Labor and Employment Law Commons^™

Focusing The Multifactor Test For Employee Status: The Restatement’S Entrepreneurial Formulation, Michael C. Harper

Faculty Scholarship

The American Law Institute’s twenty-first century mission to restate for the first time American employment law carried the responsibility to provide more clear guidance on the law’s critical distinction between employees and independent contractors. This distinction delineates the scope not only of federal employee protection and benefit statutes, but also of employee protections and benefits conferred by state statutory and common law.

A Restatement of Employment Law, however, like any Restatement, could not formulate clearer or otherwise more desirable doctrine from the whole cloth of the views and values of the Reporters or the ALI membership. The Restatement could not …

Newsroom: Yelnosky On Franchisor Liability, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Mika V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 71 (Sep. 24, 2015), Kory Koerperich

Nevada Supreme Court Summaries

The court denied extraordinary writ relief from the district court’s decision to compel arbitration between Petitioners and their employer based on a long-form arbitration agreement signed only by the Petitioners, and federal law favoring arbitration agreements.

Brief For Respondents. Tyson Foods, Inc. V. Bouaphakeo, 136 S.Ct. 1036 (2016) (No. 14-1146), 2015 Wl 5634431, David C. Frederick, Derek T. Ho, Matthew A. Seligman, Robert L. Wiggins Jr., Scott Michelman, Scott L. Nelson, Allison M. Zieve, Eric Schnapper

Court Briefs

QUESTIONS PRESENTED

1. Whether, in this class and collective action for wage-and-hour violations arising out of an employer's failure properly to compensate employees for time spent donning and doffing protective equipment and walking between sites where work was performed, the district court abused its discretion in granting certification where plaintiffs proceeded to prove the amount of work they did using individual timesheet evidence and representative proof concerning donning, doffing, and walking times in accordance with Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946).

2. Whether a class or collective action may be certified when it contains members …

The Surety's Exposure For Wages And Related Liabilities, Lisa D. Sparks, Marc A. Campsen

All Faculty Scholarship

A surety faces potential exposure to a multitude of liabilities under payment and performance bonds issued for state and federally funded bonded projects as well as from the express obligations imposed by private common law performance and payment bonds. This paper, however, focuses only on a surety’s potential exposure for wage and related liabilities.

Under federal law, a surety faces possible liability under a Miller Act Payment Bond to laborers for the bonded principal’s failure to pay wages. Union trusts may also recover against a surety under a Miller Act Payment Bond for the bonded principal’s failure to remit union …

A Practitioner's Guide To United States Employment Taxation Of Nonresident Aliens Working In The United States, John L. Gornall Jr., John B. Copenhaver

Georgia Journal of International & Comparative Law

No abstract provided.

Regulations And Flexibility, Donald Roth

Faculty Work Comprehensive List

"Salaried workers are more likely to blur their work and home lives by taking work home, checking emails at night, or telecommuting."

Posting about changes in labor laws from In All Things - an online hub committed to the claim that the life, death, and resurrection of Jesus Christ has implications for the entire world.

http://inallthings.org/regulations-and-flexibility/

Stemming The Hobby Lobby Tidal Wave: Why Rfra Challenges To Obama's Executive Order Prohibiting Federal Contractors From Discriminating Against Lgbt Employees Will Not Succeed, Kayla A. Higgins

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

An Employer's Conscience After Hobby Lobby And The Continuing Conflict Between Women's Rights And Religious Freedom, Sarah M. Stephens

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

Section 1: Moot Court: Friedrichs V. California Teachers Association, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Why Don't More Employers Adopt Flexile Working Time?, Robert C. Bird

West Virginia Law Review

No abstract provided.

Toward Politically Stable Nlrb Lawmaking: Rulemaking Vs. Adjudication, Charlotte Garden

Faculty Articles

For the last several decades, there have been two constants with respect to the National Labor Relations Board. First, the modern Board has been notoriously reluctant to use its rulemaking authority; until recently, it had made only one significant substantive rule via the notice-and-comment process. Second, commentators academics, lawyers, judges, and politicians have issued a steady stream of calls for the Board to make law via rulemaking rather than through adjudications, arguing for the rulemaking process on both pragmatic and normative grounds. In recent years, however, the first of these has changed: the Board has engaged in two significant rulemaking …

Foreword: The Restatement Of Employment Law Project, Samuel Estreicher, Matthew T. Bodie, Michael C. Harper, Stewart J. Schwab

Faculty Scholarship

After over a dozen years of work, the American Law Institute (ALI or Institute)'s Restatement of Employment Law has been completed. The membership of the ALI, the nation's leading private organization dedicated to clarifying and improving the law, approved the proposed final draft, subject to editing, at its May 2014 annual meeting. The final edits are done and the volume is now available both electronically and as a book to practitioners, judges, scholars, and law libraries around the country and world.

We have had the honor to serve as Reporters for the Restatement of Employment Law and are pleased to …

Fashioning A General Common Law For Employment In An Age Of Statutes, Michael C. Harper

Faculty Scholarship

In the current post-Erie age of statutes the Supreme Court continues to have potential influence over the development of a “general” common law used to decide recurring issues governed by state law. This influence, which has drawn little commentary, derives from the Court’s authority to consider analogous issues when filling gaps in federal statutes, sometimes through express reliance on general common law. The influence is through the power to persuade, like that of the federal judiciary in its general common lawmaking age of Swift, rather than through the power to command, like that of the federal judiciary in the formulation …

Obergefell’S Prescription: Why The Fourteenth Amendment Trumps State Employees’ Free Exercise Claims, Douglas B. Mckechnie

ConLawNOW

Soon after the United States Supreme Court’s decision in Obergefell v. Hodges, some elected officials and civil servants objected to the requirement that same-sex couples be offered marriage licenses. In particular, they argued that a government employee whose job duties include issuing marriage licenses cannot be forced to do so if it would violate his or her religion’s dictates. This piece argues that position is unavailing as it ignores the jurisprudence construing the free exercise clause of the First Amendment as well as the mandate created by the Court’s interpretation of the Fourteenth Amendment in Obergefell.

Israel Security Association V. National Labor Court, Daphne Barak-Erez, Hanan Melcer, Zvi Zylbertal

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Facts: The petitions concerned the interpretation of section 10 (3) of Schedule Two of the Class Actions Law, which restricts the possibility of instituting a class action in labor law in the case of a “suit by an worker who is subject to a collective agreement that regulates the terms of his employment, and the employer of that worker, or trade association of which …

Study Of Noncompliance With Mlc 2006 In Protection On Rights And Interests Of Seafarers Serving On China's Coastal Vessels And Its Countermeasures, Yanhai Wang

Maritime Safety & Environment Management Dissertations (Dalian)

No abstract provided.

An Examination Of Two Aspects Of The Nlrb Representation Election: Employee Attitudes And Board Inferences, William H. Fitzgerald, D. Richard Froelke

Akron Law Review

In any event, the National Labor Relations Board (NLRB) has, during the last 35 years, made the ballot, with its implications of order and stability, available to over 25 million American workers. Some may suppose that the bulk of union organization has already taken place and that today the election function of the NLRB is relatively unimportant. This is not the case.

The purpose of this paper is to examine, through the use of random sampling techniques, employee reactions to unions and employers, and to examine the effectiveness of NLRB policies followed in the regulation of representation elections.

The Nlrb's Restrictions On The Employer's Right Of Free Speech, D. Richard Froelke

Akron Law Review

In fiscal year 1968 more than a half million employees cast ballots in NLRB-conducted representation elections. Over the years more than twenty-five million employees have cast ballots in NLRB-supervised elections. Consequently, it seems worthwhile to review, in the light of the First Amendment, the NLRB's attempt to regulate the conduct of elections in which employees choose whether to become organized.

A Historical Sketch Of Anglo-American Medical Law (With Emphasis On The Maxim Of Respondeat Superior), Dennis O. Norman

Akron Law Review

In MEDICAL JURISPRUDENCE, the medical and legal professions are united to encompass a wide range of human activity. The spectrum of medical law is so broad that a thorough consideration of its historical development would require the writing of several volumes. Consequently, this article confines itself to a discussion of the primary origins and major developments of Anglo American medical jurisprudence. Special emphasis has been placed upon the agency concept of respondeat superior, since this doctrine plays a prominent role in medical law and since the doctrine has been used of late to significantly expand the potential liability of the …

Public Employee Strikes In Ohio: The Ferguson Act Reconsidered, Donald J. Hoffman, Donald J. Newman

Akron Law Review

A SOCIETY CHANGES through normal evolutionary processes, the laws by which that society elects to be governed must also be changed.2 The diminution of the rationale for a given law tends to render that law vacuous. Impossibility of effective enforcement of the law will often render a law impotent. Failure by the appropriate legislative body to revise or repeal such laws to more accurately accommodate the current consensus results in a general deterioration of society's respect for law. An example is the Ferguson Act, which unequivocably prohibits any public employee in Ohio from striking. It has become clear that the …

Employment Equality In A Color-Blind Society, Earl M. Curry Jr.

Akron Law Review

The purposes of this article are first, to look at the rights of Negroes, under law, to bring economic pressure to bear for employment equality, including the demand for a quota, and secondly to see how that law is satisfying today's social needs. To achieve this latter purpose, perhaps we must ask whether our society can afford to be legally color-blind? We shall look first to the private self-help devices that have been used by minorities, and then to one area of governmental intervention that has dealt directly with minority employment and the use of quotas or goals to achieve …

Arbitration - Dispute Involving Hazardous Working Conditions Is Within The Scope Of Broad Arbitration Clause Of A Collective Bargaining Agreement In Absence Of Forceful Indication Of Exclusionary Intent; Gateway Coal Co. V. United Mine Workers, Raymond T. Royko

Akron Law Review

The collapse of a ventilation structure substantially reduced the air flow into a mine operated 'by the Gateway Coal Co., seriously increasing the danger of accumulation of dust, flammable gas and possible explosion. Three assistant foremen, whose duties included checking and recording the airflow in the mine, made false entries in their logbooks that failed to disclose the reduced air flow. The three foremen were suspended, and criminal proceedings were instituted against them. While the charges remained pending, the Company, after receiving permission from the Pennsylvania Department of Environmental Resources, reinstated the foremen. Ruling that the continued presence of the …

From Hierarchies To Markets: Fedex Drivers And The Work Contract As Institutional Marker, Julia Tomassetti

Georgetown Law Faculty Publications and Other Works

Judges are often called upon today to determine whether certain workers are “employees” or “independent contractors.” The distinction is important, because only employees have rights under most statutes regulating work, including wage and hour, anti-discrimination, and collective bargaining law. Too often judges exclude workers from statutory protection who resemble what legal scholars have described as typical, industrial employees — long-term, full-time workers with set wages and routinized responsibilities within a large firm. To explain how courts reach these counterintuitive results, the article examines recent federal decisions finding that FedEx delivery drivers are independent contractors rather than employees. It argues that …

The Occupational Safety And Health Act: A Promise That Failed, Howard M. Metzenbaum

Akron Law Review

When Congress passed the Occupational Safety and Health Act (OSHA) in 1970, it commanded industry to provide its employees with workplaces free from recognized dangers. The legislation declared that the safety of workers is a public concern, a concern vital to the community at large. Spokesmen for the then-presiding Nixon Administration praised the Act heartily and vowed to implement it energetically. "This bill opens up a whole new vista for the Labor Department," said the Secretary of Labor. "We plan to launch the administration of the Act with all the vigor and momentum we can generate."

Four years later, the …

Mensah V. Corevel Corp., 131 Nev. Adv. Op. 60 (Aug. 06, 2015), Jaymes Orr

Nevada Supreme Court Summaries

The Court held self-employed workers may still be entitled to temporary disability and the employee’s lost wages should be calculated by considering business income and losses and not strictly evidence of a traditional salary

State Public Utility Labor Relations, Donald W. Brodie

Akron Law Review

THE STATE LEVEL public utility commission or comparable regulatory agency (hereinafter referred to as commission) is largely responsible for setting the rates consumers must pay for regulated goods and services and is responsible for monitoring the quality of those goods and services. Labor and labor-related costs may be a significant portion of the rates. In the exercise of its rate and service jurisdiction, the commissions make decisions which will have direct or indirect effects on labor relations. It is the purpose of this paper to examine those effects by reviewing how the commissions treat issues involving labor relations.' The emphasis …

State Public Utility Labor Relations, Donald W. Brodie

Akron Law Review

THE STATE LEVEL public utility commission or comparable regulatory agency (hereinafter referred to as commission) is largely responsible for setting the rates consumers must pay for regulated goods and services and is responsible for monitoring the quality of those goods and services. Labor and labor-related costs may be a significant portion of the rates. In the exercise of its rate and service jurisdiction, the commissions make decisions which will have direct or indirect effects on labor relations. It is the purpose of this paper to examine those effects by reviewing how the commissions treat issues involving labor relations.' The emphasis …

Employee Medical Reimbursement Plans In The Age Of Erisa, Robert D. Rosewater

Akron Law Review

THE EMPLOYEE MEDICAL reimbursement plan presents a new dimension in the spectrum of available corporate fringe benefits. Its attractiveness lies in the relative ease by which the plan may be adopted and administered as well as the favorable federal income tax consequences to both the corporation and its participating employees. These plans undoubtedly will proliferate as other traditional fringe benefits become less attractive due to changes in tax laws,2 as medical expenses continue to increase, and as the advantages of employee medical reimbursement plans become more widely known. The scope of this article is to discuss the purposes of these …

Administrative Agencies; Subpoena Power; Relevancy; Right Of Privacy; Atchison, Topeka & Sante Fe Ry. Co. V. Lopez, David L. Hostetler

Akron Law Review

The Kansas Supreme Court in Sante Fe has joined the majority of states in declaring that administrative "fishing expeditions" via the use of subpoena powers are now permissible. No probable cause need be shown and confidential information may be subject to subpoena if there is even a mere possibility of relevance to a matter within the scope of the agency's authority. The state's interest in preventing discrimination in employment practices has been declared a "compelling state interest" such as to override any claims to rights of privacy. Although primarily discussing only arrest and conviction records, the court in actuality upheld …