Labor and Employment Law Commons^™

Reforming The Ministerial Exception, Paul E. Mcgreal

Villanova Law Review (1956 - )

No abstract provided.

Vol. 40, Jenny Lee

The Illinois Public Employee Relations Report

Students for Fair Admissions: A New Standard for Race-Conscious Affirmative Action

By Jenny Lee

The Work-Rule Doctrine Doesn't Work After Reeves V. Sanderson Plumbing Products, Grafton Bragg

MC Law Review

This Note is about an existing plague on employment-law jurisprudence in the Fifth Circuit. Small and big companies alike can terminate an employee for no discriminatory reason but then be tagged with a lawsuit that has a fair chance of success, just because the disgruntled former employee is willing to lie or the parties disagree over the facts. This is true even though no evidence of actual discrimination exists. The work-rule doctrine changes at-will employment to good-will employment under the guise of federal employment discrimination statutes. Whatever your position is on the longstanding at-will employment regimes, there can be no …

Labor Pains: The Inadequacies Of Current Federal Pregnancy Laws And The Alternative Routes To Accommodation, Sara Alexander

MC Law Review

Although many women are able to work through their pregnancies without employer accommodations, some pregnant workers who require accommodations "are forced out of their jobs unnecessarily when minor adjustments would enable them to keep working." In 2003, a hardware assembler in Ohio was terminated after her doctor limited her weight-lifting to twenty pounds and ordered that she work no more than eight hours at a time. In 2009, a retail worker in Kansas was fired because she needed to keep a water bottle with her in order to stay hydrated and prevent bladder infections. In 2011, an activity director at …

Noncompete Agreements In A Rigid Labor Market: The Case Of Italy, Lorenzo G. Luisetto, Tito Boeri, Andrea Garnero

Law Faculty Articles and Essays

Noncompete agreements limiting the mobility of workers have been found to be widespread in the United States, a flexible and lightly regulated labor market. We explore the use of noncompete agreements in a rigid and highly regulated labor market, where labor mobility is low, and the labor market is highly regulated via legislation and collective bargaining. Based on a novel survey of Italian workers and an analysis of the regulatory framework, our study shows how trends and patterns in the use of noncompete agreements are not specific to a flexible labor market. Even in a rigid and highly regulated labor …

Survival Labor, Yvette Butler

Articles by Maurer Faculty

This Article makes one simple, novel claim: crime is labor when it generates income, allows individuals to pursue self-sufficiency, or allows them to fulfill societal expectations of providing for or caring for dependents. When individuals engage in survival crimes, instead of seeing them as criminals, we should see them as workers engaged in survival labor.

The carceral system continues to disproportionately harm racial minorities and people living in poverty. The foundations of many laws regulating racialized bodies and the policing of those bodies has created a culture where blackness is equivalent to criminality. While a penal abolitionist framework is helpful …

Don’T Lose The Remote: An Employer’S Guide To Remote Employee And Trade Secret Retention Without Non-Competes, Kayla Lya Pfeifer

Mercer Law Review

This Comment discusses potential employer solutions to the intersectional challenges of balancing trade secret protection and employee retention in a post-COVID-19 remote employment market. First, this Comment provides an overview of the FTC’s proposed rule to ban non-competes, as well as the political context and history behind the FTC’s enhanced focus on policing anti-competitive business behaviors. Additionally, this Comment explains the utility behind non-competes and contextualizes the ban’s potential effects through a legal survey of non-compete enforceability in the U.S. To illustrate the steep challenge of trade secret protection in the modern employment market, this Comment separately analyzes the rise …

Different Sides Of The Same Coin: How The Eleventh Circuit Deepened The Circuit Split For An Americans With Disabilities Act Failure-To-Accommodate Claim In Beasley V. O’Reilly Auto Parts, Anna Carr Hanks

Mercer Law Review

Through its decision in Beasley v. O’Reilly Auto Parts, the United States Court of Appeals for the Eleventh Circuit deepened the split among the circuit courts nationwide by explicitly requiring an adverse employment action in failure-to-accommodate claims under Title I of the Americans with Disabilities Act. Through this opinion, the Eleventh Circuit joined the minority of circuits and suggested that the Supreme Court of the United States may soon need to revisit this issue to resolve the uncertainty stemming from this fundamental disagreement among the circuits.

Bostock And Its Progeny: A Path To Protection For The Lgbtq+ Community, Colton Shelly

Cardozo Journal of Equal Rights & Social Justice

The Bostock v. Clayton County decision marked a pivotal moment in extending federal protections under Title VII to the LGBTQ+ community, prohibiting employment discrimination based on sexual orientation and gender identity. This ruling has had far-reaching implications, influencing various cases across federal and state courts, though its application varies, leading to a diverse landscape of protections.

At-Will Employment And Healthcare: A Constant Conflict, Chris White

MC Law Review

Perfection is impossible. Perfection is essentially possible in the healthcare field, where adverse events are a part of the profession. For this reason, the government has developed systems that attempt to curb the inevitable issues that will arise; however, those systems do not always catch the shortcomings of healthcare-providing institutions. For this reason, the non-physician employees on the ground level, interacting with the patients on a daily basis, are often the best source of information when targeting and curing a healthcare organization’s shortfalls. Unfortunately, barriers exist that keep those non-physician employees from bringing to light what they have noticed.

Ask The Professor: How Has The Recent U.S. Supreme Court Opinion In Murray V. Ubs Securities Provided Much Needed Protection To Whistleblowers?, Ronald Filler

Articles & Chapters

No abstract provided.

Are Employee Noncompete Agreements Coercive? Why The Ftc's Wrong Answer Disqualifies It From Rulemaking (For Now), Alan J. Meese

Faculty Publications

The Federal Trade Commission recently proposed a rule banning nearly all employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the Federal Trade Commission Act. The proposed rule reflects two complementary pillars of an aggressive new enforcement agenda championed by Commission Chair Lina Khan, a leading voice in the Neo-Brandeisian antitrust movement. First, such a rule depends on the assumption, rejected by most prior Commissions, that the Act empowers the Commission to issue legislative rules. Proceeding by rulemaking is essential, the Commission has said, to fight a “hyperconcentrated economy” that injures employees and consumers alike. Second, …

Impact Ipsa Loquitur: A Reverse Hand Rule For Consumer Finance, Susan Block-Lieb, Edward J. Janger

Cardozo Law Review

The topic of this symposium—Automating Bias—considers how artificial intelligence can produce, reinforce, and hide racial and other forms of discrimination in consumer finance. The animating intuition is that the complexity and opacity of algorithms and artificial intelligence in consumer lending create a greater need for disparate impact analysis to combat lending discrimination. This view was articulated forcefully by the current Director of the Consumer Financial Protection Bureau (CFPB), Rohit Chopra, when he was still a commissioner at the Federal Trade Commission (FTC).

Emotionally Harmed? It Might Not Matter: An Analysis Of Cummings V. Premier Rehab Keller And Its Implications For Title Ii Of The Americans With Disabilities Act Of 1990, Sotir Zhupa

Cardozo Law Review

On April 28, 2022, the U.S. Supreme Court handed down an opinion that shocked the disability rights community. In Cummings v. Premier Rehab Keller, P.L.L.C., the Court ruled that compensatory damages for emotional distress may not be recovered by claimants who sue for disability discrimination under section 504 of the Rehabilitation Act of 1973 (section 504) and section 1557 of the Patient Protection and Affordable Care Act of 2010..

Cummings involved a woman, Jane Cummings, who is both deaf and legally blind. Because of her disabilities, she communicates through American Sign Language (ASL)—her first and primary language—and cannot communicate …

The Chicken-And-Egg Of Law And Organizing: Enacting Policy For Power Building, Kate Andrias, Benjamin I. Sachs

Faculty Scholarship

In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure …

Separation Of Powers By Contract: How Collective Bargaining Reshapes Presidential Power, Nicholas Handler

Faculty Scholarship

This Article demonstrates for the first time how civil servants check and restrain presidential power through collective bargaining. The executive branch is typically depicted as a top-down hierarchy. The President, as chief executive, issues directives with vast implications for federal policy. Usually, the tenured bureaucracy of civil servants below him follow these directives. Occasionally, when the President’s policies appear corrupt or ill-advised, bureaucrats may illicitly “resist” them. This presumed top-down structure shapes many influential critiques of the modern administrative state. Proponents of a strong President decry civil servants as an unelected “deep state” usurping popular will. Skeptics of presidential power …

The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba

Faculty Scholarship

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete …

The Case For Waivable Employee Rights: A Contrarian View, William R. Corbett

Buffalo Law Review

No abstract provided.

A Proposed Framework For A Federal Inevitable Disclosure Doctrine Under The Defend Trade Secrets Act, Michael J. Garrison, Dawn R. Swink, John T. Wendt

Buffalo Law Review

No abstract provided.

Public Health Consequences Of Appellate Standards For Hostile Work Environment Claims, Lauren Krumholz

Washington Journal of Social & Environmental Justice

No abstract provided.

Importance Of Mediation In The Workplace, Cardozo Labor And Employment Law Society

2023–2024 Flyers

No abstract provided.

Kidfluencers: New Child Stars In Need Of Protection, Mikayla B. Jayroe

Arkansas Law Review

Despite the explosive growth of social media and various lobbying efforts, the legal system has fallen woefully behind in extending labor protections to children engaged in social media production. This Comment will offer a solution to the current gray area surrounding kidfluencers and the lack of protections they are afforded. First, this Comment will discuss the emergence and growth of the kidfluencer industry and explore the legal history of child labor laws in the United States, specifically evaluating protections historically provided to child actors. Second, this Comment will explain why posts by kidfluencers should be considered work, explore the harms …

Fireside Chat: Challenging The Status Quo As Minorities In The Tech Space, Cardozo Women In Tech Law, Cardozo Asian Pacific American Law Students Association, Cardozo Black Law Students Association, Cardozo Disable Law Student Association, Cardozo Minority Law Student Alliance, Cardozo Latin American Law Student Association (Lalsa), Cardozo Outlaw, Cardozo Labor And Employment Law Society

2023–2024 Flyers

No abstract provided.

An Unfair Method Of Rulemaking: An Application Of Constitutional Doctrines That Oppose The Ftc Rule Banning Non-Competition Agreements, Jared Yaggie

University of Cincinnati Law Review

No abstract provided.

Obedience Restrictions On Public Employee, فيصل الحوامدة

Jerash for Research and Studies Journal مجلة جرش للبحوث والدراسات

This research deals with the subject of obedience restrictions that can be applied on public employee and shows the concept of public employee, obedience and its verdict and importance. The concept of restrictions which control the employee's compliance for his employers in public administration is considered to be a legal responsibility within certain limits shown in this research in details:

In public jobs, employees have to comply their employers' orders in which employees should implement these orders without raising opposition. This research shows that compliance has certain limits in which employees should work within them .Compliance won't be obligatory if …

Exploring Plaintiffs’ Law Careers Beyond Big Law, Latin American Law Students Association (Lalsa), Cardozo Labor And Employment Law Society, Norma Esquivel, Alysia Naomi Jawahar, Jenny Lam

2023–2024 Flyers

Join Cardozo Alumni to learn about their paths after law school and what being a plaintiffs' side lawyer looks like.

Dogma, Discrimination, And Doctrinal Disarray: A New Test To Define Harm Under Title Vii, Zach Islam

Brooklyn Law Review

Historically, federal courts have used the “adverse employment action” test in Title VII disparate treatment, disparate impact, and retaliation cases to determine whether a plaintiff has suffered adequate harm. This note argues that this approach is fundamentally flawed. At the outset, the test is a judicial power grab with no support in the statutory language. What is more, it fails to uphold the plain policy purposes for Title VII by largely ignoring evidence of discriminatory acts in the workplace that Congress sought to prevent in passing the statute. Consequently, Title VII plaintiffs get the short end of the stick with …

Employer-Sponsored Reproduction, Valarie K. Blake, Elizabeth Y. Mccuskey

Scholarly Works

This Article interrogates the current and future role of employer-sponsored health insurance in reproductive justice, revealing the impact that employers’ coverage choices have on access to reproductive care and the legal infrastructure that prioritizes employer choice over individual autonomy. Over half of the population depends on employers for health insurance. Laws regulating employer plans give employers exceptionally wide latitude to decide what reproductive care services to cover---including services like abortion, contraception, and infertility treatment. In their role as health care funders, employers pursue interests which often conflict with employees’ interests and the aims of reproductive justice: to enable autonomous decisions …

The Propriety Of Restraint: Assessing The Viability And Wisdom Of Executive And Legislative Branch Action To Eliminate Collective Bargaining Rights In The Department Of Defense, Casey Keppler

Hofstra Labor & Employment Law Journal

Department of Defense civilian employees are generally permitted to be represented by unions who can engage in collective bargaining with the management on their behalf. In contrast with the private sector, unions representing federal government employees are prohibited from striking and are severely restricted in the topics they can negotiate with management. Given these limitations and the consternation collective bargaining can cause management officials, the question can reasonably asked whether unions’ existence in the federal sector enhance or impair the enterprise. This article discusses the mechanisms available to the Legislative and Executive Branches to eliminate the collective bargaining rights of …

The Labor Gerrymander, Joel Heller

Vanderbilt Law Review

The foundational metaphor of federal labor law is “industrial democracy.” But like any good metaphor, it is subject to overuse. The National Labor Relations Act (NLRA) grants employees the right to have a say in the decisions that govern their working lives through union representation and collective bargaining. Parties and policymakers often invoke the language of American political democracy when describing and debating that right. Democracy is not a unitary concept, however, and not all norms and concepts from the political sphere can or should translate into the labor sphere.

This Article interrogates the political-model analogy through the lens of …