Labor and Employment Law Commons^™

The Business Of Employing People With Disabilities: Four Case Studies, Alexander A. Boni-Saenz, Allen W. Heinemann, Deborah S. Crown, Linda L. Emanuel

All Faculty Scholarship

This exploratory study examines employer attitudes towards people with disabilities in the labor market. Through in-depth, semi-structured interviews with senior management, human resources staff, directors of diversity, and hiring managers at four corporations, it pinpoints reasons why businesses chose to hire people with disabilities, investigates the perceived benefits and barriers to hiring people with disabilities, and identifies strategies for successfully hiring and retaining workers with disabilities. It fills a gap in examining the attitudes and decision-making processes of U.S. companies that have been leaders in hiring people with disabilities, as well as delving into the special issues of small businesses …

Pushing The Integrated Employment Agenda: Case Study Research In Washington State, Jean Winsor, Allison Cohen Hall, John Butterworth, Dana Scott Gilmore

Case Studies Series, Institute for Community Inclusion

This is the second in a series of publications highlighting findings from case studies in three states—New Hampshire, Washington, and Colorado—that are recognized as high performers in integrated employment. These products are intended to be a practical resource for states as they work to help people with disabilities obtain and maintain gainful employment.

ICI identified “high-performing” states based on the following criteria: the percentage of citizens served by the state’s mental retardation/developmental disabilities agency that participate in integrated employment, and the rate of growth in integrated employment.

In 2003, a team of ICI researchers conducted face-to-ace interviews with state and …

Sharing The Costs, Reaping The Benefits: Paid Family And Medical Leave In Massachusetts, Randy Albelda, Alan Clayton-Matthews

Labor Resource Center Publications

This report provides an analysis of the costs and benefits associated with Massachusetts Senate President Robert Travaglini's proposed family and medical leave insurance program (April 2006). The authors developed a simulation model to estimate the employer and employee wage costs when employees take paid and unpaid family and medical leaves, and they use this model to compare the current costs with those predicted under the Travaglini proposal.

For information about how the authors estimated the costs of the program and the specifics about their model, please follow the link below to "IWPR/LRC Paid Family and Medical Leave Simulation Model," originally …

Mark(Et)Ing Nondiscrimination: Privatizing Enda With A Certification Mark, Ian Ayres, Jennifer Gerarda Brown

Michigan Law Review

People in the United States strongly support the simple idea that employers should not discriminate against gays and lesbians. In a 2003 Gallup poll, eighty-eight percent of respondents said that "homosexuals should . . . have equal rights in terms of job opportunities." Even prominent social conservatives- such as George W. Bush-give lip service to the idea that employment discrimination on the basis of sexual orientation is wrong. But gay rights advocates have achieved only modest legal reform on this issue. Seventeen states have prohibited employment discrimination against gays and lesbians. A seemingly modest bill, the Employment Non Discrimination Act …

Summary Of Seput V. Lacayo, 122 Nev. Adv. Op. No. 45, Christian Hale

Nevada Supreme Court Summaries

Appeal from a district court order granting a motion to dismiss an injured pest control worker's tort action against a homeowner for premises liability.

Cupe, Local 805 V Prince Edward Island (Department Of Health), Innis Christie, B Crockett, Leonard Russell

Innis Christie Collection

The Union alleges that the Employer improperly set qualifications of a job posting which would favour a less senior employee, rather than the Grievor. Also, that the posting process was not fair and the Grievor had the required qualifications. As the senior employee she should be awarded the position.

The New Judicial Hostility To Arbitration: Unconscionability And Agreements To Arbitrate, Steven J. Burton

ExpressO

Many, many contract disputes are now being settled by arbitration instead of litigation. The United States Supreme Court strongly favors the enforcement of agreements to arbitrate that fall within the Federal Arbitration Act. This Article shows that many lower courts, however, are using the contract unconscionability doctrine to refuse enforcement of agreements to arbitrate. It argues (1) that many such lower court decisions should be pre-empted by the Federal Arbitration Act, and (2) that lower courts should give due weight to the federal policy favoring arbitration when deciding whether to enforce an agreement to arbitrate.

The Importance Of The Secret Ballot In Law Faculty Personnel Decisions: Promoting Candor And Collegiality In The Academy, Ira P. Robbins

ExpressO

Law school faculty personnel decisions are often controversial. Debates may be heated, votes may be close, and ill will may be incurred. One way to avoid this enmity and to promote or maintain a collegial atmosphere is to vote by secret ballot on hiring, retention, promotion, and tenure questions. The use of secret ballots, however, allows for the possibility of voting for the wrong reasons (e.g., bias, discrimination). But open voting allows for the same possibility (e.g., political correctness, fear of reprisals).

This Article discusses the evolution and significance of the secret ballot and considers the arguments for and against …

Final Offer Arbitration In The New Era Of Major League Baseball, Spencer B. Gordon

ExpressO

This article provides a comprehensive analysis of the economic, athletic, and social impact of final offer salary arbitration in Major League Baseball (“MLB”). The article delves into the motivations, fluctuations, and evolution of the player-owner relationship and free agency. The commentary then focuses on the distinguishing features and intricacies of final offer arbitration. Although salary arbitration in the context of Major League Baseball is a topic oft discussed in the law review setting, the analysis rarely reaches the level exhibited in this article. Moreover, most articles on the subject were written between 1996 and 2000 when the 1994 players’ strike …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

The Small Firm Exemption And The Single Employer Doctrine In Employment Discrimination Law, Richard R. Carlson

ExpressO

The small firm exemption is a provision of Title VII and the other major federal employment discrimination laws that exempts very small firms from coverage as “employers.” Under the Title VII version of the exemption, for example, an employer is exempt as long as it employs no more than fourteen employees. However, a small firm might be affiliated or integrated with other firms, which collectively employ more than the number of employees required for coverage. The single employer doctrine is a rule for treating separately organized firms as if they were one employer, for purposes of meeting the statutory threshold …

Pennsylvania State Police V. Suders, Letoyia C. Brooks

Mercer Law Review

In Pennsylvania State Police v. Suders, the United States Supreme Court reached two conclusions. First, the Court wrote that an employee who resigns as a result of sexual harassment may assert a Title VII constructive discharge claim where the employee can show that the "working conditions became so intolerable that a reasonable person in the employee's position would have felt compelled to resign." Second, the Court held that an employer may assert the affirmative defense established in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, ("Ellerth/Faragher") in a situation where an employee …

The Welding Fume Case And The Preemptive Effect Of Osha's Hazcom Standard On Common Law Failure-To-Warn Claims, Richard C. Ausness

Buffalo Law Review

No abstract provided.

Finding The Sex In Sexual Harassment: How Title Vii And Tort Schemes Miss The Point Of Same-Sex Hostile Environment Harassment, Yvonne Zylan

University of Michigan Journal of Law Reform

It has been nearly a quarter century since the United States Supreme Court first recognized the cause of action for a sexually hostile work environment under Title VII of the Civil Rights Act of 1964. In Meritor Savings Bank v. Vinson, the Court essentially adopted the view offered by legal academician Catharine MacKinnon that harassment taking the form of a sexually hostile work environment is a manifestation of gender-based power. In so doing, the Court created a remedy for many aggrieved employees, permitting redress in the federal courts for a problem that makes many workplaces unbearable. At the same …

The Four Pillars Of Work Law, Orly Lobel

Michigan Law Review

In our contemporary legal landscape, a student wishing to study the law of the workplace has scarce opportunity to encounter an integrated body of scholarship that analyzes the labor market as the subject of government regulation, contractual duties, collective action, and individual rights. Work law developed in the American legal system as a patchwork of common law doctrine, federal and state statutes, and evolving social norms. Typical law school curricula often include courses relating to the four pillars of work law: "employment law," "labor law," "employment discrimination," and some variation of a tax-oriented "employee-benefits law." Employment law, in most categorizations, …

The Costs Of Wrongful-Discharge Laws, Stewart J. Schwab, David H. Autor, James J. Donohue Iii

Cornell Law Faculty Publications

We estimate the effects on employment and wages of wrongful discharge protections adopted by U.S. state courts during the last three decades. We find robust evidence that one wrongful-discharge doctrine, the implied-contract exception, reduced state employment rates by 0.8% to 1.7%. The initial impact is largest for female and less-educated workers (those who change jobs frequently), while the longer-term effect is greater for older and more-educated workers (those most likely to litigate). By contrast, we find no robust employment or wage effects of two other widely recognized wrongful-discharge laws: the public-policy and good-faith exceptions.

Money Talks: The Influence Of Economic Power On The Employment Laws And Policies In The United States And France, Carole A. Scott

San Diego International Law Journal

Money talks. Money changes everything. There is nothing money cannot buy. These are all familiar phrases used to describe the desirable, and undesirable, effects of money. Money can also mean power, and more specifically, economic power. Indeed, economic power is becoming an increasingly important concept for a wide range of academic disciplines. For example, the concept of economic power has heavily influenced a new theory of international relations, namely globalization. Many globalization theorists argue that economic power is replacing military power in global politics. Other scholars contend that globalization is creating a new world order where economics are the central …

The Ineffectiveness Of Capped Damages In Cases Of Employment Discrimination: Solutions Toward Deterrence, Vanessa M. Ruggles

ExpressO

Although the Civil Rights Act of 1991 helped victims of employment discrimination in a variety of ways, including the authorization of jury trials and the accompanying possibility of compensatory and punitive damages, the caps Congress placed on damages do not serve the purpose of deterrence. Because the caps are based on the number of employees a defendant employer has, the goal of protecting small businesses from exorbitant damages is accomplished. However, because the top category of the caps is “500 or more” employees, giant corporations escape meaningful awards. This article identifies the problem citing specific examples, and proposes several solutions …

The Day Laborer Debate: Small Town, U.S.A. Takes On Federal Immigration Law Regarding Undocumented Workers, Margaret B. Hobbins

ExpressO

Herndon, Virginia is the latest example of small town immigration issues exploding into the national debate on illegal immigration. This four-square mile town, population 22,000, was propelled into the national spotlight after a dramatic public reaction to Mayor Michael O’Reilly’s proposal to construct a hiring site for day laborers. Three months before the center even opened its doors, Herndon and Fairfax County faced a law suit challenging the legality of funding a day labor center that would inevitably extend its services to undocumented immigrants.

Small towns, adjusting to significant increases in the immigrant worker population, have become a new battlefield …

Reform Suggestions On Sample Labor Contracts In China, Lin Li

Cornell Law School J.D. Student Research Papers

The labor relationship is the predominant and fundamental relationship in human society. The regulation of this relationship is the most important to human being’s development.

The regulation of the labor relationship is closely linked to personal basic rights and individual destiny.

To regulate the labor relationship, that is, to establish labor rights and duties, depends on labor laws and labor contracts. But in the long history of China, there has been no labor law and labor contract. Since the open door policy was implemented, labor law and the system of labor contract began slowly. However the situation is still far …

First National Maintenance Corp. V. National Labor Relations Board: Eliminating Bargaining For Low-Wage Service Workers, Alan Hyde

Cornell Law Faculty Publications

The Supreme Court decision finds an employer privileged not to bargain with the union over a decision to eliminate a portion of operations (by not renewing a contract with a particular customer), undertaken entirely for economic reasons turning not at all on labor costs, and without animus to the union. No such case has ever been presented to the National Labor Relations Board, and interviews with the principals reveals that these were not the facts of First National Maintenance either. The case was a carefully-constructed hypothetical that omitted key facts, such as the employer's history of illegal conduct to avoid …

Comparative Chart Of “Right-To-Ask” Laws In The U.S. And Abroad, Workplace Flexibility 2010, Georgetown University Law Center

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

No abstract provided.

The Federal Employees Flexible And Compressed Work Schedules Act (Fefcwa), Georgetown Federal Legislation Clinic

Memos and Fact Sheets

Federal law establishes scheduling requirements for government employees, generally requiring federal agencies to set regular work hours over a traditional Monday through Friday workweek. These requirements, along with provisions of the Fair Labor Standards Act (FLSA), impede flexible work arrangements (FWAs) for federal employees.1 The Federal Employees Flexible and Compressed Work Schedules Act (“FEFCWA”) removes these legal barriers for two specific types of alternative work schedules (AWS): flexible work schedules (FWS) and compressed work schedules (CWS). Under an FWS, an agency establishes core hours when all employees must be at work and allows employees to choose arrival and departure times …

Vol. 23, No. 2, Karl R. Ottosen, Matt Roeschley

The Illinois Public Employee Relations Report

Contents:

The Fire Department Promotions Act, by Karl R. Ottosen and Matthew Roeschley

Recent Developments

Further References, compiled by Yoo-Seong Song

Examples Of State Flexible Work Arrangement (Fwa) Laws, Workplace Flexibility 2010, Georgetown University Law Center

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

Flexible Work Arrangements (FWAs) alter the time and/or place that work is conducted on a regular basis -- in a manner that is as manageable and predictable as possible for both employees and employers. This document charts examples of state FWA laws.

The New South Wales Carers’ Responsibilities Act, Workplace Flexibility 2010, Georgetown University Law Center, Georgetown Federal Legislation Clinic

Memos and Fact Sheets

Enacted in 2001, the New South Wales Carers’ Responsibilities Act (“CRA”) prohibits discrimination against employees with caregiver responsibilities and provides access to reasonable flexible work arrangements. Under this law, employees have the right to request accommodations for their carer responsibilities, and employers have an affirmative obligation to consider and grant reasonable accommodations that do not impose an unjustifiable hardship. The affirmative accommodation requirement extends to requests for flexible working hours, working from home (telecommuting), part-time work, and job-share arrangements.

New International Human Rights Standards On Unauthorized Immigrant Worker Rights: Seizing An Opportunity To Pull Governments Out Of The Shadows, Beth Lyon

Working Paper Series

Governments cannot ignore international human rights standards for unauthorized migrant workers forever. This chapter presents a call for comparative work on the issue of the legal regimes affecting unauthorized immigrant workers in order to bring governments into greater awareness and compliance with their obligations to unauthorized immigrant workers.

Global illegal migration by laborers seeking economic opportunities is expanding, resulting in an increasing number of migrants in every country who are working in violation of immigration laws. Unauthorized immigrant workers are numerous enough to form a recognizable group in every major world economy, because most receiving countries have immigration laws that …

Strategies For Combating Sexual Harassment: The Role Of Labor Unions, Ann C. Hodges

Law Faculty Publications

This article will discuss the role that unions do play and the role that they can play in eliminating workplace harassment. First, the article will discuss the problem of harassment in the workplace, documenting its frequency and analyzing its forms. Section II will include an examination of harassment in the unionized workplace. Section III will propose a number of reasons that unions should take the lead in addressing workplace harassment, some focused on workers' rights and others on union selfinterest. Finally, in Section IV, the article will recommend several approaches for unions that desire to be in the vanguard of …

Nickel And Dimed: North Carolina Court Blocks Carolina Panthers' Attempt To Avoid Payment Of Workers' Compensation Benefits To Injured Athletes, Casey N. Harding

North Carolina Central Law Review

No abstract provided.

Re-Defining Superwoman: An Essay On Overcoming The "Maternal Wall" In The Legal Workplace, Nicole Buonocore Porter

Faculty Publications

As Professor Joan Williams comments, most women never even approach the glass ceiling; they are "stopped dead, long beforehand, by the maternal wall." The maternal wall affects women with children in many aspects of their jobs, including hiring, promotions, pay, and even terminations. It is difficult for mothers to perform as ideal workers, because pregnancy, maternity leave, and the continual demands of child-rearing inevitably cause them to be absent from work. In addition, because mothers are not similarly situated to men or women without children, courts permit employers to treat them differently, which usually means they are treated more poorly. …