Labor and Employment Law Commons^™

What Covid-19 Laid Bare: Adventures In Workers’ Compensation Causation, Michael C. Duff

All Faculty Scholarship

This essay performs a close analysis of workers’ compensation coverage of COVID-19 and arrives at the conclusion that it should not be “impossible” to prove in a legal sense that an employee’s COVID-19 was caused by work. Scientific proof is not the same as legal proof: workers’ compensation law has never required that claims must be supported by irrefutable scientific proof of workplace causation. Yet repeatedly one heard this suggestion during public discussion on workers’ compensation coverage of employees.

Still, there is good evidence that even when workers’ compensation undisputedly covers work-related disease employers seldom pay benefits (and states do …

Optimizing Whistleblowing, Usha Rodrigues

Scholarly Works

Whistleblowers have exposed misconduct in settings ranging from public health to national security. Whistleblowing thus consistently plays a vital role in safeguarding society. But how much whistleblowing is optimal? And how many meritless claims should we tolerate to reach that optimum? Surprisingly, legislators and scholars have overlooked these essential questions, a neglect that has resulted in undertheorized, stab-in-the-dark whistleblower regimes, risking both overdeterrence and underdeterrence.

This Article confronts the question of optimal whistleblowing in the context of financial fraud. Design choices, which play out along two axes, have profound effects on the successful implementation of whistleblowing policy. One axis varies …

#Metoo And The Process That's Due: Sexual Misconduct Where We Live, Work, And Learn, Nicole Buonocore Porter

Faculty Publications

The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of the confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the …

Disability Diversity And Identity Capitalism, Nicole Buonocore Porter

Faculty Publications

I first read Professor Nancy Leong’s compelling book Identity Capitalists: The Powerful Insiders Who Exploit Diversity to Maintain Inequality when I was asked to provide a pre-publishing peer review. I was equal parts captivated and troubled by the numerous examples of identity capitalism (and its counterpart, identity entrepreneurialism) that I had never thought about, and perhaps even acquiesced in.

[...]

But in all honesty, I was troubled after my initial review of the manuscript because I had the sense that Leong was suggesting that diversity itself is bad, or at least that concentrating on diversity is bad. Upon my review …

The Path To Employee Status For College Athletes Post-Alston, Tyler J. Murry

Vanderbilt Journal of Entertainment & Technology Law

College athletics are in a state of flux following the Supreme Court’s decision in NCAA v. Alston. While student athletes can now earn money from their name image and likeness (NIL) through endorsement deals, the NCAA and its member schools can still exploit college athletes to earn billions of dollars. To remedy this injustice, courts should classify student athletes as employees under the Federal Labor Standards Act (FLSA) to compensate these students for their work. Whether student athletes should be eligible for minimum wage and employment benefits has been a hot-button topic in the legal community for many years. Fortunately, …

Wage Recovery Funds, Elizabeth Ford

Faculty Articles

Wage theft is rampant in the US. It occurs so frequently because employers have much more power than workers. Worse, our main tool for preventing and remedying wage theft – charging government agencies with enforcing the law -- has largely failed to mitigate this power differential. Enforcement agencies, overburdened by the magnitude of the wage theft crisis, often settle cases for nothing more than wages owed. The agency, acting as broker for the payment of the wages owed, voluntarily foregoes both interest and statutory penalties. This is a bad deal for workers, but not just because they do not get …

Agents Of Inequality: Common Ownership And The Decline Of The American Worker, Zohar Goshen, Doron Levit

Faculty Scholarship

The last forty years have seen two major economic trends: wages have stalled despite rising productivity, and institutional investors have replaced retail shareholders as the predominant owners of the U.S. equity markets. A few powerful institutional investors — dubbed common owners — now hold large stakes in most U.S. corporations. And in no coincidence, when U.S. workers acquired this new set of bosses, their wages stopped growing while shareholder returns increased. This Article explains how common owners shift wealth from labor to capital, thereby exacerbating income inequality.

Powerful institutional investors pushing public corporations en masse to adopt strong corporate governance …

Cause For Concern Or Cause For Celebration?: Did Bostock V. Clayton County Establish A New Mixed Motive Theory For Title Vii Case And Make It Easier For Plaintiffs To Prove Discrimination Claims?, Terrence Cain

Seattle University Law Review

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against an employee “because of” race, color, religion, sex, or national origin. This seems simple enough, but if an employer makes an adverse employment decision partly for an impermissible reason and partly for a permissible reason, i.e., if the employer acts with a mixed motive, has the employer acted “because of” the impermissible reason? According to Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar, the answer is no. The Courts in Gross and Nassar held …

Improper Distinction Under The Ada Leads To An Irrational Outcome: Favoring One Life Over Another, Daniel Frederick Parise

Touro Law Review

Society has a distorted view of those battling addiction and essentially marks them with a sign of disgrace; however, what society may not fully understand is that addiction is a disability beyond the afflicted individual’s control. The National Survey on Drug Use and Health indicates that 19.7 million Americans have battled a substance use disorder in their life. Of the 19.7 million Americans who battled illicit substance use disorders, approximately seventy-four percent also struggled with alcohol use disorder.

Based on these statistics, it is clear that illicit drug use disorders are often interconnected with alcohol use disorders. However, Congress makes …

Safeguarding The Public: Why Workers’ Rights Education Should Be Required Learning For Nurses, Esperanza N. Sanchez

Touro Law Review

Nurses are integral to the delivery of quality health care in this country. They set aside their own needs and fears to provide care and other social services to people across a multitude of settings, taking on the burdens and stresses of others. However, our profit-driven health care system incentivizes employers to maximize productivity at reduced costs by asking nurses to do more with less. Nurses are expected to endure harsh working conditions, proven to be harmful to the nurses’ health and well-being, despite evidence showing that poor working conditions can lead to poor patient outcomes.

There are numerous worker …

The Americans With Disabilities Act Amendments Act: What About Reasonable Accommodation? Where Are We Now?, Teressa Elliott, Kathleen A. Carnes

Touro Law Review

The Americans with Disabilities Act Amendments Act (“ADAAA”) was passed in 2008 and became effective on January 1, 2009. There are issues regarding reasonable accommodation that have arisen in connection with this Act. This article first explains what changes were made to the ADA’s employment-related provisions with the ADAAA and also explains the relevant U.S. Supreme Court cases that led to passage of the ADAAA. Reasonable accommodation under the Act and reasonable accommodation cases are then discussed as well as the U.S. Airways v. Barnett case. We then end with ways to interpret these cases for guidance and the conclusion …

Leaving “Sex” Out Of It: Amending The Federal Arbitration Act To Ensure Bostock’S Victory For Lgbtq Employee Rights, Sheya Rivard

Roger Williams University Law Review

No abstract provided.

The Monetization Of Childhood: How Child Social Media Stars Are Unprotected From Exploitation In The United States, Jessica Pacht-Friedman

Cardozo Journal of Equal Rights & Social Justice

The note highlights the legal vulnerabilities of child social media influencers, or "kidfluencers," who are increasingly exploited due to inadequate protections under U.S. labor laws. The Fair Labor Standards Act (FLSA) exempts child performers, and while some states have Coogan Laws, these are insufficient to address the unique challenges posed by digital platforms like YouTube. The author advocates for expanding these protections to include social media stars and adopting a "Right to be Forgotten" to safeguard children's privacy and financial interests.

Equal Education Means Equal Education: Confronting Education Access Disparities For New York Students Amid The Covid-19 Pandemic During The 2020-2021 School Year, Sara Gruber

Cardozo Journal of Equal Rights & Social Justice

The COVID-19 pandemic exacerbated existing educational disparities, particularly affecting low-income and minority students in New York due to the shift to online learning. The state's current legislation, such as the Dignity for All Students Act, fails to address these off-campus digital divide issues, necessitating legal reform to ensure equal educational opportunities.

Don't Abolish Employee Noncompete Agreements, Alan J. Meese

Faculty Publications

For over three centuries, Anglo-American courts have assessed employee noncompete agreements under a Rule of Reason. Despite long-standing precedent, some now advocate banning all such agreements. These advocates contend that employers use superior bargaining power to impose such "contracts of adhesion," preventing employees from selling their labor to the highest bidder and reducing wages. Abolitionists also contend that such agreements cannot produce cognizable benefits and that employers could achieve any benefits via less restrictive alternatives without limiting employee autonomy.

This Article critiques the Abolitionist position. Arguments for banning noncompete agreements echo hostile critiques of other nonstandard contracts during antitrust law's …

Should Labor Abandon Its Capital? A Reply To Critics, David H. Webber

Faculty Scholarship

Several recent works have sharply criticized public pension funds and labor union funds (“labor’s capital”). These critiques come from both the left and right. Leftists criticize labor’s capital for undermining worker interests by funding financialization and the growth of Wall Street. Laissez-faire conservatives argue that pension underfunding threatens taxpayers. The left calls for pensions to be replaced by a larger social security system. The libertarian right calls for them to be smashed and scattered into individually-managed 401(k)s. I review this recent work, some of which is aimed at my book, The Rise of the Working-Class Shareholder: Labor’s Last Best Weapon, …

Outsourcing Enforcement, Desiree Leclercq

Scholarly Works

International organizations often outsource the enforcement of international law to their member states. The International Labor Organization (ILO), for instance, has neither its own adjudicative body nor an internal system of sanctions. Instead, the ILO’s maritime rules authorize states to impose costly retributive measures against noncompliant states. Conventional scholars are optimistic that these kinds of authorizations will strengthen otherwise toothless international law. During the COVID-19 pandemic, however, states neither followed nor enforced the ILO’s rules, harming hundreds of thousands of seafarers in the process.

Where has international law gone wrong? Challenging the conventional view, this Article unearths the state-centric drawbacks …

The Commodification Of Public Land Records, Reid Kress Weisbord, Stewart E. Sterk

Articles

The United States deed recording system alters the “first in time, first in right” doctrine to enable good faith purchasers to record their deeds to protect themselves against prior unrecorded conveyances and to provide constructive notice of their interests to potential subsequent purchasers. Constructive notice, however, works only when land records are available for public inspection, a practice that had long proved uncontroversial. For centuries, deed archives were almost exclusively patronized by land-transacting parties because the difficulty and cost of title examination deterred nearly everyone else.

The modern information economy, however, propelled this staid corner of property law into a …

Escaping The Allure Of Joint Employment: Using Fault-Based Principles To Impose Liability For The Denial Of Employee Statutory Rights, Michael C. Harper

Faculty Scholarship

Using joint employment alone to impose liability requires an extension of the strict imputed liability theory embodied in respondeat superior. Employers, including incorporated businesses, under the common law are strictly liable for harms to their employees, as they are for harm to third parties, because of actions of their agents or other employees taken within the scope of their employment. The liability is strict because it does not depend on a finding that the employer, the principal, was negligent or otherwise at fault. Expanding liability through joint employment, even if based on a demonstration of joint control of statutorily protected …

But We Didn’T Agree To That!: Why Class Proceedings Should Not Be Implied From Silent Or Ambiguous Arbitration Clauses After Lamps Plus, Inc. V. Varela, Andrea Demelo Laprade

Catholic University Law Review

The application of class arbitrability when a contract is silent on the matter remains a mystery. The Supreme Court has not clarified its stance on class arbitrability and preemptive effects of the Federal Arbitration Act on state law when applied to determine if class arbitrability is available. The purpose of this Paper is to address how the Lamps Plus v. Varela decision created more confusion about the question of class arbitrability. It argues that the failure to address the particulars of the availability of class arbitration will perpetuate litigation on this issue. This Paper suggests that the FAA’s purpose supports …

Enhancing Healthcare Professional Practice In The Philippines Toward Asean Integration Through The Continuing Professional Development Law, Kevin T. Crispino, Ian Christopher N. Rocha

ASEAN Journal of Community Engagement

The Republic Act 10912, otherwise known as the Continuing Professional Development (CPD) Act of 2016, was passed into law to promote and upgrade the practice of healthcare professions in the Philippines. Since the establishment of the Association of Southeast Asian Nations (ASEAN) Economic Community (AEC), CPD has been considered an area of development through which Filipino professionals are trained to become globally competitive. The Philippine government upholds several agreements made among ASEAN member-states, including recognizing professionals in every ASEAN country, facilitating the mobility of professions within the region, exchanging expertise on standards and qualifications, promoting best practices, and providing valuable …

Compelled Unionism In The Private Sector After Janus: Why Unions Should Not Profit From Dissenting Employees, Giovanna Bonafede

Catholic University Law Review

This Note examines the impact of the 2018 landmark labor law case Janus v. AFSCME. Janus held it unconstitutional under the First Amendment to require public sector employees to pay fees to a union to which they are not a member. The Supreme Court based their decision on the idea that compelling public employees to subsidize union speech to which they disagreed violated their free speech rights. The author argues that the Court’s holding in Janus should be extended to protect the free speech rights of private sector employees through a finding of state action in the private unionized …

A Trip Through Employment Law: Protecting Therapeutic Psilocybin Users In The Workplace, Benjamin Sheppard

Journal of Law and Health

In 2020, Oregon voters legalized therapeutic psilocybin in response to a plethora of scientific studies showing symptom reduction for depression, anxiety, substance use disorders, opioid addictions, migraines, other mental illnesses, HIV/AIDS, and cancer. The legal rethinking regarding therapeutic psilocybin continues in both state legislatures and city councils. Yet, despite state and local legalization or decriminalization of therapeutic psilocybin it remains illegal under the federal Controlled Substances Act. This tension between local and federal law places therapeutic psilocybin users and their employers in a difficult position. Because all types of psilocybin use remain illegal under federal law, a zero-tolerance drug use …

“The New Pinkertons”: Anti-Union Consultants And Surveillance Tech Thwart Organizing, Jo Constantz

Capstones

In 2020, just 6.3% of U.S. private-sector workers were union members, despite the fact that 68% of Americans approve of labor unions, the highest since 1965, and nearly half of non-union workers say they would join.

After World War II, wage growth kept pace with GDP growth, but then began to diverge in the 1970s, according to a study by the RAND Corporation. After 1975, incomes of the bottom 90% rose more slowly than the economy as a whole, while incomes of the top 10% grew faster. The declining wage growth coincided with and is closely related to a drop-off …

Political Equality And First Amendment Challenges To Labor Law, Luke Taylor

University of Cincinnati Law Review

This Article conceptualizes a novel basis for defending laws that strengthen labor unions from First Amendment challenge: the argument that these laws are adequately tailored to advancing a compelling state interest in reducing economic inequality’s transmission into political inequality. The Article makes two principal contributions. First, it updates criticisms of the Supreme Court’s campaign finance decisions’ rejection of any compelling interest sounding in political equality. The Article does so by bringing recent constitutional scholarship to bear on that criticism and by explaining how recent improvements in social scientists’ ability to track different economic brackets’ political influence call for the Court …

Comment On Proposed Regulation: Prudence And Loyalty In Selecting Plan Investments And Exercising Shareholder Rights, David H. Webber

Shorter Faculty Works

In my view, while it is a significant improvement over its predecessor, the proposed rule’s persistent relegation of job creation/preservation to the status of mere “collateral benefit” is a mistake and undermines ERISA’s duty of loyalty. In reality, job creation and preservation are inextricably linked to fund financial health. Relegating that fact to a mere collateral benefit means trustees fail to consider the effect on a pension of investing in projects that eliminate the jobs of the fund’s own participants, or ignore the benefit of creating new jobs and thereby new pension contributors. This runs counter to President Biden’s executive …

Chambers V. District Of Columbia And The Future Of Title Vii, Andrew Melzer, Alok Nadig, Lindsay Marum

SLU Law Journal Online

Can blatant workplace discrimination escape the grasp of Title VII? In Chambers v. District of Columbia, the D.C. Circuit is considering whether to revisit a rule that employment discrimination must result in “objectively tangible harm” to give rise to a Title VII claim. In this article, the authors argue that the D.C. Circuit should stay true to the language and purpose of Title VII and adopt a standard similar to the simple “treated less well” test used under the NYC Human Rights Law.

Religiously Motivated Conduct And The Reasonable Accommodation Requirement Under Title Vii: A New Framework For Analysis, Robin Knauer Maril

Villanova Law Review (1956 - )

No abstract provided.

Workplace Dispute Resolution In Ireland At A Crossroads: Challenges And Opportunities, Brian M. Barry Dr

Articles

The Workplace Relations Act 2015 fundamentally reformed the workplace dispute resolution system in Ireland–the centrepiece being the Workplace Relations Commission, the new body for first-instance dispute resolution. While the overall system is an improvement on its overly-complex and confusing predecessor, the Supreme Court’s decision in Zalewski v An Adjudication Officer declaring aspects of adjudication at the WRC unconstitutional, coupled with user representatives’ persistent concerns about how adjudication is conducted, present ongoing challenges.

This article describes the results of a survey undertaken in 2019 by the author of over one hundred representatives’ views on the system, and contextualises them in light …

“Community Guidelines”: The Legal Implications Of Workplace Conditions For Internet Content Moderators, Anna Drootin

Fordham Law Review

Content moderation is the internet’s not-so-secret, dirty little secret. Content moderators are working around the world, and around the clock, to scrub the internet of horrific content. Most moderators work for low pay and with little or no health care benefits. The content they are exposed to leaves them vulnerable to a number of different mental health issues, including post-traumatic stress disorder. Their work is often hidden from users and is de-emphasized by the technology industry. This Note explores potential solutions to the labor and employment issues inherent in content moderation work and suggests that there could be a path …