Labor and Employment Law Commons^™

An Exacerbated Power Imbalance: The Danger In Allowing Ai To Render Arbitral Awards In Employment Arbitration, Elizabeth G. Stein

Mitchell Hamline Law Review

No abstract provided.

The Student-Athlete-Employee: Forging An Equitable Path Toward A New Ncaa, Halle R. Fiedler

Fordham Law Review

In 2021, the landscape of National Collegiate Athletic Association (NCAA) sports as we knew it shifted dramatically as the U.S. Supreme Court held that student-athletes could now receive compensation based on their names, images, and likenesses (NIL). For the first time in the history of college sports, student-athletes may now receive a share of the billions of dollars that they have been generating for their universities and the NCAA for decades. Since this ruling, however, there have been several questions as to how to best regulate student-athletes in this new universe, and whether the NCAA’s long-standing amateurism model is durable …

Religious Accommodations In The Dobbs Era, Ann C. Mcginley

Scholarly Works

Given the deep political divide in the U.S. and the emotional response to the abortion issue, workplaces may become hostile environments that harm workers based on their pro- or anti-abortion views or their out-of-work activism. Besides hostile environments, some workers may suffer workplace discipline based on their speech at work or refusals to engage in certain job requirements. Disciplining employees for engaging in workplace speech or refusal to perform parts of their jobs may violate workers’ rights under Title VII of the Civil Rights Act of 1964, which requires that employers grant religious accommodations in the workplace if doing so …

Fighting Institutional Betrayal: Gender Pay Equity Litigation Against University Employers, Nantiya Ruan

Scholarly Works

Universities are workplaces replete with observed gender pay gaps despite the legal protections in place to mitigate against such a reality. This Article analyzes recent university gender pay equity lawsuits to examine their efficacy in four types of litigation: (1) Class and Collection Action; (2) Government Action; (3) Union Action; and (4) Individual Action. From these case studies of different types of litigation, we learn several important lessons about prosecuting equal pay laws and how to best protect against unequal pay.

First, the Article sets forth the gender pay equity landscape, including the national pay gap picture, the legal framework …

The Role Of Interpersonal Conflict As A Cause Of Work-Related Stress In Construction Managers In Ireland, Patrick J. Bruce, Victor Hrymak, Carol M. Bruce Dr, Joseph Byrne

Articles

Construction is a project-driven industry that places a high premium on product delivery on time, within budget and to required standards. Modern construction projects have become more complex in nature, the complex relational and lengthy process of designing and building makes construction a process in which conflict is virtually ensured (Jaffar et al., 2011; Wang et al., 2023). These characteristics of the industry contribute to workplace stress. Therefore, it is not surprising that research has confirmed a strong presence of workplace stress within the industry, (Lingard and Francis, 2004; Vaux and Dority, 2020). Many construction managers experience excessive levels of …

The Impact Of Banning Confidential Settlements On Discrimination Dispute Resolutio, Blair D. Bullock, Joni Hersch -- Cornelius Vanderbilt Professor Of Law And Economics

Vanderbilt Law Review

The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop "secret settlements" by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.

But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Older Women Workers, The Pandemic, Employment Discrimination And Lifetime Disadvantage, Susan Bisom-Rapp

Faculty Scholarship

As a group, older women workers were among those most severely impacted by the COVID-19 crisis. Drawing from both intersectionality and cumulative disadvantage theory, the Model of Lifetime Disadvantage created by Bisom-Rapp and Sargeant helps frame the position of these workers in the labor market prior to and during the pandemic. The model also explains why and how disjointed, incremental legal interventions are unable to meet the challenge of gendered ageism, which surged during the crisis. Disasters produce impacts unevenly on individuals and communities. Older women are a diverse group, whose social position is mediated by race, ethnicity, sexual orientation …

Staff Matters: Are There Risks To Using Ai In Our Practice?, Jodi Schafer Sphr, Shrm-Scp

The Journal of the Michigan Dental Association

As your practice adopts AI for hiring processes, it brings efficiency but also potential pitfalls. The increasing use of AI, such as ChatGPT, streamlines tasks like resume screening, but caution is essential. Recent executive orders emphasize safety assessments and civil rights in AI. The Equal Employment Opportunity Commission focuses on transparency and consent in recruitment AI use. Legal compliance is vital to prevent discrimination; criteria like education and experience must be applied consistently. Additionally, employee monitoring AI requires careful implementation, ensuring transparency and human oversight. While AI offers benefits, its workplace integration demands careful consideration, testing, and ongoing evaluation.

Sosa V. City Of Woonsocket, 297 A.3d 120 (R.I. 2023)., Samantha B. Larkin

Roger Williams University Law Review

No abstract provided.

The Patent Law Origins Of Science Fiction, Camilla Hrdy, Daniel H. Brean

Akron Law Faculty Publications

This Article reveals the surprising role of patent law in shaping the literary genre of science fiction. Drawing on previously unpublished sources, the Article shows that Hugo Gernsback—the so-called “father” of science fiction who started the first all-science-fiction magazine in 1926—believed that works of science fiction are analogous to patents. Like patents, science fiction stories can disclose useful information to the public about new inventions. Like patents, science fiction stories can influence future inventors and drive innovation. Gernsback went even further, positing that some of the inventions depicted in science fiction should themselves be patentable. In 1952, he urged Congress …

Using State And Local Governments’ Purchasing Power To Combat Wage Theft, Courtlyn G. Roser-Jones

Washington and Lee Law Review

Regulatory efforts to curb wage theft are failing. And for good reason: these laws generally empower individual workers to pursue their rights when employers neglect to pay them what they are owed and deter employers with substantial penalties. But the vast majority of workers do not take formal action against their employers. So, when the penalties for committing wage theft are almost entirely triggered by claims workers do not bring, they do not deter employer behavior. Instead, because the likelihood of being penalized at all is so low, some employers make profit-maximizing decisions to commit wage theft on a large …

(In)Coherence In Employment Contract Law: Response To Professors Arnow-Richman And J.H. Verkerke, Meredith R. Miller

Scholarly Works

No abstract provided.

The Communication Conundrum: Weighing The Need To Prove Intent In Erisa Misrepresentation Claims, Kristen Hobbs

Emory Law Journal

In 1974, Congress enacted the Employee Retirement Income Security Act (ERISA) to provide oversight to voluntary employee benefit plans in the private sector. The statute, which draws from a deep well of common law history, places robust requirements on fiduciaries who safeguard such plans. Shortly after ERISA’s enactment, courts were forced to interpret the broad fiduciary duties set forth in 29 U.S. § 1104, which simply mandates that fiduciaries must discharge duties solely in the interest of the participants and beneficiaries. Considering this broad language, courts set out to define specific standards to which fiduciaries should be held, particularly surrounding …

Don’T Forget To Like, Follow, And Regulate: An Argument For The Expansion Of Protections For Child Social Media Influencers, Caroline Waldo

University of Michigan Journal of Law Reform

Child social media influencers, colloquially known as “kidfluencers,” have skyrocketed to fame alongside the growth of social media. However, traditional child labor laws do not consider online influencing “work” or these kids to be “child performers.” Thus, these children do not receive any form of legal protection for their presence online, leaving them open to exploitation and severe harms. This Note explores the lack of protection provided to kidfluencers, ultimately proposing a new federal labor law to expand child actor protections to kidfluencers. Part I of this Note provides a brief history of the landscape by reviewing landmark Supreme Court …

Can Policing Be Purged Of White Supremacy? A First Amendment Inquiry, Jessica Tilton

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

The New Yellow Dog Contract: Mandatory Arbitration Agreements And Collective Action Waivers In The Aftermath Of Epic Systems, Eric Lundy

Nevada Law Journal Forum

Since the 1980s, the Supreme Court has consistently found arbitration agreements in employment contracts to be enforceable, citing a strong national policy favoring arbitration. This line of cases came to its apogee in 2018 with Epic Systems Corp. v. Lewis. The Court held that the statutory right to engage in concerted activities for the purpose of mutual aid or protection did not confer upon employees the right to bring class actions against their employer when they had signed an arbitration agreement with a collective action waiver. While the Court’s decision was widely criticized in the academic community, it sent a …

Somethings Old, Somethings New And A Lot That’S Blue: Political Economic Reflections On Worker Subordination And The Law In Contemporary Capitalism, Eric Tucker

All Papers

Debates over worker subordination are central to discussions of the efficacy of protective labour and employment law whose central mission in a capitalist political economy, after all, is to reduce but not eliminate subordination. When protective labour and employment law seems to be fulfilling its mission discussions of worker subordination seem to ebb, but the topic becomes more urgent as the efficacy of the law declines. Not surprisingly, as labour law’s efficacy has been declining over the past several decades, we are in the midst of a revival of debates over worker subordination, the premise of this special issue. While …

Labour, Labour Law And Capitalist Rent-Seeking: Rentier Capitalism And Labour In Historical Perspective, Eric Tucker

All Papers

The rise of rentier capitalism in advanced capitalist countries has detrimentally affected large numbers of worker and impaired the efficacy of protective labour and employment laws. However, capitalist rent-seeking is not unique to rentier capitalism, but rather has taken a variety of forms over time. This chapter begins by exploring the evolving meaning of rent and changing practices of capitalist rent-seeking. It then considers the ways in which workers responded to those practices in both rent-rich and rent-poor sectors of the economy, including through the enactment of labour and employment laws appropriate to, but only partially successful in addressing labour …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

Arbitral Reliance On "Precedent", Ariana R. Levinson

Cardozo Journal of Conflict Resolution

We conclude that "precedent" may not be the most appropriate term for arbitrators' reliance on other awards. While the term "precedent" might be used loosely in the sense that any past event is a precedent for any future event, the doctrines of stare decisis, collateral estoppel, and res judicata do not apply in labor arbitration. Only if a contract explicitly states or is interpreted by arbitrators to require past awards between the same parties to bind them into the future until a change is negotiated to the contract will these doctrines be utilized by arbitrators. Much more often, including in …

Early Neutral Evaluation In Baseball Arbitration, Yakov Schwalb

Cardozo Journal of Conflict Resolution

In recent years, the contracts awarded to Major League Baseball ("MLB") players in free agency have been astronomical. In the 2023 offseason, Shohei Ohtani signed the largest contract in American sports history, a ten-year $700 million contract with the Los Angeles Dodgers. In the previous year, MLB teams spent over $3.5 billion on free agents. However, before a player is eligible for free agency, he can undergo a process called final offer arbitration ("FOA"). In this system, if a player and his professional baseball team are unable to reach an agreement for the player's salary for the upcoming season, the …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Remote Workers, Ever-Present Risk: Employer Liability For Data Breaches In The Era Of Hybrid Workplaces, David Golubock

Journal of Law, Technology, & the Internet

The years since the onset of the COVID-19 pandemic have seen explosive growth in the number of remote workers, and companies have struggled to cope with a perceived loss of productivity and establish reliable methods of remote access to cope with this influx. At the same time, the last few years have seen a continued rise in the threat of data breaches, as sophisticated groups of malicious actors have targeted businesses and governments, locking systems with ransomware and exposing sensitive company data and employees' personal information. This article aims to examine the intersection between these two trends, examining how an …

Drug Addiction, Insanity, And Competency: How The Halimi Case Galvanizes A U.S.-Inspired Reform Of France's Criminal Responsibility System, Ruben Attia

Cardozo International & Comparative Law Review

The Halimi case, culminating in a verdict from the Court of Cassation in April 2021, has ignited intense and contentious debates on criminal responsibility, leading to a profound erosion of public trust in the French judicial system. This Note delves into the urgency of addressing the issues presented by Halimi and emphasizes the necessity for innovative approaches within the French legislative framework. Striking a delicate balance between permitting the trial of controversial cases and upholding the age-old moral duty of excluding the mentally insane from guilty verdicts, this Note compares the intricacies of criminal responsibility in France with those in …

Dentistry And The Law: Know The Facts About Noncompete And Liquidated Damages Agreements, Dan Schulte Jd

The Journal of the Michigan Dental Association

Navigating dental employment agreements involves understanding the enforceability of non-compete and liquidated damages provisions. While these aim to protect the employer's business, courts may scrutinize their reasonability. In Michigan, noncompete terms of two years or less are generally deemed reasonable, and the restricted area must align with the patient base. A $15,000 liquidated damages amount per patient might face challenges, as it should relate reasonably to actual damages. Courts may also consider equitable factors and the employer's adherence to the agreement. Both employers and employees benefit from reasonable restrictions, avoiding potential legal disputes.