The Preferred Preferences In Employment Discrimination Law, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

In theory, customer preferences cannot justify discriminatory treatment by employers. The reality is more complicated. Built into the structure of federal employment discrimination law are several openings for customer preferences to provide employer defenses to what would otherwise likely be actionable discrimination.

This Article explores when and which customer preferences can enter those openings. It focuses on what I deem the “preferred preferences”: the customer preferences that have formed the basis of successful employer defenses to discrimination claims. This Article identifies and evaluates six such preferences: (1) aesthetic appeal; (2) physical privacy from employees of the opposite sex; (3) psychological …

Private Attorneys General Act Lawsuits In California: A Review Of Paga And Proposals For Reforming The “Sue Your Boss” Law, Chris Micheli

University of the Pacific Law Review

No abstract provided.

Uniform Enforcement Or Personalized Law? A Preliminary Examination Of Parking Ticket Appeals In Chicago, Randall K. Johnson

Faculty Works

This article is one in a series of papers that sets the record straight about the type, quality and quantity of information that U.S. cities may employ, in order to make more informed policy decisions. It does so, specifically, by examining information that is collected by the City of Chicago. The goal is to gauge the uniformity, as well as the relative cost-effectiveness, of the parking ticket appeals process. The article has six (VI) parts. Part I is the introduction, which sets the stage for a preliminary examination of the parking ticket appeals process in Chicago. Part II describes the …

Of Power And Process: Handling Harassers In An At-Will World, Rachel Arnow-Richman

UF Law Faculty Publications

In the wake of the #MeToo movement, companies have taken swift and severe disciplinary action against alleged harassers, raising questions in some instances as to whether their responses were justified. This Essay, prepared for the Yale L.J. Forum’s symposium on the sexual harassment scholarship of Professor Vicki Schultz, argues that balancing the goals of the #MeToo movement with principles of fairness to the accused demands attention to an overlooked aspect of the problem: the status of the alleged harasser. The background rule of employment at will, coupled with employer contracting practices and the law of sexual harassment itself, produces a …

A Comparative Study Of The Law Of Dismissal In The U.S. And China, Zhenxing Ke

Maurer Theses and Dissertations

The Labor Law in China, enacted in 1994, was the first statute in China to stipulate dismissal protections. The Employment Contract Law, a more recent law that went into effect in January 2008, strengthened Chinese dismissal protections. For example, in the summary termination about the misconduct, this law only allows six instances for termination, and if a misconduct committed by an employee is not covered in these six instances, it is hard for an employer to discharge this employee legally.

In contrast, America has a more flexible employment law. In America, the doctrine of dismissal is dominated by the …

Franchise Regulation For The Fissured Economy, Andrew Elmore

Articles

No abstract provided.

Revisiting U.S. Labor Law As A Restriction To Works Councils: A Key For U.S. Global Competitiveness, Neil Bucklew, Nicholas Digiovanni Jr., Jeffery D. Houghton, Anne M. Lofaso

Law Faculty Scholarship

Works councils, institutionalized bodies that facilitate representative communication between an employer and its employees, have expanded on a global scale in recent decades due, in large part, to their ability to increase employee representation, firm productivity and profitability, and social responsiveness. The United States has been notably absent from the global works-councils movement primarily because of an outdated, New Deal-era labor-relations system that generally prohibits these types of worker participation structures. The Authors provide a detailed overview of U.S. labor law in relation to works councils before presenting three contrasting options for increasing worker participation in the United States via …

The Future Encyclopedia Of Luddism, Miriam A. Cherry

All Faculty Scholarship

In common parlance, the term “Luddite” means someone who is anti-technology, or maybe, just not adept at using technology. Historically, however, the Luddite movement was a reaction born of industrial accidents and dangerous machines, poor working conditions, and the fact that there were no unions to represent worker interests during England’s initial period of industrialization. The Luddites did not hate technology; they only channeled their anger toward machine-breaking because it had nowhere else to go. The attached book chapter is an alternate history (written circa 2500) that depends on the critical assumption that the Luddites succeeded in their industrial campaign …

A Critical Examination Of A Third Employment Category For On-Demand Work (In Comparative Perspective), Miriam A. Cherry, Antonio Aloisi

All Faculty Scholarship

A number of lawsuits in the United States are challenging the employment classification of workers in the platform economy. Employee status is a crucial gateway in determining entitlement to labor and employment law protections. In response to this uncertainty, some commentators have proposed an “intermediate”, “third,” or “hybrid” category, situated between the categories of “employee” and “independent contractor.”

After investigating the status of platform workers in the United States, the authors provide snapshot summaries of five legal systems that have experimented with implementing a legal tool similar to an intermediate category to cover non-standard workers: Canada, Italy, Spain, Germany, and …

Dismissal Due To Business Reasons In Canada, Eric Tucker, Christopher Grisdale

Articles & Book Chapters

Canada is a liberal market economy and as such the law places few restrictions on the employer’s freedom to dismiss an employee. In particular, the law places no restriction on the freedom of employers to dismiss employees for business reasons. However, dismissed employees are entitled to certain rights, the most important of which is notice of termination or pay in lieu of notice.

Index: Sports Law In Law Reviews And Journals, Jordan Lysiak

Marquette Sports Law Review

None

New Bargaining Order: How And Why Professional Wrestlers In The Wwe Should Unionize Under The National Labor Relations Act, Geoff Estes

Marquette Sports Law Review

None

Dump And Chase: Why The Nfl, Nba, And Mlb Should Abandon Their Problematic Amateur Draft Age Limits And Rookie Wage Structures And Adopt The Current Nhl Model, Zach Leach

Marquette Sports Law Review

None

Research To Practice: State Employment First Policies: State Definitions, Goals And Values, Jennifer Bose, Jean Winsor, Thinkwork! At The Institute For Community Inclusion At Umass Boston

Research to Practice Series, Institute for Community Inclusion

This brief is the first in a series focusing on Employment First implementation as it relates to one of the seven elements within the High-Performing States in Integrated Employment model. It examines the background of circumstances under which Employment First efforts began in seven states, and introduces each state’s values, mission, and goals around increasing employment opportunities for people with disabilities. States may use the lessons in this brief to develop an Employment First policy, or to evolve existing efforts.

Book Review: Surrogacy: A Human Rights Violation By Renate Klein, Kate Rose

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

The Case For Tipping And Unrestricted Tip-Pooling: Promoting Intrafirm Cooperation, Samuel Estreicher, Jonathan R. Nash

Faculty Articles

This Article proceeds as follows. Part I presents doctrinal background. It discusses the laws governing tip-pooling, with an emphasis on relevant federal and state laws. Part II analyzes, from a law-and-economics perspective, how tip-pooling arrangements—both voluntary and mandatory—might arise, and what form they might take. Part III shows how governing law limits the ability of restaurateurs to put tip-pooling arrangements in place, and shapes the incentives of employees. It also analyzes the response of restaurants like the Union Square Hospitality Group that have barred all tipping. Part IV suggests revisions to existing law that would free up management’s freedom to …

Unbundling Freedom In The Sharing Economy, Deepa Das Acevedo

Faculty Articles

Courts and scholars point to the sharing economy as proof that our labor and employment infrastructure is obsolete because it rests on a narrow and outmoded idea that only workers subjected to direct, personalized control by their employers need work-related protections and benefits. Since they diagnose the problem as being our system’s emphasis on control, these critics have long called for reducing or eliminating the primacy of the “control test” in classifying workers as either protected employees or unprotected independent contractors. Despite these persistent criticisms, however, the concept of control has been remarkably sticky in scholarly and judicial circles.

This …

Maryland's New Remedy For Wage Theft, Martha M. Ertman, Doris N. Weil

Faculty Scholarship

No abstract provided.

Redefining 'Employee' In The Gig Economy: Shielding Workers From The Uber Model, Ben Z. Steinberger

Fordham Journal of Corporate & Financial Law

Increasingly, companies in the gig-economy utilize independent contractors, rather than traditional employees, as a means to cut costs and decrease employment related liability. These companies rely on independent contractors for work and retain control over work typically performed by employees. But there are significant legal distinctions between employees and independent contractors; namely employees are protected in ways that independent contractors are not. Traditionally, employees are defined as workers over whom an employer exerts or retains the right to control the manner and means of the work. While the traditional test to determine whether an individual is an employee is set …

Unmarked? Criminal Record Clearing And Employment Outcomes, Jeffrey Selbin, Justin Mccrary, Joshua Epstein

Journal of Criminal Law and Criminology

An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively lowlevel misdemeanors. In an era of heightened security concerns, easily available data, and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential. In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We studied a random sample of participants in one such …

Employment Discrimination On The Basis Of Criminal History: Why An Anti-Discrimination Statute Is A Necessary Remedy, Elizabeth Westrope

Journal of Criminal Law and Criminology

The harms of mass incarceration do not end when an individual is released from prison. Instead, criminal records haunt approximately 70 million people throughout the United States today. Criminal histories follow persons convicted of crimes for the rest of their lives, creating collateral consequences that make it difficult for these individuals to get back on their feet and re-integrate into society. Gaining employment is one of the most crucial steps for returning citizens to take in order to regain stability in their lives. Yet, it remains one of the biggest obstacles. Employers are often wary of hiring persons with criminal …

A Bridge Over Troubled Waters: The High-Skilled Worker Rule And Its Impact On Employment-Based Immigration, Robert D. Aronson, Debra A. Schneider

Mitchell Hamline Law Review

No abstract provided.

High Stakes For High-Skilled Immigrants: An Analysis Of Changes Made To High-Skilled Immigration Policy In The First Year Of The Trump Administration In Comparison To Changes Made During The First Year Of Previous Presidential Administrations, Kevin Miner, Sarah K. Peterson

Mitchell Hamline Law Review

No abstract provided.

Is There A Future For Work?, Wendi S. Lazar, Nantiya Ruan

Scholarly Works

No abstract provided.

The Masculinity Motivation, Ann C. Mcginley

Scholarly Works

In this essay, Professor Ann McGinley explores a phenomenon she coins the Masculinity Motivation. Society and courts ignore that harassing behaviors and the motives behind them are nearly identical in schools and workplaces. Moreover, the motives driving same-sex harassment are often the same as those causing sex-based harassment of women and girls. These motives include proving the perpetrators' and their group's masculinity, punishing those who do not adhere to gender expectations, and upholding conventional gender norms. Professor McGinley advocates for courts to broadly define "because of sex" under Titles VII and IX by clarifying that harassment motivated to denigrate the …

Religious Freedom, Human Rights, And Peaceful Coexistence, Leslie C. Griffin

Scholarly Works

At the Second Vatican Council, Fr. John Courtney Murray, S.J., persuaded the Catholic Church to abandon its long, and absolute, opposition to the separation of church and state. He brought a new concept of religious freedom to the Catholic Church. In honor of Murray, this essay looks at several current ways “religious freedom” harms individual rights.

The article describes the ministerial exception, which gives religious organizations the right to dismiss many employment discrimination lawsuits brought against them. It studies women’s right to contraceptive access, which has long been opposed by the Catholic hierarchy, and where employers have earned a legal …

Working Time, Dinner Time, Serving Time: Labour And Law In Industrialization, Douglas Hay

Articles & Book Chapters

Many economic historians agree that increased labour inputs contributed to Britain’s primary industrialisation. Voluntary self-exploitation by workers to purchase new consumer goods is one common explanation, but it sits uneasily with evidence of poverty, child labour, popular protest, and criminal punishments explored by social historians. A critical and neglected legal dimension may be the evolution of contracts of employment. The law of master and servant, to use the technical term, shifted markedly between 1750 and 1850 to advantage capital and disadvantage labour. Medieval in origin, it had always been adjudicated in summary hearings before lay magistrates, and provided penal sanctions …