Labor and Employment Law Commons^™

Who's Your Daddy? A Proposal For Paid Family Leave To Promote The Growth Of Families, Ashleigh Garvey, Claire Mitchell

Hofstra Labor & Employment Law Journal

No abstract provided.

A Tale Of Two Lochners: The Untold History Of Substantive Due Process And The Idea Of Fundamental Rights, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

To say that the Supreme Court's decision in Lochner v. New York is infamous is an understatement. Scholars remember Lochner for its strong right to contract and laissez-faire ideals--at least that is the conventional account of the case. Whether one concludes that Lochner leads to the judicial activism of Roe v. Wade, or foreshadows strong property rights, the standard account depends upon an important assumption: that the Lochner era's conception of fundamental rights parallels that of today. From that assumption, it appears to follow that Lochner symbolizes the grave political dangers of substantive due process, with its "repulsive connotation …

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Full Court Press: How Collective Bargaining Weakened The Nba's Competitive Edge In A Globalized Sport, Matthew Epps

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

Faculty Publications

(Excerpt)

Months after insurance giant American International Group (AIG) faltered and the federal government provided financial assistance to keep the company afloat, executive compensation and bonus practices at the company came under scrutiny. Taxpayers balked when evidence came to light that large bonuses were being paid to executives—the same executives, in certain instances, who had been responsible for AIG's losses. The disconnect between AIG's huge losses and the multi-million dollar bonus payments is a striking example of "pay without performance," a phenomenon that Professors Jesse Fried and Lucian Bebchuk documented in their book of the same name. Responding to public …

Human Dignity And American Employment Law, David C. Yamada

University of Richmond Law Review

No abstract provided.

Interpretive Bulletin 08-1 And Economically Targeted Investing: A Missed Opportunity, Edward A. Zelinsky

Articles

No abstract provided.

Engquist V. Oregon Department Of Agriculture: No Harm Meant? The Vanquished Requirement Of Ill-Will In Class-Of-One Equal Protection Claims And The Erosion Of Public Employees’ Constitutional Rights, Kerstin Miller

Maryland Law Review

No abstract provided.

Taming The Employment Sharks: The Case For Regulating Profit-Driven Labor Market Intermediaries In High Mobility Labor Markets, Harris Freeman, George Gonos

Faculty Scholarship

Over the last quarter century, a profound restructuring of U.S. labor markets has occurred. Long-term job tenure, internal labor markets, and employer-sponsored benefits have waned under the pressures of neoliberal globalization. The trend is toward increasingly precarious, shorter-term, serial employment relationships that offer significantly lower wages, reduced job-related benefits, and formidable obstacles to the exercise of employment rights. This fundamental shift has moved so-called “non-standard” employment arrangements, once viewed as marginal, into the core economy. As a result, a remarkable array of profit-driven labor market intermediaries (LMIs) are now embedded in mainstream labor markets. Temporary help and staffing agencies, payrolling …

Working Group On Chapter 4 Of The Proposed Restatement Of Employment Law: The Tort Of Wrongful Discipline In Violation Of Public Policy, Pauline Kim, Joseph R. Grodin, Paul M. Secunda, Richard A. Bales, Catherine Fisk, Roberto L. Corrada

Scholarship@WashULaw

The purpose of this commentary on Chapter 4 of the Proposed ALI Restatement of Employment Law, concerning the tort of wrongful discipline in violation of public policy, is to closely evaluate the current draft in light of the appropriate purposes for a Restatement. Although some value exists in merely stating the consensus respecting these rules, the mission of the ALI extends beyond that, to better adapt the law to social needs and secure the better administration of justice. Our principal problem with the current Restatement draft is that it does not adequately recognize the dynamic nature of this area of …

Putting Amotion In Motion: Removal Of An Elected Official By A Municipal Governing Body For Just Cause, Cathryn M. Little

Campbell Law Review

This Article will examine the development and application of North Carolina common law addressing the removal of an elected municipal official through the process of "amotion." Amotion is recognized as an "inherent power" of the governing body of a municipal corporation to remove an elected official for reasonable and just cause due to misconduct or unfitness to hold office.

Working For (Virtually) Minimum Wage: Applying The Fair Labor Standards Act In Cyberspace, Miriam A. Cherry

Faculty Publications

(Excerpt)

When Congress passed the Fair Labor Standards Act ("FLSA")' in 1938 to help relieve the downward spiral of wages in the Great Depression, America's workers commonly showed up to an employer's place of business, leaving little doubt if they were "working" and thus entitled to the statute's minimum wage. Times, and technologies, have changed. With modem computers, individuals often perform work on someone else's behalf while sitting at home, using not their employer's factory machinery, but rather a computer they purchased for themselves, as well as their own Internet connection. The work is often engaging and is far more …

Judicial Control Of The National Labor Relations Board's Lawmaking In The Age Of Chevron And Brand X, Michael C. Harper

Faculty Scholarship

This article analyzes and applies to Labor Board decision making the Court’s oft-cited 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. The article argues that judicial review of Board decision making under Chevron, though limited, can still be sufficiently meaningful to control excessive shifts in Board lawmaking criticized by many commentators. The article explains why recent Supreme Court decisions reject any distinction between two theoretically distinct forms of agency discretionary lawmaking – (1) lawmaking through construction of the direct force of an ambiguous statute: and (2) lawmaking through the elaboration of law beyond that which is embodied in …

Accounting For Productivity Growth When Technical Change Is Biased, James Bessen

Faculty Scholarship

Solow (1957) decomposed labor productivity growth into two components that are independent under Hicks neutrality: input growth and the residual, representing technical change. However, when technical change is Hicks biased, input growth is no longer independent of technical change, leading to ambiguous interpretation. Using Solow's model, I decompose output per worker into globally independent sources and show that technical bias directly contributes to labor productivity growth above what is captured in the Solow residual. This contribution is sometimes large, generating rates of total technical change that substantially exceed the Solow residual, prompting a reinterpretation of some well-known studies.

The Future Of American Labor And Employment Law: Hopes, Dreams, And Realities, Theodore J. St. Antoine

Articles

In many respects the US is a deeply conservative country. Unique among the major industrial democracies of the world, it imposes the death penalty, provides no national health insurance, fixes a high legal drinking age, and subscribes to the doctrine of employment at will. Perhaps not surprisingly, its labor movement is also one of the most conservative on earth, eschewing class warfare and aiming largely at the bread-and-butter goal of improved wages, benefits, and working conditions. Yet American employers have generally never been as accepting of unionization as their counterparts in other countries (Bok 1971; Freeman and Medoff 1984). Over …

Prosecuting Worker Endangerment: The Need For Stronger Criminal Penalties For Violations Of The Occupational Safety And Health Act, David M. Uhlmann

Articles

A recent spate of construction deaths in New York City, similar incidents in Las Vegas, and scores of fatalities in recent years at mines and industrial facilities across the country have highlighted the need for greater commitment to worker safety in the United States and stronger penalties for violators of the worker safety laws. Approximately 6,000 workers are killed on the job each year1—and thousands more suffer grievous injuries—yet penalties for worker safety violations remain appallingly small, and criminal prosecutions are almost non-existent. In recent years, most of the criminal prosecutions for worker safety violations have been brought by the …

Private Injuries, Public Policies: Adjusting The Nlrb's Approach To Backpay Remedies Symposium: Whither The Board: The National Labor Relations Board At 75, James J. Brudney

Faculty Scholarship

From fiscal years 2004 through 2008, over 135,000 employees received backpay through NLRB proceedings, mostly based on wrongful discharges. The Labor Board's backpay determination processes are often cumbersome and time-consuming to apply: they effectively invite employers to reduce and delay monetary recoveries and, not coincidentally, they undermine the remaining employees' interest in pursuing unionization and a collective bargaining relationship. The Article first asks to what extent the Board has statutory authority to adjust its approach toward backpay and mitigation. The answer, in short, is more than has previously been understood. Invoking the remedial authority found within section 10(c) and embraced …

Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff

All Faculty Scholarship

This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on …

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Scholarship

This article reports on the thick layers of law applicable to claims of religious exception to public and private employment workplaces in the United States. It reviews the Supreme Court's First and Fourteenth Amendment salient holdings, distinguishing public sector (government) workplaces, and the extent to which legislative bodies may and may not oblige private employers to "accommodate" religiously-asserted requirements. It also provides exhaustive footnote analyses of all major federal statutes (plus some representative state and local law variations) pertinent to the topic. Its principal conclusions are these: In the currently prevailing view of the U.S. Supreme Court, neither public nor …

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

Publications

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …

If It Is Broken, Then Fix It: Needed Reforms To Employment Discrimination Law: 2009 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Melissa Hart, Minna Kotkin, Roberto Corrada, Deborah Widiss

Publications

No abstract provided.

Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton

Publications

This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government …

Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

Publications

It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five …

Foreword Symposium: Having It Our Way: Women In Maryland's Workplace Circa 2027, Margaret E. Johnson

All Faculty Scholarship

On November 14, 2007, the University of Baltimore School of Law, the University of Maryland School of Law and the Women's Law Center of Maryland co-sponsored a symposium entitled "Having it Our Way: Women in Maryland's Workplace Circa 2027." The insightful collection of papers in this volume of the University of Maryland Law Journal of Race, Religion, Gender and Class represents the work of employment law scholars, public policy specialists, and activists who presented on the current state of Maryland employment law and discussed Maryland's future. This distinguished group of experts and scholars present several themes: the hope of new …

Collateral Conflict: Employer Claims Of Rico Extortion Against Union Comprehensive Campaign , James J. Brudney

Faculty Scholarship

The article addresses an important yet largely overlooked issue of statutory meaning and labor relations policy: employers’ aggressive use of civil RICO actions to chill coordinated union efforts in the organizing and bargaining arenas. Over the past 30 years, facing volatile economic conditions and complex corporate relationships, unions have mounted coordinated campaigns (aimed at consumers, public officials, lenders, the media, and the public) in order to help organize new workers and to renew collective bargaining relationships. These often high-profile campaigns have at times been quite successful. In response, employers since the late 1980s have invoked civil RICO’s broad language to …

The Work/Family Balance: New York's Struggle To Harmonize Domestic And Employment Spheres, Kerry Anne Hoffman

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges faced by American workers in balancing work and family responsibilities, highlighting the limitations of the Family and Medical Leave Act (FMLA) and advocating for the implementation of paid family leave policies. It emphasizes the need for both federal and state-level reforms to address the financial and societal barriers that prevent employees, particularly low-income families and single parents, from utilizing unpaid leave. The note also explores the progress made by states like California, New Jersey, and Washington in enacting paid family leave legislation, while noting the ongoing political opposition to such measures in New York. It …

Labor Injunctions In Bankruptcy: The Norris-Laguardia Firewall, Michael C. Duff

All Faculty Scholarship

This article considers whether federal courts, including bankruptcy courts, are authorized to issue injunctions in connection with various kinds of labor disputes arising after the filing of a petition in bankruptcy. The question takes on renewed importance in light of the record number of Chapter 11 bankruptcy filings in 2008, including filings by two of the three major American automakers, which are unionized. Given the increasing complexity of some of these notorious reorganizations, the likelihood of post-petition labor disputes appears to have correspondingly increased. In agreement with the few federal circuits that have considered the question, the article concludes that, …

Working Sick: Lessons Of Chronic Illness For Health Care Reform, Elizabeth Pendo

All Faculty Scholarship

Although chronic illness is generally associated with the elderly or disabled, chronic conditions are widespread among working-age adults and pose significant challenges for employer-based health care plans. Indeed, a recent study found that the number of working-age adults with a major chronic condition has grown by 25 percent over the past 10 years, to a total of nearly 58 million in 2006. Chronic illness imposes significant costs on workers, employers, and the overall economy. This population accounts for three-quarters of all personal medical spending in the United States, and a Milken Institute study recently estimated that lost workdays and lower …

Do You Want To Be An Attorney Or A Mother - Arguing For A Feminist Solution To The Problem Of Double Blinds In Employment And Family Responsibilities Discrimination , Heather Bennett Stanford

American University Journal of Gender, Social Policy & the Law

No abstract provided.

From Queen Bees And Wannabes To Worker Bees: Why Gender Considerations Should Inform The Emerging Law Of Workplace Bullying, Kerri Lynn Stone

Faculty Publications

This Article submits that the documented phenomenon of workplace bullying operates to stymie the retention and advancement of women in the workplace Research documented in books like Queen Bees and Wannabes shows that as early as the schoolyard, males and females tend to socialize differently, engage in and resolve conflict with peers differently, and absorb bullying behavior differently. Girls often believe or are taught to believe that direct conflict or confrontation is unpalatable and tend to employ more passive aggressive means of engagement with foes. They often internalize and repress feelings that boys are more likely to express. Viewing the …