Labor and Employment Law Commons^™

Presuming Damages For Unemployment Distress, Sachin Pandya

Faculty Articles and Papers

A person is illegally fired and, as a result, becomes unemployed for a period of time. If that person wins a lawsuit based on that illegal firing, she can typically recover what she would have earned in wages during that time, as well as reasonable expenses she incurred to search for a new job. Involuntary unemployment, however, also causes people to lose psychological well-being, because they are forced to suffer the experience of being unemployed while they look for a new job. That loss ("unemployment distress") can range in severity from feelings of anxiety and humiliation to severe depression. Accordingly, …

Planning Past Pensions, Julie Roin

Loyola University Chicago Law Journal

Evidence of state and local government dysfunction surfaces in many areas. One is the operation of employee pension plans. Free from the strictures of the Employee Retirement Income Security Act (“ERISA”), some state governments failed to adequately fund their pension promises. With the imminent retirement of the baby boom generation, these states are facing what appear to be insurmountable pension debts. Illinois is one of the worst hit states, with grossly underfunded pension plans, a state constitutional prohibition on reducing pension benefits, and a sizable non-pension-related budget deficit. Illinois courts will likely strike down recently passed pension “reforms.” There are …

Gearing Up For The Next Industrial Revolution: 3d Printing, Home-Based Factories, And Modes Of Social Control, Elizabeth J. Kennedy, Andrea Giampetro-Meyer

Loyola University Chicago Law Journal

While former industrial factories are being converted into modern living spaces in cities across the country, residential homes are being converted into modern factories thanks to advances in three-dimensional (“3D”) printing technology, an emerging “Maker Movement,” and the rise of online marketplaces like Etsy. Despite growing environmental, child-labor, and safety concerns, these “home-based factories” are largely unregulated. In the absence of traditional workplace protections, how can we gear up for the “next industrial revolution” while guarding against the sweatshop conditions of the last? How can we harness the Maker Movement’s commitment to do-it-yourself democracy in order to combat abuses by …

Medical Malpractice Claims In Mississippi: A Preliminary Analysis, Randall K. Johnson

Faculty Works

This essay explains where medical malpractice claims are filed in Mississippi. It initially does so by collecting state circuit court data, which have been recently released by the Administrative Office of Courts. The essay, then, computes summary statistics. Lastly, it examines these statistics: in order to find out which county had the most medical malpractice claims.

Loosening The Rust Belt: Why Ohio Should Re-Examine Its Current Standard For Determining The Enforceability Of Covenants Not To Compete Contained In Employment Agreements, Brian D. Mielcusny

Cleveland State Law Review

While the field of non-compete litigation is muddled and unpredictable in Ohio, the state would go a long way in at least considering a shift in thinking. By considering the arguments and alternatives presented above, Ohio could rework its CNC standard in a way that would maximize the potential for employee mobility and economic growth. The shifts taking place in Ohio’s economic climate and the onset of growth in emerging industries such as technology, healthcare, and energy show that Ohio might be on the cusp of unparalleled economic development. The need to continue growth in these sectors and keep pace …

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

Law Faculty Scholarship

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 …

The Cowboy Code Meets The Smash Mouth Truth: Meditations On Worker Incivility, Michael C. Duff

All Faculty Scholarship

This symposium essay argues that workers must face up and wake up to the emerging real world of perpetual employment vulnerability. Clinging to the faith that those who govern us will abide by simple moral codes simply will not do in this world. Workers must resist forces promoting vulnerability and internalize a steely and clear-eyed ethic of self-defense in response to the smash mouth truth of this challenging new environment. Workers and dissidents must not shrink when their frank opposition to the status quo is cabined and marginalized as “incivility.” The law — and I focus in the essay on …

Arbitration Whack-A-Mole: The Federal Policy Favoring Arbitration Hammers The Rights Of Individual Employees, Spring E. Taylor

Journal of Dispute Resolution

In a country that protects the plaintiff's right to a day in court, it only seems natural that Sally should have the opportunity to take her cause to the courthouse. But the strong fedral presumption that supports the enforcement of arbitration provisions is like a hammber that pushes plaintiffs like Sally and those if Huffman into the arbitration arena. In Huffman, the Sixth Circuit rescued an employwer from an ambiguous arbitration provision contained in the employer-drafted employment agreement and enforced the arbitration provision as one of the provisions to survive expiration of the contract, even though it was not listed …

Succession And Transfer Of Businesses In Canada, Eric Tucker, Christopher Grisdale

Articles & Book Chapters

Canada is a liberal market economy and as such the freedom of owners of capital to transfer businesses is not heavily regulated and the rights of workers affected by those transfers are limited. Before discussing those rights some preliminary matters need to be addressed.

From The Seat Of The Chair: An Insider’S Perspective On Ncaa Student-Athlete Voices, Scott Krapf

Indiana Law Journal

This Article explains how student-athletes already have a significantly influential voice. The Author calls upon his personal experience as a former Division I student-athlete and Chair of the NCAA Division I National Student-Athlete Advisory Committee to show that student athletes are capable of effectuating change by expressing themselves through existing means, rather than unionization.

Where Trade And Industrial Policy Converge: How Developing Countries Can Utilize Trade Preferences To Generate Sustainable, Local Growth In The Garment Sector, Collette Van Der Ven

The International Lawyer

The rise of the textile and apparel global value chains and trade preferences has created unprecedented opportunities for developing countries to participate in trade in textiles and apparel. Yet, while some countries have managed to build backward linkages and engage in industrial upgrading, others remain locked in the lower echelons of the textile and apparel value chai

This Article demonstrates that trade preferences and rules of origin alone do not explain countries' diverging experiences in the apparel value chain. Rather, a country's industrial policy is crucial in determining sustainable growth: is it solely export-oriented, or does it balance promoting growth …

Hands-Tied Hiring: How The Eeoc’S Individualized Assessment Is Taking Discretion Away From Employers’ Use Of Criminal Background Checks, Carrie Valdez

Cleveland State Law Review

This article argues that the 2012 EEOC Guidance should not be given deference by the courts. Specifically, the Guidance’s individualized assessment, which imposes a heightened requirement on employers to justify their background check policies, is problematic in three important ways. First, the individualized assessment places an impractical burden by what it requires and whom it requires to conduct such an assessment. Second, employer liability for negligent hiring may actually increase if employers perform individualized assessments. Finally, the practical effect of the individualized assessment may be decreased employer reliance on criminal background checks, and the result will likely not be a …

Principles Of Contract Law Applied To Entertainment And Sports Contracts: A Model For Balancing The Rights Of The Industry With Protecting The Interests Of Minors, John H. Shannon, Richard J. Hunter Jr.

Loyola of Los Angeles Law Review

This Article discusses the context of common law and statutory materials dealing with minors who participate in the entertainment and sports fields. The Article describes the changes undertaken as a result of several notorious cases involving prominent child actors, and how the California legislature dealt with issues ranging from set asides of income, approval of contracts by a competent court of jurisdiction, recognition of the legitimate interests of all parties to the contract, to principles under which a minor would be precluded from disaffirming a contract. The Article then applies and extends the principles developed in entertainment contracts to minors …

The Ironies Of Automation Law: Tying Policy Knots With Fair Automation Practices Principles, Meg L. Jones

Vanderbilt Journal of Entertainment & Technology Law

Rapid developments in sensors, computing, and robotics, including power, kinetics, control, telecommunication, and artificial intelligence have presented opportunities to further integrate sophisticated automation across society. With these opportunities come questions about the ability of current laws and policies to protect important social values new technologies may threaten. As sophisticated automation moves beyond the cages of factories and cockpits, the need for a legal approach suitable to guide an increasingly automated future becomes more pressing. This Article analyzes examples of legal approaches to automation thus far by legislative, administrative, judicial, state, and international bodies. The case studies reveal an interesting irony: …

Getting Paid In The Naked Economy, Meredith R. Miller

Hofstra Labor & Employment Law Journal

“It’s the end of work as we know it,” reports consulting firm Accenture in a paper about the “rise of the extended workforce.” (Gartside, Silverstone, Farley & Cantrell, Trends Reshaping the Future of HR: The Rise of the Extended Workforce, at 3 (Accenture 2013). The report predicts that, “[i]n the future, organizations’ competitive success will hinge on...workers who aren’t employees at all.” The legal nature of employment is changing and has been changing for quite some time; fewer and fewer workers are “employees.”

It is not new or novel to recognize that, from a legal perspective, there are many benefits …

A Textualist Approach To Title Vii: Aggrieved Individuals May Bypass The Eeoc, Elinor A. Swanson

Hofstra Labor & Employment Law Journal

No abstract provided.

The Griggs Fable Ignored: The Far-Reaching Impact Of A False Premise, Robert L. Douglas, Jeffrey Douglas

Hofstra Labor & Employment Law Journal

No abstract provided.

Dismantling Social Perceptions & Employment Barriers: Imposing Regulation On Federal Contractors- A Backdoor Approach To Changing America's Hiring Practices For Individuals With Disabilities, Phylis Sherman

Hofstra Labor & Employment Law Journal

No abstract provided.

Joseph Grodin's Contributions To Public Sector Collective Bargaining Law, Alvin L. Goldman

Law Faculty Scholarly Articles

The Labor Law Group, established in the early 1950s, is a unique consortium of labor law professors, and usually a practitioner or two, devoted to improving labor and employment law teaching and scholarship. Its primary activities have been publication of course books and sponsorship of conferences on important new developments. All royalty income goes into a trust fund used solely for carrying on the Group's work. By luck more than by merit, I was invited to join the Group around 1969. Because I had practiced labor law for only a few years on the East Coast before entering law teaching …

Stabilizing Low-Wage Work: Legal Remedies For Unpredictable Work Hours & Income Stability, Charlotte Alexander, Anna Haley-Lock, Nantiya Ruan

Scholarly Works

Low-wage, hourly-paid service workers are increasingly subject to employers' "just-in-time" scheduling practices. In a just-in-time model, employers give workers little advance notice of their schedules, call workers in to work during non-scheduled times to meet unexpected customer demand, and send workers home early when business is slow. The federal Fair Labor Standards Act, the main guarantor of workers' wage and hour rights, provides no remedy for the unpredictable work hours and income instability caused by employers' last minute call-in and send-home practices. This Article examines two alternative sources of legal protection that have received little attention in the literature on …

Reconsidering Legal Regulation Of Race, Sex, And Sexual Orientation, Ann C. Mcginley

Scholarly Works

No abstract provided.

Disarming Employees: How American Employers Are Using Mandatory Arbitration To Deprive Workers Of Legal Protection, Jean R. Sternlight

Scholarly Works

Employers’ imposition of mandatory arbitration constricts employees’ access to justice. The twenty percent of the American workforce covered by mandatory arbitration clauses file just 2,000 arbitration claims annually, a minuscule number even compared to the small number of employees who litigate claims individually or as part of a class action. Exploring how mandatory arbitration prevents employees from enforcing their rights the Article shows employees covered by mandatory arbitration clauses (1) win far less frequently and far less money than employees who litigate; (2) have a harder time obtaining legal representation; (3) are often precluded from participating in class, collective or …

Debunking Unequal Burdens, Trivial Violations, Harmless Stereotypes, And Similar Judicial Myths: The Convergence Of Title Vii Literalism, Congressional Intent, And Kantian Dignity Theory, Peter Brandon Bayer

Scholarly Works

Title VII prohibits employers from imposing their racial, sex-based, ethnic, or religiously inspired grooming and appearance standards, even if, in light of widely accepted social conventions, the vast majority would feel exceptionally uncomfortable in the presence of employees who refuse to comport with their employers' discriminatory rules. Indeed, nearly four decades ago, with correct simplicity and directness the Supreme Court recognized Title VII's first principle: "Congress intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin." Therefore, contrary to the harsh dismay expressed …

Postemployment Noncompete Agreements: Why Utah Should Depart From The Majority, Christopher Mack

Utah Law Review

A decision by the Utah Legislature to follow California’s statutory scheme on noncompetition law would have a positive impact on the economy. A ban on all postemployment noncompete agreements would strengthen the economy by increasing innovation and healthy competition. Additionally, it would create a more fair and efficient labor market, allowing individuals to reach their employment potential. Finally, abolishing postemployment noncompete agreements would significantly increase the protection to employee rights without harming businesses’ rights to protect its goodwill and trade secrets.

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Akron Law Faculty Publications

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Introduction: War Measures And The Repression Of Radicalism, 1914-1939, Barry Wright, Eric Tucker, Susan Binnie

Articles & Book Chapters

This fourth volume in the Canadian State Trials series, Security, Dissent, and the Limits of Toleration in War and Peace, 1914–1939, brings readers to the period of the First World War and the inter-war years. it follows an approach similar to that of others in the series. the central concern remains the legal responses of Canadian governments to real and perceived threats to the security of the state. the aim is to provide a representative and relatively comprehensive examination of Canadian experiences with these matters, placed in broader historical and comparative context.

Labor Law 2.0: The Impact Of New Information Technology On The Employment Relationship And The Relevance Of The Nlra, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

The NLRA system of collective bargaining was born during the industrial age of the early twentieth century. As a result, key terms in the statute such as "employee," "employer," and "appropriate bargaining unit" were first interpreted in the context of long-term employment and large vertically integrated firms that dominated this era. Beginning in the late 1970s, the new information technology wrought a revolution in the organization of production increasing short-term contingent employment and the organization of firms horizontally in trading and subcontracting relationships across the globe. To maintain the relevance of collective bargaining to the modern workplace, the interpretation of …

Utilizing Credit Reports For Employment Purposes: A Legal Bait And Switch Tactic, James D. Phillips, David D. Schein

Richmond Public Interest Law Review

In our previous article, "Holding Credit Reporting Agencies Accountable: How the Financial Crisis May be Contributing to Improving Accuracy in Credit Reporting" we reviewed the legal history of the Fair Credit Reporting Act (FCRA), its amendments, and the federal case law by circuit. We suggested that the ability of consumers to ensure the accuracy and security of their credit reports might lead to an expansion of the litigation surrounding accurate credit reporting. This article takes the discussion further by exploring the ever-expanding use of credit reports in the employment law arena. We review the state legislation limiting the use of …

Working With Cancer: How The Law Can Help Survivors Maintain Employment, Ann C. Hodges

Law Faculty Publications

Advances in cancer treatment are saving lives, but along with the benefits come challenges. Millions of cancer survivors of working age need to support themselves and their families. This Article looks at the impact of cancer on employment starting with the empirical evidence gathered by researchers affiliated with medical centers. This empirical research provides a base, not previously explored in the legal literature, for assessing the existing laws dealing with cancer and employment (or unemployment). Viewing the law through this lens, which reveals the complex relationship between cancer and employment, exposes both the promise and the weakness of existing laws …

Friedrichs V. California Teachers Association: The American Labor Relations System In Jeopardy, Ann C. Hodges

Law Faculty Publications

The petitioners in Friedrichs v. California Teachers Association seek to overturn longstanding law relating to union security in the public sector. A decision in favor of the petitioners will invalidate provisions in thousands of collective bargaining agreements covering millions of workers. Additionally, it has the potential to upend the labor relations system in the United States. To understand how this might be the case, this Issue Brief will review the history of union security and the Supreme Court decisions that upheld union security agreements in the public sector. The Issue Brief will then look at the Friedrichs case itself, engaging …