Labor and Employment Law | Open Access Articles

A Framework For The Rejuvenation Of The American Labor Movement, Michael C. Harper

Indiana Law Journal

Symposium: New Rules for a New Game: Regulating Employment Relationships in the 21st Century, held at the Indiana University School of Law-Bloomington.

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What The Experiences Of The Recent Past Tell Us About The Labor And Employment Law Issues Of The Future (Roundtable Discussion), Catherine Barnard, Willard Carr, Kenneth G. Dau-Schmidt, Alvin Goldman

Indiana Law Journal

Symposium: New Rules for a New Game: Regulating Employment Relationships in the 21st Century, held at the Indiana University School of Law-Bloomington.

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No Pain, No Gain, No Compensation: Expoliting Professional Athletes Through Substandard Medical Care Administered By Team Physician, Nick Dicello

Cleveland State Law Review

This note discusses the role of the team physician and the unique conflicts he or she faces when providing medical care to athletes. In particular, the note describes the pressure team doctors experience from team management, the coaching staff, and the players themselves. Next, the note discusses the types of claims professional athletes have brought against their doctors and team employers and how the terms of collective bargaining agreements (CBA) and workers' compensation laws create obstacles to their recovery. The note will explore the need for a specialized legal standard within the practice of sports medicine and identify the disincentive …

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Bargaining For Loyalty In The Information Age: A Reconsideration Of The Role Of Substantive Fairness In Enforcing Employee Noncompetes, Rachel Arnow-Richman

UF Law Faculty Publications

This article explores the enforceability of employee non-compete agreements, with particular attention to their use in information-based industries as a response to increased worker mobility. Non-compete agreements have long been viewed with skepticism by courts and scholars due to historical concerns about employee bargaining power. This article argues that the current approach to assessing the fairness of these agreements is misdirected. Courts attempt to distinguish proper from improper restraints by looking to whether the non-compete protects an employer interest that is separate and distinct from the employer's desire simply to retain the employee. Such an approach is unworkable in an …

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Overcoming Adversity: Distinguishing Retaliation From General Prohibitions Under Federal Employment Discrimination Law, Eric M.D. Zion

Indiana Law Journal

No abstract provided.

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International Governance And Domestic Convergence In Labor Law As Seen From The American Midwest, Matthew W. Finkin

Indiana Law Journal

Symposium: New Rules for a New Game: Regulating Employment Relationships in the 21st Century, held at the Indiana University School of Law-Bloomington.

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Response To Matthew W. Finkin And Catherine Barnard, Lynn Duggan

Indiana Law Journal

Symposium: New Rules for a New Game: Regulating Employment Relationships in the 21st Century, held at the Indiana University School of Law-Bloomington.

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Response To Theodore J. St. Antoine And Michael C. Harper, Barry A. Macey

Indiana Law Journal

Symposium: New Rules for a New Game: Regulating Employment Relationships in the 21st Century, held at the Indiana University School of Law-Bloomington.

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Discrimination, Plain And Simple, Henry L. Chambers, Jr.

Law Faculty Publications

This short essay is a brief examination of the Court's relatively recent attempts to simplify Title VII and employment discrimination; it is not intended to be a comprehensive review of the Court's discrimination jurisprudence. Rather, it seeks to identify a few concerns with and implications of the Court's apparent desire to simplify Title VII jurisprudence. Part I briefly examines how the Court has simplified employment discrimination through Hicks and Oncale. Part II examines how the Court's simplifications have been used. Part III suggests concerns that should accompany the Court's simplification.

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Arbitration Of Statutory Claims In The Unionized Workplace: Is Bargaining With The Union Required?, Ann C. Hodges

Law Faculty Publications

This article analyzes the question of whether arbitration of statutory claims should be classified as a mandatory or permissive subject of bargaining under the National Labor Relations Act (NLRA). First, this article reviews the post-Wright cases that hold that a union-negotiated waiver is permissible. Second, this article reviews the only decision to consider the issue of classification of the bargaining subject, Air Line Pilots Ass'n, International v. Northwest Airlines, Inc., a case arising in the United States Court of Appeals for the District of Columbia under the Railway Labor Act. In that case, the court concluded that the …

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Unemployment Insurance And Wealth Redistribution, Gillian Lester

Faculty Scholarship

This Article evaluates the merit of liberalizing unemployment insurance eligibility as a means to achieve progressive wealth redistribution-an idea that has recently gained popularity among policymakers and legal scholars. Unemployment insurance (UI) provides temporary, partial wage replacement to workers who suffer unexpected job loss, but it tends to exclude workers who have very low wages or hours of work, or who quit for reasons considered "personal" (for example, to accommodate family demands). Professor Lester argues that while redistribution to workers who are poor or who have caregiving obligations is a desirable goal, expanding UI is a poor way to do …

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Bonus Impacts On Receipt Of Unemployment Insurance, Paul T. Decker, Christopher J. O'Leary, Stephen A. Woodbury

Upjohn Press Book Chapters

No abstract provided.

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Dispute Resolution In The Boundaryless Workplace, Katherine V.W. Stone

Cornell Law Faculty Publications

Since the Supreme Court's decision Gilmer v. Interstate/Johnson Lane Corp. which compelled an employee to submit his age discrimination claim to arbitration under the Federal Arbitration Act (FAA), there has been a dramatic increase in the number of nonunion firms adopting arbitration systems. At the same time, there has been a flood of lawsuits challenging these employment systems, and a corresponding avalanche of judicial opinions addressing the legal issues left open in Gilmer – issues such as the problematic nature of consent in employment arbitration, the deficiencies in due process, and the applicability of the FAA to employment contracts. These …

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The Legitimacy Of Labor Unions, Peter Levine

Hofstra Labor & Employment Law Journal

Labor unions do not have a well-understood rationale, as do capitalist enterprises, strictly voluntary associations, and democratic states. They are nonprofit associations, but also coercive economic agents; working-class communities, but also powerful special interests; embodiments of rights, but also incompatible with certain individual freedoms. These tensions result in an ambivalent legal status. For instance, unions may collect fees from (and negotiate contracts for) certain employees without obtaining their individual consent, yet no one can be required to belong to a union. Unions are exempt from antitrust laws and may restrain competition, but only in particular ways. We cannot assess these …

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Disadvantaged By Design: How The Law Inhibits Agricultural Guest Workers From Enforcing Their Rights, Michael Holley

Hofstra Labor & Employment Law Journal

No abstract provided.

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The Eleventh Amendment: "A Work In Progress", Sabina Sosunova, Bonnie A. Tucker

Hofstra Labor & Employment Law Journal

No abstract provided.

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Leading By Example: An Holistic Approach To Individual Disparate Treatment Law, Michael J. Zimmer

Faculty Publications & Other Works

No abstract provided.

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Slicing & Dicing Individual Disparate Treatment Law, Michael J. Zimmer

Faculty Publications & Other Works

No abstract provided.

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Non-Legislative Labor Law Reform And Pre-Recognition Labor Neutrality Agreements: The Newest Civil Rights Movement, Roger C. Hartley

Scholarly Articles

A central component of the overhauled union organizing strategy is greater reliance on the pre-recognition neutrality agreement negotiated with an employer whose employees a union is attempting to organize. This article examines these neutrality agreements. Part I locates the neutrality agreement within unions' revitalized approach to organizing." This discussion shows that neutrality agreements can redress four disadvantages unions confront when organizing: employer intimidation, harmful delay, inadequate access to employees, and inability to secure a first contract. These disadvantages, widely understood as contributing significantly to the decline in union membership during the last quarter of the twentieth century, constitute the core …

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Introduction: Employment Discrimination And The Problems Of Proof, John Valery White, Gregory Vincent

Scholarly Works

This is an introduction to articles presented at a symposium on the U.S. Supreme Court’s decision in Reeves v. Sanderson Plumbing Prods. Co. sponsored by the Louisiana Law Review. Presenting papers were five of the leading scholars on employment discrimination law: Professor Catherine J. Lanctot of the Villanova University Law School, Professor Michael Selmi of the George Washington Law School, Professor Linda Hamilton Krieger, University of California at Berkely School of Law, Professor Rebecca Hanner White of the University of Georgia Law School, and Professor Michael Zimmer of the Seton Hall University School of Law. Respondents were the authors and …

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Next Challenge In Sexual Harassment Reform: Racial Disparity, The Panel One: Gender, Race, And Sexuality: Historical Themes And Emerging Issues In Women's Rights Law, Tanya K. Hernandez

Faculty Scholarship

In order to do my homework in discussing both a tribute to women's lawyering and activism and also discuss emerging issues, I am going to focus on sexual harassment.

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Pink Slip Introduction, Dena S. Davis

Journal of Law and Health

What has changed however, is the degree of worry and concern that people feel about the uses to which their genetic information can be put. When the HGP (Human Genome Project) began, a number of pundits were convinced that the "future knowledge" that genetic information can deliver to consumers and insurers alike would completely undermine the practice of private health insurance, and send our current system crashing to the ground. Needless to say, that has not happened; but with 42 million Americans currently without health insurance, and with insurance tightly entwined with employment, many people fear that genetic information will …

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Cardiovascular Genetics: Case Studies, Kenneth G. Zahka

Journal of Law and Health

What I'd like to do in the next 10 or 15 minutes is use a case approach which we all use in medicine as you use in law to give you a flavor for how we as clinicians think about things that are oftentimes obviously genetic. But I want to stress to you that probably a day does not go by or a patient does not go by where I don't think in terms of genetic issues for their cardiovascular health.

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Can Employers Put Genetic Information To Good Use, Kathleen C. Engel

Journal of Law and Health

In my talk today I am going to try to answer the question: Can employers put genetic information to good use? Preparing this talk was a challenge because it required me to switch sides of the table. Having represented plaintiffs in employment discrimination cases for ten years, my inclination is to focus on the ways that employers can use genetic information to the detriment of their workers. I chose to talk about the value of genetic information from the employers' perspective because I wanted to force myself to engage in a disciplined study of the issues, rather than simply don …

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Is There A Pink Slip In Your Genes?, J. B. Silvers

Journal of Law and Health

On the insurance company side, it's clear that insurance companies are not well loved by folks. They're not even supposed to do that. At one point after a company had approached QualChoice and told us not to tell the enrollees something that, in fact, had been a policy decision by the company, I was suggesting that perhaps we should change the name to the company to the "Scapegoat Insurance Company," since that really was what we were being paid for, and I think in this argument that may be part of the issue here.

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Genetic Discrimination: Does It Exist, And What Are Its Implications?, Paul Steven Miller

Journal of Law and Health

Does genetic discrimination exist? Thus far, there have been no cases other than Burlington Northern and maybe a couple of other cases which have been filed by plaintiffs in either federal or state court. Notwithstanding all of the statutes, there haven't been a tremendous amount of charges coming in, people coming to the EEOC (Equal Employment Opportunity Commission), or to respective state agencies and even filing charges. This fact confuses me, because I actually believe that genetic discrimination, as we've been talking about it, is happening more often in the real world than this charge flow would indicate.

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Reasons To Eschew Federal Lawmaking And Embrace Common Law Approaches To Genetic Discrimination, S. Candice Hoke

Journal of Law and Health

Professor Hoffman and I agree: there ought to be some laws, but I want to talk to you a little bit about two possible, two real goals here. One is to ask you to critically evaluate whether a federal statute is the right remedial response at this point in time, and secondly, to ask you to start thinking about the possibility of drafting into service what we in law refer to as traditional state common-law approaches that actually might give us more and better ways to remedy what's going on than simply turning to Congress.

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Genetic Testing And Employment Litigation, Harry Zanville

Journal of Law and Health

I have only a couple of comments to make that relate to litigation hurdles and how to achieve this balance, and the first thing I want to talk about, following the wonderful presentation is, in fact, we probably don't in some ways even need a new cause of action.

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Job Reference Immunity Statutes: Prevalent But Irrelevant, Markita D. Cooper

Journal Publications

This Article posits that current reference immunity statutes are of little use in encouraging employers to provide references. Although legislation ostensibly protects employers in most states, "name, rank and serial number," "no-comment," and neutral reference policies continue to prevail as standard practice regarding job references. Generally, the existing statutes leave the common law in place, so that reference claims may be adjudicated under statutory standards and common law standards. This Article proposes that the field would be clarified if the statutes were the exclusive law governing liability for job reference claims under state law.

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An Ounce Of Prevention Is A Poor Substitute For A Pound Of Cure: Confronting The Developing Jurisprudence Of Education And Prevention In Employment Discrimination Law, Susan Bisom-Rapp

Faculty Scholarship

This article challenges a widely shared conviction that has had a tremendous impact on employer practices and, most recently, on employment discrimination jurisprudence. More specifically, the piece interrogates the belief that employee education can prevent, or at least greatly curb, invidious employment discrimination prohibited by Title VII of the Civil Rights Act and other civil rights statutes. This premise, broadly held and rarely questioned, has spawned a multi-billion dollar sexual harassment and diversity training industry staffed by consultants, attorneys, and human resource professionals, who offer programs aimed at litigation prevention. Yet, there is absolutely no empirical support for the premise …

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Full-Text Articles in Labor and Employment Law

A Framework For The Rejuvenation Of The American Labor Movement, Michael C. Harper

Indiana Law Journal

What The Experiences Of The Recent Past Tell Us About The Labor And Employment Law Issues Of The Future (Roundtable Discussion), Catherine Barnard, Willard Carr, Kenneth G. Dau-Schmidt, Alvin Goldman

Indiana Law Journal

No Pain, No Gain, No Compensation: Expoliting Professional Athletes Through Substandard Medical Care Administered By Team Physician, Nick Dicello

Cleveland State Law Review

Bargaining For Loyalty In The Information Age: A Reconsideration Of The Role Of Substantive Fairness In Enforcing Employee Noncompetes, Rachel Arnow-Richman

UF Law Faculty Publications

Overcoming Adversity: Distinguishing Retaliation From General Prohibitions Under Federal Employment Discrimination Law, Eric M.D. Zion

Indiana Law Journal

International Governance And Domestic Convergence In Labor Law As Seen From The American Midwest, Matthew W. Finkin

Indiana Law Journal

Response To Matthew W. Finkin And Catherine Barnard, Lynn Duggan

Indiana Law Journal

Response To Theodore J. St. Antoine And Michael C. Harper, Barry A. Macey

Indiana Law Journal

Discrimination, Plain And Simple, Henry L. Chambers, Jr.

Law Faculty Publications

Arbitration Of Statutory Claims In The Unionized Workplace: Is Bargaining With The Union Required?, Ann C. Hodges

Law Faculty Publications

Unemployment Insurance And Wealth Redistribution, Gillian Lester

Faculty Scholarship

Bonus Impacts On Receipt Of Unemployment Insurance, Paul T. Decker, Christopher J. O'Leary, Stephen A. Woodbury

Upjohn Press Book Chapters

Dispute Resolution In The Boundaryless Workplace, Katherine V.W. Stone

Cornell Law Faculty Publications

The Legitimacy Of Labor Unions, Peter Levine

Hofstra Labor & Employment Law Journal

Disadvantaged By Design: How The Law Inhibits Agricultural Guest Workers From Enforcing Their Rights, Michael Holley

Hofstra Labor & Employment Law Journal

The Eleventh Amendment: "A Work In Progress", Sabina Sosunova, Bonnie A. Tucker

Hofstra Labor & Employment Law Journal

Leading By Example: An Holistic Approach To Individual Disparate Treatment Law, Michael J. Zimmer

Faculty Publications & Other Works

Slicing & Dicing Individual Disparate Treatment Law, Michael J. Zimmer

Faculty Publications & Other Works

Non-Legislative Labor Law Reform And Pre-Recognition Labor Neutrality Agreements: The Newest Civil Rights Movement, Roger C. Hartley

Scholarly Articles

Introduction: Employment Discrimination And The Problems Of Proof, John Valery White, Gregory Vincent

Scholarly Works

Next Challenge In Sexual Harassment Reform: Racial Disparity, The Panel One: Gender, Race, And Sexuality: Historical Themes And Emerging Issues In Women's Rights Law, Tanya K. Hernandez

Faculty Scholarship

Pink Slip Introduction, Dena S. Davis

Journal of Law and Health

Cardiovascular Genetics: Case Studies, Kenneth G. Zahka

Journal of Law and Health

Can Employers Put Genetic Information To Good Use, Kathleen C. Engel

Journal of Law and Health

Is There A Pink Slip In Your Genes?, J. B. Silvers

Journal of Law and Health

Genetic Discrimination: Does It Exist, And What Are Its Implications?, Paul Steven Miller

Journal of Law and Health

Reasons To Eschew Federal Lawmaking And Embrace Common Law Approaches To Genetic Discrimination, S. Candice Hoke

Journal of Law and Health

Genetic Testing And Employment Litigation, Harry Zanville

Journal of Law and Health

Job Reference Immunity Statutes: Prevalent But Irrelevant, Markita D. Cooper

Journal Publications

An Ounce Of Prevention Is A Poor Substitute For A Pound Of Cure: Confronting The Developing Jurisprudence Of Education And Prevention In Employment Discrimination Law, Susan Bisom-Rapp

Faculty Scholarship