Labor and Employment Law Commons^™

Restoring Reasonableness To Workplace Religious Accommodations, Dallan F. Flake

Washington Law Review

When Congress amended Title VII of the Civil Rights Act in 1972 to require employers to reasonably accommodate employees’ religious practices absent undue hardship to their business, it intended to protect employees from being forced to choose between their jobs and their religious beliefs. Yet in the decades since, courts have cut away at this right to the point it is practically nonexistent. Particularly concerning is the growing tendency of courts to read reasonableness out of the accommodation requirement, either by conflating reasonableness and undue hardship so that an accommodation’s reasonableness depends solely on whether it would cause the employer …

Foreword, Table Of Contents & Introduction

Dalhousie Law Journal

Labour Law versus Employment Law in the UK and Canada: A Brian Langille Legacy

The special segment in this Volume 43, which is devoted to an exercise in comparative labour, is the brain-child of Alan Bogg and Mark Freedland. Both were at Oxford University in 2016, thinking about the up-coming third conference of the Labour Law Research Network (LLRN) in Toronto, which was scheduled for summer of 2017. (Alan is now at Bristol.) They thought it would be interesting to explore distinctions between labour law and employment law in both Canada and the United Kingdom, where the notions have different …

Labor Redemption In Work Law, Andrew Elmore

Articles

People with criminal records are not a protected class under Title VII, and many employers fear that hiring people with criminal records invites negligent hiring liability. Ban the Box privacy laws delay but may not deter overbroad criminal background checks. This Article challenges this standard account by shifting focus to the state in imposing arbitrary barriers to work. I expose a dignity interest in the removal of these unnecessary barriers, or "labor redemption." I find foundations of labor redemption in successful constitutional challenges to denials of public employment and occupational licenses. Labor redemption is also, increasingly, a statutory right, in …

Labor & Employment Law, W. Jonathan Martin Iii, Alyssa K. Peters, Patricia-Anne Brownback, Graham Newsome, Aaron Chang

Mercer Law Review

This Article surveys revisions to the Official Code of Georgia Annotated (O.C.G.A.) and decisions interpreting Georgia law from June 1, 2019 to May 31, 2020, that affect labor and employment relations for Georgia employers.

Washington's One-Size-Fits-All Unemployment Compensation Eligibility In Cases Of Voluntary Separation, Julia Fleming

Washington Law Review Online

Washington State’s Employment Security Act allows individuals who voluntarily left their jobs to be eligible for unemployment benefits if they quit their position with “good cause.” In structuring this Act, the state’s legislature has confined the definition of good cause to a one-size-fits-all list consisting of eleven circumstances. Consequently, if a situation arises that forces an individual to quit their job, yet does not fall into one of those eleven outlined circumstances, the Employment Security Department will disqualify the individual from receiving unemployment benefits. In comparison with other states’ unemployment laws, Washington’s system is quite limited, allowing no discretion under …

Comparative Views On Age Discrimination Within Appellate Court Decisions: Utilizing Werner And Bolino’S Framework, Daniel Trinkle

Undergraduate Honors Theses

The manner by which courts view performance appraisals in relation to the outcome of case is certainly a topic worthy of discussion. Utilizing the framework used within the work of Werner and Bolino (1997), the following study was able to accomplish two main goals: (1) update the information of Werner and Bolino (1997) by evaluating modern cases, and (2) to evaluate new data regarding age discrimination utilizing the same framework as Werner and Bolino (1997). Utilizing chi-square analysis to test all of the hypotheses, it was demonstrated that there was statistical significance in performance appraisals with the presence of a …

“Labour Law Is A Subset Of Employment Law” Revisited, Alan Bogg

Dalhousie Law Journal

This article revisits the arguments in Brian Langille’s seminal law review article, “Labour Law is a Subset of Employment Law.” Langille’s article was based upon two main claims: (a) that (individual) employment law should be understood as the “set” and (collective) labour law the “subset” of employment law (the primacy of employment law); (b) that “public values” have priority over “private values” in the regulation of work (the primacy of public values). These two claims were presented as mutually reinforcing in “Subset.” Drawing on specific examples from UK and Canadian law, this article endorses the first claim but rejects the …

On The Presence Of The Past In The Future Of International Labour Law, Adelle Blackett

Dalhousie Law Journal

Professor Blackett presented this talk as the Invited Speaker at the Schulich School of Law’s Horace E Read Memorial Lecture on 9 October 2019.

*This contribution has not been peer-reviewed.

Unifying The Field: Mapping The Relationship Between Work Law Regimes In Ontario, Then And Now, Claire Mumme

Dalhousie Law Journal

Since the mid-20th century in Canada, labour and employment law have been treated as two separate but related fields. In 1981 Brian Langille argued in “Labour Law is a Subset of Employment Law” for the unification of the fields, so that all forms of waged work were understood as matters of public policy, rather than leaving some types of work to private law regulation. Taking up Langille’s argument, this paper argues that employment contracts, individual and collective, are structured through the overlap, interaction and gaps between work law regimes. The creation of a unified field moves from studying the regimes …

If Labour Law Is A Subset Of Employment Law, What Is Employment Law A Subset Of?, Brian A. Langille

Dalhousie Law Journal

An academic life lived over decades can provide real rewards. One is thinking about a subject, such as labour law, over a significant period. Such longer-term speculation can lead to interesting questions—such as, what makes labour law a subject anyway? A second advantage of academic seniority is the opportunity to sustain longer-term relationships with other scholars. Both the temporal and personal advantages are joined here because four leading labour law scholars whom I have known for a (sometimes very long) while, have written about an essay that I wrote forty years ago. This essay is my effort to join them …

Employment Law Revisited, Mark Freedland

Dalhousie Law Journal

This critique of Brian Langille’s famous “Subset” article considers the historical and current meaning of “employment law” in Canada and in the UK. In Canada, “employment law” was fashioned by Innis Christie in the 1980s as the law of personal work relations for the non-unionized sector, with “labour law” applying to the unionized sector of the economy. In the UK, “individual employment law” appeared in the 1970s to be a distinct discipline; but since that time it has largely re-merged with labour law, with the terms “employment law” and “labour law” becoming virtually synonymous. An enlarged scope is proposed for …

Labour Law As A Subset Of Employment Law? Up-Dating Langille’S Insights With A Capabilities Approach, Bruce P. Archibald

Dalhousie Law Journal

Brian Langille’s influential 1981 article entitled “Labour Law is a Subset of Employment Law” is evaluated in the light of changes in the economic, social and political context since its publication and the shifts in the appropriate normative underpinnings for such an exercise. Langille’s conceptually radical original version of a unified field for legal governance of the workplace, rooted in liberal constitutional principles, has been accepted in the interim by many. However, four decades later, this schema is no longer an adequate basis for responding to challenges for achieving fairness and justice in a world of precarious employment, globally organized …

Labor Redemption In Work Law, Andrew Elmore

Faculty Scholarship

People with criminal records must find and keep work to reintegrate into society. But private employers often categorically exclude candidates with criminal record histories, especially if the candidate is African American or Latinx. The conventional wisdom is that workplace laws offer little to address this problem. People with criminal records are not a protected class under Title VII, and many employers fear that hiring people with criminal records invites negligent hiring liability. Ban the Box privacy laws delay but may not deter overbroad criminal background checks

This Article challenges this standard account by shifting focus to the state in imposing …

Content, Context, What's Next? A Garcetti-Pickering Analysis For Public Employees In Court, Austin Longnecker

West Virginia Law Review

No abstract provided.

The Progressive Turn: Politics And Policy In The Movement, Zephyr Teachout, Heather Gautney, Todd Melnick

Posters

Maloney Library lecture series, Behind the Book

Nine Justices And #Metoo: How The Supreme Court Shaped The Future Of Mandatory Arbitration And Sexual Harassment Claims, Tamra J. Wallace

Maine Law Review

When the Federal Arbitration Act was signed into law in 1925, none would have guessed it would be used to perpetuate a system of silence surround workplace sexual harassment. With the Supreme Court’s continued stance to liberally applying the Act to uphold arbitration agreements contained within employment agreements over the past decades, it is apparent that any change needed to protect vulnerable workers will need to come from federal legislation. The rise of the #MeToo movement across the nation, and throughout various employment sectors, may be the push needed to bring about the necessary change.

Video: No, You Can’T Touch My Hair: The Importance, Necessity, And Controversy Of The Crown Act, Randolph Bracy Iii, Adjoa B. Asamoah, The Honorable Ashleigh Parker Dunston, Doris "Wendy" Green, Linda Harrison, Dr. Stephen Wigley, Dpm

NSU Law Seminar Series

The Black Law Students Association welcomes you to our Fall 2020 panel event, which focuses on the 2019 CROWN Act. The CROWN Act, which stands for “Creating a Respectful and Open World for Natural Hair,” is a law that prohibits race-based hair discrimination, which is the denial of employment and educational opportunities because of hair texture or protective hairstyles including braids, locs, twists or bantu knots.

This panel focuses on the legal perspective from different vantage points. Attendees will learn more about the Act, how it was handled, and the current political climate surrounding the Act. National CROWN Act and …

Could The Gig Economy Send Another Faa Disagreement To The Supreme Court?, Peter B. Rutledge, Jacob Bohn

Popular Media

The Federal Arbitration Act ordinarily obligates federal and state courts to enforce arbitration agreements, including in employment contracts. However, a nearly-century-old carveout in Section 1 exempts from the FAA's sweep contracts of employment for seamen, railroad workers or other individuals "engaged in foreign or interstate commerce." The "gig" economy has spawned increased litigation over the carveout's scope—specifically, whether it applies to certain categories of workers, ranging from Amazon drivers to Grubhub delivery workers. Disagreements are emerging among the federal courts, the law is uncertain in the Eleventh Circuit, and Supreme Court review may soon be called for.

Work Injury Insurance In The Palestinian Labor Law, Ahmad Abu Zeineh

Journal of the Arab American University مجلة الجامعة العربية الامريكية للبحوث

The focal point of this research paper is work injury insurance in accordance with the Palestinian Labor Law no. 7 of 2000. In fact, this law guarantees the rights of the injured employees to claim monetary compensations. The said law obligates the employers to seek insurance contracts for their employees in one of the insurance companies working in Palestine. Accordingly, this provision decrees an important guarantee for the injured employee during the period of work. Further, the said law has imposed penalties on the employer who fails to fulfill this requirement without giving much detail on the consequences of this …

Telehealth And Telework Accessibility In A Pandemic-Induced Virtual World, Blake Reid, Christian Vogler, Zainab Alkebsi

University of Colorado Law Review Forum

This short essay explores one dimension of disability law’s COVID-related “frailty”: how the pandemic has undermined equal access to employment and healthcare for Americans who are deaf or hard of hearing as healthcare and employment migrate toward telehealth and telework activities. This essay’s authors—a clinical law professor; a computer scientist whose research focuses on accessible technology; and a deaf policy attorney for the nation’s premier civil rights organization of, by, and for deaf and hard of hearing individuals in the United States—have collaborated over the past months on detailed advocacy documents aimed at helping deaf and hard of hearing patients …

Countenancing Employment Discrimination: Facial Recognition In Background Checks, Kerri A. Thompson

Texas A&M Law Review

Employing facial recognition technology implicates anti-discrimination law under Title VII of the Civil Rights Act when used as a factor in employment decisions. The very technological breakthroughs that made facial recognition technology commercially viable—data compression and artificial intelligence— also contribute to making facial recognition technology discriminatory in its effect on members of classes protected by Title VII. This Article first explains how facial recognition technology works and its application in employee background checks. Then, it analyzes whether the use of facial recognition technology in background checks violates Title VII under the disparate impact theory of liability due to the known …

2020 Supplementary Directory Of New Bargaining Agents And Contracts In Institutions Of Higher Education, 2013-2019, William A. Herbert, Jacob Apkarian, Joseph Van Der Naald

Publications and Research

The 2020 Supplementary Directory is an analysis of data for the period 2013-2019 of new bargaining units, bargaining agents, and contracts in higher education following publication of our last directory in 2012. The 2020 Supplementary Directory includes a listing of all new bargaining relationships concerning faculty, department chairs, librarians, postdoctoral scholars, academic researchers, and/or graduate student employees. It also includes data about bargaining units that existed prior to 2013 but did not appear in the last directory such as postdoctoral scholar and academic researcher bargaining units. Unlike prior directories, the 2020 Supplementary Directory includes a detailed unit composition description for …

What We Owe Workers As A Matter Of Common Humanity: Sickness And Caregiving Leaves And Pay In The Age Of Pandemics, Eric Tucker, Leah F. Vosko, Sarah Marsden

Articles & Book Chapters

No abstract provided.

2020 Supplementary Directory Of New Bargaining Agents And Contracts In Institutions Of Higher Education, 2013-2019, William A. Herbert, Jacob Apkarian, Joseph Van Der Naald

Publications and Research

The 2020 Supplementary Directory is an analysis of data for the period 2013-2019 of new bargaining units, bargaining agents, and contracts in higher education following publication of our last directory in 2012. The 2020 Supplementary Directory includes a listing of all new bargaining relationships concerning faculty, department chairs, librarians, postdoctoral scholars, academic researchers, and/or graduate student employees. It also includes data about bargaining units that existed prior to 2013 but did not appear in the last directory such as postdoctoral scholar and academic researcher bargaining units. Unlike prior directories, the 2020 Supplementary Directory includes a detailed unit composition description for …

Prof. E. Clive Chirwa V Zambia Railway & Another (2018/Hp/0578), Kayula James

SAIPAR Case Review

No abstract provided.

Employment Law, D. Paul Holdsworth

University of Richmond Law Review

Against the backdrop of a year that saw the COVID-19 pandemic alter the American workplace in an unprecedented way, the employment law landscape in Virginia also underwent a recent sea change. Historically considered an employer-friendly state, the General Assembly shifted away from tradition by enacting several significant pieces of employee-friendly legislation, which will surely have a long-lasting impact on Virginia employees, businesses, and Virginia’s economy at large. This Article highlights these critical developments in Virginia employment law. It does not provide an in-depth analysis of every development but highlights the most significant changes affecting employers and employees in the Commonwealth. …

The Behavioral Effects Of (Unenforceable) Contracts, Evan Starr, Jj Prescott, Norman Bishara

Articles

Do contracts influence behavior independent of the law governing their enforceability? We explore this question in the context of employment noncompetes using nationally representative data for 11,500 labor force participants. We show that noncompetes are associated with reductions in employee mobility and changes in the direction of that mobility (i.e., toward noncompetitors) in both states that do and do not enforce noncompetes. Decomposing mobility into job offer generation and acceptance, we detect no evidence of differences in job search, recruitment, or offer activity associated with noncompetes. Rather, we find that employees with noncompetes—even in states that do not enforce them—frequently …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Lochner Lives On, Samuel Bagenstos

Other Publications

Samuel Bagenstos, University of Michigan In the early 20th century (the “Lochner era”), courts invalidated numerous labor and employment laws for violating a supposed constitutional “freedom of contract.” The Lochner-era decisions rested on a key premise—that workers and employers were equally free to enter into bargains, or not enter into bargains, with each other. Most lawyers think that the courts killed off Lochner during the New Deal. But Lochner’s principles have persisted—not in constitutional law, but in the law of labor and employment. Key foundational doctrines of labor and employment law continue to rest on the premise of equal bargaining …

The Invisible Web At Work: Artificial Intelligence And Electronic Surveillance In The Workplace, Richard A. Bales, Katherine Vw Stone

AI-DR Collection

Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. These tools enable employers to record their workers’ every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (A-I) algorithms into a permanent electronic resume that can identify and predict an individual’s performance as well as …