Labor and Employment Law Commons^™

Regretting Roth? Why And How The Supreme Court Could Deprive Tenured Public Teachers Of Due Process Rights In Employment, Karl D. Camillucci

Loyola University Chicago Law Journal

No abstract provided.

The Employment And Economic Advancement Of African-Americans In The Twentieth Century, Kenneth G. Dau-Schmidt, Ryland Sherman

Articles by Maurer Faculty

In this article we examine the progress of African–Americans in the American labour market over the course of the twentieth century. We trace their progress as African-Americans moved from low-skill low-wage jobs in southern agriculture to a panoply of jobs including high-skill, high-wage jobs in industries and occupations across the country.We also document the migrations and improvements in educational achievement that have made this progress possible. We examine the progress yet to be made and especially the problems of lack of education and incarceration suffered by African–American males. Finally, we examine the importance of anti-discrimination laws and affirmative action in …

Enforceability Of Choice-Of-Law Clauses In The Context Of Misclassification Litigation: Bridging The Gap Between Worker And Employer, Koleen S. Sullivan

Georgia Law Review

Picture this: a California resident working in California
files suit against the employer for allegedly misclassifying
the worker as an independent contractor instead of an
employee. The employer is headquartered in Georgia and
the worker has signed an employment contract including a
choice-of-law clause selecting Georgia law. Does Georgia
law apply? If the language of the clause is broad enough
to include a misclassification claim, perhaps. What if the
application of Georgia law violates California public
policy? The answer to this is almost assuredly a
resounding "no." But should Georgia law apply?
This Note argues that it should, under the …

Anglo Views Of Mexican Labor: Shaping The Law Of Temporary Work Through Masculinities Narratives, Leticia M. Saucedo

Nevada Law Journal

No abstract provided.

The Emerging Reality Of Social Media: Erosion Of Individual Privacy Through Cyber-Vetting And Law’S Inability To Catch Up, 12 J. Marshall Rev. Intell. Prop. L. 551 (2013), Saby Ghoshray

UIC Review of Intellectual Property Law

The rise of social media means that data about a large number of people is available in public and quasi-public digital locations. Employers, keen on taking advantage of this additional data to decrease the risk associated with an offer of employment, are engaging in “cyber-vetting”—non-consenting social media searches conducted by third parties or the employers themselves. To the extent that current law applies to this practice, the regulation it provides is weak and attacks only part of the problem. Left unchecked, cyber-vetting has the potential to fundamentally alter the scope of prospective employees’ rights. This article surveys the legal and …

Employment Law And Social Equality, Samuel R. Bagenstos

Law & Economics Working Papers

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this paper argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. Drawing on the author’s work elaborating the justification for employment discrimination law, this paper argues that individual employment law is …

Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law In The United Kingdom And The United States, Susan Bisom-Rapp, Malcolm Sargeant

Loyola University Chicago Law Journal

No abstract provided.

Employment Law Inside Out: Using The Problem Method To Teach Workplace Law, Rachel Arnow-Richman

UF Law Faculty Publications

This Article, prepared for the Saint Louis University Law Review’s 2013 Symposium on Teaching Employment & Labor Law, explores the use of the problem method in employment law instruction. Drawing on my experience teaching the basic employment law course, I suggest that those areas of the field that require transactional lawyering skills are perhaps best taught contextually through a hypothetical problem, rather than through cases. Adopting the problem method in such circumstances not only gives students a richer understanding of the law and how it operates, but also the opportunity to cultivate problem-solving skills and professional judgment, thereby advancing the …

Community Syndicalism For The United States: Democratic Production In Resisting Hegemonic Globalization And Law, Kenneth M. Casebeer

Articles

No abstract provided.

Similarities Between Early Irish Marital Property Law And California Community Property: The Economic Significance Of A Wife's Labor, Caroline Bermeo Newcombe

Cardozo Journal of Equal Rights & Social Justice

The article presents a comparative analysis of two marital property systems: California's community property system and the ancient Irish Brehon law. Despite their temporal and cultural differences, both systems remarkably recognize women's rights to own property, allow unilateral divorce, and value the economic contribution of wives. This comparison highlights progressive legal ideas and critiques the impact of colonialism on legal frameworks, particularly the erosion of Brehon law through cases like Gavelkind, which replaced it with English common law and undermined women's rights.

Cultural Cognition Insights Into Judicial Decisionmaking In Employee Benefits Cases, Paul M. Secunda

Labor & Employment Law Forum

No abstract provided.

Corporate Social Responsibility, International Framework Agreements And Changing Corporate Behavior In The Global Workplace, Owen E. Herrnstadt

Labor & Employment Law Forum

No abstract provided.

Re-Organized Labor: Affirming Labor’S Relevance By Reframing Its Image And Merging With Allies, Laurie Monahan

Labor & Employment Law Forum

No abstract provided.

A Dilemma Of Doctrinal Design: Rights, Identity And The Work-Family Conflict, Lauren Sudeall Lucas

Faculty Publications By Year

This symposium article suggests that with regard to the work-family conflict, we may have exhausted doctrine’s potential in setting a constitutional foundation for women to be treated as equals in the workplace and requiring that they not be discriminated against in the event that they decide to start a family. For purposes of this piece, those accomplishments constitute the first phase or “first generation” of progress. This article is concerned with how doctrine relates to “second generation” issues arising from the work-family conflict: how to balance work and family once some initial level of equality has been achieved; how to …

Gilbert Redux: The Interaction Of The Pregnancy Discrimination Act And The Amended Americans With Disabilities Act, Deborah Widiss

Articles by Maurer Faculty

Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, some courts permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities …

Partnerships In Employment: Benchmarking Toolkit, Jean Winsor, Alberto Migliore

All Institute for Community Inclusion Publications

Policy shifts over the past 20 years have created an agenda that calls for a sustained commitment to integrated employment for individuals with disabilities. But despite these clear intentions, unemployment of individuals with disabilities continues to be a major public policy issue.

For people with intellectual and developmental disabilities (IDD), the disparity in labor market participation grows. Data suggest only 14.7% of individuals who receive supports from state IDD agencies work in either individual or group integrated employment, and 19% of individuals who receive day services from a state IDD agency participate in a service designed to support integrated employment …

Data Note: State Trends In The Vocational Rehabilitation Engagement Of Young Adults With Intellectual Disabilities: 2002-2011, Alberto Migliore, Jean E. Winsor

Data Note Series, Institute for Community Inclusion

Experiencing paid employment during and immediately after high school is a critical step on the path toward economic self-sufficiency in adulthood. Young adults with disabilities interested in gaining employment experiences may seek support from vocational rehabilitation (VR) programs. In this Data Note, we examine the extent to which young adults with intellectual disabilities engage with their state VR programs.

One way for assessing young adult engagement is to look at the number of them who exit the program, which implies that they either applied or were referred to the program. Specifically, we examined the average number of young adults 16 …

Data Note: People Served In Community Mental Health Programs And Employment, Stephanie Wallace, Frank A. Smith

Data Note Series, Institute for Community Inclusion

State mental health agencies provide a wide range of supports, including rehabilitation services and vocational and pre-vocational training, as well as supported and competitive employment supports. This Data Note explores how states vary in number and percentage of individuals who are employed among those served in Community Mental Health Programs (CMHPs), i.e., programs with all services provided in the community, rather than in an inpatient setting. It also explores national trends that occurred from 2002 to 2011.

Employment Law And Social Equality, Samuel R. Bagenstos

Michigan Law Review

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or …

Summary Judgment In Employment Discrimination Cases: A Judge’S Perspective, Hon. Denny Chin

NYLS Law Review

No abstract provided.

Can't Escape From The Memory: Social Media And Public Sector Labor Law, William A. Herbert

Publications and Research

The Web 2.0 communicative revolution is impacting many fields of law, including labor and employment law. This article focuses upon the application and impact of statutory and constitutional doctrines on the use of social media in public employment in the United States. As part of that analysis, it will compare and contrast developments under the National Labor Relations Act, state collective bargaining and tenure laws and the First Amendment concerning social media. Through this comparative analysis, the article will highlight the distinctions and similarities of public sector labor law and their implications for the future.

A Supreme Court Ruling That's About Way More Than Preemption, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Who's The Boss? A Distinction Without A Difference, Lakisha A. Davis

Barry Law Review

This case note provides the factual background of Vance v. Ball State and briefly summarizes the legal precedent behind the decision. It analyzes the opinion of the Court, suggesting that the decision severely limited the essential protections against workplace harassment provided by Title VII, consequently making it more difficult for employees to prove employer vicarious liability for workplace harassment.

Decertifying Players Unions: Lessons From The Nfl And Nba Lockouts Of 2011, Nathaniel Grow

Vanderbilt Journal of Entertainment & Technology Law

This Article analyzes the National Football League (NFL) and National Basketball Association (NBA) lockouts of 2011, focusing in particular on the role union dissolution played in each work stoppage. Although the existing academic literature had generally concluded that players unions in the four major US professional sports leagues were unlikely to disband during a labor dispute, the unions in both the NFL and NBA elected to dissolve in response to lockouts by ownership. This Article provides an explanation for why the prior literature misjudged the role that union dissolution would play during the 2011 work stoppages. It argues that previous …

Improving Retirement Savings Options For Employees, James Kwak

Faculty Articles and Papers

Americans do not save enough for retirement. One reason is that our retirement savings accounts — whether employer-sponsored defined-contribution plans such as 401(k) plans or individual retirement accounts — are heavily invested in actively managed mutual funds that siphon off tens of billions of dollars in fees every year yet deliver returns that trail the overall market. Under existing law, as interpreted by the courts, mutual funds may charge high fees to investors, and companies may offer expensive, active funds to their employees. This paper argues that the Employee Retirement Income Security Act should be reinterpreted, in light of basic …

California Ex Rel. Harris V. Safeway, Inc.: Mismanaging The Intersection Of Antitrust And Labor Law, Peter L. Cooch

Journal of Business & Technology Law

No abstract provided.

Oddball Arbitration, Richard A. Bales, Mark B. Gerano

Hofstra Labor & Employment Law Journal

Congress passed the FAA in 1925 to resolve commercial disputes involving merchants. Since then, the Supreme Court has dramatically expanded the scope of the FAA and applied it in the employee and consumer settings. More recently the Supreme Court has chosen for its arbitration docket a set of cases with wholly atypical fact patterns in what appears to be a deliberate effort – successful so far – to advance its pro-arbitration policy agenda without provoking a political backlash. This article describes three oddball arbitration cases and argues that their atypical facts have permitted the Court to create legal rules that, …

Below The Minimum: A Critical Review Of The 14(C) Wage Program For Employees With Disabilities, Matthew Crawford, Joshua Goodman

Hofstra Labor & Employment Law Journal

No abstract provided.

A Comparison Of The Role Of The Employer In The French And U.S. Health Care Systems, Kathryn L. Moore

Hofstra Labor & Employment Law Journal

The United States is unique among developed nations in its heavy reliance on employment-based health insurance. The United States is not, however, the only nation in which employers play an important role in the financing of health care. The employer plays an important role in financing health care in a number of other countries, including France.

This article explores the role of the employer in the health care system in France and compares it to the role of the employer in the U.S. health care system. It begins by providing an overview of the the French health care system. It …

Inequality, Individualized Risk & Insecurity, Michael J. Zimmer

Faculty Publications & Other Works

No abstract provided.