Labor and Employment Law Commons^™

Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin

Publications

This Article provides an historically-rooted analysis of a recent spate of civil RICO complaints arising from labor union organizing campaigns. The Article historicizes contemporary civil RICO suits against labor unions by analogizing to nineteenth century conspiracy prosecutions of unions. In tracing this history of organized labor’s social standing, the Article addresses the cultural framing of the union and its place in political and cultural discourse over the past century. The civil RICO complaints have received limited scholarly attention mainly focusing on issues of federal preemption; this Article argues for a broad reading of the cases as a way to understand …

An Overview Of The U.S. Retirement Income Security System And The Principles And Values It Reflects, Kathryn L. Moore

Law Faculty Scholarly Articles

This article is designed to provide an overview of the U.S. retirement income security system from a comparative law perspective. Like many countries, the U.S. has a three tier pension or retirement income system, with the three tiers consisting of (1) Social Security, (2) employment-based pensions, and (3) individual savings. Thus, superficially, the U.S. retirement income security system resembles that of many around the world. Yet, in other ways, such as its focus on individual rights and responsibility, the U.S. system is unique.

The article begins by discussing the nine guiding principles of the U.S. Social Security system as identified …

Workplace Consequences Of Electronic Exhibitionism And Voyeurism, William A. Herbert

Publications and Research

The popularity of email, blogging and social networking raises important issues for employers, employees and labor unions. This article will explore contemporary workplace issues resulting from the related social phenomena of electronic exhibitionism and voyeurism. It will begin with a discussion of the international social phenomenon of individuals electronically distributing their personal thoughts, opinions, and activities to a potential worldwide audience while at the same time retaining a subjective sense of privacy. The temptation toward such exhibitionism has been substantially enhanced by the advent of Web 2.0. The article then turns to the legal implications of electronic voyeurism including employer …

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

Justice, Employment, And The Psychological Contract, Larry A. Dimatteo, Robert C. Bird, Jason A. Colquitt

UF Law Faculty Publications

The paper is a multidisciplinary collaboration between contract law, employment law and management scholars and draws from the fields of law, management, and psychology. After reviewing and noting the gaps in the employment and justice literatures, this paper presents the findings of a survey of 763 participants to measure whether certain variables—procedural and substantive fairness, as well as educating employees on the principle of employment at will—impact the propensities of employees to retaliate and litigate at the time of discharge.

The survey results are significant and striking. We find statistically significant reductions in retaliation and litigation rates when survey respondents …

Antidiscrimination Rights Of Contingent Workers In The United States, Hyun Joo Kang

Maurer Theses and Dissertations

Title VII of the Civil Rights Act of 1964 prohibits an employer's discriminatory employment practices against an employee on the basis of race, color, religion, gender, or national origin. Most contingent workers in the United States are faced with discriminatory employment practices, such as low wages and low or no benefits, and they are disproportionately women and minorities. Title VII is the focal point, but Title VII has not functioned as a remedy for contingent workers. This dissertation examines why contingent workers suffer discrimination, despite Title VII, and suggests possible solutions.

In the United States, the distinctive interpretation of laws …

State Of Maryland V. Louis Hyman: Did Progressivism, Concern For Public Health, And The Great Baltimore Fire Influence The Court Of Appeals?, Justin Haas

Legal History Publications

In the latter half of the nineteenth century, increased immigration from eastern Europe and a growing garment industry in Baltimore led to vast growth in so-called sweatshops: cramped workspaces in which clothing was partially or completely sewn for market. As the sweatshops grew, integrated clothing factories were also emerging, finally becoming a real force in the Baltimore garment industry around the turn of the twentieth century. As the integrated factories grew, the workers joined in the growing organized labor movement, and then began to push for greater protections for the health and safety of workers, as well as fair wages. …

Justice Sonia Sotomayor And The Relationship Between Leagues And Players: Insights And Implications, Michael Mccann

Law Faculty Scholarship

This Essay examines U.S. Supreme Court Justice Sonia Sotomayor’s important role in shaping U.S. sports law. As a judge on the U.S. District Court for the Southern District of New York and later on the U.S. Court of Appeals for the Second Circuit, Sotomayor authored opinions that resolved two major sports law disputes: whether Major League Baseball (“MLB”) owners could unilaterally impose new labor conditions on MLB players during the 1994 baseball strike and whether Ohio State University sophomore Maurice Clarett was obligated to wait three years from the completion of high school to become eligible for the National Football …

The Relative Bargaining Power Of Employers And Unions In The Global Information Age: A Comparative Analysis Of The United States And Japan, Kenneth G. Dau-Schmidt, Benjamin C. Ellis

Articles by Maurer Faculty

In this paper, we examine and compare the impact of American and Japanese labor law on the relative bargaining power of the labor and management within the context of the new global economy based on information technology. We begin by providing a simple economic definition of bargaining power and examining how it can be influenced by economic and legal factors. Next, we discuss the impact of new information technology and the global economy on the employment relationship and how this has decreased union bargaining power relative to management bargaining power. Finally, we compare various facets of American and Japanese labor …

People Are Not Bananas: How Immigration Differs From Trade, Jennifer Gordon

Faculty Scholarship

No abstract provided.

Three Transnational Discourses Of Labor Law In Domestic Reforms, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Current labor law debates, in the United States and elsewhere, reflect entrenched discursive positions that make potential reform seem impossible. This Article identifies and examines the three most influential positions, which it names the “social,” “the neoliberal,” and the “rights-based” approach. It shows that these discursive positions are truly transnational in character. In contrast with conventional wisdom, which accepts the incompatibility of these positions, this Article creates a conceptual framework that productively combines elements from each to enrich the debates over labor law reform and to foster institutional imagination. Applying this framework, the Article examines the collective bargaining systems of …

The Depression Era Sit-Down Strikes And The Limits Of Liberal Labor Law, Ahmed A. White

Publications

This paper explores the history of sit-down strikes from the New Deal Era and beyond and traces their influence on the substance of modern labor law. It argues that, even as the sit-down strikes proved essential to the development of a meaningful system of labor rights, the strikes also had a very different effect. As this paper undertakes to demonstrate, legal and political attacks on labor rights that were originally aimed at the sit-down strikes metastasized into a more general campaign to prohibit a range of militant strike practices, even those bearing little outward resemblance to the original sit-down strikes. …

Lessons From The Laboratory: The Polar Opposites On The Public Sector Labor Law Spectrum, Ann C. Hodges

Law Faculty Publications

Section I analyzes the legal framework and history of collective bargaining in Illinois, and Section II follows with a similar analysis for Virginia. Each section includes current data about public sector employees and union activity in the two states. Section III follows with a discussion of possible explanations for the differences in the law of the two states. Section IV looks at the lessons from this analysis for state and federal lawmakers, unions, employers, and labor relations advocacy groups.

What We Learn In Troubled Times: Deregulation And Safe Work In The New Economy, Susan Bisom-Rapp

Faculty Scholarship

Reviews of how federal agencies functioned during George W. Bush’s presidency reveal many instances of regulatory capture by industry. One prototypical example is the Occupational Safety and Health Administration (OSHA), the agency responsible for occupational safety and health (OSH) standard setting and enforcement. In contrast, a broad array of stakeholders during the Bush years gave good marks to an entirely separate agency, the National Institute for Occupational Safety and Health (NIOSH), which conducts research and develops recommendations to prevent workplace injury and illness. By reviewing the disparate performance of OSHA and NIOSH during the Bush administration, this article sheds light …

Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff

All Faculty Scholarship

This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on …

Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

Publications

It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five …

Taming The Employment Sharks: The Case For Regulating Profit-Driven Labor Market Intermediaries In High Mobility Labor Markets, Harris Freeman, George Gonos

Faculty Scholarship

Over the last quarter century, a profound restructuring of U.S. labor markets has occurred. Long-term job tenure, internal labor markets, and employer-sponsored benefits have waned under the pressures of neoliberal globalization. The trend is toward increasingly precarious, shorter-term, serial employment relationships that offer significantly lower wages, reduced job-related benefits, and formidable obstacles to the exercise of employment rights. This fundamental shift has moved so-called “non-standard” employment arrangements, once viewed as marginal, into the core economy. As a result, a remarkable array of profit-driven labor market intermediaries (LMIs) are now embedded in mainstream labor markets. Temporary help and staffing agencies, payrolling …

Workplace Electronic Privacy Protections Abroad: The Whole Wide World Is Watchin, William A. Herbert

Publications and Research

Legal and public policy ideas and concepts are known to traverse national borders. The rapidity of this multinational exchange of ideas has been substantially enhanced through the technological revolution over the past two decades. How a nation adopts or rejects particular ideas and concepts reflects on its particular history, culture and priorities. The establishment of legal protections for privacy against intrusions by governments, employers, companies and individuals represents a concept that has been adopted in different ways by other nations. This article will focus on how the European Union and certain Western countries have approached the issue of protecting individual …

The Impact Of Emerging Technologies In The Workplace: Who's Watching The Man (Who's Watching Me)?, William A. Herbert, Amelia Tuminaro

Publications and Research

This 2008 law review article examines the state of the law and regulation concerning the introduction of then new technologies in the workplace to track and monitor workers.

Economic Analysis Of Labor And Employment Law In The New Economy, Kenneth G. Dau-Schmidt, Alan Hyde, Michael Risch, Jagdeep Bhandari, Richard Block

Articles by Maurer Faculty

No abstract provided.

Days Without Immigrants: Analysis And Implications Of The Treatment Of Immigration Rallies Under The National Labor Relations Act, Michael C. Duff

All Faculty Scholarship

The massive immigration rallies of early 2006 were prompted by anticipated congressional action classifying all unauthorized workers as felons subject to immediate deportation. While a product of federal immigration policy, the rallies implicate federal labor law because they could be characterized as concerted employee action resulting in a series of work stoppages.

Some employees were discharged for missing work to attend the rallies, so an initial question is whether participation in the rallies is protected activity under the National Labor Relations Act. But even assuming the rallies were attended by unauthorized workers, those workers are undeniably employees within the meaning …

The Triangle Shirtwaist Factory Fire Trial, Douglas O. Linder

Faculty Works

It was a warm spring Saturday in New York City, March 25, 1911. On the top three floors of the ten-story Asch Building just off of Washington Square, employees of the Triangle Shirtwaist Factory began putting away their work as the 4:45 p.m. quitting time approached. Most of the several hundred Triangle Shirtwaist employees were teenage girls. Most were recent immigrants. Many spoke only a little English. Just then somebody on the eighth floor shouted, Fire! Flames leapt from discarded rags between the first and second rows of cutting tables in the hundred-foot-by-hundred-foot floor. Triangle employee William Bernstein grabbed pails …

Guiry V. Goldman, Sachs & Co., Adam B. Hahn

NYLS Law Review

No abstract provided.

The Future Of Labor Through The Prism Of Bankruptcy, G. Ray Warner, David L. Gregory

Faculty Publications

(Excerpt)

On Friday, September 28, 2008, St. John's University School of Law was very honored to host "The Future of Labor Through the Prism of Bankruptcy" Symposium. St. John's Institute of Bankruptcy Policy, the American Bankruptcy Institute Law Review, and the Labor Relations and Employment Society at the School of Law co-sponsored this landmark symposium.

Many of the structural changes in contemporary labor-management relationships emanate from the intersections of labor law and bankruptcy law. Many of the nation's major "legacy" industries—including, but not limited to, the unionized auto makers and many airlines—are compelling case studies. Indeed, only a few …

Reforming Mexico’S Labor Law For Independent Labor Unions, Mischa H. Karplus

ExpressO

Reforming Mexico’s Labor Law for Independent Labor Unions analyzes the legal difficulties Mexican independent labor unions face in establishing themselves and proposes a legislative solution. The methodology used examines the institutionalized behaviors of the administrative labor boards and businesses, which prevent the formation of independent labor unions. The discretion that Mexican labor law affords the labor boards and businesses explains, in large measure, the obstacles facing independent labor unions. Having analyzed the relevant legal framework this article proposes specific legislation to strengthen these independent labor unions. Within the context of a developing country, Reforming Mexico’s Labor Law for Independent Labor …

Charter Schools And Collective Bargaining: Compatible Marriage Or Illegitimate Relationship, Martin H. Malin, Charles Taylor Kerchner

ExpressO

The rapid increase in charter schools has been fueled by the view that traditional public schools have failed because of their monopoly on public education. Charter schools, freed from the bureaucratic regulation that dominates traditional public schools, are viewed as agents of change that will shock traditional public schools out of their complacency. Among the features of the failed status quo are teacher tenure, uniform salary grids and strict work rules, matters that teacher unions hold dear. Yet unions have begun organizing teacher in charter schools. This development prompts the question whether unionization and charter schools are compatible.

In contrast …

Don't Mourn --- Reorganize! An Introduction To The Next Wave Organizing Symposium Issue, Seth Harris

ExpressO

On January 27 and 28, 2005, New York Law School’s Labor & Employment Law Program, in cooperation with the Justice Action Center and the Institute for Information Law & Policy, presented the Next Wave Organizing Symposium. The Symposium brought together worker organizers, trade union officials, technologists, students, and scholars in law, industrial relations, economics, public policy, and other fields to tell the story of how, despite all of the forces arrayed against them, workers are organizing.

This article is the introduction to the Next Wave Organizing Symposium issue of the New York Law School Law Review. The purpose of the …

Information Disclosure And The Union Representation Election, Matthew T. Bodie

ExpressO

In its oversight of union representation elections, the National Labor Relations Board seeks to create “laboratory conditions” to determine “the uninhibited desires” of employees. Despite the Board’s intrusive regulation of union and employer campaign conduct, the Board does nothing to insure that employees get basic information relating to their decision. Given the flaws in the market for union representation, particularly with respect to conflicts of interest, the Board should take a more aggressive role in ensuring that employees get the information they need to make rational representation decisions. This Article proposes a new system of mandatory disclosure, modeled on disclosure …

Card Check Recognition: The Ongoing Legal And Legislative Battle, Michael E. Aleo

ExpressO

A great debate has been brewing for years over whether unions should be able to organize employees outside of the traditional election procedures provided by the National Labor Relations Act (“NLRA” or “the Act”). Typically, in an organizing drive, a union solicits support from employees to indicate a desire to run a National Labor Relations Board (“NLRB” or “Board”) election. The union does this by collecting cards from employees affirming the employees’ desire to have a representation election. If the union collects valid cards from at least one-third of eligible employees in the appropriate bargaining unit, the union may then …

Understanding The Unrest Of France’S Younger Workers: The Price Of American Ambivalence, Joseph Seiner

Faculty Publications

The youth of France refer to themselves as the “throwaway generation,” in part because they perceive that their value to the labor market is simply disregarded by the government. Against this backdrop, young French workers recently took to the streets in riot to protest a newly enacted employment law that stripped employees under the age of twenty-six of many of their employment protections. The protests persisted after the French Constitutional Council held that the law did not violate France's constitution. The continued violent opposition ultimately forced French President Jacques Chirac to abandon the law, resulting in an embarrassing defeat for …