Labor and Employment Law Commons^™

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 …

The Growth Of Vancouver As An Innovation Hub: Challenges And Opportunities, Camden Hutchison, Li-Wen Lin

All Faculty Publications

This article assesses the development of Vancouver as an entrepreneurial region. Using data collected from commercial startup databases, we find that Vancouver produces more startups and receives more venture capital financing per capita than any other major Canadian city. However, we also find that Vancouver lags many U.S. cities on these same metrics. In light of our empirical findings, we explore whether differences in entrepreneurial activity between Canada and the United States are due to differences in the countries’ legal environments. We conclude that legal differences do not explain observed economic disparities, and that differences in entrepreneurial activity are due …

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.

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.

If You Build It, Will They Come? An Empirical Study Of The Voluntary Use Of Mediation And Its Implications, Dwight Golann

Cardozo Journal of Conflict Resolution

A generation ago, American litigants did not often go to mediation voluntarily. Advocates of the process predicted, however, that as lawyers and parties became more familiar with mediation, they would opt to use it more often. But, is this true? Virtually no data exists about how often litigants voluntarily choose to mediate legal disputes, whether use varies in different kinds of cases, and what motivates litigants' decisions whether to mediate or not. This Article presents data about each of these issues and analyzes its meaning.

The Use Of Mediation To Resolve Conflicts Arising From Cultural Appropriation By Western Fashion Brands, Faith Adongo

Cardozo Journal of Conflict Resolution

The Cambridge Dictionary defines cultural appropriation as "the act of taking or using things from a culture that is not your own, especially without showing that you understand or respect this culture." It is sometimes referred to as cultural misappropriation, and also defined as taking intellectual property, traditional knowledge, cultural expressions, or artifacts from a culture other than one's own, without permission. Supporters of cultural appropriation see it as the only realistic way of developing, spreading and integrating cultures, while critics see it as a means through which dominant cultures "borrow" from the cultures of minority groups.

Artificial Intelligence And The Challenges Of Workplace Discrimination And Privacy, Pauline Kim, Matthew T. Bodie

Scholarship@WashULaw

Employers are increasingly relying on artificially intelligent (AI) systems to recruit, select, and manage their workforces, raising fears that these systems may subject workers to discriminatory, invasive, or otherwise unfair treatment. This article reviews those concerns and provides an overview of how current laws may apply, focusing on two particular problems: discrimination on the basis of protected characteristics like race, sex, or disability, and the invasion of workers’ privacy engendered by workplace AI systems. It discusses the ways in which relying on AI to make personnel decisions can produce discriminatory outcomes and how current law might apply. It then explores …

Let's Get Serious - The Clear Case For Compensating The Student Athlete - By The Numbers - A University Of Michigan Athletic Program Case Study, Neal Newman

Faculty Scholarship

Should college athletes be compensated for their play and if so, how? The first question has been a debate for some time now. But the second question—the “how”—not so much. This writing addresses both questions in depth. With the Ed O’Bannon case that was decided back in August of 2014 and the palaver the Northwestern football team raised in their efforts to unionize, it is acknowledged that the discussions on this issue may have reached its crescendo years ago. That is until now. On September 27, 2019, Gavin Newsom, the Governor of California, signed into law Senate Bill 206. Senate …

Proposition 22: A Vote On Gig Worker Status In California, Miriam A. Cherry

Faculty Publications

(Excerpt)

In the shadow of the 2020 United States Presidential election, an important vote was also taking place about the employment status of gig workers. In 2019, the California Legislature had enacted AB5, a bill that expanded the definition of “employees” to include workers in the on-demand economy. In response, gig platforms like Uber, Lyft, and Postmates backed a direct ballot initiative, California’s Proposition 22, which asked voters to undo the work of the Legislature. Gig workers would be reclassified as independent contractors, but they would also receive certain benefits, including, among others, the ability to sue for discrimination under …

Peace Of Play: For Labor Harmony, Baseball Needs Antitrust Exemption To Go And Salary Cap To Stay, Joshua Burton

Cardozo Arts & Entertainment Law Journal

The note argues that Major League Baseball (MLB) can address its labor disputes, competitive imbalances, and economic challenges by revoking its antiquated antitrust exemption and implementing a salary cap and floor system. These reforms would promote fairness, incentivize competitive spending, and prevent future work stoppages, aligning MLB's economic structure with other major sports leagues.

Certifying Second Chances, Cara Suvall

Vanderbilt Law School Faculty Publications

Policymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences-invisible punishments that inhibit opportunity in all facets of a person's life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than 150 laws targeting collateral consequences in 2019 alone.

But what happens when these paths to second chances are littered with learning, compliance, and psychological costs? The people who most need these new opportunities may find that they are out …

Employment Practices Liability Insurance And Ex Post Moral Hazard, Joni Hersch, Erin E. Meyers

Vanderbilt Law School Faculty Publications

Many businesses purchase Employment Practices Liability Insurance (EPLI), a form of insurance that protects them from claims of discrimination, harassment, retaliation, and wrongful termination. But critics of EPLI argue that allowing insurance coverage for employment liability detracts from employment law's goal of deterrence and from notions of justice. We assess the validity of these criticisms by examining the nature of employment law claims and by reviewing characteristics of the current EPLI market. We find that past critiques miss the mark in diagnosing EPLI's major problem.

The EPLI market, for the most part, functions in a way that poses little to …

Is Labor Arbitration Lawless?, Paige M. Skiba, Ariana R. Levinson, Erin O'Hara O'Connor

Vanderbilt Law School Faculty Publications

Labor arbitration is often viewed as a more peaceful, productive, and private alternative to workplace strikes and violence. On the other hand, statutory laws are intended to protect all workers, and contract law default rules and rules of interpretation often serve a protective role that could be harmful if ignored in this private dispute resolution setting. To provide more insight into how arbitrators decide labor disputes, we utilize our newly crafted data set of hundreds of labor arbitration awards spanning a decade. Unlike prior data sets, our data are more inclusive: they include both published and unpublished awards as well …

Researching Colorado Employment Law, Jill Sturgeon

Publications

No abstract provided.

The Rule Of Technology: How Technology Is Used To Disturb Basic Labor Law Protections, Tammy Katsabian

Lewis & Clark Law Review

Much has been written on technology and the law. Leading scholars are occupied with the power dynamics between capital, technology, and the law, along with their implications for society and human rights. Alongside that, various labor law scholars focus on the implications of smart technology on employees’ rights throughout the recruitment and employment periods and on workers’ status and rights in the growing phenomenon of platform-based work. This Article aims to contribute to the current scholarship by zooming out and observing from a bird’s-eye view how certain actors use technology to manipulate and challenge basic legal categories in labor today. …

The Secrets Behind Reality Television Shows And Their Unconscionable Contracts, Stephanie Rimberg

Cardozo Arts & Entertainment Law Journal

The note argues that reality television show contracts are often unconscionable due to the significant imbalance of power between producers and participants. These contracts frequently classify participants as independent contractors, despite their integral role in the show, and include provisions that are procedurally and substantively unfair, such as disclaimers of liability and arbitration clauses. The author contends that these contracts violate California contract law and public policy, advocating for participants to be reclassified as employees and for contracts to be amended to protect their rights.

Ending At-Will Employment: A Guide For Just Cause Reform, Kate Andrias, Alexander Hertel-Fernandez

Faculty Scholarship

In the United States, the vast majority of private-sector employers have free rein to discipline or fire workers for good reasons (for harassing other workers), bad reasons (a personal dislike of the worker or a worker’s off-duty activities), or even no reason at all so long as the employers’ justification is not otherwise barred by law. And even if a worker suspects they have been fired for an illegal reason – for instance, because of their race, ethnicity, or gender – the burden is on the worker, not the employer, to collect the necessary evidence, prove discriminatory intent, and mount …

Nestlé United States, Inc. V. Doe. 141 S. Ct. 1931 (2021), Desiree Leclercq

Scholarly Works

On June 17, 2021, the United States Supreme Court reversed and remanded a suit filed against Nestlé USA and Cargill under the Alien Tort Statute (ATS) 1 for lack of jurisdiction. This case has already garnered attention over the nature of the dispute (child slaves in Africa), the Supreme Court’s treatment of jurisdiction under the ATS, and the finding shared by five of the nine Supreme Court justices that domestic corporations can potentially be sued under the ATS. This analysis focuses on the child slavery and global supply chain aspects of the decision.

The Disparate Treatment Of Rights In Trade, Desiree Leclercq

Scholarly Works

Rights advocates are increasingly urging U.S. trade negotiators to include new binding and sanctionable provisions that would protect human rights, women’s rights, and gender equality. Their efforts are understandable. Trade agreements have significant advantages as a process for advancing global rights. Even though Congress and the Executive incorporate global environmental standards and labor rights in U.S. trade agreements, they have refused to incorporate gender rights and broader human rights. The rationale behind the United States’ disparate treatment of rights in trade has received almost no scholarly attention. That is a mistake.

Using labor rights as a case study, this Article …

Colpitts V. W.B. Mason Co., Inc., 227 A.3d 996 (R.I. 2020), Chad Oliver Stroum

Roger Williams University Law Review

No abstract provided.

Policy Forum: Non-Standard Employment And Canada’S Initial Pandemic Response, Wei Cui

All Faculty Publications

Despite public attention to gig workers and their potential mis-classification as independent contractors, much flexible work already takes place in the sphere of formal employment. The impact of the COVID-19 pandemic on the labour market suggests that non-standard employees may be even more vulnerable than the self-employed. This article suggests that traditional employment insurance and related programs inadequately serve flexible employees, and policies targeted at the intensive margins of employment are needed to help precarious workers.

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 …

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.

Wage Theft Criminalization, Benjamin Levin

Scholarship@WashULaw

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes …

Ai And Inequality, Pauline Kim

Scholarship@WashULaw

This Chapter examines the social consequences of artificial intelligence (AI) when it is used to make predictions about people in contexts like employment, housing and criminal law enforcement. Observers have noted the potential for erroneous or arbitrary decisions about individuals; however, the growing use of predictive AI also threatens broader social harms. In particular, these technologies risk increasing inequality by reproducing or exacerbating the marginalization of historically disadvantaged groups, and by reinforcing power hierarchies that contribute to economic inequality. Using the employment context as the primary example, this Chapter explains how AI-powered tools that are used to recruit, hire and …

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 …

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 …

The “Ultimate” Question: Are Ultimate Employment Decisions Required To Succeed On A Discrimination Claim Under Section 703(A) Of Title Vii?, Yina Cabrera

FIU Law Review

No abstract provided.

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 …