Labor and Employment Law Commons^™

Labor’S Fragile Freedom Of Association Post-9/11, Ruben J. Garcia

Scholarly Works

The fragility of civil liberties in the United States became evident after the terrible attacks of September 11, 2001 (9/11). Labor's freedom of association, which is the right to form unions, bargain collectively, and engage in concerted activities, is one of the civil liberties at risk in the post-9/11 period. This Article focuses specifically on post-9/11 limitations of labor's freedom of association conducted by the executive branch and the Congress, and the ways that the courts have adjudicated labor rights in the post-9/11 era. Domestic labor law and constitutional rights alone, however, will not stop the collision of security and …

Decentering The Firm: The Limited Liability Company And Low Wage Immigrant Women Workers, Miriam A. Cherry

All Faculty Scholarship

Congress is now considering radical changes to the immigration system. This article looks at the immigration issue as a labor and employment law question, and proposes a possible solution based on this approach.

I suggest that forming Limited Liability Companies (LLCs) will benefit low-wage immigrant women workers by transforming them into business owners. By using existing legal structures to their benefit, low-wage women workers can curtail at least a portion of the exploitation that they currently experience. Instead of being hired to perform a job, having the intermediary take a cut, and then pay them some amount out of that, …

Labor Struggles, New Social Movements, And America's Favorite Pastime: New York Workers Take On New Era Cap Company, Victoria Carty

Sociology Faculty Articles and Research

Contemporary economic globalization, which is driven and regulated primarily by multinational corporations, has a direct impact on workers' lives. Trade agreements such as the North American Free Trade Agreement (NAFTA) tend to be controlled by corporate interests in the wealthy, industrialized nations. Those countries set the agenda to protect the interests of foreign investors and facilitate the mobility of capital, but they do little to protect the interests of labor. In response, workers in both the global North and South have been forced to rely on their own individual efforts to protect themselves against unfair labor practices. This article presents …

The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future, Susan Franck

Scholarly Articles in Law Reviews & Journals

The number of investment treaties has surged in the past decade. Even now, the United States and Canada are actively engaged in programs designed to facilitate the completion of multilateral treaties such as the Dominican Republic-Central American Free Trade Agreement (CAFTA-DR) and Bilateral Investment Treaties (BITs). These investment treaties act like economic bills of rights, which grant foreign investors substantive protections and procedural rights to facilitate investment. Sovereigns, meanwhile, may benefit from these treaties by obtaining increased foreign direct investment, which may promote the development of their country's infrastructure 6 and offer citizens basic services including access to clean water, …

Who Made That?: Influencing Foreign Labour Practices Through Reflexive Domestic Disclosure Regulation, David J. Doorey

Osgoode Hall Law Journal

An important tool of "decentred" regulation, including reflexive law, is corporate information disclosure. Disclosure regulation can have an important normative influence on corporate behaviour because it introduces a risk element that must be managed by corporate leaders. The challenge for regulators is to identify the scope of disclosure that will cause corporate responses of the sort desired by the state. This article considers the potential role of disclosure regulation as a tool for influencing labour practices beyond the borders of the regulating state and, in particular, within the vast global supply chains of multinational corporations. In the context of improving …

Two Modern Antitrust Moments: A Comment On Fenton And Kwoka, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Introduction: The Enduring Power Of Collective Rights, In Labor Law Stories, Catherine L. Fisk, Laura J. Cooper

Faculty Scholarship

No abstract provided.

Labor And Employment Law, Thomas M. Winn Iii, Lindsey H. Dobbs

University of Richmond Law Review

No abstract provided.

Reconstituting The Law Of The Workplace In An Era Of Self-Regulation, Cynthia L. Estlund

ExpressO

As the reach of collective bargaining has shrunk in recent decades, the domain of employment law – of judicially-enforceable individual rights and administratively-enforced regulatory standards – has expanded. Both branches of employment law have seen the rise of employer “self-regulation” – internal systems for enforcement of rights and regulatory standards – and of legal inducements to self-regulation in the form of reduced public oversight or sanctions. In the shift from “self-governance” to “self-regulation,” employees have lost their institutional voices and are losing the protective oversight of courts and public agencies. In this article Professor Estlund looks for ways not to …

If It's Hardly Worth Doing, It's Hardly Worth Doing Right: How The Nlra's Goals Are Defeated Through Inadequate Remedies, Robert M. Worster Iii

University of Richmond Law Review

No abstract provided.

Organizing In The Garment Industry In Mexico: Implications For New Social Movement Theory, Victoria Carty

Sociology Faculty Articles and Research

This paper examines attempts to improve workers' rights in the Maquila Industry in Mexico by using two case studies. It analyzes the struggles that recently occurred at the Kukdong and Duro plants. The underlying question of the research is how to balance the co-existence of market economies with effective means to ensure adequate conditions for workers, and most importantly, ensuring their right to freedom of association. Under recent forms of global economic restructuring, the state is often unwilling or unable to uphold workers' rights. To combat the present form of corporate-driven global capitalism, workers in the South, in solidarity with …

The Case Of The Male Ob-Gyn: A Proposal For Expansion Of The Privacy Bfoq In The Healthcare Context, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

The article proceeds in three main parts. First, it discusses the general case law surrounding customer preferences for a particular gender, looking at the enactment and development of the BFOQ defense, particularly in the context of customer preferences. It argues that the courts' general rejection of the customer preference rationale for BFOQs was entirely appropriate, given that these preferences typically reflected malignant gender biases--most often, chauvinistic attitudes that result in female subordination. Second, the article examines the rise of the privacy BFOQ. It argues that the courts were correct in recognizing the privacy BFOQ, given the qualitatively different nature of …

Masculinities At Work, Ann C. Mcginley

Scholarly Works

This article focuses on the study of masculinities, a body of theoretical and empirical work by sociologists, feminist theorists and organization management theorists. This work, much of which employment law scholars have ignored, studies the role of masculinities, which are often invisible, in creating structural barriers to the advancement of many women and some men at work. Masculinities comprise both a structure that reinforces the superiority of men over women and a series of practices, associated with masculine behavior, performed by men or women, that aid men to maintain their superior position over women. In their less visible form, masculinities …

When James Bond Enters The Workplace: Uses And Abuses Of Technology, William A. Herbert

Publications and Research

This paper, co-authored by H. David Kelly, was presented at the 2004 Annual Meeting of the American Bar Association. It analyzes the state of the law at the time in the public and private sectors regarding employers' use of intrusive technologies to monitor and control their workforce.

Human Rights, Health, And Corporations, Gerald Montgomery

Human Rights & Human Welfare

Unfettered economic policies have had a notable effect on the state of human rights. With the increasing spread of transnational corporations (TNCs), non-governmental organizations (NGOs) play a major role in setting ethical and moral standards for with the quality of life in the developing states where TNCs do business. Many TNCs are trying frantically to implement strategies that would alleviate labor injustices and corrupt practices in order to meet the standards argued for by NGOs.

Pay Secrecy/ Confidentiality Rules And The National Labor Relations Act, Rafael Gely, Leonard Bierman

Faculty Publications

This article seeks to provide a comprehensive account of doctrinal issues related to the use of pay secrecy/confidentiality rules (“PSC rules”) under the NLRA. In Part II, we describe what pay secrecy/confidentiality is and discuss recent survey evidence of their presence in workplaces across the United States. In Part III, we describe the current legal framework under which PSC rules are evaluated under the NLRA, while in Parts IV and V, we explore various doctrinal issues related to these rules in more detail. This leads us to Part VI, where we ponder the future of PSC rules under the NLRA …

Day Laborers, Friend Or Foe: A Survey Of Community Responses, Mauricio A. Espana

Fordham Urban Law Journal

This comment discusses the various ways that communities that benefit from day laborers respond to the presence of the "underground" employment phenomenon. Part I provides some background into the day laborers' situation, livelihood, and legal rights. Part II discusses the competing issues faced by day laborers, as well as the issues the laborers present to community residents, employers, and the United States Government. Finally, Part III discusses the different solutions that communities confronted with day laborers have proposed and implemented, and concludes that it is in the best interests of all parties involved that communities accept day labors and accommodate …

Transnationalism As A Social Movement Strategy: Institutions, Actors And International Labor Standards, Ruben J. Garcia

Scholarly Works

In the context of changing global realities, the UC Davis Journal of International Law & Policy (“JILP”) held its March 2003 Symposium, “Workers and International Economic Institutions: Challenges and Possibilities in a Global Economy.” The conference attracted a diverse array of academics, policymakers, and community activists. The participants examined the problems and possibilities that government, business, and nonprofits present for creating and maintaining labor standards in the global economy. In this introduction, the author will place each of the Symposium contributions into a framework of the choices that institutions and actors must make in deciding the best course for raising …

Ghost Workers In An Interconnected World: Going Beyond The Dichotomies Of Domestic Immigration And Labor Laws, Ruben J. Garcia

Scholarly Works

Beginning with the September 11, 2001 ("9/11") terrorist attacks, the labor movement's plans to organize immigrant workers and achieve immigration reform have met serious challenges. After 9/11, the political climate surrounding immigrants put the AFL - CIO's hopes for legislative reform on hold, because of socially perceived connections between immigrants and terrorism. Then, in a March 2002 decision titled Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court held that undocumented immigrant workers could not collect back pay under the National Labor Relations Act (NLRA) when their rights to join unions are violated. According to the Court, back …

Across The Borders: Immigrant Status And Identity In Law And Latcrit Theory, Ruben J. Garcia

Scholarly Works

Immigrants make up a large and increasing portion of the American community. The recent census found an unprecedented number of immigrants within the United States. Immigrants, however, have fewer legal protections than almost any other individuals within our borders. This lack of protection is especially disconcerting given that immigrants are often the most subordinated members of our communities. Particularly after the events of September 11, 2001, the rights and protections available to immigrants—whether they are documented or not—are tenuous. As LatCrit scholars have pointed out, immigration law is intensely racialized, and yet other bodies of law, such as civil rights …

New Social Movements And The Struggle For Worker’S Rights In The Maquila Industry, Victoria Carty

Sociology Faculty Articles and Research

"Campaigns to improve worker’s rights in export processing zones (EPZs), also referred to the maquila industry in Latin America, is an important topic analytically and politically. On theoretical and practical levels, the co-existence of market economies with effective means to ensure adequate working conditions for workers is a critical question. Underlying the issue is a vigorous debate regarding how the global economy should be governed; who or what should govern it, and whose interest is should serve (Faux, 2002)."

If Portia Were A Mediator: An Inquiry Into Justice In Mediation, Jonathan M. Hyman, Lela P. Love

Articles

No abstract provided.

Empathy, Spring, And Fervorino, Susan Bennett

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Spouses Need Not Apply: The Legality Of Antinepotism And No-Spouse Rules , Rafael Gely, Timothy D. Chandler, Jack Howard, Robin Cheramie

Faculty Publications

We begin this analysis in Part II with a brief discussion of employment policies that have been adopted to meet the unique needs of working families. Interestingly, these practices often exist contemporaneously with policies that restrict employment opportunities for dual-earner couples, namely antinepotism and no-spouse rules. In Part III, we present the results of our comprehensive analysis of case law in this area to show the nature of legal challenges to antinepotism and no-spouse rules and how they have been decided by the courts. In Part IV, we describe the legislative framework under which MSD claims have been raised and …

New Voices At Work: Race And Gender Identity Caucuses In The U.S. Labor Movement, Ruben J. Garcia

Scholarly Works

Recently, labor law scholars have examined the emergence of "identity caucuses," in unions and in nonunion workplaces. Some scholars have pointed to identity caucuses as a source of division in unions, while others have pointed to them as alternatives to traditional unions. The author argues that race and gender caucuses in unions are not a source of division in the labor movement today, nor are they a viable alternative to traditional unions. In spite of the National Labor Relations Act's subordination of minority rights to majority rule, the author determines that women and people of color in union-based identity caucuses …

Mr. Dooley And Mr. Gallup: Public Opinion And Constitutional Change In The 1930s, Barry Cushman

Journal Articles

Scholars interested in the development of political and constitutional culture during the 1930s sometimes draw inferences about popular preferences on various issues of social and economic policy from the results of presidential and congressional elections. A review of contemporary public opinion polls taken by George Gallup for the American Institute of Public Opinion and by Elmo Roper for the Fortune Magazine survey offers a more granular understanding of popular views on the public policy issues of the day. This article canvasses all of the public opinion polls taken by Gallup and Roper between 1935, when they began publishing their results, …

A Tale Of Three Statutes . . . (And One Industry): A Case Study On The Competitive Effects Of Regulation, Rafael Gely

Faculty Publications

The comparison of the three labor regulatory regimes raises an interesting counterexample to the traditional model of regulation. Instead of adopting a one-size-fits-all model, could a regulatory model be conceptualized where a menu of regulatory options is made available to the target population? Under such an approach those affected by the regulatory regime will choose among the various regulatory options and adopt those that better fit their particular situations. Part IV.B develops the basic parameters of this proposal. The article ends with a brief conclusion.

Good Faith: Balancing The Right To Manage With The Right To Represent, Suzanne Darrow-Kleinhaus

Scholarly Works

No abstract provided.

The Economic Case For Labor Standards: A Layman’S Guide, Thomas I. Palley

Richmond Journal of Global Law & Business

The place of labor standards in the global economy has figured prominently in recent discussions of trade and globalization. Labor standards figured prominently in the Seattle meeting of the World Trade Organization (WTO) in 1999, and they promise to figure prominently in discussions about a proposed Free Trade Area of Americas (FTAA). Labor standards represent a critical issue for both the American labor movement and the international trade union movement as they are central to making globalization work for working people.

Does Free Trade Cause Hunger? Hidden Implications Of The Ftaa, Jonathan B. Wight

Richmond Journal of Global Law & Business

This division of labour, from which so many advantages are derived, is not originally the effects of any human wisdom, which forsees and intends that general opulence to which it gives occasion. It is the necessary, though very slow and gradual consequence of a certain propensity in human nature which has in view no such extensive utility; the propensity to truck, barter, and exchange one thing for another.