Labor and Employment Law Commons^™

Brief Amici Curiae Of The National Employment Lawyers Association, The Naacp Legal Defense And Educational Fund, Inc., And Marianne Sawicki, In Support Of Respondent, 549 U.S. 1334 (2007) (No. 06-341), 2007 Wl 966520, Eric Schnapper, Marissa Tirona, Theodore Shaw

Court Briefs

No abstract provided.

On The Continued Need For H-1b Reform: A Partial, Statutory Suggestion To Protect Foreign And U.S. Workers, Todd H. Goodsell

Brigham Young University Journal of Public Law

No abstract provided.

The 2006 Revisions To Japan's Equal Opportunity Employment Law: An Narrow Approach To A Pervasive Probem, Megan L. Starich

Washington International Law Journal

In June 2006, Japan changed its approach to employment discrimination by amending the Equal Employment Opportunity Law (“EEOL”). The change was prompted by increased gender discrimination litigation, domestic economic pressures relating to the low birth rate, a stagnant economy and declining labor force, and criticism from the United Nations. The revised law attempts to address several of the shortcomings of the old law. First, Japan has made the law applicable to all workers rather than just to women workers. Second, the revisions expand the scope of the law by including a section on indirect discrimination. Third, the revisions provide greater …

What Impact Will The Revised Trade Union Law Of China Have On Foreign Business?, Zana Z. Bugaighis

Washington International Law Journal

Cheap labor. Minimal regulations. Bribable officials. Foreign corporations attracted to China because of its low cost of business have avoided the unionization desired by the Chinese Communist Party (“CCP”) despite China’s history of weak trade union laws and inconsistent enforcement of union mandates. However, recent concerns of social unrest have forced the CCP to consider reforming the political tools used to control Chinese society. The CCP wants to create social stability, avoid independent unionization, and prevent the westernization of China. Foreign Investment Enterprises (“FIEs”) present new challenges for labor market regulation in China with their large number of non-unionized workers …

Silenced Citizens: The Post-Garcetti Landscape For Public Sector Employees Working In National Security, Jamie Sasser

University of Richmond Law Review

No abstract provided.

Atu, Local 508 V Halifax (Regional Municipality), Innis Christie

Innis Christie Collection

The Grievor was terminated for inappropriate behaviour towards a female passenger. The Grievor did not believe the Employer had just cause and sought reinstatement with full wages and seniority, and the removal of all related documents from his personnel file.

The grievance succeeds in part. Given a previous disciplinary letter regarding similar behaviour, the Grievor should have known that his conduct was not acceptable. Discipline was justified, but dismissal was viewed as excessive in a situation where progressive discipline might be expected. The Grievor is reinstated with several conditions, and with one month suspension without pay. Jurisdiction is retained.

Discrimination At Will: Job Security Protections And Equal Employment Opportunity In Conflict, Julie C. Suk

ExpressO

The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at …

Unfulfilled Expectations: An Empirical Analysis Of Why Sarbanes-Oxley Whistleblowers Rarely Win, Richard E. Moberly

ExpressO

Scholars praise the whistleblower protections of the Sarbanes-Oxley Act of 2002 as one of the most protective anti-retaliation provisions in the world. Yet, during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process. This Article reports the results of an empirical study of all Department of Labor Sarbanes-Oxley determinations during this time, consisting of over 700 separate decisions from administrative investigations and hearings. The results of this detailed analysis demonstrate that administrative decision-makers strictly construed, and in some cases …

Re Canada Post Corp And Cupw (Paris), Innis Christie

Innis Christie Collection

The Grievor was discharged for being absent without leave. The Union believed the Employer's action was without just, reasonable or sufficient cause. The requested remedy is full reinstatement, compensation of lost earnings and benefits, and removal of all related documents in the personnel file

The grievance succeeds in part. During the hearing the parties agreed to reinstate the Grievor, subject to a number of conditions, which are to be in effect for 24 months. Jurisdiction is retained.

Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote

Washington Law Review

Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects …

Getting Dooced: Employee Blogs And Employer Blogging Policies Under The National Labor Relations Act, Marc Cote

Washington Law Review

Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects …

The Solomon Amendment, Expressive Associations, And Public Employment, Paul Secunda

ExpressO

Rumsfeld v. FAIR apparently concedes that public employers, in the guise of public law school members of the FAIR association, have expressive association rights. This state of affairs could now mean that public employers could gain constitutional rights at the expense of pubic employees. Thus, to the extent that public employers are considered expressive associations, public employees may see their free speech and other constitutional rights diminished (even more so than they recently have been by the Garcetti v. Ceballos decision).

Thankfully, I cannot imagine that the Court, if faced with the question directly, would find that public employers have …

The New Direct Proximate Cause: How The U.S. Supreme Court Has Attempted To Limit Civil Rico In A Manner Congress Aimed To Protect, Gregory M. Zarin

ExpressO

This comment explores a heavily litigated issue since civil RICO's enactment - its unclear statutory scope and private party standing. To illustrate this issue, this comment explores recent RICO litigation related to the unlawful hiring of undocumented workers as an example of a Congressionally supported application of civil RICO, but in a manner wholly unrelated to organized crime or the mafia. While the Supreme Court has continued to limit civil RICO's outer boundaries, Congress seems to go the complete opposite direction by expanding the statute.

The National Labor Relations Act And Flexible Work Arrangements: An Overview Of Existing Law And Proposals For Reform, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

The scheduling of work hours is important to employers and employees alike. Employers must ensure sufficient staffing to meet workload demands; employees must balance work with other aspects of their lives. Over the past several years, the tendency to view these needs as mutually exclusive has slowly given way to increased discussion of and experimentation with flexible work arrangements as an effective way to balance work-life demands. While these workplace flexibility initiatives take many forms, the majority of them require collaboration between employers and employees regarding work hours and conditions.

Episodic Time Off: An Overview, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

While some workers' needs for lexibility can be addressed by short Term Time Off (STO) or by a Flexible Work Arrangement (FWA), there are other workers who need time off on a more episodic basis. These workers may have an illness, such as cancer of kidney disease, which requires them to attend numerous medical appointments on a relatively set basis. Or they may have a chronic conditions, such as migraine headaches or fibromyalgia, that flares up sporadically. Some workers may care for family memebers who have recurring medical needs, such as an aging parent who requires regularly scheduled bi-weekly dialysis …

Fact Sheet On Episodic Time Off (Epto), Jean Flatley Mcguire, Kaitlyn Kenney

Memos and Fact Sheets

Workplace Flexibility 2010 has coined the term "Episodic Time Off" or "EPTO" to describe the type of workplace flexibility needed to address the recurring need for time off - sometimes regular, sometimes sporadic, sometimes foreseeable, sometimes not - for which Short Term Time Off is insufficient and which a Flexible Work Arrangement cannot resolve. Evidence illustrates that across the lifespan, for a variety of reasons, the need and desire for EPTO are great.

Myspace Isn't Your Space, Donald Carrington Davis

ExpressO

The advent and popularity of online social networking has changed the way Americans socialize. Employers have begun to tap into these online communities as a simple and inexpensive way to perform background checks on candidates. However, a number of problems arise and may arise when employers base adverse employment decisions on the results of these online searches. Three basic problems or issues accompany searches of online profiles for employment decisions: inaccurate, irrelevant, or false information leads to unfair employment decisions; lack of accountability and disclosure tempts employers to make illegal employment decisions; and employer searches of an employee’s online social …

Re Canada Post Corp And Cupw, Innis Christie

Innis Christie Collection

The Grievor was dismissed for allegedly exposing himself and for not cooperating with the Employer's request for medical consultations. The Grievor denied the event occurred. The Union states that the dismissal was without just or sufficient cause and requests that the Grievor be fully reinstated and compensated for all lost earnings and benefits, and that all material relating to the matter be removed from his personnel file.

Void Agreements, Knocked-Out Terms, And Blue Pencils: Judicial And Legislative Handling Of Unreasonable Terms In Noncompete Agreements, Kenneth R. Swift

Hofstra Labor & Employment Law Journal

This article discusses the judicial and legislative handling of unreasonable terms in noncompete agreements. Section II provides a brief introduction to employer-employee noncompete agreement analysis and explores the preliminary issue of consideration. Section III analyzes the criteria and differing approaches courts use to determine the validity of a noncompete agreement, including the requirement of an employer’s legitimate business interest and the reasonableness of the occupational limitations as well as the geographic and temporal scope of the agreement. Section IV surveys the current judicial and statutory responses to unreasonable terms in a noncompete agreement. Section V and VI critique the varying …

Reclaiming Mcdonnell Douglas, Martin J. Katz

Sturm College of Law: Faculty Scholarship

This Article proceeds in three Parts. Part I argues that McDonnell Douglas should never be required (and, in the process, dispels the nearly universally held myth that this framework proves or requires "but for" causation). Part II shows how a nonmandatory McDonnell Douglas would interact with the two alternative frameworks (Price Waterhouse and the 1991 Act), and also shows how a nonmandatory McDonnell Douglas can be implemented under current law. This Part also resolves the three doctrinal debates that currently plague disparate treatment law. Part III refutes most of the normative criticisms that have been leveled at McDonnell Douglas and …

Charter Schools And Collective Bargaining: Compatible Marriage Or Illegitimate Relationship? (With C. Kerchner), Martin H. Malin

All Faculty Scholarship

The rapid increase in charter schools has been fueled by the view that traditional public schools have failed because of their monopoly on public education. Charter schools, freed from the bureaucratic regulation that dominates traditional public schools, are viewed as agents of change that will shock traditional public schools out of their complacency. Among the features of the failed status quo are teacher tenure, uniform salary grids and strict work rules, matters that teacher unions hold dear. Yet unions have begun organizing teacher in charter schools. This development prompts the question whether unionization and charter schools are compatible. In contrast …

Derecho Laboral Y Organización Sindical En Puerto Rico, César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Derechos Mancos Para Manos Obreras: Cómo El Derecho Laboral Y La Economía Impactan La Organización Sindical En Puerto Rico, César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Solidarity Or Colonialism? The Polemic Of "Labor Colonialism", César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Vol. 24, No. 1, Robert C. Long Esq.

The Illinois Public Employee Relations Report

Contents:

The Changing Nature of Pension Plans and Retiree Medical Benefits: What the Private Sector Experience Portends for the Looming Crisis in the Public Sector, by Robert C. Long, Esq.

Recent Developments

Further References, compiled by Yoo-Seong Song

Ruminations On The Past, Present And Future Of International Labor Standards: Empowering Law In The Brave New Economic World, Marley S. Weiss

Faculty Scholarship

International labor standards are among the oldest international standards pertaining to the conduct of private, as well as public, economic actors. Far from being settled, however, nearly every aspect of the current international labor standards regime is in flux: the role of labor standards in the international legal, economic, political, and social order, as well as in the parallel domestic orders; the modes by which standards are brought into being; the manner and means of their implementation and enforcement; the degree to which they may be binding solely on nation-state parties, and enforceable only at their behest; and the extent …

The Temporally-Flawed Concept Of Binding Promises In American Collective Bargaining And Employee Benefits Law: A Source Of The Concurrent Crises In The U.S. Industrial Relations, Retirement, And Health Care Systems, Marley S. Weiss

Faculty Scholarship

The American collective bargaining system is in serious trouble, as is the employee benefits system providing pensions and health care benefits for millions of non-union as well as unionized workers and retirees. The portion of the labor force covered by collective bargaining has dropped so low that one can barely refer to it as a system. Simultaneously, the American private employer-based pension system is moving towards a crisis. Large employers with the finest pension plans, covering thousands of workers and retirees, in industry after industry, are terminating their pension plans, or replacing them with cheaper, weaker retirement programs, often while …

Casa Of Maryland And The Battle Regarding Human Trafficking And Domestic Workers’ Rights, Elizabeth Keyes

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Recreating Diversity In Employment Law By Debunking The Myth Of The Mcdonnell Douglas Monolith, Sandra F. Sperino

Faculty Articles and Other Publications

The McDonnell-Douglas framework is one of the primary methods used by courts to evaluate discrimination claims based on circumstantial evidence. Although McDonnell-Douglas often is referred to as a singular test, it is actually a collection of different tests gathered rather deceptively under one name. Over the years, federal courts considering state law claims have increasingly applied the McDonnell-Douglas framework to these state claims, without considering whether the same result would occur under state law. The federal courts' rather monolithic view of McDonnell-Douglas is choking debate on important issues of employment law and denying states the ability to weigh in on …

Their Servants’ Keepers: Examining Employer Liability For The Crimes And Bad Acts Of Employees, Monique C. Lillard

Articles

No abstract provided.