Labor and Employment Law Commons^™

Retaliation And The Reasonable Person, Sandra F. Sperino

Faculty Articles and Other Publications

When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.

Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …

Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles

Michigan Journal of Gender & Law

Recent scholarship and media attention has focused on the prevalence of sexually harassing behavior directed at working teenagers, and the emergence of sexual harassment lawsuits by these minors against their employers. Although many of the legal issues concerning workplace sexual harassment and adult workers (and the various state and federal jurisprudence prohibiting it) have been widely discussed, there is surprisingly little discourse, research, and precedent addressing the problem of workplace sexual harassment and teen workers. Currently, most sexual harassment cases brought by adolescent workers are litigated using the doctrinal framework for adult workers. Only the Seventh Circuit has developed an …

A Franchisor's Flsa Liability For Its Franchisee's Workers: Why Operational Control Over Employment Conditions Should Make A Franchisor A Joint Employer, Bryan Arbeit

Hofstra Labor & Employment Law Journal

No abstract provided.

Reality’S Bite, Kerri Lynn Stone

Faculty Publications

The realities of the workplace have been captured by years of socio-scientific, industrial organizational, and other psychological research. Human behavior and thought, interpersonal dynamics, and organizational behavior, with all of their nuances and fine points, are now better understood than they have ever been before, but unless they are used to inform and buttress the rules of law and interpretations promulgated by courts, Title VII’s ability to successfully regulate the workplace to rid it of discrimination will be threatened. This article expands upon that premise, lamenting judges, and specifically justices having eschewed available research and other insights into workplace realities, …

Nip It In The Bud: Compassionate Use Of Medical Cannabis Pilot Program Act Does Not Provide Employees A Legal Remedy For Adverse Action Based Upon Use In Compliance With The Statute, 49 J. Marshall L. Rev. 193 (2015), Tyler Duff

UIC Law Review

This legal dichotomy, the federal illegality and state legality, is the reason why Illinois, with its passing of the Compassionate Use of Medical Cannabis Pilot Program Act (“the CUA”), and its promises of protection for patients, may not prevent an employer from terminating an employee for marijuana use in compliance with the CUA. This comment provides that the CUA does not, and could not, provide registered users a viable cause of action for such discipline.

The Silliness Of Erisa: The Plan Is Not The Only Proper Party Defendant In An Erisa Benefits Claim, Donald T. Bogan

Marquette Benefits and Social Welfare Law Review

ERISA recites in § 502(d)(1) that a plan can sue and be sued as an entity. Does such a legislative pronouncement, in and of itself, establish the plan as a juristic person? Further, does Congress’s declaration that a plan can be sued suggest that no other person or entity can be held liable in an ERISA § 502(a)(1)(B) benefits claim? Relying upon ERISA § 502(d)(1), long-standing authority in the Ninth Circuit Court of Appeals, and in other circuits, holds that the plan, and only the plan, is a proper party defendant in an ERISA § 502(a)(1)(B) benefits claim. That is …

Recent Development: Antonio V. Ssa Sec., Inc.: Upon Exhausting All Other Tools Of Statutory Interpretation, Policy Considerations Revealed That The Maryland Legislature Did Not Intend To Abrogate The Common Law Doctrine Of Respondeat Superior Through The Enactment Of § 19-501 Of The Maryland Security Guards Act, David Bronfein

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the Maryland Security Guards Act, Section 19-501 of the Maryland Code, Business Occupations and Professions Article (“section 19-501”) does not expand a security guard agency’s liability for unauthorized employee conduct; rather, the statute remains consistent with the liability prescribed by Maryland’s common law doctrine of respondeat superior. Antonio v. SSA Sec., Inc., 442 Md. 67, 90, 110 A.3d 654, 667 (2015). Finding the plain language, context, and legislative history of the statute to be ambiguous and unconvincing, the court was ultimately persuaded by policy considerations behind upholding the common law doctrine of …

Transforming Federal And State Retirement Tax Deductions To Refundable Tax Credits, Teresa Ghilarducci, Ismael Cid-Martinez

Marquette Benefits and Social Welfare Law Review

The purpose of this Study is to calculate retirement account tax expenditures by states. States with income taxes that allow tax deferral of retirement account contributions and investment earnings lose nearly $20 billion in revenue. This Study uses a variety of data sources, including state reports from their executive agencies and known estimation techniques to calculate the amount of tax credits that a worker in each state would receive if the deferrals were converted to a refundable tax credit. The average credit under these estimation techniques and calculations would be $172.

Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell

Vanderbilt Journal of Entertainment & Technology Law

When does work become play and play become work? Court shave considered the question in a variety of economic contexts, from student athletes seeking recognition as employees to professional blackjack players seeking to be treated by casinos just like casual players. Here, this question is applied to a relatively novel context: that of online gold farming, a gray-market industry in which wage-earning workers, largely based in China, are paid to play fantasy massively multiplayer online games (MMOs) that reward them with virtual items that their employers sell for profit to the same games' casual players. Gold farming is clearly a …

A Fair Day’S Pay? Why Workers Deserve More From The Federal Minimum Wage, 49 J. Marshall L. Rev. 167 (2015), Claire Whitehead

UIC Law Review

This Comment will examine the benefits and pitfalls of a federal minimum wage while keeping the original reasons for labor reform in mind.

Liberating Sexual Harassment Law, Lua Kamál Yuille

Michigan Journal of Gender & Law

Sexual harassment law and the proposed solutions to that paradigm’s deficiencies teach a disheartening and peculiar lesson to women and gender performance minorities: “You may be disadvantaged at work because of your gender or your gender performance nonconformity. Discrimination against you is okay.” This albatross has inexplicably burdened sexual harassment law for the more than thirty-five years since it emerged as a redressable form of unlawful discrimination under Title VII of the Civil Rights Act of 1964. This Article coherently explains the reason for it. It makes a simple claim: Sexual harassment law has failed to eradicate workplace gender discrimination, …

New Formalities For Casual Labor: Addressing Unintended Consequences Of China's Labor Contract Law, Daniel S.S. Cairns

Washington International Law Journal

China’s Labor Contract Law (“LCL”) came into force on January 1, 2008. The first major piece of labor legislation since the 1994 Labor Law, the Labor Contract Law expanded legal protection for workers by mandating that labor contracts be in writing and delivered to all workers. Employers, predicting that the law would effectively raise the cost of employing full-time, long-term workers, sought methods of “creative compliance” with the law. One avenue for creative compliance emerged through the loophole in the LCL for so-called “dispatch workers.” Dispatch workers are formally employed by third-party dispatch service agencies and thus not covered by …

Introduction To Worker Cooperatives And Their Role In The Changing Economy, Priya Baskaran

Scholarly Articles in Law Reviews & Journals

This article advocates for cooperatives as a vehicle for protecting and empowering vulnerable workers, like those in New York’s nail salons. Some may argue that worker cooperatives are unnecessary and that advocacy groups and legislation would be just as effective. California has a nonprofit, the California Healthy Nail Salon Collaborative (CHNSC), which is dedicated to advocating for healthy working conditions for nail workers. The organization is composed of key stakeholders in the nail salon industry, including individual manicurists, environmental organizations, researchers, reproductive justice groups, and government agencies. CHNSC created a “healthy nail salon” certification as an incentive for owners to …

Exploited At The Intersection: A Critical Race Feminist Analysis Of Undocumented Latina Workers And The Role Of The Private Attorney General, Llezlie Green

Scholarly Articles in Law Reviews & Journals

Undocumented Latina workers experience wage theft and other workplace exploitation at alarmingly high rates. The stock stories associated with immigrant workers often involve male day laborers or female domestic workers and fail to capture the experiences of women toiling in the farms, restaurants, factories, and home and business cleaning services that employ hundreds of thousands of immigrant women. The resulting invisibility of undocumented Latina women in the typical narratives parallels the paucity of undocumented Latina workers who make legal claims against their exploitative employers. Their distinct experiences are characterized by multiple intersecting vulnerabilities based upon their ethnicity, gender, and immigration …

Angry Employees: Revisiting Insubordination In Title Vii Cases, Susan Carle

Scholarly Articles in Law Reviews & Journals

In too many Title VII cases, employees find themselves thrown out of court because they reacted angrily to reasonable perceptions of employer discrimination. In the race context, supervisors repeatedly call employees the n-word and use other racial epithets, order African American employees to perform work others in the same job classification do not have to do, and impose discipline white employees do not face for the comparable conduct. In the gender context, courts throw out plaintiffs’ cases even where supervisors engage in egregious sexual harassment. Employees who react angrily to such demeaning treatment—by cursing, shouting, refusing an order or leaving …

The Issue Class, Joseph Seiner

Faculty Publications

In 2011, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This Article does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored: what is the best tool currently available for workers to pursue systemic employment …

Civil Disabilities In An Era Of Diminishing Privacy: A Disability Approach For The Use Of Criminal Records In Hiring, Andrew Elmore

Articles

No abstract provided.

Reading Amendments And Expansions Of Title Vii Narrowly, Henry L. Chambers, Jr.

Law Faculty Publications

Throughout Title VII’s history, Congress has amended and expanded Title VII. Often, the Supreme Court has read such amendments and expansions narrowly, even as it generally reads Title VII broadly or narrowly depending on the case before it. The Court’s approach to Title VII expansions may merely indicate that the Court believes that such statutory alterations should be read only as broadly as necessary to effectuate their purposes. However, regardless of why the Court has interpreted these expansions narrowly, that the Court has done so suggests that Congress ought to consider carefully how it amends or expands Title VII in …

Labor Unions And Title Vii: A Bit Player At The Creation Looks Back, Theodore St. Antoine

Book Chapters

During the debates over what became Title VII (Equal Employment Opportunity) of the Civil Rights Act of 1964, I was the junior partner of the then General Counsel of the AFL-CIO, J. Albert Woll. There were only three of us in the firm. The middle partner, Robert C. Mayer, handled the business affairs of the Federation and our other union clients. Bob was also the son-in-law of George Meany, president of the AFL-CIO, which gave us a unique access to Meany’s thinking. The Federation had only one in-house lawyer, Associate General Counsel Thomas Everett Harris. Tom was an aristocratic Southerner …

Social Media And The Job Market: How To Reconcile Applicant Privacy With Employer Needs, Peter B. Baumhart

University of Michigan Journal of Law Reform

In the modern technological age, social media allows us to communicate vast amounts of personal information to countless people instantaneously. This information is valuable to more than just our “friends” and “followers,” however. Prospective employers can use this personal data to inform hiring decisions, thereby maximizing fit and minimizing potential liability. The question then arises, how best to acquire this information? For job applicants, the counter-question is how best to protect the privacy of their social media accounts. As these two competing desires begin to clash, it is important to find a method to mediate the conflict. Existing privacy law, …

Fitting The Forum To The Pernicious Fuss: A Dispute System Design To Address Implicit Bias And 'Isms In The Workplace, Elayne E. Greenberg

Cardozo Journal of Conflict Resolution

This paper proposes a dispute system design to address workplace discrimination caused by implicit biases so that employees and employers involved in such disputes can secure a more responsive justice than existing legal processes are able to provide. Workplace discrimination caused by implicit bias continues to contaminate our work environment despite our focused legal efforts to combat such overt "isms" as sexism, racism, ageism, and ableism. Although overt expressions of bias have significantly decreased in recent years, expressions of implicit bias, the primary cause of workplace discrimination, persist.

This discussion takes place in three parts. Part One describes implicit bias, …

Introduction To Amici Curiae Brief In Young V. United Parcel Service, Inc., Joanna L. Grossman, Deborah L. Brake

Faculty Journal Articles and Book Chapters

On March 25, 2015, the U.S. Supreme Court issued its decision in Young v. United Parcel Service, Inc., the most important pregnancy discrimination case before the Court in nearly a quarter century. The Court ruled for Peggy Young in a decision that will chart the path of pregnancy discrimination litigation for years to come. Our brief, published here with a short introduction, lays out our theory for why an employer’s refusal to accommodate pregnancy with light-duty assignments on the same terms as other medical conditions similarly affecting work violates Title VII and the Pregnancy Discrimination Act. The brief was …

Eliminating Arbitrary Age Descrimination In 401(K) And Pension Plan Eligibility Requirements: A Simple Fix To Encourage Younger Workers To Save For Retirement, Andrew J. Clopton

University of Michigan Journal of Law Reform Caveat

Current federal law allows companies to exclude their youngest workers from participating in 401(k) and other pension plans. Public policy should encourage young workers to contribute to retirement as early as practicable, rather than impose obstacles to saving. Workers who begin saving even a few years earlier improve their retirement security and reduce the likelihood they will be dependent on the government later in life. While “age discrimination” is conventionally thought of as the mistreatment of older workers, this concept applies equally to employees who are differentiated based solely on their young age. Thus, Congress should amend the Internal Revenue …

Origins And Prospects For Employee Life And Health Trusts In Canada, S. B. Archer

Osgoode Legal Studies Research Paper Series

A discussion of the events and factors behind the establishment of pre-funded health benefit plans in Canada with reference to the experience of voluntary employee benefit associations in the United States and the auto sector restructuring in North America during 2008-2009. It is argued that "employee life and health trusts" are used in effect to defease legacy cost liabilities of employers and only likely to be used in the context of restructuring of a workplace or industry. their structure is compared to other target benefit programs currently being proposed in Canada and elsewhere. The key issues in their negotiation and …

Collective Bargaining, Sara Slinn

Commissioned Reports, Studies and Public Policy Documents

This research project reviews and evaluates the academic literature relating to obtaining and maintaining collective bargaining rights under the OLRA. Research indicates that procedural changes to representation processes including the mandatory representation vote significantly reduced the likelihood of certification, and that these effects were concentrated in more vulnerable units. This may partly be due to greater opportunity for delay and employer resistance under vote procedure compared to under card-based certification. The research also indicates that delay has significant effects on certification outcomes, as do ULP complaints and employer resistance tactics. ULPs have negative long-term effects, and are associated with difficulties …

Don't Tell Your Boss? Blowing The Whistle On The Fifth Circuit's Elimination Of Anti-Retaliation Protection For Internal Whistleblowers Under Dodd-Frank, Jeff Vogt

Oklahoma Law Review

No abstract provided.

New Formalities For Casual Labor: Addressing Unintended Consequences Of China's Labor Contract Law, Daniel S.S. Cairns

Washington International Law Journal

China’s Labor Contract Law (“LCL”) came into force on January 1, 2008. The first major piece of labor legislation since the 1994 Labor Law, the Labor Contract Law expanded legal protection for workers by mandating that labor contracts be in writing and delivered to all workers. Employers, predicting that the law would effectively raise the cost of employing full-time, long-term workers, sought methods of “creative compliance” with the law. One avenue for creative compliance emerged through the loophole in the LCL for so-called “dispatch workers.” Dispatch workers are formally employed by third-party dispatch service agencies and thus not covered by …

The Use (And Misuse) Of The Same-Actor Inference In Family Responsibilities Discrimination Litigation: Lessons From Social Psychology On Flexibility Stigma, Andrea L. Miller

William Mitchell Law Review

No abstract provided.

Mind Games: Understanding Mental Injuries Following Recent Changes To The Minnesota Workers' Compensation Act, Thomas W. Atchison

William Mitchell Law Review

No abstract provided.

The Impact Of The Affordable Care Act On Workers' Compensation: Opportunities And Considerations, David A. North

William Mitchell Law Review

No abstract provided.