Labor and Employment Law Commons^™

City Of Cranston V. International Brotherhood Of Police Officers, Local 301, 230 A.3d 564 (R.I. 2020), Jordan Z. Sasa

Roger Williams University Law Review

No abstract provided.

The Lost Approach To Flsa Settlement Agreements: A Freedom-Of-Contract Approach, Madison G. Conkel

Georgia Law Review

In jurisdictions that require judicial oversight of Fair Labor
Standards Act settlement agreements, a question lingers: What
exactly should judges review? Some judges have begun
categorically striking confidentiality provisions from
settlement agreements by pointing to the purposes and goals of
the FLSA. The academic community lauds these courts’ efforts
to prevent employers from mandating employees’ silence about
the terms of their settlement agreements. This Note, however,
makes the counterargument: confidentiality provisions should
be permitted in FLSA settlements agreements as a bargaining
chip for employees who bring individual suits. If higher courts
in a given jurisdiction require judicial oversight of these …

Law, Labor, And The Hard Edge Of Progressivism: The Legal Repression Of Radical Unionism And The American Labor Movement's Long Decline, Ahmed White

Publications

No abstract provided.

Proving Discrimination By The Text, Deborah Widiss

Articles by Maurer Faculty

Employment discrimination laws make the “simple but momentous” declaration that it is illegal to deny employment on the basis of race, sex, religion, or other key aspects of identity. But when employees who have been treated unfairly turn to the courts for relief, courts rarely assess whether their claims meet the statutory standard. Instead, they funnel the evidence through a convoluted body of judge-made law known as McDonnell Douglas burden shifting.

This Article lays bare fundamental inconsistencies between the statutes’ causal language, as definitively interpreted by the Supreme Court in recent cases, and the burden-shifting process. In Bostock v. Clayton …

Workplace Violence, Firearm Prohibitions, And The New Gun Rights, Dru Stevenson

University of San Francisco Law Review

No abstract provided.

Robust Unionism As A Compelling Interest: Evaluating The Exacting Policies Of Janus, Seth Santini

University of San Francisco Law Review

No abstract provided.

Challenges For Black Workers After 2020: Antiracism In The Gig Economy?, Michael C. Duff

All Faculty Scholarship

Black workers’ fortunes in the coming decades are tied to the expansion of the Gig economy, the impact of which is to destroy employee status. Because much antiracism law and policy has been transmitted to society through the medium of employment law, the disappearance of employee status should be of concern to all foes of racism. This short essay argues that Section 1981 of the Civil Rights Act of 1866 should be expanded to cover all forms of racist workplace conduct. Regulatory arbitrage will continue to challenge the definition of employment for the foreseeable future. It is fitting that one …

Scorched Border Litigation, Briana Beltran, Beth Lyon, Nan Schivone

Cornell Law Faculty Publications

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from …

Lost And Found: Reuniting Missing Participants And Lost Pensions, Kathryn L. Moore

Law Faculty Books and Chapters

In the United States, the problem of missing participants and lost pensions is huge. Although there is no precise estimate of the size of the problem, the PBGC reports that more than 80,000 workers have unclaimed pensions worth more than $300 million and Terry Dunne of Millennium Trust Company has made “an educated guess based on government and industry data that more than 900,000 workers lose track of 401k-style, defined-contribution plans each year.” Anecdotally, Kyle Garrett posted on July 8, 2020, that in his 15 years at the Pension Rights Center, the most frequent question he has received from callers …

Workplace Diversity, Equity, And Inclusion Programs: Inclusive Environments And Diversity Promotion Programs, Zachary Mccoy

University of San Francisco Law Review

No abstract provided.

Restorative Approaches To Intimate Partner Violence And Sexual Harm, Donna Coker (Ed.)

Articles

No abstract provided.

Proposition 22: A Vote On Gig Worker Status In California, Miriam A. Cherry

Faculty Publications

(Excerpt)

In the shadow of the 2020 United States Presidential election, an important vote was also taking place about the employment status of gig workers. In 2019, the California Legislature had enacted AB5, a bill that expanded the definition of “employees” to include workers in the on-demand economy. In response, gig platforms like Uber, Lyft, and Postmates backed a direct ballot initiative, California’s Proposition 22, which asked voters to undo the work of the Legislature. Gig workers would be reclassified as independent contractors, but they would also receive certain benefits, including, among others, the ability to sue for discrimination under …

If You Build It, Will They Come? An Empirical Study Of The Voluntary Use Of Mediation And Its Implications, Dwight Golann

Cardozo Journal of Conflict Resolution

A generation ago, American litigants did not often go to mediation voluntarily. Advocates of the process predicted, however, that as lawyers and parties became more familiar with mediation, they would opt to use it more often. But, is this true? Virtually no data exists about how often litigants voluntarily choose to mediate legal disputes, whether use varies in different kinds of cases, and what motivates litigants' decisions whether to mediate or not. This Article presents data about each of these issues and analyzes its meaning.

The Use Of Mediation To Resolve Conflicts Arising From Cultural Appropriation By Western Fashion Brands, Faith Adongo

Cardozo Journal of Conflict Resolution

The Cambridge Dictionary defines cultural appropriation as "the act of taking or using things from a culture that is not your own, especially without showing that you understand or respect this culture." It is sometimes referred to as cultural misappropriation, and also defined as taking intellectual property, traditional knowledge, cultural expressions, or artifacts from a culture other than one's own, without permission. Supporters of cultural appropriation see it as the only realistic way of developing, spreading and integrating cultures, while critics see it as a means through which dominant cultures "borrow" from the cultures of minority groups.

Mediation: Embedded Assumptions Of Whiteness?, Sharon Press, Ellen E. Deason

Cardozo Journal of Conflict Resolution

This Article began with the murder of George Floyd by an officer of the Minneapolis Police Department on May 25, 2020, after a convenience store employee reported that Floyd used a counterfeit $20 bill to purchase cigarettes. Seventeen minutes after the police arrived, Floyd was unconscious, pinned beneath them. The events were recorded by bystanders and the public was confronted with visual evidence of what has been happening to Black, Indigenous, and People of Color (BIPOC) especially Black men-for centuries. It was dramatic testimony that law enforcement is based on a system that is the product of systemic racism and …

Peace Of Play: For Labor Harmony, Baseball Needs Antitrust Exemption To Go And Salary Cap To Stay, Joshua Burton

Cardozo Arts & Entertainment Law Journal

The note argues that Major League Baseball (MLB) can address its labor disputes, competitive imbalances, and economic challenges by revoking its antiquated antitrust exemption and implementing a salary cap and floor system. These reforms would promote fairness, incentivize competitive spending, and prevent future work stoppages, aligning MLB's economic structure with other major sports leagues.

The Secrets Behind Reality Television Shows And Their Unconscionable Contracts, Stephanie Rimberg

Cardozo Arts & Entertainment Law Journal

The note argues that reality television show contracts are often unconscionable due to the significant imbalance of power between producers and participants. These contracts frequently classify participants as independent contractors, despite their integral role in the show, and include provisions that are procedurally and substantively unfair, such as disclaimers of liability and arbitration clauses. The author contends that these contracts violate California contract law and public policy, advocating for participants to be reclassified as employees and for contracts to be amended to protect their rights.

From Mandates To Governance: Restructuring The Employment Relationship, Brett Mcdonnell, Matthew T. Bodie

All Faculty Scholarship

Employers are saddled with a dizzying array of responsibilities to their employees. Meant to advance a wide array of workplace policies, these demands have saddled employment with the burden of numerous social ends. However, that system has increasingly come under strain, as companies seek to shed employment relationships and workers lose important protections when terminated. In this Article, we propose that employers and employees should be given greater flexibility with a move from mandates to governance. Many of the employment protections required from employers stem from employees’ lack of organizational power. The imbalance is best addressed by providing workers with …

The Law Of Employee Data: Privacy, Property, Governance, Matthew T. Bodie

All Faculty Scholarship

The availability of data related to the employment relationship has ballooned into an unruly mass of personal characteristics, performance metrics, biometric recordings, and creative output. The law governing this collection of information has been awkwardly split between privacy regulations and intellectual property rights, with employees generally losing on both ends. This Article rejects a binary approach that either carves out private spaces ineffectually or renders data into isolated pieces of ownership. Instead, the law should implement a hybrid system that provides workers with continuing input and control without blocking efforts at joint production. In addition, employers should have fiduciary responsibilities …

From Mandates To Governance: Restructuring The Employment Relationship, Brett H. Mcdonnell, Matthew T. Bodie

All Faculty Scholarship

Employers are saddled with a dizzying array of responsibilities to their employees. Meant to advance a wide array of workplace policies, these demands have saddled employment with the burden of numerous social ends. However, that system has increasingly come under strain, as companies seek to shed employment relationships and workers lose important protections when terminated. In this Article, we propose that employers and employees should be given greater flexibility with a move from mandates to governance. Many of the employment protections required from employers stem from employees’ lack of organizational power. The imbalance is best addressed by providing workers with …

Artificial Intelligence And The Challenges Of Workplace Discrimination And Privacy, Pauline Kim, Matthew T. Bodie

All Faculty Scholarship

Employers are increasingly relying on artificially intelligent (AI) systems to recruit, select, and manage their workforces, raising fears that these systems may subject workers to discriminatory, invasive, or otherwise unfair treatment. This article reviews those concerns and provides an overview of how current laws may apply, focusing on two particular problems: discrimination on the basis of protected characteristics like race, sex, or disability, and the invasion of workers’ privacy engendered by workplace AI systems. It discusses the ways in which relying on AI to make personnel decisions can produce discriminatory outcomes and how current law might apply. It then explores …

The Functional Operation Of Workers’ Compensation Covid Presumptions, Michael C. Duff

All Faculty Scholarship

During 2020, a number of U.S. states implemented workers' compensation COVID-19 presumptions. This short informal paper defines and explains legal presumptions generally and then discusses the workers' compensation presumptions. The paper contends that at this juncture it is not clear whether states intended to enact "Thayer-Wigmore" or "Morgan" presumptions; but if they operate as Thayer-Wigmore presumptions they will not do workers' compensation claimants much good in the context of non-jury proceedings presided over by administrative law judges.

Franchisor Power As Employment Control, Andrew Elmore, Kati L. Griffith

Articles

Labor and employment laws are systematically underenforced in low-wage, franchised workplaces. Union contracts, and the benefits and protections they provide, are nonexistent. The Fight for Fifteen movement has brought attention to the low wages, systemic violations of workers' rights, and lack of collective representation in fast-food franchises. Given that franchisees can be judgment-proof and cannot set industry standards, the deterrence, remedial, and collective bargaining goals of labor and employment laws can depend on holding the franchisor (the brand) responsible under the joint employer doctrine. In a series of cases, however, a dominant approach has emerged that essentially foreclosed the possibility …

Geoprivacy, Convenience, And The Pursuit Of Anonymity In Digital Cities, Jerome Dobson, William A. Herbert

Publications and Research

Cities demand spatial efficiencies that can be achieved only through sharing of information. Current technologies support collection, processing, and dissemination of unprecedented quantities of personal, public, and corporate information. Inherent in this milieu is an inevitable contest among societal efficiency, corporate profits, consumer convenience, personal privacy, and even freedom. The authors examine current trends in technology, data collection, legislation, and public acceptance. They find that without broad specific regulations limiting location data collection and use—including a universal protected right for individuals to pursue anonymity—governments, commercial enterprises, employers, and individuals increasingly will exploit tracking technologies at the expense of geoprivacy.

Certifying Second Chances, Cara Suvall

Vanderbilt Law School Faculty Publications

Policymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences-invisible punishments that inhibit opportunity in all facets of a person's life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than 150 laws targeting collateral consequences in 2019 alone.

But what happens when these paths to second chances are littered with learning, compliance, and psychological costs? The people who most need these new opportunities may find that they are out …

Employment Practices Liability Insurance And Ex Post Moral Hazard, Joni Hersch, Erin E. Meyers

Vanderbilt Law School Faculty Publications

Many businesses purchase Employment Practices Liability Insurance (EPLI), a form of insurance that protects them from claims of discrimination, harassment, retaliation, and wrongful termination. But critics of EPLI argue that allowing insurance coverage for employment liability detracts from employment law's goal of deterrence and from notions of justice. We assess the validity of these criticisms by examining the nature of employment law claims and by reviewing characteristics of the current EPLI market. We find that past critiques miss the mark in diagnosing EPLI's major problem.

The EPLI market, for the most part, functions in a way that poses little to …

Is Labor Arbitration Lawless?, Paige M. Skiba, Ariana R. Levinson, Erin O'Hara O'Connor

Vanderbilt Law School Faculty Publications

Labor arbitration is often viewed as a more peaceful, productive, and private alternative to workplace strikes and violence. On the other hand, statutory laws are intended to protect all workers, and contract law default rules and rules of interpretation often serve a protective role that could be harmful if ignored in this private dispute resolution setting. To provide more insight into how arbitrators decide labor disputes, we utilize our newly crafted data set of hundreds of labor arbitration awards spanning a decade. Unlike prior data sets, our data are more inclusive: they include both published and unpublished awards as well …

Wage Theft Criminalization, Benjamin Levin

Publications

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes …

Researching Colorado Employment Law, Jill Sturgeon

Publications

No abstract provided.

The Growth Of Vancouver As An Innovation Hub: Challenges And Opportunities, Camden Hutchison, Li-Wen Lin

All Faculty Publications

This article assesses the development of Vancouver as an entrepreneurial region. Using data collected from commercial startup databases, we find that Vancouver produces more startups and receives more venture capital financing per capita than any other major Canadian city. However, we also find that Vancouver lags many U.S. cities on these same metrics. In light of our empirical findings, we explore whether differences in entrepreneurial activity between Canada and the United States are due to differences in the countries’ legal environments. We conclude that legal differences do not explain observed economic disparities, and that differences in entrepreneurial activity are due …