Labor and Employment Law Commons^™

Free Labor Today, James G. Pope

Rutgers Law School (Newark) Faculty Papers

During the first half of the 20th Century, the period when all of the United States’ major workers’ rights statutes were enacted, the American labor movement claimed the rights to organize and strike under the Thirteenth Amendment to the U.S Constitution. Beginning in 1909, it was the official policy of the American Federation of Labor that a worker confronted with an unconstitutional injunction had an “imperative duty” to “refuse obedience and to take whatever consequences may ensue.” At a time when union institutions were as weak as they are today, every attack on workers’ rights was met with an impassioned …

Review Of 'Understanding Labor And Employment Law In China' By Ronald C. Brown, Nicholas C. Howson

Law & Economics Working Papers

Review of Ronald C. Brown's UNDERSTANDING LABOR AND EMPLOYMENT LAW IN CHINA (Cambridge University Press, 2010) which review describes an alternative way of describing and analyzing law and legal institutions in contemporary China generally, and labor law specifically.

The Evolving Schizophrenic Nature Of Labor Arbitration, Martin H. Malin

All Faculty Scholarship

No abstract provided.

The Canadian Auto Workers--Magna International 'Framework For Fairness' Agreement: A U.S. Perspective (Symposium), Martin H. Malin

All Faculty Scholarship

No abstract provided.

Solomon And Strikes: Labor Activity, The Contract Doctrine Of Impossibility Or Impracticability Of Performance, And Federal Labor Policy, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Show Me The Money The Applicability Of Contract Laws Ratification And Tenderback Doctrines To Title Vii Releases, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Leaving Maryland Workers Behind: A Comparison Of State Employee Leave Statutes, Michael Hayes

All Faculty Scholarship

Maryland law is not quite a blank slate for employee leave rights-but it is close. While the state forbids employers from terminating employees for job time lost for jury service or attending a court proceeding in response to a subpoena or pursuant to victim's rights laws, Maryland is one of a "select few" that does not require any breaks for adult workers, including time off for meals. Maryland law does not require family or medical leave for private sector workers. In fact, the state's most generous leave law stems from repealing antiquated "blue laws" that required businesses to be closed …

The Paradox Of Public Sector Labor Law, Martin H. Malin

All Faculty Scholarship

No abstract provided.

Of Labor Inspectors And Labors Judges: Chilean Labor Law Enforcement After Pinochet (And What The United States Can Do To Help) (Symposium), César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Pirates Of The Caribbean: The Seiu's Failed Bid In Puerto Rico, César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Privatizing Labor Law: Neutrality/Card Check Agreements And The Role Of The Arbitrator, Laura J. Cooper

Indiana Law Journal

William R. Stewart Lecture given at Indiana University School of Law-Bloomington on November 13, 2007.

Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat

All Faculty Scholarship

Labor arbitrators were presented with four cases to decide, each involving a challenge to discipline or discharge of an employee resulting from a work-family conflict. Arbitrators were randomly given versions of the cases in which the gender and one other characteristivc of the employee were varied. The results showed little evidence of direct gender bias in decision-making but did reflect bias against single parents and employees with eldercare, as opposed to childcare, responsibilities. Implications for other adjudicators, including judges, jurors and administrative agency officials are discussed.

Revisiting The Meltzer-Howlett Debate On External Law In Labor Arbitration: Is It Time For Courts To Declare Howlett The Winner?, Martin H. Malin

All Faculty Scholarship

No abstract provided.

Construing The National Labor Relations Act The Nlrb And Method Of Statutory Construction, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Captive Audience Meetings And Forced Listening: Lessons For Canada From The American Experience, Sara Slinn

Articles & Book Chapters

Widespread adoption of mandatory representation votes and express protection of employer speech invite employer anti-union campaigns during union organizing, including employer-held captive audience meetings. Therefore, the problem of whether and how to restrict employers’ captive audience communications during union organizing is of renewed relevance in Canada. Captive meetings are a long-standing feature of American labour relations. This article considers how treatment of captive meetings evolved in the U.S., including the notion of employee choice, the “marketplace of ideas” view of expression dominating the American debate, and the central role of the contest between constitutional and statutory rights. It also considers …

No Right (To Organize) Without A Remedy: Evidence And Consequences Of Failure To Provide Compensatory Remedies For Unfair Labour Practices In British Columbia, Sara Slinn

Articles & Book Chapters

Employees and unions encounter significant risks during union organizing and often see their efforts thwarted by employers. Labour law regimes attempt to minimize these risks by rendering unlawful a number of unfair labour practices (ULPs) employers can use to prevent unionization. But labour relations boards (LRBs) in Canada often avoid awarding full compensation for the harm ULPs cause, leading employers to still view ULPs as advantageous courses of action with only moderate associated costs.The author argues that this problem can be solved or greatly mitigated without the need for formal reforms, LRBs rather must come to embrace the full range …

The Inevitable Demise Of The Implied Employment Contract, Jonathan Fineman

Journal Publications

In this article, Professor Fineman argues that courts' decision in the early 1980s to apply implied contract doctrine to employment relationships did not have the intended results. Employers immediately began restructuring their employment documents, and eventually found a way to essentially avoid liability through careful drafting of personnel documents. Professor Fineman further argues that the failure of contract law was inevitable based on the limitations of contract theory. Finally, Professor Fineman suggests a method to more successfully enforce workplace norms by looking to broader-based norms prevalent in the industry or applicable to the type of job position at issue,

Hybrid Class Actions, Dual Certification, And Wage Law Enforcement In The Federal Courts, Andrew Brunsden

Articles & Chapters

Hybrid wage-and-hour class actions, which combine a Fair Labor Standards Act ("FLSA ') opt-in collective action and a Federal Rule of Civil Procedure Rule 23 opt-out class action in a single civil action, demonstrate the unusual interplay of opt-in and opt-out rules. The hybrid class action, and its viability as a mechanism for wage law enforcement, raises fundamental questions as to who participates in lawsuits, how we should hold employers accountable for wage-and-hour noncompliance, and the role of the federal courts in enforcing public rights. An opt-in rule tends to produce low participation rates, while an opt-out rule tends to …

Toward A Foundational Theory Of Workers' Rights: The Autonomous Dignified Worker, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Discrimination At Will: Job Security Protections And Equal Employment Opportunity In Conflict, Julie C. Suk

ExpressO

The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at …

Unfulfilled Expectations: An Empirical Analysis Of Why Sarbanes-Oxley Whistleblowers Rarely Win, Richard E. Moberly

ExpressO

Scholars praise the whistleblower protections of the Sarbanes-Oxley Act of 2002 as one of the most protective anti-retaliation provisions in the world. Yet, during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process. This Article reports the results of an empirical study of all Department of Labor Sarbanes-Oxley determinations during this time, consisting of over 700 separate decisions from administrative investigations and hearings. The results of this detailed analysis demonstrate that administrative decision-makers strictly construed, and in some cases …

The Solomon Amendment, Expressive Associations, And Public Employment, Paul Secunda

ExpressO

Rumsfeld v. FAIR apparently concedes that public employers, in the guise of public law school members of the FAIR association, have expressive association rights. This state of affairs could now mean that public employers could gain constitutional rights at the expense of pubic employees. Thus, to the extent that public employers are considered expressive associations, public employees may see their free speech and other constitutional rights diminished (even more so than they recently have been by the Garcetti v. Ceballos decision).

Thankfully, I cannot imagine that the Court, if faced with the question directly, would find that public employers have …

The New Direct Proximate Cause: How The U.S. Supreme Court Has Attempted To Limit Civil Rico In A Manner Congress Aimed To Protect, Gregory M. Zarin

ExpressO

This comment explores a heavily litigated issue since civil RICO's enactment - its unclear statutory scope and private party standing. To illustrate this issue, this comment explores recent RICO litigation related to the unlawful hiring of undocumented workers as an example of a Congressionally supported application of civil RICO, but in a manner wholly unrelated to organized crime or the mafia. While the Supreme Court has continued to limit civil RICO's outer boundaries, Congress seems to go the complete opposite direction by expanding the statute.

Myspace Isn't Your Space, Donald Carrington Davis

ExpressO

The advent and popularity of online social networking has changed the way Americans socialize. Employers have begun to tap into these online communities as a simple and inexpensive way to perform background checks on candidates. However, a number of problems arise and may arise when employers base adverse employment decisions on the results of these online searches. Three basic problems or issues accompany searches of online profiles for employment decisions: inaccurate, irrelevant, or false information leads to unfair employment decisions; lack of accountability and disclosure tempts employers to make illegal employment decisions; and employer searches of an employee’s online social …

Derecho Laboral Y Organización Sindical En Puerto Rico, César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Derechos Mancos Para Manos Obreras: Cómo El Derecho Laboral Y La Economía Impactan La Organización Sindical En Puerto Rico, César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Solidarity Or Colonialism? The Polemic Of "Labor Colonialism", César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Void Agreements, Knocked-Out Terms, And Blue Pencils: Judicial And Legislative Handling Of Unreasonable Terms In Noncompete Agreements, Kenneth R. Swift

ExpressO

This article adresses the divergent approaches currently taken by courts after finding an unreasonable term in an employer-employee noncompete agreement. The article begins by reviewing basic standards used to determine if the terms of a noncompete agreement are reasonable. The article then addresses and analyzes the three approaches used by courts after finding an unreasonable term: finding the agreement void in its entirety, using the "Blue Pencil" doctrine to eliminate unreasonable terms and enforce the remaining terms, and using the court's equitable powers to not only remove unreasonable terms, but to rewrite those terms to make them reasonable. The article …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Compulsory Labor In A National Emergency: Public Service Or Involuntary Servitude? The Case Of Crippled Ports, Michael H. Leroy

ExpressO

The 13th Amendment ban on involuntary servitude has new relevance as the U.S. grapples with national emergencies such as catastrophic hurricanes, flu pandemics, and terrorism. This Article considers work refusal and coerced work performance in life-threatening employment contexts. Overwhelmed by fear, hundreds of police officers and health care workers abandoned their jobs during Hurricane Katrina. Postal clerks worked against their will without masks in facilities with anthrax. A report by Congress worries that avian flu will cause sick and frightened medical personnel to stay away from work, thus jeopardizing a coherent response to a crisis.

How far can the U.S. …