Labor and Employment Law Commons^™

Andrew B. Arnold's Fueling The Gilded Age: Railroads, Miners, And Disorder In Pennsylvania Coal Country, Laura Phillips Sawyer

Scholarly Works

Andrew Arnold’s Fueling the Gilded Age explores the struggles for managerial control and economic power that erupted among coal miners, coal operators, and railroad executives in central Pennsylvania between 1872 and 1902. Rather than presenting an unassailable triumph of the railroads’ interests over labor, Arnold argues that the “coal industry defied order” (p. 3) and laborers exhibited “unexpected agency ” (p. 4, emphasis in original) by thwarting the plans of railroad executives to impose managerial capitalism from the top down. Instead, wage earners “refused to accept their designated fate as commodities” (p. 222) and thereby exerted influence on the institutional …

Rights At Work: Fairness In Personal Work Relations And Restorative Labour Market Regulation, Bruce P. Archibald

Articles, Book Chapters, & Popular Press

By desire or necessity, virtually all of us work for a considerable portion of our lives. Work defines our social status, determines our degrees of health and happiness and underpins our sense of self. The productivity, efficiency and economic significance of the work we do, in aggregate terms, are critical to the prosperity of the societies in which we live. Moreover, fair treatment in our workplaces is an important aspect of our individual well-being and a mark of the civility and decency of our communities. Many of us expect the law to ensure fairness in our work relations; but increasingly, …

An Empirical Analysis Of Noncompetition Clauses And Other Restrictive Postemployment Covenants, Randall S. Thomas, Norman Bishara, Kenneth Martin

Vanderbilt Law School Faculty Publications

Employment contracts for most employees are not publicly available, leaving researchers to speculate about whether they contain postemployment restrictions on employee mobility, and if so, what those provisions look like. Using a large sample of publicly available CEO employment contracts, we are able to examine these noncompetition covenants, including postemployment covenants not to compete ("CNCs" or "noncompetes'), nonsolicitation agreements ("NSAs"), and nondisclosure agreements ("NDAs'). What we found confirms some long-held assumptions about restrictive covenants but also uncovers some surprises.

We begin by discussing why employers use restrictive covenants and examining how the courts have treated them. We then analyze an …

Withdrawn Accommodations, Nicole Buonocore Porter

Faculty Publications

This Article addresses a phenomenon that often arises in reasonable accommodation cases under the Americans with Disabilities Act, a phenomenon I call “withdrawn accommodations.” This occurs when an employer has agreed to provide an accommodation to an employee with a disability and then later withdraws the accommodation. Employers might withdraw accommodations for a couple of reasons. First, an employer might withdraw an accommodation because it finds out that the employee’s need for the accommodation is permanent, rather than temporary, as the employer might have first believed. Second, a new supervisor might arrive on the scene, and decide to withdraw a …

My Coworker, My Enemy: Solidarity, Workplace Control, And The Class Politics Of Title Vii, Ahmed A. White

Publications

No abstract provided.

Self-Perception Of Disability And Prospects For Employment Among U.S. Veterans, Christopher L. Griffin Jr., Michael Ashley Stein

Faculty Publications

No abstract provided.

The Difficulty Accommodating Health Care Workers, Nicole Buonocore Porter

Faculty Publications

I argue that accommodating health care workers is difficult, perhaps more difficult than accommodating other workers, and I explain why. First, in Part II, I will describe the characteristics of health care jobs that make those jobs difficult for individuals with disabilities. These characteristics include: (1) most health care jobs are physically rigorous, often involving heavy lifting, pushing, and walking and standing for long periods of time; (2) most health care jobs involve long hours and/or shift work; and (3) the majority of jobs in the health care industry are safety-sensitive positions, with life or death often hanging in the …

“Play Or Pay”: Interpreting The Employer Mandate Of The Patient Protection And Affordable Care Act As It Relates To Tribal Employers, Rachel Sibila

American Indian Law Review

No abstract provided.

Losing The Best And The Brightest: The Disappearing Wage Premium For H-1b Visa Recipients, Danielle M. Drago

Vanderbilt Journal of Entertainment & Technology Law

The pressure for immigration reform in the technology industry revolves heavily around the use of the H-1B visa, which allows companies to temporarily hire highly skilled workers. This Note provides an empirical analysis of the historical wages of H-1B workers and domestic workers in the technology industry to determine whether H-1B workers earn more or less than domestic workers in the same industry. In the technology industry, H-1B workers' wage premium has eroded in recent years relative to domestic workers, leading to stagnant wages that may deter the "best and the brightest" from choosing to enter into the H-1B process. …

The Disability Cliff, Samuel R. Bagenstos

Articles

We’re pretty good about caring for our disabled citizens—as long as they’re children. It’s time to put equal thought into their adulthoods.

Economic Migration Gone Wrong: Trafficking In Persons Through The Lens Of Gender, Labor, And Globalization, Dana Raigrodski

Articles

This Article argues for an economic analysis of human trafficking which primarily looks at globalization, trade liberalization, and labor migration as the core areas that need to be explored to advance the prevention of human trafficking.

Part I briefly examines the prevailing criminal law enforcement framework regarding human trafficking—both at the international level and in the United States—which stems out of viewing human trafficking as primarily a threat to global security and an underground industry of transnational criminal enterprises. It argues that while criminalization no doubt helped bring much needed attention (and resources) to human trafficking, the narrow criminal law …

Leaky Covenants-Not-To-Compete As The Legal Infrastructure For Innovation, Robert W. Gomulkiewicz

Articles

The flow of information that naturally occurs when employees change firms plays a vital role in spurring innovation. Numerous law review articles have explored how covenants-not-to-compete (“non-competes”) can impede this important information flow. In 1999 Professor Ronald Gilson published an influential article concluding that California’s ban on non-competes led to the rise of California’s Silicon Valley and the comparative decline of Massachusetts’ high technology corridor known as Route 128. Despite the scholarly praise for California’s approach, most states enforce non-competes that are reasonable.

That may change, however, because many states are re-evaluating their non-compete laws to avoid Gilson’s cautionary tale …

Harris V. Quinn: What We Talk About When We Talk About Right-To-Work Laws, Michael J. Yelnosky

Law Faculty Scholarship

No abstract provided.

Ilo Labor Standards And Trade Agreements: A Case For Consistency, Desiree Leclercq, Jordi Agusti-Panareda, Franz Christian Ebert

Scholarly Works

A growing number of trade agreements have taken an important step toward ensuring consistency by referring to - and hence incorporating the legal content of - ILO instruments. On its face, this uniform reference suggests an increasing alignment between the ILO's international labor standards system and the labor provisions included in the various trade agreements. The application of these references in the decentralized trade context needs to be considered carefully, however, as there is a risk of inconsistent practices between agreements.

The Problems Inherent In Litigating Employer Free Exercise Rights, Henry L. Chambers Jr.

Law Faculty Publications

This brief Article proceeds in four parts. Part I discusses the Supreme Court's recent cases that address employer free exercise rights. Part II notes problems that accompany providing free exercise rights to employers. Part III explores the expansion of employer prerogative in the context of providing employers additional free exercise rights. Part IV considers problems that arise when employee rights are not deemed central to litigation regarding employer free exercise rights. The Article concludes by proposing a refraining of the free exercise issue that will consider how to account for the interests of the employer, its stakeholders, and its employees …

Our Uneasiness With Police Unions: Power And Voice For The Powerful?, Marcia L. Mccormick

All Faculty Scholarship

The police shooting of Michael Brown, and the other recent police shootings of black men and boys, gave rise to many important discussions about race, inequality, power, and policing. But one issue not as widely discussed was the the role and propriety of police unions. This Essay describes the history and uniqueness of public sector unions, such as police unions, and why they are both useful and problematic.

This Essay describes ways police unions might be used to help solve the current problems, such as helping to connect officers with the community. The Federal and State governments have provided recommendations …

The Resurgence Of Forced Labor: How The Sixth Circuit's Decision In United States V. Toviave Endorses The Exploitation Of Children, Sophia K. Niazi

American University Journal of Gender, Social Policy & the Law

Comment arguing that the Sixth Circuit decision in United States v. Toviave was erroneous because the court failed to determine that the alleged forced labor was used as a means to control the children in the case. The comment looks at the reasoning in Toviave and explores the Sixth Circuit's reasoning in the case as well as the Federal Forced Labor Statute, the Federal Involuntary Servitude Statute and Michigan's current child abuse laws.

Class-Based Adjudication Of Title Vii Claims In The Age Of The Roberts Court, Michael C. Harper

Faculty Scholarship

This article considers two barriers to class-based adjudication of Title VII claims erected by the Roberts Court: (1) the Court's interpretation of Rule 23, primarily in Wal-Mart v. Dukes; and (2) the Court's interpretation of the Federal Arbitration Act (FAA) in a series of decisions, both employment-related and not. The article contends that it is the latter group of decisions that are the more significant for Title VII private aggregate litigation as well as for other types of private litigation. The Wal-Mart Court predictably did not expand an employer's obligations to avert discrimination by its agents, and its predictable interpretations …

Mandatory Disclosure And Individual Investors: Evidence From The Jobs Act, Colleen Honisberg, Robert J. Jackson Jr., Yu-Ting Forester Wong

Faculty Scholarship

One prominent justification for the mandatory disclosure rules that define modem securities law is that these rules encourage individual investors to participate in stock markets. Mandatory disclosure, the theory goes, gives individual investors access to information that puts them on a more equal playing field with sophisticated institutional shareholders. Although this reasoning has long been cited by regulators and commentators as a basis for mandating disclosure, recent work has questioned its validity. In particular, recent studies contend that individual investors are overwhelmed by the amount of information required to be disclosed under current law, and thus they cannot and do …

Sea Change: New Rulemaking Procedures At The International Labour Organization, Desiree Leclercq

Scholarly Works

The International Labour Organization (“ILO”) turns 100 years old in 2019, and is accordingly one of the oldest international organizations. Its mandate to promote decent work through standard-setting and norm supervision has been challenged by rapid changes in the world of work brought on by globalization, technological advancements, and an increasingly migratory workforce. These changes require the ILO to maintain a flexible system of norm creation and rulemaking that can adapt just as rapidly.

To ensure a flexible system, the ILO should be able to revise its instruments in a sufficiently responsive time. The ILO’s rule to amend its instruments, …

Athletic Compensation For Women Too? Title Ix Implications Of Northwestern And O'Bannon, Erin E. Buzuvis

Faculty Scholarship

The NCAA has been relying on Title IX requirements to defend its polices prohibiting compensation for college athletics; it argues that paying athletes in revenue sports, coupled with the commensurate obligation under Title IX to pay female athletes, would be prohibitively expensive.

As a response to the NCAA’s argument, the Author seeks to advance two positions: first, that Title IX would, as argued by the NCAA, require payment of female athletes using some measure of equality; and second, that it is not Title IX that renders the prospect of athlete compensation cost prohibitive, but rather, the fact that college athletics …

Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg

Faculty Scholarship

A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances.

This essay considers the distinct ways in which the civil rights and social movements for marriage equality gave rise to this durable socio-political transformation. While some scholarship is skeptical about whether rights-focused advocacy can bring meaningful change to people’s day-to-day lives, I argue that the marriage equality movements demonstrate a synergistic relationship between law reform and social change efforts. During the …

Market Norms And Constitutional Values In The Government Workplace, Pauline Kim

Scholarship@WashULaw

The conventional wisdom that public employees enjoy greater rights by virtue of the Constitution may no longer hold true. In recent cases, the Supreme Court has analogized public and private employment, with the effect of eroding the speech and privacy rights of government employees. This essay critically examines this trend, arguing that reliance on an analogy to the private sector is mistaken, because the arguments for giving private employers broad managerial discretion do not apply with the same force, or at all, to government employers. Rights-based arguments do not apply to government agencies, which are publicly-funded to achieve publicly-defined purposes …

Addressing Systemic Discrimination: Public Enforcement And The Role Of The Eeoc, Pauline Kim

Scholarship@WashULaw

Cases challenging systemic discrimination have always constituted an important slice of litigation under Title VII. Early government enforcement efforts sought thorough-going reform of employment practices in major industries. Private litigants have also pursued cases alleging systemic discrimination through class action litigation. The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, however, made it considerably more difficult for private plaintiffs to pursue claims of systemic discrimination by raising the bar for certifying class actions. In the wake of the Court’s decision in Wal-Mart, many urged the Equal Employment Opportunity Commission (“EEOC”) to use its enforcement powers to take up the …

Re-Assembling Labor, John D. Inazu, Marion G. Crain

Scholarship@WashULaw

Organized labor’s judicial, political, and public image is often associated with violence and anarchy. These descriptions are not spun out of whole cloth: violent uprisings that challenged the political and economic order were common in the early days of American labor unionism. But the assumptions underlying past judicial rhetoric and labor law doctrine have outlived their original context. Historical antecedents applied to modern protests like Fast Food Forward, OUR Walmart and the Occupy Movement yield troubling and inconsistent results.

Although these tensions have not gone unnoticed, scholarly commentary to date has overlooked the important connection between the collective, group-based nature …

A Sip Of Cool Water: Pregnancy Accommodation After The Ada Amendments Act, Joan C. Williams

Faculty Scholarship

No abstract provided.

Relationships Of Trust And Confidence In The Workplace, Deborah A. Demott

Faculty Scholarship

No abstract provided.

"Least Restrictive Means”: Burwell V. Hobby Lobby, Noah Marks

Faculty Scholarship

No abstract provided.

Overvaluing Employer-Sponsored Health Insurance, Lauren R. Roth

Scholarly Works

Although positive and negative assessments of tying health insurance to employment abound, most scholars and policymakers have acknowledged that our long history in this area predicts our future. What they have largely ignored, however, is the extent to which individual attachment to employment-based insurance is at the root of our inability to make broader health reforms. The attachment (1) harms exchange-based insurance and (2) denies employers the ability to use Health Reimbursement Arrangements (“HRAs”) to subsidize the purchase of insurance by their employees on the exchanges.

This Article advocates reducing or eliminating workers’ overvaluation of their health insurance and increasing …

Griggs At Midlife, Deborah A. Widiss

Articles by Maurer Faculty

Griggs v. Duke Power, the Supreme Court case that held that policies that disproportionately harm minority employees can violate federal employment discrimination law even without evidence of “intentional” discrimination, recently turned forty. Griggs is generally celebrated as a landmark decision, but disparate impact’s current relevance (and its constitutionality) is hotly debated. Robert Belton’s The Crusade for Equality in the Workplace offers a rich and detailed history of the strategic choices that led to the plaintiffs’ victory in Griggs. This Review uses Belton’s history as a jumping off point to consider the contemporary importance of disparate impact in efforts to challenge …