Labor and Employment Law Commons^™

The Historical Misconception Of Right To Work Laws In The The United States: Senator Robert Wagner, Legal Policy, And The Decline Of American Unions, Raymond L. Hogler

Hofstra Labor & Employment Law Journal

No abstract provided.

Employers Who Cry 'Rif' And The Courts That Believe Them, Daniel B. Kohrman, Mark Stewart Hayes

Hofstra Labor & Employment Law Journal

No abstract provided.

Employment Discrimination And The First Amendment: Case Analysis Of Catholic Charities, Kristen Colletta, Darya Kapulina

Hofstra Labor & Employment Law Journal

No abstract provided.

Whistler's Nocturne In Black And Gold-The Falling Rocket: Why The Sarbanes-Oxley Whistleblower Provision Falls Short Of The Mark, John B. Chiara, Michael D. Orenstein

Hofstra Labor & Employment Law Journal

No abstract provided.

On The Logic Of Suing One's Customers And The Dilemma Of Infringement-Based Business Models, Justin Hughes

Cardozo Arts & Entertainment Law Journal

No abstract provided.

How To Succeed In Business Without Really Trying (Cases): Gender Stereotypes And Sexual Harassment Since The Passage Of Title Vii, Miriam A. Cherry

Faculty Publications

(Excerpt)

Last year I was invited to an undergraduate revival of the musical "How to Succeed in Business Without Really Trying," a comedy about the workplace, which I thought, as a teacher of employment law, I would enjoy. Written in the early 1960s and made into a 1967 movie, "How to Succeed" follows the adventures of J. Pierrepont Finch, a window washer who, with the aid of a sarcastic self-help book, schemes his way up the corporate ladder. Although ostensibly a humorous look at the corporate world of the late 1950s and early '60s, I found myself cringing throughout the …

Social Citizen As Guest Worker: A Comment On The Changing Identities Of Immigrants And The Working Poor, Frank W. Munger

Articles & Chapters

No abstract provided.

Is Alternative Dispute Resolution Really An Alternative For Federal Employees?: Possible Suggestions For Encouraging Federal Employees To Participate In Adr Programs, Lisa Pell

Cardozo Journal of Conflict Resolution

This Note will examine the various dispute resolution programs employed by the federal government. Part One of this Note will look at the different federal programs and determine their usefulness. Part Two will establish that ADR is not being used to its potential. Part Three will discuss the reasons for the low ADR usage. Part Four will suggest options for increasing ADR usage in federally implemented programs. Finally, Part Five will conclude that if the federal agencies took advantage of their own programs, the possibilities for change are great.

Law, Lawyers, And Labor: The United Farm Workers' Legal Strategy In The 1960s And 1970s And The Role Of Law In Union Organizing Today , Jennifer Gordon

Faculty Scholarship

What does law offer labor? It depends. The specifics of the law in question are critical, as are the make-up and funding of the agency that is charged with implementing it and the economic strength, political clout, and strategic creativity of the unions and employers that it governs. Today's discussions of the NLRA from the union perspective are tinged with desperation about what law does for and to organizing-a desperation that is born of labor's sense that it has lost too many important battles before the NLRB and the courts over the interpretation of the NLRA. In despair, however, workers …

Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez

Faculty Scholarship

In this Article, I present a Critial Race Feminism (CRF) empirical sexual harassment project I recently conducted as a case study of how empirical research can be valuable to the future of CRF. Part I introduces the sexual harassment study and discusses the empirical questions it sought to explore. Part II then presents the empirical research design and the general trends that the data provided. Part III analyzes the key findings of the study and how it contributes to an understanding of how the application of sexual harassment law implicates race. The statistical analysis of survey responses from a group …

Introduction: The Enduring Power Of Collective Rights, In Labor Law Stories, Catherine L. Fisk, Laura J. Cooper

Faculty Scholarship

No abstract provided.

Two Modern Antitrust Moments: A Comment On Fenton And Kwoka, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo

Articles

The federal courts have issued two important decisions regarding non-discriminatory insurance coverage of conditions and treatments associated with sex, disability or both, such as prescription contraception and infertility treatment. Cases like Erickson and Saks are important because, as ERISA scholars know, state law mandates regarding coverage are unlikely to lead to uniform results due to the structure of ERISA's preemption provisions, and none of the federal proposals addressing infertility treatment or prescription contraception have been enacted to date.

What I would like to do is outline the impact of ERISA in this area, and offer some thoughts on one of …

Symposium: Rethinking The Masculine Character Of The Legal Profession: A Case Study Of Female Legal Professionals And Their Gendered Life In Taiwan, Shu-Chin Grace Kuo

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Business Fallout From The Rapid Obsolescence And Plannedobsolescence Of High-Tech Products: Downsizing Of Noncompetition Agreements, Ann C. Hodges, Porcher L. Taylor Iii

Law Faculty Publications

The recent rapid pace of technological change has made human capital more important, yet it has rendered the employee’s knowledge base obsolete more quickly. Employers use covenants not to compete, restricting employees from switching to work for competitors, in order to retain knowledgeable personnel. Currently, the lack of predictability in interpreting noncompete agreements allows employers to draft overly-lengthy noncompetes, encourages enforcement litigation, and curtails employees from changing jobs because of the fear of litigation. Employees should not be prevented from working for competitors for longer than is necessary to protect the employer’s legitimate interest. Use of obsolescence as a guide …

The Unguided Use Of Internal Adr Programs To Resolve Sexual Harassment Controversies In The Workplace, Jessica Oser

Cardozo Journal of Conflict Resolution

This Note will explore some of the concerns raised by the use of mandatory IDR mechanisms in the workplace, particularly in the context of resolving sexual harassment disputes. As previously noted, the use of IDR in the workplace can be highly effective and beneficial for both the employee and the employer. However, just as the Food and Drug Administration approves drugs that have potentially harmful side effects, the public and the U.S. government should approve of the use of IDR mechanisms despite the potential for abuse. In both circumstances, the public deserves to be warned about the possible dangers. This …

Is The Solomon Amendment Unconstitutional, Dale Carpenter

Faculty Journal Articles and Book Chapters

No abstract provided.

After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine

Articles

The following essay is based on a talk the speaker was invited to deliver to the National Labor Relations Board on June 3 in Washington, D.C., on the occasion of the agency's 70th anniversary.

Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux

Publications

The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and …

Where There's At-Will, There Are Many Ways: Redressing The Increasing Incoherence Of Employment At Will, Scott A. Moss

Publications

Employment at will, the doctrine holding that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as "essential to free enterprise" and "central to the free market," but in recent years they increasingly have riddled the rule with exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of …

Pennsylvania State Police V. Suders, Leilani J. Hart

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Foreword, Theodore J. St. Antoine

Other Publications

Specialists in any field have a vested interest in their mastery of the subject. Expertise, after all, is their stock in trade. Assaults on the conventional wisdom can be unnerving if not discrediting. In the pages that follow, such an experience awaits all conscientious readers with a labor background who dare to expose themselves to Professor Charles Morris's provocative, iconoclastic, and ultimately persuasive arguments. He insists that a half-century of American labor law thinking has gone astray in failing to recognize the duty of an employer to bargain with a labor union representing less than a majority of the firm's …

By Any Other Name?: On Being "Regarded As" Black, And Why Title Vii Should Apply Even If Lakisha And Jamal Are White, Angela Onwuachi-Willig, Mario L. Barnes

Articles

Applying theories concerning the social construction of race, this Article borrows from the definition of disability under the Americans with Disabilities Act of 1990 (ADA) and the courts' analyses of disability discrimination cases under the "regarded as" disabled provision of the ADA, which allows a plaintiff to bring a claim against an employer who regards the plaintiff as having an impairment that substantially limits a major life activity. Using the "regarded as" provision as a model, this Article proposes a new method for recognizing discrimination claims based on the use of proxies for race-even when those proxies have been used …

The Character Of Discrimination Law: The Incompatibility Of Rule 404 And Employment Discrimination Suits, Lisa Marshall Manheim

Articles

This Note illustrates how violations of Rule 404 of the Federal Rules of Evidence (which prohibits litigants from relying on certain propensity proofs) occur routinely. It demonstrates that the ineffectiveness of the ban in the context of discrimination suits cannot be blamed on clever lawyers or negligent judges, but rather is a predictable consequence of the dearth of evidence available to discrimination plaintiffs. This Note concludes by arguing that this subtle but problematic incongruity justifies a reform of the Rule.

The Effects Of Jury Ignorance About Damage Caps: The Case Of The 1991 Civil Rights Act, Rebecca E. Hollander-Blumoff, Matthew T. Bodie

All Faculty Scholarship

The 1991 Civil Rights Act revolutionized employment discrimination litigation by allowing for compensatory and punitive damages. At the same time, however, the Act capped those damages and forbade courts from informing jurors about the cap. This Article explores the effects of this imposed secrecy on the jury deliberation process and on the jury system itself. First, our article delves into the wealth of psychological literature about jury decision-making to determine how disclosing or hiding the caps might affect the jury's damage calculations. We explore decision-making biases and heuristics that might systematically affect the jurors' judgment about damage awards, and discuss …

Same Sex Marriage And Its Implications For Employee Benefits: Proceedings Of The 2005 Meeting Of The Association Of American Law Schools Sections On Employee Benefits, And Sexual Orientation And Gender Identity Issues, Maria O'Brien, Constance Hiatt, Shannon Minter, Teresa S. Collett

Faculty Scholarship

Professor Maria O'Brien Hylton*: Welcome to this session on "Same Sex Marriage and its Implications for Employee Benefits." I'm Maria Hylton and I will introduce our speakers and moderate the program.

Our first speaker is Constance Hiatt, who is a partner with the Hanson Bridgett law firm here in San Francisco. She represents mostly large employers and large employee benefit plans, including the State of California's 401(k) and 457 plans as well as the University of California's benefits office. So, she has extensive experience in the employee benefits area and she came to us, to me really, through several …

Summary Of Mgm Mirage V. Cotton, 121 Nev. Adv. Op. 39 , Ryan Hall

Nevada Supreme Court Summaries

When MGM Mirage employee Brenda Cotton walked through her employer’s parking lot ten minutes before her shift, she tripped over a parking lot curb and injured herself. Cotton sustained an ankle fracture and ligament tear. Deciding that Cotton had failed to prove that her injury arose out of her course of employment, MGM denied her workers’ compensation claim. MGM’s decision was upheld by a hearing officer, because the injury did not occur during working hours. The hearing officer’s decision was reversed on appeal. MGM’s petition for review was denied by the district court.

Introduction, David J. Seipp

Faculty Scholarship

Have we come to bury Lochner, or to praise it? Lochner v. New York,' decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional.

A Stag Hunt Account And Defense Of Transnational Labour Standards---A Preliminary Look At The Problem, Alan Hyde

Rutgers Law School (Newark) Faculty Papers

Transnational labor standards are modeled as cooperative solutions to the class of strategic dilemmas known as Stag Hunts, in which all actors would gain from a cooperative solution, but only if all cooperate. If you think a partner will defect, your best strategy is also to defect. Intuitively, India, Pakistan, and Bangladesh will all be better off if none of their children work and all go to school; however if one defects from this agreement it will capture a stream of foreign investment linked to child labor. Understanding Stag Hunts explains why transnational labor standards are found both in genuinely …

Employment Discrimination In A High Velocity Labor Market, Alan Hyde

Rutgers Law School (Newark) Faculty Papers

Silicon Valley employers employ few African-Americans, Latino/as, or older workers, yet do not fit the usual paradigms of employment discrimination: they exhibit no taste for uniformity and do not employ job tournaments or internal labor markets. A new model of employment discrimination attributes disparate hiring in Silicon Valley to a combination of: demands for specific skill sets at hiring (the opposite of the subjective criteria that have long beguiled scholars of discrimination) and concomitant refusal to train; hiring through networks of personal contacts; and rewards to career paths that alternate employment with self-employment. Overcoming the disparate impact of these employment …