Labor and Employment Law Commons^™

More Than The Minimum: Why States Should Enact Better Fmla Equivalents, Matt Heldt

Lewis & Clark Law Review

For many workers, taking time off from work for a serious health condition or to care for a family member’s serious health condition is complicated. Since 1993, the Family Medical Leave Act (FMLA) has provided job protection for workers who take leave. However, not all workers are covered. This Comment looks at where the FMLA comes up short, how some states are providing broader coverage and more robust benefits, and advocates for states to continue improving upon the FMLA baseline.

Socioeconomic Status Under Title Vii: Why Socioeconomic Status Should Be Protected And How Class-Based Discrimination Already Violates The Law, Ember Devaul

Lewis & Clark Law Review

Title VII of the Civil Rights Act was enacted with a goal to end workplace discrimination. However, many workers still face discrimination today based on factors that were intended to be protected by the statute. This Comment discusses the severity of socioeconomic discrimination and why prohibiting discrimination based on socioeconomic status is important, explores how the addition of socioeconomic status as a protected class under Title VII is supported by both legislative intent and judicial interpretation, and dissects how employers are already opening themselves up to liability under Title VII when they discriminate based on an individual’s socioeconomic status.

Time’S Up: Against Shortening Statutes Of Limitation By Employment Contract, Meredith R. Miller

Scholarly Works

Employers are increasingly adding clauses to contracts with employees that purport to shorten the statutes of limitation for employees to pursue claims against their employers (“SOL Clauses”). SOL Clauses are being imposed on employees in various stages of the contracting process. They have turned up in job applications, offer letters, arbitration clauses, employment agreements and employee handbooks. Where they have been enforced by the courts, the justification has been a prioritization of “freedom of contract” over any other policy concerns. This Article argues that, in the employment context, “freedom of contract” should not be prioritized over other competing concerns, which …

Purchasing Population Growth, Edward W. De Barbieri

Indiana Law Journal

State and local lawmakers compete to attract new populations of workers to purchase homes, grow the tax base, and develop local economies. Even before the pandemic, lawmakers used a variety of tax incentives and other legal levers to attract new residents. Increasingly, in some cases bolstered by the Coronavirus Aid, Relief, and Economic Security (CARES) Act funds, local governments are attracting high-paid, well-skilled, remote workers with cash gifts and other direct economic benefits.

Although cash incentives for remote workers have been increasing in popularity, they remain unproven with respect to intended outcomes and have yet to face legal challenge. The …

Mobilizable Labor Law, Scott L. Cummings, Andrew Elmore

Indiana Law Journal

In the history of new labor localism, city-level living wage ordinances—emerging in the 1990s with Los Angeles leading the way—have generally been understood as a second-best, limited antipoverty device designed to raise wage floors, with only indirect effects on organized labor. Drawing upon original archival materials, this Article offers an alternative reading of the history of the living wage in Los Angeles, showing how it was designed and operationalized as a proactive tool to rebuild union density and reshape city politics. Doing so makes four key contributions. First, the Article theorizes and empirically examines the living wage as a pioneering …

Power And Pay Secrecy, Michael M. Oswalt, Jake Rosenfeld, Patrick Denice

Indiana Law Journal

The legal momentum toward pay transparency is widespread and fast-moving. Since 2010, over a dozen states have passed laws prohibiting employers from telling workers they may not talk about wages. Proponents see these and related transparency laws as crucial steps to combat sex- and race-based pay discrimination in the workplace. But do state anti-secrecy laws actually reduce pay secrecy in the first place? That basic question remains largely unexplored. This Article fills the gap through a unique national survey that includes information about pay discussion rules and a range of other relevant employer and employee characteristics across the fifty states. …

Ricci V. Rhode Island Commerce Corp., 276 A.3d 903 (R.I. 2022), Mark Weeden

Roger Williams University Law Review

No abstract provided.

Hollywood At Home: Applying Federal Child Labor Laws To Traditional And Modern Child Performers, Shannon Kate Mcgrath

Washington and Lee Journal of Civil Rights and Social Justice

In the past few years there has been a rise in online influencers who gain money and fame from their online content, and in many cases these influencers are children. Although this can be seen as a “job,” federal child labor laws exempt all child performers from protections. This means traditional child actors and children who create online content must rely on state laws regarding child labor. While some states have protections for child performers, several states have no such laws in place. In addition, the current protections are not available to children who take part in online content. Without …

Deconstructing Employment Contract Law, Rachel Arnow-Richman, J.H. Verkerke

UF Law Faculty Publications

Employment contract law is an antiquated, ill-fitting, incoherent mess. But no one seems inclined to fix this problem. Employment law scholars, skeptical of employees’ ability to bargain, tend to disregard contract law and advocate for just-cause and other legislative reforms to eliminate at-will employment. And contracts scholars largely ignore employment cases—viewing them, with some justification, as part of a peculiar, specialized body of law wholly divorced from general contract jurisprudence. As a result of this undesirable employment law exceptionalism, courts lack the tools needed to resolve recurring disputes.

This Article offers a new, comprehensive historical account that exposes the formalistic …

Mobilizable Labor Law, Scott L. Cummings, Andrew Elmore

Articles

In the history of new labor localism, city-level living wage ordinances emerging in the 1990s with Los Angeles leading the way have generally been understood as a second-best, limited antipoverty device designed to raise wage floors, with only indirect effects on organized labor. Drawing upon original archival materials, this Article offers an alternative reading of the history of the living wage in Los Angeles, showing how it was designed and operationalized as a proactive tool to rebuild union density and reshape city politics. Doing so makes four key contributions. First, the Article theorizes and empirically examines the living wage as …

Privatizing Family Leave Policy: Assessing The New Opt-In Insurance Model, Deborah Widiss

Articles by Maurer Faculty

Federal law fails to guarantee new parents or family caregivers paid time off from work. A growing number of blue-leaning states have addressed this gap by enacting comprehensive paid family and medical leave laws, typically funded by a small payroll tax. A new—and quite different—approach is expanding rapidly in red-leaning states: authorization of commercial “Family Leave Insurance” to be marketed to employers. In other words, this is an opt-in privatized approach to family leave policy.

This Article, written for a symposium held by the Seton Hall Law Review, offers the first analysis in the legal literature of opt-in Family Leave …

Time Off Work For Menstruation: A Good Idea?, Deborah Widiss

Articles by Maurer Faculty

In February 2023, Spain became the first European country to guarantee “menstrual leave” for workers, joining several countries, mostly in East Asia, that have long done so. It has also become increasingly common for companies to offer paid time off to menstruators as a discretionary benefit. Reports on these developments are almost always accompanied by criticism from self-identified feminists voicing concern that the policies will spur discrimination against women or reinforce stereotypes about menstruators as incapable workers. This echoes earlier arguments over maternity leave. In their groundbreaking book, Menstruation Matters, Bridget Crawford and Emily Waldman expose myriad ways in which …

Jockeying For The Labor-Dispute Exemption: How The First Circuit Wrongly Exempted Independent Contractors From Antitrust Law, But Why Congress Should Expand The Exemption, Dylan Keefe

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Universal Forms Of Influence: Support For Women On Boards, Cindy A. Schipani, Paula J. Caproni

Seattle University Law Review

There are various efforts underway to increase gender diversity on corporate boards, including legislation in California, a recent SEC approved comply or explain rule for companies listed on the Nasdaq stock exchange, and efforts by institutional investors such as State Street and BlackRock to recognize the value diversity brings to corporate decisionmaking. Although some of these efforts are being contested in the courts, many companies have begun to comply with these initiatives.

This Article is organized as follows. Part I provides an overview of several efforts to increase gender diversity on boards along with numerous research studies showcasing the benefits …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

How Might We Reimagine Transportation Technology To Combat Forced Labor: Conference Explanations And Recommendations From The Law And Mobility Program’S Annual Conference 2023, Brittany Eastman

Journal of Law and Mobility

The University of Michigan Law School’s Law and Mobility Program (LAMP), a resource for scholarship about the legal implications of emerging transportation technology with a particular focus on connected and automated vehicles (CAVs), hosts an annual conference. The topic of the LAMP Annual Conference 2023 considered how we might reimagine transportation technology in a way that combats the systemic vulnerabilities that leave certain populations more likely to experience forced labor. This topic was selected because there are multiple lenses through which to consider the transportation equity outcomes for users, industry workers, and society at large; forced labor is just one …

The War On Tenure, Deepa Das Acevedo

Faculty Articles

Legislative attacks on faculty tenure are proliferating at an alarming rate. Politicians seeking to abolish or restrict the practice argue that tenure encourages bad behavior and impedes warranted terminations, granting undeserving academics “jobs for life.” But does tenure really facilitate—much less incentivize—such undesirable outcomes? This Article marshals an original and unprecedented dataset of “tenured-terminations” as well as existing social science research to show that the likely answer to both questions is “No.”

Instead, the data suggest that tenure is largely operating as it should: as a form of “just cause” employment where cause for termination is difficult but not impossible …

To Have Or Have Not: The Limits Of Comply-Or-Explain Governance In An American Exchange, Johnson A. Salisbury Jr.

Emory Law Journal

In 2020, the National Association of Securities Dealers Automated Quotations (“Nasdaq”) proposed a comply-or-explain governance rule to the Securities and Exchange Commission (“SEC”), aimed at increasing diversity in companies listed on its exchange. The resulting listing rule—approved by the SEC in 2021—was met with a mixed chorus of cheers and jeers from the public and regulated companies. Missing from that chorus, however, was an analysis of the effectiveness of Nasdaq’s approach in using a flexible, predominantly international comply-or-explain governance model to regulate the companies listed on its exchange.

Framed as a disclosure code, Nasdaq’s Listing Rule 5605(f)(2) requires listed companies …

Kenneh V. Homeward Bound, Inc: Potential Impacts Of The Minnesota Supreme Court’S Not-So-Severe “Severe Or Pervasive” Standard To Race Harassment Claims Under The Minnesota Human Rights Act, Frances Baillon, Michelle Gibbons

Mitchell Hamline Law Review

No abstract provided.

Global Trade, Wto, Labor Arbitrage, American Workers And National Security - The Need For A U.S. Industrial Policy, Charles W. Murdock

Faculty Publications & Other Works

The COVID-19 pandemic has exposed some of the problems in the current pattern of global trade, particularly with respect to supply chain disruptions. To understand the current status of global trade, it is helpful to understand the confluence of four seemingly disparate developments: (1) Ricardo's theory of comparative advantage in the early 1800s; (2) the rebuilding in the late 40s and 50s of our former adversaries-Japan and Germany-into export based economies; (3) the modification of capitalism in the 1980s to focus upon maximizing shareholder value; and (4) the rise of China as an economic and military powerhouse, facilitated initially by …

A Room Without A View(Point): Must Student-Housing Employees Trade Free Speech For Free Rent?, Frank D. Lomonte, Conner Mitchell

Campbell Law Review

The COVID-19 pandemic exposed the power that public university speech policies have to silence students. Although few people were better suited to provide a candid assessment to the media of student safety in on-campus housing than resident assistants, all too often these student employees were forbidden from speaking openly, or at all. To understand the scope of these prohibitions on speech, researchers using freedom-of-information law obtained employment manuals, policies, and guidelines from a wide cross-section of public universities. This Article analyzes the language used in a sample of these materials and concludes that while these speech policies often - and …

Given Equal Weight Under The Law: Expanding Title Vii Protections To Prohibit Weight Discrimination, Chelsea L. Yedinak

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

Approximately half of Americans have an overweight or obese body mass index (BMI), yet weight discrimination is legal in nearly every jurisdiction. This means employers can set BMI limits, maximum weights, waist sizes, and more with no legal consequences. This Note examines the history of anti-fat bias and weight discrimination and how that motivates weight discrimination in employment and in the law generally. It then discusses possible solutions. Currently, most scholars propose prohibiting weight discrimination on a state level through legislation similar to Michigan’s Elliott-Larsen Civil Rights Act or on a federal level by recognizing obesity as a disability protected …

How A Professional Describes Reasons For Working In And Ultimately Leaving The Foster Care Field In The State Of Missouri: A Case Study, Lauren Williams

Graduate Theses/Dissertations

The foster care field continues to have a high turnover rate of the professionals working in the field. While support and work balance are available for some professionals, many face the challenges of heavy workloads, unrealistic expectations, and health sacrifices that lead to many professionals leaving the field. This case study of one former foster care professional’s description of reasons they worked in the field, and reasons they ultimately left the field provides insight of the challenges and support as a foster care professional. The findings of this study are organized into three major themes including “Challenges for Foster Care …

Pandémie Et Travail De Plateforme: Réglementation Du « Lieu De Travail » Après Le Covid-19 Aux Usa [The Gig And The Platform: Regulating The “Workplace” After The Pandemic], Ruben J. Garcia

Scholarly Works

No abstract provided.

Work Hierarchies And Social Control Of Laborers, Nantiya Ruan

Scholarly Works

Some labor dynamics transcend place and time: workers provide the labor; management oversees the work; owners capitalize on the fruits of that labor. This hierarchy repeats across nations, industries, and eras. The actors in these stories have set roles and a particular stage to act upon. We are familiar with a narrative wherein the worker is forced to toil under extreme conditions, the manager motivates the worker to produce faster and more, and the owner reaps the rewards. And we usually know where our sympathies lie.

Professor McMurtry-Chubb's latest book, Race Unequals: Overseer Contracts, White Masculinities, and the Formation of …

Racial Pay Equity In “White” Collar Workplaces, Nantiya Ruan

Scholarly Works

Part I outlines the many ways that corporate employers fail in racial equity efforts and the barriers that have been put into place to keep BIPOC workers from succeeding. Drawing from industrial organizational psychology and sociology, I identify six distinct challenges that must be remedied or ameliorated in order for BIPOC to achieve pay equity in the corporate climate. Part II identifies and analyzes the decades of litigation and class action settlements that have tried and failed to address the persistent lack of BIPOC representation in the financial industry. I categorize these cases into three waves of litigation intended to …

Never Equals: Slavery, White Masculinities, And The Legacy Of Law In Today’S Workplace, Ann C. Mcginley

Scholarly Works

This essay discusses two themes of Race Unequals: (1) the role of law in creating and reinforcing gendered, classed, and raced identities on plantations in the Antebellum South; and (2) the existence of slavery's legacy today in workplaces and the law's frequent failure to remedy its damaging tentacles. Part II describes masculinities studies from the social sciences and Multidimensional Masculinities Theory in law and applies the theory to analyze the first theme. Part III considers slavery's legacy in today's workplaces and analyzes employment discrimination law's shortcomings in eliminating racism in workplaces. The essay concludes that White masculinities, established in the …

Work Hierarchies And The Social Control Of Workers, Nantiya Ruan

Scholarly Works

Creighton Law Review Symposium on Professor Teri A. McMurtry-Chubb’s book, Race Unequals: Overseer Contracts, White Masculinities, and the Formation of Managerial Identity in the Plantation Economy.

Attorney Competence In The Algorithm Age, Nantiya Ruan

Scholarly Works

No abstract provided.

Workers' Boards: Sectoral Bargaining And Standard-Setting Mechanisms For The New Gilded Age, Sara Slinn

Articles & Book Chapters

This article explores the potential of sectoral standard-setting models (often referred to as “wage boards” or “workers’ boards”) as a solution for contemporary workplace issues, which existing labor relations and minimum standards regulatory systems continue to struggle to address. This argument, the article examines three historical statutory systems of sector-based minimum workplace standard-setting established in the early 20th century as a response to unacceptable wages and working conditions: the British Wages Council system, the Canadian Industrial Standards Act, and the US Fair Labor Standards Act. The article applies the conceptions of fairness identified in Seth Harris's study of the origins …