Labor and Employment Law Commons^™

Wage And Inequalities In Canada (2018), Eric Tucker, Isaac Handley

Articles & Book Chapters

Canada is a federal state and, pursuant to its constitution, labour and employment law is principally a matter of provincial jurisdiction. The federal government’s powers in this field are limited to the federal public service and federally regulated businesses, which is estimated to cover about 10% of the labour force. Therefore, there are no nationally applicable laws governing the minimum wage or employment discrimination. In the discussion that follows, we refer to the common features that can be found in all or most Canadian jurisdictions, but draw principally upon the Province of Ontario, Canada’s most populous province, for specific examples.

Book Review - Larry Savage And Charles Smith, Unions In Court: Organized Labour And The Charter Of Rights And Freedoms, Eric Tucker

Articles & Book Chapters

The constitutionalization of labour rights in Canada is one of the most remarkable and, perhaps, unexpected developments in the 36 year history of the Charter of Rights and Freedoms. Few observers in 1982 would have predicted that the Charter rights of freedom of expression and association would provide constitutional protection for picket-line activity, collective bargaining, and strikes. Indeed, for some critical observers, the advent of the Charter was viewed as an ominous development, advancing the neo-liberal project of degrading and bypassing democratic institutions to insure the maintenance of conditions favourable to capital accumulation and the power of economic elites. …

2017 Survey Of Rhode Island Law: Cases And Public Laws Of Note

Roger Williams University Law Review

No abstract provided.

The Cambridge Handbook Of Social Enterprise Law, Lloyd Histoshi Mayer

Books

Book Chapters

Lloyd Hitoshi Mayer, Creating a Tax Space for Social Enterprise, in The Cambridge Handbook of Social Enterprise Law 157 (Benjamin Means & Joseph W. Yockey eds., 2018)

While still relatively few in number compared to traditional nonprofit and for-profit organizations, the rise of social enterprises represents a possible disruption of not only existing models of doing business but also areas of law that in many respects have seen little fundamental change for decades. One such area is domestic tax law, where social enterprises currently find themselves subject to the rules of for-profit activities and entities. Here, both scholars …

The Effect Of Occupational Licensing On Wages And Employment: Evidence From Electricians And Massage Therapists, Matt Shafer

MPA/MPP/MPFM Capstone Projects

No executive summary.

Collaborative Enforcement, Andrew Elmore

Articles

Labor standards enforcement in the low-wage workplace has long suffered from a lack of capacity, expertise and remedies that blunt the impact of public and private enforcers alike. The question of how to address these pathologies in state and local workplace regulation has gained new urgency with the virtual explosion of regional labor lawmaking and the deregulatory impulses of the new federal administration.

This Article identifies collaboration between state and local agencies and private, public interest organizations ("PIOs") as one pathway to address these enforcement gaps, by amplifying the deterrent effect of public and private enforcement and by improving legal …

Bekele V. Lyft, Inc., Anne Maly

NYLS Law Review

No abstract provided.

The Logic Of Speech And Religion Rights In The Public Workplace, Scott R. Bauries

Marquette Benefits and Social Welfare Law Review

No abstract provided.

A Prescription For Teaching The Law Of Reasonable Religious And Disability Accommodation, Kerri Lynn Stone

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Comment: Queer Womyn Of Color And Employment Discrimination Law In Wisconsin - Does Wisconsin Law Do Enough To Lift Anxiety?, Amber Lara

Marquette Benefits and Social Welfare Law Review

America's current leadership appears to actively seek out ways to isolate and oppress those who do not identify as cis-gender white heterosexual males. The purpose of this comment is to help readers understand the issues queer womyn of color face interacting with society on a daily basis. This comment will outline the harmful expectations of assimilation and how failure to assimilate may make these womyn targets in their work environments. This comment will also compare the handling of employment discrimination under Title VII and Wisconsin law and determine whether Wisconsin law in practice actually affords queer womyn of color more …

Whose Gig Is It Anyway? Technological Change, Workplace Control And Supervision, And Workers' Rights In The Gig Economy, Alex Kirven

University of Colorado Law Review

Under the current regime of employment and labor laws, coverage is determined on the basis of whether a given worker is an employee as opposed to an independent contractor. These laws contain inadequate definitions of "employee," leaving it up to the court system and administrative agencies to define the term. The current tests that they use fail to capture the realities of the gig economy, a system that purports to promote greater worker freedom through the fragmentation of work assignments into smaller tasks or gigs. The gig economy has offered consumers lower prices and has given workers greater autonomy in …

Growing The Resistance: A Call To Action For Transactional Lawyers In The Era Of Trump, Gowri Krishna

Articles & Chapters

his essay is a call to action for transactional lawyers looking to support vulnerable immigrants through non-litigation means. By providing a snapshot of an especially precarious time in history for immigrants in the U.S.—the period immediately after the 2016 presidential election—the essay illustrates future areas of opportunity for transactional attorneys.

The Price Is (Not) Right: Mandatory Arbitration Of Claims Arising Out Of Sexual Violence Should Not Be The Price Of Earning A Living, Nicolette Sullivan

Vanderbilt Journal of Entertainment & Technology Law

As demonstrated by the #MeToo movement, current attempts to curtail systemic sexual violence in the workplace have fallen flat: approximately sixty million US workers are subject to mandatory arbitration clauses, which employers tend to bury deep within the fine print of employment contracts. These clauses, often coupled with confidentiality agreements, have provided offenders--and their employers--with a mechanism to escape liability and public scrutiny. Under the existing judicial framework, whether a court will allow victims of workplace sexual violence to escape binding arbitration remains unclear. Congress attempted to address this uncertainty by proposing the Ending Forced Arbitration of Sexual Harassment Act …

Efficiency And Its Discontents, Michael Fischl

Faculty Articles and Papers

Review of Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford 2014).

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

Faculty Publications

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 …

Corporate Social Responsibility And Crowdwashing In The Gig Economy, Miriam A. Cherry

Faculty Publications

(Excerpt)

Within this Article, I elaborate on the term “crowdwashing,” a neologism. Even though many online platforms describe themselves as “communities” that are part of the “sharing economy,” this “sharing” terminology is largely a misnomer when describing the activities of larger commercialized on-demand platforms. Rather than referring to volunteer efforts for collective benefit, many references to “sharing” in the “sharing economy” refer to the concept of commodification of previously underutilized assets. For example, consider receiving money for the rental of a spare bedroom through AirBnB or the sale of small, previously unproductive periods of time to complete tasks on Amazon’s …

Using Tickets In Employment Standards Inspections: Deterrence As Effective Enforcement In Ontario, Canada?, Rebecca Casey, Eric Tucker, Leah F. Vosko, Andrea M. Noack

Articles & Book Chapters

It is widely agreed that there is a crisis in labour/employment standards enforcement. A key issue is the role of deterrence measures that penalise violations. Employment standards enforcement in Ontario, like in most jurisdictions, is based mainly on a compliance framework promoting voluntary resolution of complaints and, if that fails, ordering restitution. Deterrence measures that penalise violations are rarely invoked. However, the Ontario government has recently increased the role of proactive inspections and tickets, a low-level deterrence measure which imposes fines of $295 plus victim surcharges. In examining the effectiveness of the use of tickets in inspections, we begin by …

How Pre-Dispute Arbitration Clauses Chill Whistleblowing And End-Run Dodd-Frank Whistleblowing Protections, Noah Weingarten

Cardozo Journal of Conflict Resolution

This Note proceeds in six parts. First, it examines the mechanics of the SEC whistleblower program, its success, and the importance of whistleblowers. Second, it analyzes whistleblower retaliation protections and contrasts the protections under DoddFrank with those under the Sarbanes-Oxley Act of 2002 ("SOX"). Third, it analyzes how the SEC protects whistleblowers under its regulatory powers. Fourth, it analyzes the importance of retaliation claims from the whistleblower's perspective. Fifth, it analyzes how and why companies employ pre-dispute arbitration clauses to get a more favorable forum to entertain retaliation claims and how federal courts have been enforcing these arbitration clauses. Finally, …

Union Co-Ops And The Revival Of Labor Law, Ariana R. Levinson

Cardozo Journal of Conflict Resolution

This article, as the first to identify and suggest solutions for the numerous labor law issues that must be addressed when establishing a union co-op, contributes to the existing literature on workerownership and cooperative economics. This article proceeds in four sections. The first section provides background about what union co-ops are, why unionization makes sense in the co-op setting, and the initiative to scale up union cooperatives. The second section, drawing on original interview data, provides background about the Cincinnati Union Co-op Initiative and Our Harvest, the first union worker-owned co-op that the Cincinnati Union Co-op Initiative incubated. The third …

Evaluating Employment Arbitration: A Call For Better Empirical Research, Samuel Estreicher, Michael Heise, David Sherwyn

Cornell Law Faculty Publications

Since at least 1991, issues surrounding mandatory arbitration of employment and other disputes have intrigued, perplexed, angered, gratified, and confounded academics, politicians, lawyers, and others. As with many legal issues, the first wave of scholarly work centered on the law. As the law has pretty much settled, academics have turned to empirical work, focusing on how employment arbitration works, and how it compares to employment litigation. In part due to pressure from California legislation, the American Arbitration Association (“AAA”), the nation’s leading provider of arbitration services, opened access to its data base. Owing to inevitable data limitations, most analyses have …

2017 Symposium Discussion: The Life Of An Immigration Attorney, Cori Alonso-Yoder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

"When They Enter, We All Enter": Opening The Door To Intersectional Discrimination Claims Based On Race And Disability, Alice Abrokwa

Michigan Journal of Race and Law

This Article explores the intersection of race and disability in the context of employment discrimination, arguing that people of color with disabilities can and should obtain more robust relief for their harms by asserting intersectional discrimination claims. Professor Kimberlé Crenshaw first articulated the intersectionality framework by explaining that Black women can experience a form of discrimination distinct from that experienced by White women or Black men, that is, they may face discrimination as Black women due to the intersection of their race and gender. Likewise, people of color with disabilities can experience discrimination distinct from that felt by people of …

Made In Misery: Mandating Supply Chain Labor Compliance, Julia Zenker

Vanderbilt Journal of Transnational Law

Virtually all consumer products in the developed world are produced in supply chain factories abroad. Media exposes periodically reveal the deplorable working conditions in factories that produce products for world-renowned brands. Public institutions, however, tend to be too weak to enforce local labor laws in the prime jurisdictions for supply chain manufacturing, and the recent efforts of private regulators to maintain labor standards throughout the chains have failed. This Note argues that supply chain labor compliance ought to be mandatory, not aspirational. Several examples of innovative public-private partnerships have delivered on the promise of supply chain labor maintenance. In order …

The Parity Principle, Luke P. Norris

Law Faculty Publications

The Supreme Court has interpreted the Federal Arbitration Act of 1925 (FAA) in a broad way that has allowed firms to widely privatize disputes with workers and consumers. The resulting expansive growth of American arbitration law has left commentators both concerned about the structural inequalities that permeate the regime and in search of an effective limiting principle. This Article develops such a limiting principle from the text and history of the FAA itself. The Article reinterprets the text and history of section 1 of the statute, which, correctly read, excludes individual employee-employer disputes from the statute’s coverage. The Article argues …

Crossing The Thin Blue Line: Protecting Law Enforcement Officers Who Blow The Whistle, Ann C. Hodges

Law Faculty Publications

Law enforcement makes headline news for shootings of unarmed civilians, departmental corruption, and abuse of suspects and witnesses. Also well-documented is the code of silence, the thin blue line, which discourages officers from reporting improper and unlawful conduct by fellow officers. Accordingly, accountability is challenging and mistrust of law enforcement abounds. There is much work to be done in changing the culture of police departments and many recommendations for change. One barrier to transparency that has been largely ignored could be eliminated by reversal of the Supreme Court’s 2006 decision in Garcetti v. Ceballos. Criticism of the decision has …

Modernizing Disability Income For Cancer Survivors, Ann C. Hodges

Law Faculty Publications

The medical progress in cancer treatment is worthy of celebration, as survivors of many cancers are living longer. This good news, however, comes with challenges for those survivors. Empirical evidence from researchers at cancer centers demonstrates the devastating impact that cancer has on employment, resulting in serious financial stress for survivors and their families. My previous research used this empirical data to recommend changes in employment laws to meet the need of survivors to maintain employment. This article builds on the prior research by using the empirical evidence of the employment effects of cancer to recommend changes in the disability …

Employee Voice In Arbitration, Ann C. Hodges

Law Faculty Publications

The Supreme Court’s 2018 decision in Epic Systems v. Lewis allows employers to force employees to agree to individual arbitration of any claims against the employer, removing their ability to bring class and collective actions. These unilaterally imposed arbitration agreements deprive employees of any voice in this important term of employment.

If arbitration is to serve its intended function of a mutually agreeable forum to resolve disputes, Congress should require employers who desire to use arbitration to negotiate the terms of the agreement with a representative of their affected employees. Such a requirement would reduce some of the adverse effects …

Holacracy And The Law, Matthew T. Bodie

All Faculty Scholarship

No law requires companies to have CEOs, officers, supervisors, chains of command, or even employees. But traditional managerial structures are so ingrained in our political economy that legal doctrines take them for granted. What if they were to disappear? Under holacracy, a new version of participatory management adopted at companies like Zappos and Medium, companies are replacing managers, organizational charts, and subordinates with governance circles, roles, and lead links. The promise of holacracy is a system of management that devolves responsibilities to teams, empowers workers to act freely within specified zones of authority, and energizes the entire organization around an …

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 Tale Of Two Standards: Why Wyoming Courts Should Apply The Actual Substantial Evidence Standard When Reviewing Workers’ Compensation Cases, Michael C. Duff

All Faculty Scholarship

In Wyoming, as in almost all states, facts in contested workers’ compensation cases are developed within an administrative agency. When agency factual findings are challenged in court, the level of judicial deference applied to the agency is important and may be outcome determinative. Wyoming courts claim to apply the “substantial evidence” standard of review, often expressed as evidence that a “reasonable mind could accept” as supporting an agency determination. The Wyoming Supreme Court, however, also sometimes upholds workers’ compensation agency decisions that are deemed “not contrary to the overwhelming weight of the evidence.” It is unclear whether this latter formulation …