Labor and Employment Law Commons^™

A Different Model For Show Business: Creating An Agency Employer In The Performing Arts, Kathy-Ann Hart

Hofstra Labor & Employment Law Journal

The inner workings of the entertainment business are often invisible. The end product of a beautiful film, a riveting play, a compelling television show or even a funny commercial is perhaps all most people ever know about show business. Not a lot is known or shared transparently about film financing, casting or about talent representation.

Choose Your Words Carefully: Social Media, Social Justice And The Workplace, Susan Greene

Hofstra Labor & Employment Law Journal

No abstract provided.

Reproductive Rights And Employer Health Insurance: Exploring Abortion Benefit Options In A Post-Roe Era, Emily E. Manning

Hofstra Labor & Employment Law Journal

No abstract provided.

It's The Final Countdown: How A Legislative Solution Might Rectify The Staffing Shortages & Horrors Of Rikers Island, Rochelle Podolsky

Hofstra Labor & Employment Law Journal

No abstract provided.

Amazon, Spacex And Other Companies Are Arguing The Government Agency That Has Protected Labor Rights Since 1935 Is Actually Unconstitutional, Kate Andrias

Faculty Scholarship

Amazon, SpaceX, Starbucks and Trader Joe’s have all responded to allegations that they have violated labor laws with the same bold argument. The National Labor Relations Board, they assert in several ongoing legal proceedings, is unconstitutional.

SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”

If these companies prevail, the entire process for holding union elections and for prosecuting employers who break labor laws – in place since …

Employer-Sponsored Reproduction, Valarie K. Blake, Elizabeth Mccuskey

Faculty Scholarship

This Article interrogates the current and future role of employer-sponsored health insurance in reproductive choice, revealing the magnitude of impact that employers’ insurance coverage choices have on Americans’ access to reproductive care, as well as the legal infrastructure that prioritizes employer choice over individual autonomy.

Over half the population depends on employers for health insurance. The laws regulating those plans grant employers discretion in what services to cover, with exceptionally wide latitude for employers’ choices about reproductive care services, like abortion, contraception, infertility, and pre-exposure prophylaxis (PrEP). In their role as health care funders, employers pursue their own economic interests, …

Expanding The Ban On Forced Arbitration To Race Claims, Michael Z. Green

Faculty Scholarship

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural …

When Amazon Drivers Kill: Accidents, Agency Law, And The Contractor Economy, Keith Cunningham-Parmeter

William & Mary Law Review

Amazon vans and Uber drivers frequently crash into other cars. Despite the many injuries and deaths that result from these accidents, Amazon and Uber deny responsibility for such claims because they categorize their drivers as “independent contractors.” But this contractor defense distorts the basic rules of agency law. Over a century ago, courts crafted agency standards that forced businesses to pay for the harms that their workers caused. Since that time, American firms have attempted to skirt this rule by labeling their workers as “contractors” rather than as “employees.” Aware of this age-old tactic to avoid liability, courts historically built …

Faculty Handbook As Contract, Karen Halverson Cross

Cardozo Law Review

Colleges and universities, like other employers, typically have in place policies that govern the employment relationship with their faculty. Many such policies—policies against employee misconduct or policies on accommodations for persons with disabilities—are comparable to what employees might encounter outside of academia. Most higher education institutions also have in place policies that are more unique to academia, such as policies establishing shared governance bodies, affirming academic freedom as a core value, or outlining procedures on the granting and revocation of faculty tenure. These faculty policies may be aggregated in a faculty handbook, published separately on the institution’s web site, or, …

Backdating #Metoo, Jessica K. Fink

Cardozo Law Review

The #MeToo movement radically altered the way that people think about workplace sexual harassment. For decades, women were expected to tolerate a broad range of sexualized conduct at work. However, the revelation of Harvey Weinstein’s misdeeds in late 2017, followed by the exposure of countless other bad actors, dramatically shifted the social narrative regarding appropriate workplace behavior. Conduct that employees once ignored or overlooked suddenly became the basis for vociferous objection; the perfunctory responses to harassment that many employers once adopted suddenly stood out as glaringly deficient.

While society has undergone great shifts in its understanding of and response to …

Garrity Immunity And The U.S. Armed Forces, Bretton H. Laudeman, Gabriel J. Chin

BYU Law Review

The U.S. military is one of the nation’s largest and most important public employers. Given the unique nature of military service, the service branches have a strong interest in ensuring the integrity of their ranks. Yet the military lacks a critical force-management tool used by every other public employer to investigate workplace misconduct: the ability to demand answers to potentially incriminating questions under Garrity v. New Jersey, 385 U.S. 493 (1967). The Garrity solution, known as “Garrity immunity,” strikes a critical balance between the government’s interests in workplace oversight and accountability with the employee’s Fifth Amendment right against self-incrimination by …

Guarantees Of Payment Of Wages In Enterprise Contracts And Its Contemporary Applications In Accordance With The Enforced Legislation In Palestine, Muayad K. Hattab Phd, Ashraf Muhammad Hussein Dr

UAEU Law Journal

remuneration under the contracting contract, and the mechanisms of enforcing the employer to implement his obligation to pay the remuneration, in light of the Palestinian legislative reality, which is still dependent upon the Mejella (Journal of Judicial Rules), as the Civil Law in force in Palestine. The study attempted to find a solution to the legislative shortcoming represented in the fact that the provisions of the Mejella devoid of a clear and explicit regulation of the provisions of the contracting contract and the responsibilities of the parties to that contract, especially with regard to obligating the employer …

Brief For Amicus Curiae Professor Edward A. Zelinsky In Support Of Appellants And Reversal, Edward A. Zelinsky

Amicus Briefs

DOL’s tie-breaking rule violates ERISA’s duty of loyalty under ERISA § 404(a)(1)(A). ERISA’s duty of loyalty requires ERISA-regulated trustees to invest plan resources for the “exclusive purpose of . . . providing” economic benefits to plan participants and their beneficiaries, “solely in the interest of the participants and beneficiaries.” The tie-breaking rule violates this stringent statutory duty of loyalty because it permits plan trustees investing plan resources to consider “collateral benefits,” i.e., the welfare of third parties or social goals. But ERISA‟s plain text does not permit this result. The words ““solely” and “exclusive purpose” in § 404(a)(1)(A) do not …

So Many Roads, So Much At Stake: The Composition Of Faculty Bargaining Units, William A. Herbert, Joseph Van Der Naald

Publications and Research

This book chapter from Contingent Faculty and the Remaking of Higher Education: A Labor History traces the history of faculty bargaining unit composition in higher education. It examines the evolution in higher education from wall-to-wall bargaining units to professional craft units of tenured, tenure-track, and contingent faculty to separate contingent faculty units. The chapter presents historical examples of bargaining units, starting with early CIO wall-to-wall units in the 1940s, and the facts, preferences, and legal doctrines that has resulted in faculty being placed in combined or separate bargaining under collective bargaining laws. It will also explore the conflicting and congruous …

Constitutional Clash: Labor, Capital, And Democracy, Kate Andrias

Northwestern University Law Review

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts—“labor’s” efforts for short—seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would also support the Constitution’s …

A Haven For Traffickers: How The United States Provides A Legal Safe Haven For Businesses That Rely On Forced Labor In The International Supply Chain, Ramona Lampley

Pepperdine Law Review

Congress enacted the Trafficking Victims Protection Act (“TVPRA” or “Act”) in 2000, which, through its amendments, gives victims of human trafficking, including forced labor or slave labor, a private right of action against those who knowingly benefit from the abusive labor practices perpetrated on them. Even though slave labor, particularly child labor, is a perceived evil in the foreign supply chains of many domestic companies, courts appear uncomfortable with the some of the civil liability provisions of the TVPRA. This Article examines recent cases brought under the TVPRA, and how, in some cases, courts have eviscerated the private right of …

It's A Soft Shell Life For Me: The Case For Expanding Npdes Permitting To Include Causes Of Ocean Acidification, Natalie L. Nowatzke

Ocean and Coastal Law Journal

Ocean acidification, a lesser-known counterpart to climate change, is primarily caused by the ocean’s absorption of carbon dioxide from the atmosphere. This absorption, in turn, reduces the ocean’s pH, and has detrimental effects on the health of the entire ecosystem. This Comment examines the applicability of the “functional equivalent test,” coined by the Supreme Court in County of Maui v. Hawaii Wildlife Fund, to the causes of ocean acidification. Using this test, this Comment proposes expanding NPDES permitting under the Clean Water Act to cover some landbased sources emitting carbon dioxide.

Labor Rights In The Anthropocene: The Effects Of Climate Change On Undocumented Farm Workers, Sophia Anderson

Seattle Journal for Social Justice

No abstract provided.

Democracy, Universalism And Informal Employment: The Committee On Freedom Of Association And South Asia, Kamala Sankaran

Book Chapters

This chapter focuses on how the CFA has influenced democratic processes and trade union rights in South Asia, particularly in relation to the intersection between political and labour rights and the relationship between trade union rights and civil liberties. Ms Sankaran illustrates this relationship by referring to a number of cases in the region in which emergency regulations have impacted on the daily exercise of trade union rights, with reference to the guidance provided by the CFA in this respect. She also recalls the large numbers of workers in the informal economy in the region, who are restricted in the …

Building A Strong And Diverse Workforce? Consider Indian Preference, In The Private Sector, Carol Mayo Cochran

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Reproductive Justice At Work: Employment Law After Dobbs V. Jackson Women’S Health Organization, Laura T. Kessler

Utah Law Faculty Scholarship

In June 2022, in Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what happens in their own bodies. In the two years since the decision, seventeen states have made most or all abortions illegal, with the fight over abortion still taking place in state and federal courts. Experts across fields have explored the decision's effects on health, economic …

The Bias Presumption, Bradley A. Areheart, Dave Hall

Scholarly Works

The American workplace is a fractured sphere of public life, in which white men often wield power at the expense of women and people of color. However, that power imbalance is no longer fully imbued with the active animus that characterized the first few centuries of American life; now, much of the damage done by discrimination is done structurally and implicitly. Consequently, the operation of bias and disadvantage is often invisible to employers and employees alike. The problem of discrimination in American life is thus larger and deeper than a few bad actors, and it will be impossible to solve …

Busting The Union Buster: Why A Fair Balance Of Employees' Right To Unionize And Employer Free Speech Requires Workplace Meetings Discussing The Employer's Views On Unionization To Be Voluntary, Jennifer L. Murray

Duquesne Law Review

On April 7, 2022, National Labor Relations Board (the "Board") General Counsel Jennifer Abruzzo sent shockwaves through American industries when she issued GC Memo 22-04. The memo announced that she would be asking the Board to find a violation of the National Labor Relations Act ("the Act" or "the Wagner Act") for mandatory meetings in which employees are required to listen to employer speech concerning the exercise of their statutory labor rights.¹ Days later, Abruzzo filed a brief in a case pending before the Board, Cemex Construction Materials Pacific, LLC, asking the Board to ban such meetings.^{2 …}

Pay Differences In The Absence Of Discrimination: Legislative Fallacies And Statistical Truths, Allan G. King, Stephen G. Bronars

Journal of Legislation

No abstract provided.

College Athlete Unionization, Roberto L. Corrada

Sturm College of Law: Faculty Scholarship

The U.S. Supreme Court's landmark 2021 decision in NCAA v. Alston has opened the door to serious consideration of the potential for college athlete unionization and collective bargaining. The ruling, highlighted by Justice Kavanaugh's concurring opinion, suggests collective bargaining as a potential solution to the National Collegiate Athletic Association's ("NCAA's") antitrust vulnerabilities. This Article delves into the initial legal and strategic questions surrounding the prospect of unionization, focusing particularly on NCAA Division I football and basketball, due to their significant revenue generation making them prime candidates for unionization efforts.

The National Labor Relations Board ("NLRB" or "Board") is positioned to …

The Thinning Blue Line: Ptsd Benefits For Law Enforcement In Minnesota, Caleb Wootan

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Rigid Rideshares And Driver Monitoring, Seth D. Goldstein

Student Scholarship

(Excerpt)

Since 2018, Uber has submitted applications for numerous patents that use algorithms to “define” safety. These patents “calculate” safety through multiple factors, including crime reports and statistics, news databases, academic databases of reports of violent conflicts in a location, the car’s condition, how often the driver swerves, and “social media.” These machine-learning models attempt to predict “the likelihood that a driver will be involved in dangerous driving or interpersonal conflict.” Drivers are generally outraged by these patents and have commented that these recorded metrics will be “used to manipulate and influence” driver behavior. There is merit to this fear. …

Dobbs V. Employee Benefits: Major Questions Left After The Landmark Decision, Brendan Mohan

Akron Law Student Publications

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned nearly fifty years of precedent established in Roe v. Wade, shifting the power to regulate abortion laws from the federal government to individual states. This seismic legal shift has raised significant questions about the intersection of state abortion laws and employee benefits, particularly for companies that offer abortion-related benefits through employer-sponsored health plans. The Employee Retirement Income Security Act of 1974 (ERISA) contains express and implied preemption provisions that have historically shielded employee benefit plans from conflicting state regulations. However, the extent to which ERISA can be used …

Reimagining The Deduction For Employee Compensation, Daniel Schaffa

University of Michigan Journal of Law Reform

U.S. businesses pay trillions of dollars in employee compensation, a substantial fraction of which is deductible for tax purposes. This deduction reduces the taxable income of businesses, ultimately lowering business tax burdens by hundreds of billions of dollars. With a few exceptions, the tax code confers the same deduction to a business for every dollar of employee compensation, regardless of whether that compensation goes to an employee earning millions or an employee earning minimum wage. This is consistent with a pure Haig-Simons income tax, under which any business expense incurred ought to be deductible dollar-for-dollar. But many, if not most, …

The Inherent Harm Of Employment Discrimination: What Behavioral Economics Teaches Us About Title Vii's Adverse Action Requirement, Janelle L. Ariota

Campbell Law Review

For decades, many courts have wrestled with the judicially created concept of "adverse employment actions" in determining whether a plaintiffhas proved a primafacie case of employment discrimination under Title VII of the Civil Rights Act of1964. Circuit courts have regularly applied different types of heightened adverse employment action standards, which only muddied the already complicated understanding ofworkplace discrimination. This Comment explores the recent circuit split concerning adverse employment actions and the introduction of the Supreme Court's new "some harm" testfrom Muldrow v. City of St. Louis. This Comment takes the position that principal behavioral economics theories can inform the judicial …