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Full-Text Articles in Labor and Employment Law

MartinIzing Title I Of The Americans With Disabilities Act, Nicole Buonocore Porter Jan 2013

MartinIzing Title I Of The Americans With Disabilities Act, Nicole Buonocore Porter

Faculty Publications

Prior to the ADA Amendments Act of 2008, relatively few cases proceeded past the initial inquiry of whether the plaintiff was covered by the ADA. Consequently, the scope of an employer's obligation to provide a reasonable accommodation to an individual with a disability remains under-developed and under-theorized. Now that the Amendments have made it easier for plaintiffs to prove that they have a disability under the ADA, we can expect to see more courts struggling with many difficult reasonable accommodation issues. The current case law is chaotic, providing little guidance to employers and courts in determining whether an accommodation is …

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Federal Labor Law And The Mashantucket Pequot: Union Organizing At Foxwoods Casino, Derek Ghan Jan 2013

Federal Labor Law And The Mashantucket Pequot: Union Organizing At Foxwoods Casino, Derek Ghan

American Indian Law Review

No abstract provided.

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"So Closely Intertwined": Labor Interests And Racial Solidarity, Charlotte Garden, Nancy Leong Jan 2013

"So Closely Intertwined": Labor Interests And Racial Solidarity, Charlotte Garden, Nancy Leong

Faculty Articles

Conventional wisdom states that labor unions and people of color are adversaries. Commentators, academics, politicians, and employers across a broad range of ideologies view the two groups’ interests as fundamentally opposed and their relationship as rightfully fraught with tension. Like much conventional wisdom, the narrative that unions and people of color are rivals is flawed. In reality, labor unions and civil rights groups work together to advance a wide array of mutual interests; this work ranges from lobbying all levels of government to protesting working conditions across the country. Moreover, unions improve the lives of both members and non-members of …

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Cheaper Than A Slave: Indentured Labor, Colonialism And Capitalism, Tayyab Mahmud Jan 2013

Cheaper Than A Slave: Indentured Labor, Colonialism And Capitalism, Tayyab Mahmud

Faculty Articles

The construct of free wage-labor, envisaged as consensual sale of labor-power by an autonomous and unencumbered individual in a market of juridical equals governed strictly by economic laws of supply and demand, is the bedrock of the purportedly universal category of labor under capitalism. However, this conceptual ensemble is an instance, yet again, of a particular masquerading as the universal – Europe’s autobiography passing for world history. It also underscores the divergence between mythologies and historical operations of capitalism. This article takes up the deployment of indentured labor from colonial India in plantation colonies across the globe for over a …

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A Changing Federal-State Balance In Unemployment Insurance?, Christopher J. O'Leary Jan 2013

A Changing Federal-State Balance In Unemployment Insurance?, Christopher J. O'Leary

Employment Research Newsletter

No abstract provided.

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The Looking-Glass Ceiling: Appearance-Based Discrimination In The Workplace, Enbar Toledano Jan 2013

The Looking-Glass Ceiling: Appearance-Based Discrimination In The Workplace, Enbar Toledano

Cardozo Journal of Equal Rights & Social Justice

The article examines the phenomenon of appearance-based discrimination, or "lookism," in the workplace, arguing that while physically attractive individuals often receive preferential treatment, the legal system is ill-equipped to address this form of discrimination effectively. It highlights the "what is beautiful is good" stereotype, which perpetuates advantages for attractive individuals in employment, but concludes that legal intervention is not a viable solution due to the subjective and multifaceted nature of attractiveness.

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Role-Modeling: How The Americans With Disabilities Act Blocks Bmi-Based Hiring Bans In The United States, Sarah Budow Jan 2013

Role-Modeling: How The Americans With Disabilities Act Blocks Bmi-Based Hiring Bans In The United States, Sarah Budow

Cardozo Journal of Equal Rights & Social Justice

The global fashion industry's use of extremely thin models contributes to eating disorders by promoting unattainable beauty standards. In response, some countries have implemented laws restricting underweight models, such as Israel's 2012 law requiring a BMI of 18.5 or higher and mandating warnings for altered images. However, similar measures in the U.S. face legal challenges under the ADA, which prohibits employment discrimination based on disabilities, including eating disorders. The ADA's strict standards for defining disabilities and requiring individualized assessments make BMI-based bans difficult to enforce. While some U.S. states have taken steps like banning airbrushing or protecting underage models, broader …

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Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo Jan 2013

Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo

All Faculty Scholarship

Building on a prior article about using film to teach health law, this Essay is intended to share my experience using the film Philadelphia as a method of enhancing coverage and discussion of the employment provisions of the Americans with Disabilities Act (ADA), and to provide an opportunity for recognition of, and identification with, the experiences of people with disabilities.

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The Roberts Court And The Law Of Human Resources, Matthew T. Bodie Jan 2013

The Roberts Court And The Law Of Human Resources, Matthew T. Bodie

All Faculty Scholarship

The rise of human resources departments parallels the increase in the myriad statutory and regulatory requirements that govern the workplace. The Supreme Court's decisions in labor and employment law cases are largely monitored and implemented by HR professionals who must carry out these directives on a daily basis. This article looks at the Roberts Court's labor and employment law cases through the lens of human resources. In adopting an approach that is solicitous towards HR departments and concerns, the Roberts Court reflects a willingness to empower these private institutional players. Even if labor and employment law scholars do not agree …

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Larry From The Left: An Appreciation, Matthew T. Bodie, Grant M. Hayden Jan 2013

Larry From The Left: An Appreciation, Matthew T. Bodie, Grant M. Hayden

All Faculty Scholarship

This essay approaches the scholarship of the late Professor Larry Ribstein from a progressive vantage point. It argues that Ribstein's revolutionary work upended the "nexus of contracts" theory in corporate law and provided a potential alternative to the regulatory state for those who believe in worker empowerment and anti-cronyism. Progressive corporate law scholars should look to Ribstein's scholarship not as a hurdle to overcome, but as a resource to be tapped for insights about constructing a more egalitarian and dynamic economy.

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The Gamification Of Work, Miriam A. Cherry Jan 2013

The Gamification Of Work, Miriam A. Cherry

All Faculty Scholarship

In the language of cyberspace, introducing elements of fun or game-playing into everyday tasks or through simulations is known as the process of “gamification.” The idea that people could be working while they play a video game – in some instances without even knowing that they are working – is becoming part of our reality. Gamification is an important element of what in previous writing I have termed “virtual work,” that is, work that is taking place wholly online, in crowdsourcing arrangements, or in virtual worlds. The gamification of work is an important trend with important implications for employment law. …

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What Brady V. N.F.L. Teaches About The Devolution Of Labor Law, Michael C. Duff Jan 2013

What Brady V. N.F.L. Teaches About The Devolution Of Labor Law, Michael C. Duff

All Faculty Scholarship

In this essay I argue that the Eight Circuit got things very wrong when it found, in Brady v. National Football League, that a district court’s injunctions issued against the NFL in connection with player-filed antitrust suits were barred by the Norris LaGuardia Act of 1932 (NLGA). I argue that the Court’s misreading of the NLGA strikes at the “statutory music” of labor law so dramatically as to represent a judicial unmooring from it. I chronicle other recent important, but relatively minor, judicial departures from the music. I also discuss a major but less recent departure – the employer lockout. …

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Implausible Injuries: Wal-Mart V. Dukes And The Future Of Class Actions And Employment Discrimination Cases, Marcia L. Mccormick Jan 2013

Implausible Injuries: Wal-Mart V. Dukes And The Future Of Class Actions And Employment Discrimination Cases, Marcia L. Mccormick

All Faculty Scholarship

In 2001, a class action suit was brought against Wal-Mart, where plaintiffs sought to certify a class of every woman who did work for the giant retailer or had worked for it since 1998, seeking relief related to promotion and pay policies. Plaintiffs alleged that they were all discriminated against on the basis of sex. The Supreme Court agreed with Wal-Mart, finding that the class did not meet requirements for class actions set by Rule 23. This article explores the reasoning behind the Supreme Court’s split decision that the class did not meet the commonality standard, which relied significantly on …

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Competition Policy And The Great Depression: Lessons Learned And A New Way Forward, Alan J. Meese Jan 2013

Competition Policy And The Great Depression: Lessons Learned And A New Way Forward, Alan J. Meese

Faculty Publications

The recent Great Recession has shaken the nation’s faith in free markets and inspired various forms of actual or proposed regulatory intervention displacing free competition. Proponents of such intervention often claim that such interference with free-market outcomes will help foster economic recovery and thus macroeconomic stability by, for instance, enhancing the “purchasing power” of workers or reducing consumer prices. Such arguments for increased economic centralization echo those made during the Great Depression, when proponents of regulatory intervention claimed that such interference with economic liberty and free competition, including suspension of the antitrust laws, was necessary to foster economic recovery. Indeed, …

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Decoding Civility, Kerri Lynn Stone Jan 2013

Decoding Civility, Kerri Lynn Stone

Faculty Publications

If women outnumber men in graduate schools and are entering professional and other workplaces in unprecedented numbers, and if Title VII has aimed to eradicate workplace discrimination for almost fifty years, why are women still so woefully underrepresented at the highest levels of power, leadership, wealth, and prestige in the contemporary workplace? This Article is about abusive speech in the workplace. It explores how the expression of bias in the workplace has evolved and been shaped by anti-discrimination legislation and jurisprudence. It identifies a category of biased speech that eludes prosecution under Title VII. Moreover, this Article seeks to provide …

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Floor To Ceiling: How Setbacks And Challenges To The Anti-Bullying Movement Pose Challenges To Employers Who Wish To Ban Bullying, Kerri Lynn Stone Jan 2013

Floor To Ceiling: How Setbacks And Challenges To The Anti-Bullying Movement Pose Challenges To Employers Who Wish To Ban Bullying, Kerri Lynn Stone

Faculty Publications

No abstract provided.

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Teaching The Post-Sex Generation, Kerri Lynn Stone Jan 2013

Teaching The Post-Sex Generation, Kerri Lynn Stone

Faculty Publications

There is a trend that I have observed in the course of leading my classes in discussions about the kinds of behavior that may constitute unlawful discrimination: the emergence of an attitude among students that society is simply “post-sex,” or no longer in need of most or all anti-sex discrimination jurisprudence. This Article details my own approach to teaching and to raising and conducting discussions about how anti-discrimination legislation and jurisprudence works in theory, in practice, and how it would/could work in an ideal world. I enjoy teaching students with a diversity of viewpoints. However, when I began to encounter …

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Incorporating Rights: Empire, Global Enterprise, And Global Justice, Erika George Jan 2013

Incorporating Rights: Empire, Global Enterprise, And Global Justice, Erika George

Faculty Scholarship

This Article traces the history and evolution of corporate responsibility under international law to contextualize the developing discourse on business and human rights. It explores the role of private industry in contributing to colonial expansion, slavery, and conflict, and examines the advocacy efforts of abolitionists, anti-imperialism activists, and peace movements to craft reforms and create norms to control corporate conduct. First, the Article outlines the challenge that regulating private commercial power presents for a system of public international law premised on the sovereign power of states. Then, using the example of colonial era European charter companies the Article offers a …

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Collective Representation Of Workers In The United States: Evolution Of Legal Regimes Concerning Collective Autonomy And Freedom Of Association, Barbara J. Fick Jan 2013

Collective Representation Of Workers In The United States: Evolution Of Legal Regimes Concerning Collective Autonomy And Freedom Of Association, Barbara J. Fick

Journal Articles

The United States Constitution does not directly address the collective representation of workers. The First Amendment right to freedom of association has, however, been interpreted to protect the right of individuals to form and join trade unions. This Article discusses the evolution of legal regimes concerning collective autonomy and freedom of association within the United States.

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Conflicting Obligations: American Political Culture And The Law Of The Workplace, Reuel E. Schiller Jan 2013

Conflicting Obligations: American Political Culture And The Law Of The Workplace, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

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Promises To Keep: Ensuring The Payment Of Americans' Pension Benefits In The Wake Of The Great Recession, Kenneth G. Dau-Schmidt Jan 2013

Promises To Keep: Ensuring The Payment Of Americans' Pension Benefits In The Wake Of The Great Recession, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

In this essay, I examine the problem of designing a pension plan within the context of our larger public policy of encouraging workers to save for retirement. I discuss the various problems and risks inherent in encouraging workers to adequately save for retirement, invest those assets efficiently, and ensure the planned level of retirement consumption for the remainder of their lives. I also discuss the three major types of pension plans in the American retirement system, defined benefit, defined contribution, and hybrid, and assess how well each of these types of plans deals with the problems encountered in designing a …

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The Manpower Aspect In The Field Of Sports, Melania Kiswandari Dec 2012

The Manpower Aspect In The Field Of Sports, Melania Kiswandari

Indonesia Law Review

As a result of enhanced professionalism and commercialization in the field of sports, it has become an industry of its own. Professionalism and industrialization are correlated; therefore sports actors’ performance achieved as a result of their professionalism lead to the commercialization, and even to the industrialization of certain (branches of) sports. On the other hand, it is considered that industrialization which involves the commercial aspect is able to maintain, and even enhance sports actors’ professionalism/performance. In practice, such correlation is not always directly proportional, but inversely proportional. There have been cases of issues related to sports actors’ welfare not being …

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Applying Equitable Estoppel To Erisa Pension Benefit Claims, Adam S. Mcgonigle Dec 2012

Applying Equitable Estoppel To Erisa Pension Benefit Claims, Adam S. Mcgonigle

William & Mary Law Review

No abstract provided.

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Laboring Forward: The Future Of Labor Unions, Lisa Koenig Dec 2012

Laboring Forward: The Future Of Labor Unions, Lisa Koenig

MBA Student Scholarship

Labor unions have played an important part in shaping the workforce as we know it since the passing of the National Labor Relations Act (NLRA) in 1935. However, whether they are still perceived as essential in today’s economy is still questioned as union favorability ratings have declined from 35% to 7% over a thirty year span. A survey questionnaire was distributed to a non-random sample (N = 50) to ascertain their attitudes and perceptions on labor unions. Sixty-seven percent of respondents believe that unions should be in every state with 60% of those in a non- Right to Work state …

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Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes, Ernest Caldwell Dec 2012

Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes, Ernest Caldwell

Chicago-Kent Law Review

Western academics who criticize Chinese constitutionalism often focus on the inability of the Supreme People's Court to effectively enforce the rights of Chinese citizens enshrined within the Constitution of the People's Republic of China. Such criticism, I argue, is the result of analytical methods too invested in Anglo-American constitutional discourse. These approaches tend to focus only on those Chinese political issues that impede the institution of western-style judicial review mechanisms, and often construe a 'right' as merely having vertical effect (i.e., as individual rights held against the State). Drawing on recent scholarship that studies Chinese constitutionalism using its own categories …

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Beyond The Courts, Beyond The State: Reflections On Caldwell's "Horizontal Rights And Chinese Constitutionalism", Victor V. Ramraj Dec 2012

Beyond The Courts, Beyond The State: Reflections On Caldwell's "Horizontal Rights And Chinese Constitutionalism", Victor V. Ramraj

Chicago-Kent Law Review

This article provides a critical response to Ernest Caldwell's article, Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes. According to Caldwell, those looking for an emerging constitutional culture in China should be looking not in the higher courts (as the American paradigm of constitutional law suggests), but in the lower courts that settle day-to-day disputes. Moreover, the constitutional discourse in those lower courts is not about limiting state power, but about the need for "horizontal" protections of citizens—specifically laborers—from their powerful employers in furtherance of constitutional values. This article offers three responses to Caldwell's thesis. First, while acknowledging and …

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Labor And Employment Law, W. Melvin Haas Iii, William M. Clifton Iii, W. Jonathan Martin Ii, Alyssa Peters Dec 2012

Labor And Employment Law, W. Melvin Haas Iii, William M. Clifton Iii, W. Jonathan Martin Ii, Alyssa Peters

Mercer Law Review

This Article surveys revisions to the Official Code of Georgia Annotated (O.C.G.A.) and decisions interpreting Georgia law from June 1, 2011 to May 31, 2012.

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The Unity Of Constitutional Values: A Comment On Ernest Caldwell's "Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes", Arif A. Jamal Dec 2012

The Unity Of Constitutional Values: A Comment On Ernest Caldwell's "Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes", Arif A. Jamal

Chicago-Kent Law Review

Ernest Caldwell wants to defend Chinese constitutionalism from criticism, mainly from Western constitutional scholars or scholars who hold up Western constitutional patterns as an ideal. Caldwell makes both a 'comparative' claim and a 'value' claim. The comparative claim is that Chinese constitutional law must be understood on its own terms and that on these terms it does protect rights, even if it does not do so in the same way as Western constitutional law. The value claim is that the procedures in China's legal system satisfy value concerns captured in the term 'constitutionalism' because they show how that system respects …

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Can Damages Be Too Damaging Examining Mason County And Its Progeny, Amber Marie Moore Dec 2012

Can Damages Be Too Damaging Examining Mason County And Its Progeny, Amber Marie Moore

West Virginia Law Review

No abstract provided.

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'In A Settled Country, Everyone Must Eat': Four Questions About Transnational Private Regulation, Migration, And Migrant Work, Amar Bhatia Dec 2012

'In A Settled Country, Everyone Must Eat': Four Questions About Transnational Private Regulation, Migration, And Migrant Work, Amar Bhatia

Articles & Book Chapters

This introduction speaks to one of the questions raised by transnational private regulation: is migration always transnational? One quick answer to this question might be ‘no’. If migration is concerned with the international movement of people, then what has been called the approach of methodological nationalism would force out the ‘trans-­‐’ and always substitute the international. Since methodological nationalism is an approach characterized by an overdue emphasis on states and their external borders as the sole arbiters for what registers as movement, then this answer would not surprise anyone. However, if we do not take a monopolistic approach to borders, …

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