Labor and Employment Law Commons^™

Mopping Up The Mess: A Call To Adopt The Seventh Circuit’S Standard For Assessing Comparator Evidence In Title Vii Discrimination Claims, Alexander S. Edmonds

Georgia Law Review

In McDonnell Douglas Corp. v. Green, the U.S. Supreme
Court developed a framework to assist courts in assessing
individual disparate treatment claims based on
circumstantial evidence. Under that test, plaintiffs alleging
discrimination under Title VII must first show a prima facie
case of discrimination. Since McDonnell Douglas, courts have
modified the test by requiring plaintiffs to demonstrate that
they were treated less favorably than a similarly situated
comparator employee who is outside the plaintiff’s protected
class. Courts disagree, however, on what it means for
employees to be similarly situated. Some courts strictly
interpret the similarly situated requirement; others caution
against …

Covid-19 And The Caregiving Crisis: The Rights Of Our Nation's Social Safety Net And A Doorway To Reform, Leanne Fuith, Susan Trombley

Faculty Scholarship

In March 2020, the United States declared a pandemic due to the global Covid-19 virus. Across the nation and within a matter of days, workplaces, schools, childcare, and eldercare facilities shuttered. People retreated to their homes to shelter-in-place and slow the spread of the virus for what would become a much longer time than most initially anticipated. Now, more than a year into the pandemic, many professional and personal lives have been upended and become inextricably intertwined. Work is now home, and home is now work. Work is completed at all times of day and well into the night. Children …

Caremark And Esg, Perfect Together: A Practical Approach To Implementing An Integrated, Efficient, And Effective Caremark And Eesg Strategy, Leo E. Strine Jr., Kirby M. Smith, Reilly S. Steel

Ira M. Millstein Center for Global Markets and Corporate Ownership

With increased calls from investors, legislators, and academics for corporations to consider employee, environmental, social, and governance factors (“EESG”) when making decisions, boards and managers are struggling to situate EESG within their existing reporting and organizational structures. Building on an emerging literature connecting EESG with corporate compliance, this Essay argues that EESG is best understood as an extension of the board’s duty to implement and monitor a compliance program under Caremark. If a company decides to do more than the legal minimum, it will simultaneously satisfy legitimate demands for strong EESG programs and promote compliance with the law. Building on …

Toward Fair Gainsharing And A Quality Workplace For Employees: How A Reconceived Compensation Committee Might Help Make Corporations More Responsible Employers And Restore Faith In American Capitalism, Leo E. Strine Jr., Kirby M. Smith

Ira M. Millstein Center for Global Markets and Corporate Ownership

In the three decades after World War II, workers and stockholders shared equitably in the nation’s growing wealth. But over the last several decades, this fair gainsharing has diminished as the power of the stock market, in the form of institutional investors, has grown as the comparative voice and leverage of workers has declined. As a result of these and other factors, a much greater share of the gains from increased corporate profitability and productivity has gone to stockholders and top management, on the one hand, and much less to employees, on the other. Contributing to this divide has been …

The Human Capital Management Movement In U.S. Corporate Law, George S. Georgiev

Faculty Articles

Corporations cannot exist without workers, yet workers are not part of the formal or informal governance structures established by U.S. corporate law. Commentators and policymakers have bemoaned this state of affairs for decades, to little avail. Since the mid-2010s, however, a concept related to workers, human capital management (HCM), has become an increasingly prominent part of U.S. corporate governance. HCM is premised on the notion that workers can be viewed as “assets” and ought to be managed just as carefully as firms manage physical and capital assets. In practice, HCM is an expansive concept that has been used to refer …

Wearing My Crown To Work: The Crown Act As A Solution To Shortcomings Of Title Vii For Hair Discrimination In The Workplace, Margaret Goodman

Touro Law Review

No abstract provided.

Qualified Does Not Mean Over Qualified: The Ada’S Accommodation Of Last Resort Should Not Be A Competition!, Dana Ortiz-Tulla

Touro Law Review

No abstract provided.

The Evolution Of Gender Equity From A Marxist And Existentialist Perspective, Alexandria Lopez

Journal of Race, Gender, and Ethnicity

No abstract provided.

Aligned: Sex Workers’ Lessons For The Gig Economy, Yvette Butler

Articles by Maurer Faculty

Society’s perception of a type of work and the people who engage in money-generating activities has an impact on whether and how the law protects (or does not protect) the people who perform those activities. Work can be legitimized or delegitimized. Workers are protected or left out to dry depending upon their particular “hustle.” This Article argues that gig workers and sex workers face similar challenges within the legal system and that these groups can and should collaborate to their collective advantage when seeking reforms. Gig workers have been gaining legitimacy while sex workers still primarily operate in the shadow …

Forgotten On The Frontlines: The Plight Of Direct Care Workers During Covid-19, John D. Blum, Shawn R. Mathis

Faculty Publications & Other Works

No abstract provided.

The Supreme Court’S Worst Decision In Recent Years – Garcetti V. Ceballos, The Dred Scott Decision For Public Employees, David L. Hudson Jr.

Mitchell Hamline Law Review

No abstract provided.

Navigating The Legal Challenges Of Covid-19 Vaccine Policies In Private Employment: School Vaccination Laws Provide A Roadmap, Pamela Abbate-Dattilo

Mitchell Hamline Law Review

No abstract provided.

The Human Right To Workplace Safety In A Pandemic, Ruben J. Garcia

Scholarly Works

The COVID-19 pandemic has presented unique challenges for immigrant workers many of whom occupy jobs most at risk in the pandemic: heath care, janitorial services, and mass transit. This Article encourages the extension of human rights instruments protecting health and safety in the workplace to all workers, particularly immigrant workers. Garcia analyzes the options available for workers who confront unsafe working conditions under existing law. Expanding the language of “human right” will allow for greater scrutiny of actions taken by the government and employers. Garcia encourages statutory changes to OSHA and the NRLA, test cases, filing complaints under trade agreements, …

The Sexual Harassment Loophole, Keith Cunningham-Parmeter

Washington and Lee Law Review

Employers rarely pay for sexual harassment. The #MeToo movement has not changed this legal reality. Title VII of the Civil Rights Act of 1964—the nation’s primary workplace antidiscrimination law—contains a harassment loophole. Harassment is the only kind of Title VII violation that allows employers to avoid liability if they offer training and reporting opportunities to workers. In contrast, employers must automatically pay for all other Title VII claims such as discriminatory firings, even when firms have trained their employees not to discriminate. This Article makes the case for closing the loophole by aligning harassment liability with other Title VII offenses …

Exploring Sectoral Solutions For Digital Workers: The Status Of The Artist Act Approach, Sara Slinn

Articles & Book Chapters

Digital workers have not had significant success in securing conventional forms of collective workplace representation, particularly statutory collective bargaining. This article examines an established sectoral bargaining statute, the Status of the Artist Act (SOA), as a possible model for collective bargaining legislation that is better suited to regulating digital work than the Wagner Act model (WAM) of labor legislation. Key features of the WAM labor legislation pose significant barriers for digital worker organizing. First, the necessity for applicant unions to demonstrate a threshold level of support among workers requires applicants to accurately estimate the number of workers in the proposed …

Flawed By Design?: A Case Study Of Federal Enforcement Of Migrant Workers’ Labour Rights In Canada, Sarah Marsden, Eric Tucker, Leah F. Vosko

Articles & Book Chapters

Although Canada's migrant labour programs are seen by some as models of best practices, rights shortfalls and exploitation of workers are well documented. Through migration policy, federal authorities determine who can hire migrant workers and the conditions under which they are employed, through the provision of work permits. Despite its authority over work permits, the federal government has historically had little to do with the regulation of working conditions. In 2015, the federal government introduced a new regulatory enforcement system -unique internationally for its attempt to enforce migrants' workplace rights through federal migration policy -under which employers must …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Pocketbook Next Time: From Civil Rights To Market Power In The Latinx Community, Rachel F. Moran

American University Law Review

The United States is undergoing a demographic transformation. Nearly one in five Americans already is Latinx, and the United States Census Bureau projects that by 2060, nearly one in three will be. Latinx will substantially outnumber every other historically underrepresented racial and ethnic minority group, and non-Hispanic whites no longer will be a majority. Those changes have unsettled traditional approaches to full inclusion.

Civil rights activists have suffered numerous setbacks, and the burgeoning Latinx population is searching for other paths to belonging. Some leaders have turned to growing Latinx market power to demand recognition and equal opportunity. These efforts rely …

Beyond Sex-Plus: Acknowledging Black Women In Employment Law And Policy, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

It has been more than 30 years since Kimberlé Crenshaw published her pathbreaking article critiquing the inadequacy of antidiscrimination law in addressing claims at the intersection of race and sex discrimination. This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. The new status quo has not resolved the problems that she documented, and has introduced a set of second generation intersectionality issues. Most significantly, many courts now recognize that Black women experience discrimination differently than do white women or Black men. Yet, despite the professionally and …

City Of Cranston V. International Brotherhood Of Police Officers, Local 301, 230 A.3d 564 (R.I. 2020), Jordan Z. Sasa

Roger Williams University Law Review

No abstract provided.

The Lost Approach To Flsa Settlement Agreements: A Freedom-Of-Contract Approach, Madison G. Conkel

Georgia Law Review

In jurisdictions that require judicial oversight of Fair Labor
Standards Act settlement agreements, a question lingers: What
exactly should judges review? Some judges have begun
categorically striking confidentiality provisions from
settlement agreements by pointing to the purposes and goals of
the FLSA. The academic community lauds these courts’ efforts
to prevent employers from mandating employees’ silence about
the terms of their settlement agreements. This Note, however,
makes the counterargument: confidentiality provisions should
be permitted in FLSA settlements agreements as a bargaining
chip for employees who bring individual suits. If higher courts
in a given jurisdiction require judicial oversight of these …

Law, Labor, And The Hard Edge Of Progressivism: The Legal Repression Of Radical Unionism And The American Labor Movement's Long Decline, Ahmed White

Publications

No abstract provided.

Proving Discrimination By The Text, Deborah Widiss

Articles by Maurer Faculty

Employment discrimination laws make the “simple but momentous” declaration that it is illegal to deny employment on the basis of race, sex, religion, or other key aspects of identity. But when employees who have been treated unfairly turn to the courts for relief, courts rarely assess whether their claims meet the statutory standard. Instead, they funnel the evidence through a convoluted body of judge-made law known as McDonnell Douglas burden shifting.

This Article lays bare fundamental inconsistencies between the statutes’ causal language, as definitively interpreted by the Supreme Court in recent cases, and the burden-shifting process. In Bostock v. Clayton …

Workplace Violence, Firearm Prohibitions, And The New Gun Rights, Dru Stevenson

University of San Francisco Law Review

No abstract provided.

Robust Unionism As A Compelling Interest: Evaluating The Exacting Policies Of Janus, Seth Santini

University of San Francisco Law Review

No abstract provided.

Challenges For Black Workers After 2020: Antiracism In The Gig Economy?, Michael C. Duff

All Faculty Scholarship

Black workers’ fortunes in the coming decades are tied to the expansion of the Gig economy, the impact of which is to destroy employee status. Because much antiracism law and policy has been transmitted to society through the medium of employment law, the disappearance of employee status should be of concern to all foes of racism. This short essay argues that Section 1981 of the Civil Rights Act of 1866 should be expanded to cover all forms of racist workplace conduct. Regulatory arbitrage will continue to challenge the definition of employment for the foreseeable future. It is fitting that one …

Scorched Border Litigation, Briana Beltran, Beth Lyon, Nan Schivone

Cornell Law Faculty Publications

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from …

Lost And Found: Reuniting Missing Participants And Lost Pensions, Kathryn L. Moore

Law Faculty Books and Chapters

In the United States, the problem of missing participants and lost pensions is huge. Although there is no precise estimate of the size of the problem, the PBGC reports that more than 80,000 workers have unclaimed pensions worth more than $300 million and Terry Dunne of Millennium Trust Company has made “an educated guess based on government and industry data that more than 900,000 workers lose track of 401k-style, defined-contribution plans each year.” Anecdotally, Kyle Garrett posted on July 8, 2020, that in his 15 years at the Pension Rights Center, the most frequent question he has received from callers …

Workplace Diversity, Equity, And Inclusion Programs: Inclusive Environments And Diversity Promotion Programs, Zachary Mccoy

University of San Francisco Law Review

No abstract provided.

Restorative Approaches To Intimate Partner Violence And Sexual Harm, Donna Coker (Ed.)

Articles

No abstract provided.