Open Access. Powered by Scholars. Published by Universities.®

Labor and Employment Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

Discipline
Institution
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 5491 - 5520 of 11179

Full-Text Articles in Labor and Employment Law

Reconciling The Public Policy Exception To Enforcing Contracts With Title Vii's Public Policy On Disciplining Harassers, Stephen Plass Jan 2007

Reconciling The Public Policy Exception To Enforcing Contracts With Title Vii's Public Policy On Disciplining Harassers, Stephen Plass

St. Thomas Law Review

This article looks at the evolution of the public policy doctrine and its effects on Title VII when unionized employees are dismissed for harassment. Some writers have questioned whether the Court eliminated the public policy exception by defining it so narrowly. But, the focus of commentary has been on the effects of the Eastern decision in the traditional collective bargaining context where the need to limit judicial involvement is great. However, the public policy doctrine's impact is no longer limited to traditional contract issues that are unregulated. As a result, the doctrine's impact on the operation and goals of Title …

Go to article

Egalitarianism And Exclusion: U.S. Guest Worker Programs And A Non-Subordination Approach To The Labor-Based Admission Of Nonprofessional Foreign National, Andrew Elmore Jan 2007

Egalitarianism And Exclusion: U.S. Guest Worker Programs And A Non-Subordination Approach To The Labor-Based Admission Of Nonprofessional Foreign National, Andrew Elmore

Articles

No abstract provided.

Go to article

Avoiding Harm Otherwise: Reframing Women Employees' Responses To The Harms Of Sexual Harassment, Margaret E. Johnson Jan 2007

Avoiding Harm Otherwise: Reframing Women Employees' Responses To The Harms Of Sexual Harassment, Margaret E. Johnson

All Faculty Scholarship

This article concerns the concepts of employee harm and harm avoidance within the liability framework for hostile work environment sexual harassment by a supervisor. Whether an employer is liable for supervisor sexual harassment depends in part on whether or not the employee avoids her harm or mitigates her damages resulting from the sexual harassment. Despite the law's interest in employee's harm avoidance, courts have failed to fully explore the vast array of harms resulting from sexual harassment and the variety of ways in which an employee avoids these multiple harms. This article reframes the legal discussion of an employee's actions …

Go to article

“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk Jan 2007

“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk

Faculty Scholarship

A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated …

Go to article

Boxing Out The Big Box Retailers: The Legal And Social Impact Of Big Box Living Wage Legislation, 40 J. Marshall L. Rev. 1339 (2007), Christine Niemczyk Jan 2007

Boxing Out The Big Box Retailers: The Legal And Social Impact Of Big Box Living Wage Legislation, 40 J. Marshall L. Rev. 1339 (2007), Christine Niemczyk

UIC Law Review

No abstract provided.

Go to article

Rejecting Reasonableness: A New Look At Title Vii's Anti-Retaliation Provision, Briane J. Gorod Jan 2007

Rejecting Reasonableness: A New Look At Title Vii's Anti-Retaliation Provision, Briane J. Gorod

American University Law Review

This Article argues that the “reasonableness” requirement of Title VII should be rejected. Under this approach, a plaintiff’s complaint would be protected unless the defendant could establish that the plaintiff was acting in bad faith at the time she made the complaint. Such a standard would offer employers some protection from retaliation suits based on frivolous complaints without compromising the significant goals the retaliation provision can serve. Part I provides background on Title VII and the anti-retaliation provision, particularly the “opposition” clause, explains why the anti-retaliation provision is necessary and how courts have interpreted the scope of the conduct it …

Go to article

Comparative Evidence Or Common Experience: When Does "Substantial Limitation" Require Proof Under The Americans With Disabilities Act?, Cheryl L. Anderson Jan 2007

Comparative Evidence Or Common Experience: When Does "Substantial Limitation" Require Proof Under The Americans With Disabilities Act?, Cheryl L. Anderson

American University Law Review

No abstract provided.

Go to article

Outing Outcomes: An Empirical Study Of Confidential Employment Discrimination Settlements, Minna J. Kotkin Jan 2007

Outing Outcomes: An Empirical Study Of Confidential Employment Discrimination Settlements, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Go to article

Rethinking The Tripartite Division Of American Work Law, Michael Fischl Jan 2007

Rethinking The Tripartite Division Of American Work Law, Michael Fischl

Faculty Articles and Papers

The holy trinity of American work law - employment discrimination, labor law, and employment law - has governed the American workplace for over four decades and is also firmly entrenched in the curricula of most law schools. But the discrete lenses provided by the conventional trinity make it difficult to bring into focus two distinct but related dimensions of the accelerating integration of American work law. Thus, we are on the one hand experiencing an accelerating doctrinal integration of our field, as the settings in which nominally out of area law plays a significant governance role are rapidly proliferating. At …

Go to article

Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman Jan 2007

Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman

Faculty Articles and Papers

An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants-upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, …

Go to article

The Other Side Of The Picket Line: Contract, Democracy, And Power In A Law School Classroom, Michael Fischl Jan 2007

The Other Side Of The Picket Line: Contract, Democracy, And Power In A Law School Classroom, Michael Fischl

Faculty Articles and Papers

his essay - from a forthcoming symposium on teaching from the left in the NYU Review of Law & Social Change - offers an account of the successful union organizing campaign among custodial and landscaping workers at the University of Miami during the 2005-06 academic year, focusing in particular on the role played by faculty during the course of the campaign. It examines a fractious debate generated by faculty who held classes off campus in order to support the striking workers and the author's own decision to put the question of whether to honor the picket line to a vote …

Go to article

What Process Is Due In The Adjudication Of Erisa Claims?, 40 J. Marshall L. Rev. 811 (2007), Mark D. Debofsky Jan 2007

What Process Is Due In The Adjudication Of Erisa Claims?, 40 J. Marshall L. Rev. 811 (2007), Mark D. Debofsky

UIC Law Review

No abstract provided.

Go to article

Rescue The Americans With Disabilities Act From Restrictive Interpretations: Alcoholism As An Illustration, Judith J. Johnson Jan 2007

Rescue The Americans With Disabilities Act From Restrictive Interpretations: Alcoholism As An Illustration, Judith J. Johnson

Journal Articles

The Supreme Court has narrowed the doorway into the protected class for the Americans with Disabilities Act of 1990 (ADA) in virtually every employment case. Taking their cue from the Supreme Court, the lower courts have been concerned principally with who is "disabled" and thus protected by the ADA. The answer today is not many people. The courts generally have been so hostile to ADA plaintiffs that it is difficult now to find a case in which the plaintiff was able to prove that he was disabled. Congress contemplated that some impairments would always be disabling. The Supreme Court, however, …

Go to article

Law Firms As Defendants: Family Responsibilities Discrimination In Legal Workplaces, Joan C. Williams, Stephanie Bornstein, Diana Reddy, Betsy A. Williams Jan 2007

Law Firms As Defendants: Family Responsibilities Discrimination In Legal Workplaces, Joan C. Williams, Stephanie Bornstein, Diana Reddy, Betsy A. Williams

UF Law Faculty Publications

This article analyzes how the growing trend of litigation alleging employment discrimination based on workers' family caregiving responsibilities applies to law firms and other legal employers. Our research has found at least thirty-three cases since 1990 in which employees of law firms or other legal employers--both attorneys and support staff--have sued their employers for family responsibilities discrimination (“FRD”). FRD is discrimination against employees based on their family caregiving responsibilities for newborns, young children, elderly parents, or ill spouses or partners. Here we analyze these cases, including the employee experiences that have prompted litigation and the legal theories on which the …

Go to article

Public Sector Employee Bargaining: Contract Negotiations And Case Law, Andrew Douglas Jan 2007

Public Sector Employee Bargaining: Contract Negotiations And Case Law, Andrew Douglas

Cleveland State Law Review

Between 1973 and 1980, across Ohio there were 428 public employee labor actions. In the face of such labor unrest, coupled with changing times and changing attitudes, the lawmakers of Ohio began to recognize the desperate need of the state's public employees to be granted the right to bargain collectively with their employers. It is my hope that after reading this Article, based upon an academically defensible presentation, you will draw the conclusion that collective bargaining for employees in the public sector is a good thing and should be protected at all costs in and by the law.

Go to article

Public Law And Private Process: Toward An Incentivized Organizational Justice Model Of Equal Employment Quality For Caregivers, Rachel Arnow-Richman Jan 2007

Public Law And Private Process: Toward An Incentivized Organizational Justice Model Of Equal Employment Quality For Caregivers, Rachel Arnow-Richman

UF Law Faculty Publications

This article considers the relationship between prescriptive law and voluntary employer behavior in redressing the structural exclusion of working caregivers. In the last decade, several courts interpreting the Americans with Disabilities Act have held that employers are statutorily required to engage in an interactive process with workers to identify ways of accommodating their disabilities. In so doing, they have created procedural rights for workers that are distinguishable from and supplemental to the substantive right to reasonable accommodation afforded by the statute. This move resonates with developments in Title VII jurisprudence, such as the creation of an affirmative defense to harassment …

Go to article

Cubewrap Contracts: The Rise Of Delayed Term, Standard Form Employment Agreements, Rachel Arnow-Richman Jan 2007

Cubewrap Contracts: The Rise Of Delayed Term, Standard Form Employment Agreements, Rachel Arnow-Richman

UF Law Faculty Publications

Modern companies increasingly use standard form agreements, such as arbitration and non-compete agreements, to “contractualize” discrete aspects of their workers’ obligations. Frequently such agreements provided to the worker after an initial oral agreement of employment has been reached, what the article refers to as “cubewrap” contracting practices. Courts and scholars have yet to develop a consistent contractual theory of the enforceability of these documents. In contrast, consumer contracts have been standardized for decades, and the problem of “terms in the box” contracts, in which key terms are similarly delayed, has been extensively debated. This article draws insights from the “terms …

Go to article

Leo Strine's Third Way: Responding To Agency Capitalism, Ronald J. Gilson Jan 2007

Leo Strine's Third Way: Responding To Agency Capitalism, Ronald J. Gilson

Faculty Scholarship

Ten years ago, Tony Blair's "New Labour" government sought an agenda that replaced ideology with a pragmatic focus on both the creation of wealth and its distribution. Not surprisingly, part of this effort involved proposals to bridge the gap between capital and labor through refraining corporate governance. A "third way" as it was then styled, would walk a fine line between privileging markets and allocational efficiency at the cost of social justice on the one hand, and accepting less for everyone as long as the distribution was fair on the other. Motivated by changes in how we save for retirement …

Go to article

Reforming The Taxation Of Deferred Compensation, Gregg D. Polsky, Ethan Yale Jan 2007

Reforming The Taxation Of Deferred Compensation, Gregg D. Polsky, Ethan Yale

Scholarly Works

Executive pay is currently a topic of significant interest for policymakers, academics, and the popular press. Just weeks ago, in reaction to widespread press reports and academic criticism of extravagant executive perquisites, the SEC proposed new regulations designed to change fundamentally the manner in which executive compensation is reported to share-holders. Despite all of this attention, one significant aspect of executive deferred compensation has gone virtually unnoticed - the federal tax rules governing this form of compensation are fundamentally flawed and must be extensively over-hauled. These rules are flawed because they often create a significant incentive for companies and their …

Go to article

Staying Above The Surface- Surface Bargaining Claims Under The National Labor Relations Act, Marc Mandelman, Kevin Manara Jan 2007

Staying Above The Surface- Surface Bargaining Claims Under The National Labor Relations Act, Marc Mandelman, Kevin Manara

Hofstra Labor & Employment Law Journal

No abstract provided.

Go to article

Bloggers Beware: A Cautionary Tale Of Blogging And The Doctrine Of At-Will Employment, Tracie Watson, Elisabeth Piro Jan 2007

Bloggers Beware: A Cautionary Tale Of Blogging And The Doctrine Of At-Will Employment, Tracie Watson, Elisabeth Piro

Hofstra Labor & Employment Law Journal

No abstract provided.

Go to article

Common Sense About Common Claims, David G. Karro Jan 2007

Common Sense About Common Claims, David G. Karro

Hofstra Labor & Employment Law Journal

No abstract provided.

Go to article

The "No-Match" Letter Rule: A Mismatch Between The Department Of Homeland Security And The Social Security Administration In Worksite Immigration Law Enforcement, Michael Gibek, Joshua Shteierman Jan 2007

The "No-Match" Letter Rule: A Mismatch Between The Department Of Homeland Security And The Social Security Administration In Worksite Immigration Law Enforcement, Michael Gibek, Joshua Shteierman

Hofstra Labor & Employment Law Journal

No abstract provided.

Go to article

The Discharge Of Sexual Harassment Judgments In Bankruptcy Court: An Attempt To Right A "Grave Injustice", David L. Adamson Jan 2007

The Discharge Of Sexual Harassment Judgments In Bankruptcy Court: An Attempt To Right A "Grave Injustice", David L. Adamson

Hofstra Labor & Employment Law Journal

No abstract provided.

Go to article

Placing The Reality Of Employment Discrimination Cases In A Comparative Context, Jean R. Sternlight Jan 2007

Placing The Reality Of Employment Discrimination Cases In A Comparative Context, Jean R. Sternlight

Scholarly Works

No abstract provided.

Go to article

Harassing “Girls” At The Hard Rock: Masculinities In Sexualized Environments, Ann C. Mcginley Jan 2007

Harassing “Girls” At The Hard Rock: Masculinities In Sexualized Environments, Ann C. Mcginley

Scholarly Works

Masculinities theory explains that masculinity is constructed in relation to a dominant image of gender difference, ultimately defining itself simply as what “femininity” is not. In the workplace, masculinities comprise both a structure that reinforces the superiority of men over women, and a series of practices associated with masculine behavior (performed by men and women) that maintain men’s superior position over women at work, yet specific masculinities differ according to the type of workplace. This article applies masculinities theory to analyze whether Title VII should protect women employees in highly sexualized workplaces from sex- or gender-based hostile work environments, created …

Go to article

Babes And Beefcake: Exclusive Hiring Arrangements And Sexy Dress Codes, Ann C. Mcginley Jan 2007

Babes And Beefcake: Exclusive Hiring Arrangements And Sexy Dress Codes, Ann C. Mcginley

Scholarly Works

Las Vegas casinos exclusively hire women to serve cocktails on the casino floor, dressing them in tight-fitting, sexy, uncomfortable costumes and high heels. The exclusive hiring of women as cocktail servers violates Title VII's prohibition against sex discrimination unless the employer can demonstrate that being a woman is a bona fide occupational qualification ("BFOQ") for the job of cocktail server. Sitting en banc, the Ninth Circuit Court of Appeals recently decided Jespersen v. Harrah's Operating Co., which concluded that sex-differentiated appearance and grooming codes are legal in jobs held by both men and women unless they impose unequal burdens on …

Go to article

Outing Outcomes: An Empirical Study Of Confidential Employment Discrimination Settlements, Minna J. Kotkin Jan 2007

Outing Outcomes: An Empirical Study Of Confidential Employment Discrimination Settlements, Minna J. Kotkin

Washington and Lee Law Review

Recent empirical studies on outcomes in employment discrimination litigation all reach the same conclusion: Plaintifs have little chance of success. But these studies rely on summary judgment decisions and trial verdicts, gleaned from reported opinions, electronic docket entries, and data collected by the Administrative Office of the Courts, and they acknowledge that this is just "the tip of the iceberg." Until now, settlement outcomes, which account for 70% of case resolutions, have been rendered invisible because of confidential settlement agreements. Along with the "vanishing trial" syndrome, secret settlements have created an information vacuum, skewing the public policy discourse about employment …

Go to article

Confronting "Unwelcomeness" From The Outside: Using Case Theory To Tell The Stories Of Sexually-Harassed Women, Margaret Moore Jackson Jan 2007

Confronting "Unwelcomeness" From The Outside: Using Case Theory To Tell The Stories Of Sexually-Harassed Women, Margaret Moore Jackson

Cardozo Journal of Equal Rights & Social Justice

The article critiques the legal requirement that sexual harassment plaintiffs must prove the conduct was unwelcome, arguing that this element perpetuates cultural biases against women and undermines their ability to challenge discrimination. It proposes using case theory and storytelling to counter these biases, framing clients' stories in ways that preserve their dignity and challenge stereotypes.

Go to article

From The Steelworkers' Trilogy To The Kentucky River Trifecta: Will The Nlrb's Definition Of Independent Judgment Trickle Down To Public Employee Labor Relations Law?, Jacqueline Clisham Jan 2007

From The Steelworkers' Trilogy To The Kentucky River Trifecta: Will The Nlrb's Definition Of Independent Judgment Trickle Down To Public Employee Labor Relations Law?, Jacqueline Clisham

Public Interest Law Reporter

No abstract provided.

Go to article

First Prev Next Last