Labor and Employment Law Commons^™

Codetermination’S Moment Of Truth: Overseas Workers, Jens Dammann

BYU Law Review

The idea that employees of large corporations should be entitled to representation on corporate boards, a concept known as codetermination, is gaining ground. Progressive politicians Elizabeth Warren and Bernie Sanders have proposed codetermination regimes that would allow employees to elect between 40% and 45% of board members. Moreover, an increasing number of corporate law scholars are embracing the idea of giving employees a voice in corporate governance.

However, anyone endorsing codetermination must confront a critical dilemma: whether to limit representation to U.S.-based employees or whether to extend it to overseas workers as well. The question’s practical importance is obvious given …

Papering Justices, Michael L. Smith

BYU Law Review

Supreme Court reform is a lively topic of discussion and debate, with scholars, commentators, and politicians debating a variety of proposed Court reforms, such as term limits, additional Justices, and jurisdiction stripping. This Article adds a new idea to the mix: papering Justices. Several states permit each side to a dispute to file one motion to automatically disqualify the judge overseeing their case. These requests are to be granted automatically without any showing of facts, hearings, or further briefing. This is known as “papering” the judge. Drawing from these practices, I propose that each side to a dispute before the …

Enforcement In Human Rights Due Diligence Laws: A Comparative Analysis, Ryan Schmidt

Pepperdine Law Review

This Comment embarks on a comparative analysis of a variety human rights due diligence (HRDD) laws. It examines six different laws related to human trafficking and supply chains. These laws originate from five different countries and fit into two categories: (1) laws requiring a company to report what, if any, human rights due diligence it engages in and (2) laws that require more than just reporting. By surveying a wide sample of HRDD laws, this Comment provides a broad overview of this area of the law. It also describes the range of legal obligations that multinational enterprises face in different …

Troubling Trends: Ada Definition-Of-Disability Cases 2019–2023, Nicole Buonocore Porter

Pepperdine Law Review

This empirical Article continues my every-five-year tradition of examining every federal case discussing the definition of disability since the Americans with Disabilities Act (ADA) was amended, effective 2009. The results of this research from the third five-year period (2019–2023) are disappointing in both familiar and surprising ways. Similar to the 2014–2018 period, we continue to see way too many courts incorrectly applying (or not even citing to) the ADA Amendments Act. Moreover, I discovered several new troubling trends in this dataset that raise the possibility that we might be heading toward another backlash against ADA plaintiffs. This Article presents my …

The Professional Employer Organization As Dispute System Designer: Mandatory Arbitration In The Co-Employment Context, Ursula Ramsey

University of Miami Business Law Review

A professional employer organization (“PEO”) provides payroll, employment tax, and human resources services to its small to mid-sized business clients. Today, more than 200,000 businesses employing 4.5 million people utilize a PEO’s services. A common PEO strategy is to require co-employees of the PEO and its client companies to agree to mandatory arbitration provisions despite criticism that mandatory employment arbitration lacks public accountability, has lower win rates for employees, and may fail to protect due process. Mandatory arbitration is one method of dispute system design, a term that describes the selection and development of processes by which a company chooses …

37th Annual Labor & Employment Law Conference, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Hindsight Is 20/20: Epilepsy Is Not One-Size-Fits-All, Raika Kim

Northwestern University Law Review

For many, epilepsy is one of the first conditions that come to mind when thinking of a disability, and for good reason: over 50 million people in the world live with epilepsy. Yet misunderstandings about epilepsy have perpetuated social stigma surrounding the disability for centuries. Ableist beliefs led to the passage of laws in the 1900s condoning—and in some cases, requiring—sterilization of individuals with epilepsy and restriction of their right to marry. Even today, state driving laws, justified as promoting public safety, categorically prevent anyone diagnosed with epilepsy from driving unless they are seizure free for an arbitrary, nonuniform period …

Public Employees Labor Relations Law: The First Five Years, Raymond G. Mcguire, Bryan M. Dench

Maine Law Review

In 1965 the 102d Maine Legislature passed the Fire Fighters Arbitration Law, authorizing collective bargaining between bargaining agents designated by municipal fire fighters and their municipal employers. After four years of experience with the Fire Fighters Law, the Legislature enacted the Municipal Public Employees Labor Relations Law (MPELRL) in 1969, a more comprehensive statute mandating collective bargaining between municipalities and bargaining agents designated by the majority of municipal employees in units appropriate for bargaining. In 1974 in "An Act Extending Collective Bargaining Rights to State Employees," the 106th Legislature accorded to most state employees substantially the same organizational and bargaining …

Free Speech, Assembly, And Labor Rights In Singapore And The United States, Tyler Smith

University of Miami International and Comparative Law Review

No abstract provided.

Withholding Tax On Wages: Central Illinois Public Service Co. V. United States, Maine Law Review

Maine Law Review

Section 3402 of the Internal Revenue Code of 1954 requires every employer to deduct and withhold a tax upon wages paid to its employees. The term "wages" is defined in section 3401(a) as all remuneration for services performed by an employee for his employer. Despite apparent simplicity, the process of defining "wages" has generated conflicting interpretations. In Central Illinois Public Service Co. v. United States, the Seventh Circuit confronted the issue of whether meal reimbursements constitute wages for withholding purposes. The meaning of "wages" in section 3401(a) depends upon an assessment of the policy objectives underlying income tax withholding. In …

Tortious Withholding Of Insurance Benefits: Gibson V. National Ben Franklin Ins. Co., Maine Law Review

Maine Law Review

The Maine Workers' Compensation Act provides that an employer's compensation carrier shares the employer's immunity from common law suit. If the carrier delays or withholds benefits owed an injured employee under an approved compensation agreement, the Act imposes a fine on the carrier and permits the employee to recover the overdue compensation payments by invoking the equity powers of the Superior Court. The Act makes no provision for redress when the carrier refuses to pay, a potential limitation recently confronted by the Maine Supreme Judicial Court in Gibson v. National Ben Franklin Insurance Company. In reversing the trial court's dismissal …

Workmen's Compensation: Compensable Injuries; Awards; Relation Of Court And Commission, Maine Law Review

Maine Law Review

During Justice Dufresne's term as Chief Justice of the Maine Supreme Judicial Court, the court considered over sixty-five cases presenting issues that involved the state Workmen's Compensation Act. These decisions attempted to define both the concept of a compensable injury and the nature of workmen's compensation awards. Examination of the court's treatment of these two major components of the workmen's compensation system reveals the Law Court's attitude toward the system itself, the statutory scheme utilized by the Maine Legislature, and the administrative procedure employed in handling workmen's compensation claims. Consideration of the relationship between the court and the Industrial Accident …

Labor Law: Teacher Disputes, Maine Law Review

Maine Law Review

The vast majority of labor law issues presented to the Maine Supreme Judicial Court during the previous seven years were rooted in the confusion surrounding the role of collective bargaining in public school teacher disputes. Indicative of the unsettled nature of this area is the tension between the teacher termination statutes and the Municipal Public Employee Labor Relations Law (hereinafter referred to as MPELRL). Despite the later enactment of MPELRL and its more specific provisions, the court has consistently refused to give it wide application in teacher disputes, choosing instead to rely on the more amorphous statutory provisions defining the …

Eligibility For Vocational Rehabilitation Under The Maine Workers' Compensation Act: Troubling New Standards, Robert T. Duddy

Maine Law Review

In 1961, section 52 of the Maine Workers' Compensation Act was amended to include a new provision which states that a worker who suffers an industrial injury is entitled to vocational rehabilitation. Under section 52, vocational rehabilitation may be awarded if such services are "necessary and desirable" to restore the injured worker to gainful employment and "reasonable and proper" in scope. The language of section 52 pertaining to vocational rehabilitation has remained essentially unchanged since 1961, despite major developments in the functional, economic, and administrative theories underlying vocational rehabilitation. Narrowly construing section 52, the court in Lancaster v. Cooper Industries …

The Prima Facie Case Approach To Employment Discrimination, Joanne F. Cole

Maine Law Review

Employment discrimination litigation has increased dramatically during the past decade. Under Title VII of the Civil Rights Act of 1964—Congress' sweeping prohibition of discrimination in employment decisions on the basis of race, color, religion, sex, or national origin –older federal civil rights statutes and state counterparts to Title VII, courts have developed discrete, cognizable theories of discrimination. An analytical framework has also developed by which to evaluate the facts, innuendoes, and statistics that constitute the claims and defenses in a discrimination case. Within the generally accepted approach to the evidence, however, there is no consensus about the weight each element …

Perspectives On Older Workers: Maine's Prohibition Of Mandatory Retirement, Susan Dana Kertzer

Maine Law Review

The 1978 Amendments to the federal Age Discrimination in Employment Act (ADEA), which generally prohibit mandatory retirement before the age of seventy, have been criticized as proposing to "extend freedom of choice by restricting freedom of contract. Despite such criticisms and other less philosophical objections to the Act, the 108th Maine Legislature in 1977 passed the first part of a legislative program which, as of January 1, 1980, prohibits all mandatory retirement in Maine, in both the public and private sectors. Emphasizing the parallels between age discrimination legislation and other civil rights legislation, one of the bill's senate supporters acknowledged …

Union Liability For Wildcat Strikes: A Look At Carbon Fuel, Jane Rigler

Maine Law Review

For several years the federal district courts and circuit courts of appeal wrestled with the question of a labor union's liabilities and obligations when its members engaged in a wildcat strike. Concern for halting wildcat strikes increased considerably after the Supreme Court's decision in Buffalo Forge Co. v. United Steelworkers. In Buffalo Forge the Court held that a union-sanctioned strike over an issue not subject to binding arbitration could not be enjoined pending an arbitrator's determination of whether the strike violated the no-strike provision of the collective agreement. The Court refused to expand its 1970 Boys Markets, Inc. v. Retail …

Algorithmic Bias In Hiring: Amending Title Vii To Prohibit Ai Discrimination, Michael H. Leroy

Journal of Legislation

I propose amendments to Title VII to address discriminatory hiring related to AI technologies. Section 703(c)’s definition of an “employment agency” should be modified to include “any person who uses artificial intelligence” to procure employees. I also propose a new definition in section 703 that incorporates the expansive definition of AI in 15 U.S.C. 9401(3). These small changes would make AI hiring firms more responsible for discriminatory screening and selection of job applicants, and better protect applicants who are adversely selected by sex, race, disability and other protected characteristics.

Cannabis At Work: Navigating The Intersection Of Employment Law And Legalized Marijuana, Eva Lane

Washington and Lee Journal of Civil Rights and Social Justice

As states increasingly legalize forms of cannabis use, federal regulation remains stagnant. These outdated laws still hold power, undermining state-granted rights. This impact is especially felt in the employment sector. While states pass laws legalizing cannabis use, employers still have a right to a drug free workplace. Many employment agreements prohibit drug use, even if legal under state law. This Note examines recent caselaw to analyze how courts are handling the battle between state and federal government as it relates to cannabis legalization. Ultimately, the argument highlights the risk employees face – engaging in what they believe is legal behavior …

Unmasking The Algorithm: Addressing Bias And Accountability In Ai-Driven Employment Practices, Jasmine Wallace

University of the District of Columbia Law Review

This article argues that as AI systems continue and increasingly influence critical life outcomes, the courts must adapt existing legal frameworks to address disparate impact claims arising from AI-driven processes specifically in employment practices. Doing so will ensure redress for individuals who seek justice against AI-driven processes that cause unintended discrimination without explicit intent and hold organizations accountable to produce transparent and accurate AI-driven employment processes.

This article is divided into three distinct parts. Part I provides concise definitions of commonly used relevant AI terminology and provides an overview of the factual and legal history of disparate impact in employment …

Encouraging Expanded Producer Responsibility In Agricultural Labor Relations, Emma I. Scott

William & Mary Environmental Law and Policy Review

Over two million farmworkers provide essential support to the country’s food system. As detailed below, their current working conditions, living conditions, and legal protections do not reflect the importance of their contributions. As regulations and enforcement have fallen short in securing their rights and economic position, public incentive schemes can encourage improvements and equip grower-employers to reverse the race to the bottom and instead become leaders in providing dignified work opportunities. This Article looks at recent attempts and opportunities to leverage federal policies and programs to incentivize this type of leadership. It proposes that the U.S. Department of Agriculture (USDA) …

Valuing Worker Authenticity, Dallan F. Flake

William & Mary Law Review

Title VII of the Civil Rights Act of 1964 protects workers from discrimination because of their race, color, religion, sex, or national origin. Controversially, courts do not typically extend this protection to individual expression tied to a protected trait, such as a Black employee who wears their hair in dreadlocks or a Latino employee who speaks Spanish on the job. Judicial unwillingness to protect employee self-expression tied to a protected trait causes employees who identify with marginalized groups to suppress their identities to conform with mainstream culture—often at tremendous costs to themselves and the organizations they work for.

This Article …

Excluded But Equal, Gali Racabi

University of Richmond Law Review

On October 25, 2024, The University of Richmond Law Review hosted a Symposium entitled Economies of Extraction: Labor, Care, and the Carceral State. Professor Gali Racabi delivered the presentation transcribed below, which has been edited for clarity and cohesion. The University of Richmond Law Review was honored to host him and is thrilled to publish this transcript of his thoughtful discussion.

On The Meaning Of Discrimination: Anti-Racism Versus Color- Blind Policy, Keith N. Hylton

Cardozo Journal of Equal Rights & Social Justice

Chief Justice Roberts of the United States Supreme Court has said that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. "I In this Article, I examine what it means to discriminate on the basis of race-or what it means to stop discriminating on the basis of race. I consider interventions designed to enhance social welfare in an economy with racially discriminatory games operating at its base. One set of interventions is color-blind, in the sense that it treats all actors alike regardless of race. The other set of interventions …

Pay Transparency Laws Clear As Mud: A Discussion Of And Proposal For The Pay Transparency Legislation In Colorado And New York, Emily Hall

Cardozo Journal of Equal Rights & Social Justice

The note argues that while pay transparency laws in Colorado and New York represent progress, they fall short of achieving true pay equity because they do not require employers to disclose the factors influencing salary ranges. The author advocates for amendments to these laws, including mandatory annual pay audits and the disclosure of factors and their weights used in determining salary ranges, to enhance transparency and fairness in negotiations.

The Role Of Affordable Housing In Enhancing Tenants' Economic Stability In Connecticut: A Focus On Income, Employment, And Housing Stability, Osaid Zubi

Dissertations

This study examined the role of affordable housing in promoting economic stability among low- and moderate-income households in Connecticut. Focusing on income security, employment opportunities, and housing retention, this research highlighted the significance of affordable housing as a means to alleviate financial strain, support job retention, and foster community resilience. Utilizing a phenomenological approach, the study gathered insights from tenants, policymakers, and developers through conducting interviews and a focus group. Connecticut was chosen as the study site due to its high cost of living and affordable housing shortage, exacerbated by its proximity to New York City. Findings underscore the economic …

Rethinking The Litigation Boom, Charlotte S. Alexander

Vanderbilt Law Review

This Article rethinks the functions and functioning of litigation booms. Using an original data set that tracks Fair Labor Standards Act cases during the 2000–2016 period, the Article shows that booms are not anomalies but are instead an expected behavior in our distributed system of civil law enforcement. Specifically, plaintiffs and their lawyers “herd” or converge on a particular type of case, fueled by information transmitted via networks, made available to the general public, or both. The data also reveal that booms can end on their own, reaching a natural tipping point without legislative or judicial retrenchment. This analysis has …

Labor And Environment Entwined: A Radical Green New Deal And Just Transition In Appalachia, Anne Marie Lofaso, Nicholas F. Stump

West Virginia Law Review

In this Article, Professor Lofaso and Professor Stump propose a genuinely transformative Green New Deal and Just Transition in Appalachia. The Article opens by tracing the long history of the Appalachian labor and environmental movements. Next, the Article interrogates the common contention that the Appalachian environmental and labor movements are opposed. While this contention has substantial truth, more complex forces have been at work in the region. Fossil fuel industry elites, for instance, have wielded exaggerated “jobs versus environment” rhetoric to maximize profits and quash emergent solidarities among local workers, residents, and activists. This Article contends that a key solution …

Stars, Stripes, And Pills: The Stock Narratives That Blind, Michelle Wilde Anderson

West Virginia Law Review

No abstract provided.

What Is Wrong With Maine's Occupational Disease Law?, Thomas R. Watson

Maine Law Review

By enacting occupational disease laws, state legislatures stepped ahead of limited medical knowledge concerning the etiology of disease. Responding to public and political pressures, legislatures placed the responsibility for adjudicating claims based on disease on administrators whose procedural and evidentiary systems were designed for claims due to injuries. But the causal connection of disease to employment is not so easily shown; until quite recently, diseases were not thought to support the common law causes of action that gave rise to the quid pro quo of workers' compensation systems. This Comment first sketches the development of Workers' Compensation law and its …