Labor and Employment Law Commons^™

The Fourth Bite At The Apple: A Study Of The Operation And Utility Of The Social Security Administration's Appeals Council, Charles H. Koch Jr., David A. Koplow

Faculty Publications

The Social Security Administration's Appeals Council performs the fourth and final administrative evaluation of appealed disability claims. Very little information about the Appeals Council has been available to claimants and their representatives, even though claimants must request Appeals Council review before filing an appeal in federal court. In response to criticism and controversy surrounding this obscure branch of the Social Security Administration, the Administrative Conference of the United States (ACUS) asked Professors Koch and Koplow to study the Appeals Council's effectiveness in disability claims and adjudication. In this Article, the authors examine Appeals Council operations and the Council's relationship to …

Bart Bartosic: What You See Is Not What You Get, Theodore J. St. Antoine

Articles

With "Bart" Bartosic, what you see is not necessarily what you get. Anyone even vaguely acquainted with him knows I am not talking about duplicity; on occasion, Bart can be almost painfully forthright. Nonetheless, on first meeting, most persons are likely to view him as the very soul of politesse - perhaps actually too deferential and accommodating. Yet behind that beguiling exterior can be found a backbone of cast iron, a mind like a steel trap, and (to extend the metallic figure) a willingness, when the situation demands, to be as hard as nails in dealing with either ideas or …

Article Xx Of The Afl-Cio Constitution: Managing And Resolving Inter-Union Disputes, Lea B. Vaughn

Articles

Labor, as embodied by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), is perceived by many as a monolithic force but, in reality, is composed of a coalition of sometimes competing interests. Not surprisingly, and often raucously, the unions within the AFL-CIO compete for members in both representation and work assignment disputes. Traditional legal doctrine implies that National Labor Relations Board (NLRB or Board) proceedings present the only means to resolve inter-union disputes and that these disputes can be understood solely as legal issues; however, this is not the case. For almost thirty years, the AFL-CIO has …

Limiting Section 301 Preemption: Three Cheers For The Trilogy, Only One For Lingle And Lueck, Michael C. Harper

Faculty Scholarship

After Lueck the preemption of state law claims by employees covered by collective bargaining agreements seemed to spread.²⁶ Lingle partially stemmed the flow, ²⁷ but the lower courts continue to deny significant state law rights to unionized employees in the name of section 301 and the arbitration process that it has encouraged. ²⁸ Many of these lower court decisions paint a much too broad swath of section 301 preemption through the range of employment rights now being made available by state law.

The fault, I suggest, lies with the preemption test suggested in Lueck and expressly articulated in Lingle …

Sameness Feminism And The Work/Family Conflict, Joan C. Williams

Faculty Scholarship

No abstract provided.

Toward A Wrongful Termination Statute For California, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Free Speech And Compulsory Union Fees: An Analysis Of Lehnert V. Ferris Faculty Association, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991). The author expected the case to address the line between those types of activities that effectuate a union's duties as collective bargaining representative, and thus can be charged to non-members, and those activities that are not related to collective bargaining and therefore are not chargeable to objecting non-members.

Past, Present And Future In Wrongful Termination Law, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Union Security Agreements Under The National Labor Relations Act: The Statute, The Constitution, And The Court's Opinion In Beck, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

The Supreme Court's recent decision in Communications Workers of America v. Beck interpreted section 8(a)(3) of the National Labor Relations Act (NLRA) to prohibit the observance of agency shop agreements. By interpreting the statute in this way, the Court avoided the question of whether union security agreements under the NLRA are subject to constitutional scrutiny. The Court's determination that section 8(a)(3) does not allow agency shop agreements was an important decision affecting the enforceability of union security agreements in the vast majority of private sector bargaining agreements.

In this Article, Professor Dau-Schmidt criticizes the Court's interpretation of section 8(a)(3) in …

Contempt For Workers, Harry J. Glasbeek

Osgoode Hall Law Journal

Charter proponents have been hopeful that the courts will use the constitutional entrenchment of rights to enlarge the political freedom of Canadians. Charter opponents have been doubtful of the court's ability to do so and, more importantly, of their willingness to do so where the enhancement of rights would undermine existing power relations. While many cases which come before the courts do not raise this issue squarely, the contradictory propositions are tested where capital labour conflicts are the subject of litigation. The argument is that it is the courts' historic mission to safeguard capital from working class challenges. Two recent …

Section 301'S Preemption Of State Law Claims: A Model For Analysis, Rebecca White

Scholarly Works

Congress, in section 301(a) of the Labor Management Relations Act, has provided a cause of action for breach of a collective bargaining agreement. This statute has long been interpreted as ousting state law claims for breach of contract when the contract involved is a collective bargaining agreement.

To what extent Congress, in enacting section 301, intended to foreclose other state law claims by the parties to or the individuals covered by a collective bargaining agreement is an issue that has recently gained prominence. The Supreme Court has decided four such cases unanimously in the last four years.

Such contemporary and …

In Pursuit Of Workplace Rights: Household Workers And A Conflict Of Laws, Suzanne B. Goldberg

Faculty Scholarship

At some point in their lives, most people who live in the United States labor for pay. By becoming "work force members," they are immediately entitled and obligated to participate in government programs, such as Social Security, that are designed to protect workers' health and financial security. In certain sectors of the work force, however, employer (and employee) noncompliance with these laws is rampant. The problem is particularly severe for private household workers migrant farmworkers, and undocumented workers generally. Officially acknowledged nonenforcement is widespread as well, leaving employers free to disregard explicit legal obligations with little fear of reprisal.

In …

Retaliatory Discharge For Workers' Compensation: Do Union Employees Need A State Tort, Scott N. Gelfand

Cardozo Law Review

No abstract provided.

The Eeoc Is Meeting The Challenge: Response To David Rose R., R. Gaull Silberman

Vanderbilt Law Review

In his recent article, Twenty-Five Years Later: Where Do We Stand On Equal Employment Opportunity Law Enforcement?, David Rose declares, "The time is ripe for review." Mr. Rose argues that "effective enforcement of the equal employment opportunity law in the next decade is a necessary, if not sufficient, predicate for the social and economic well being of the Nation."' From my perspective as Vice Chairman of the Equal Employment Opportunity Commission (EEOC or Commission), I heartily agree with both points. I must take issue,however, with Mr. Rose's assessment of developments in federal equal employment opportunity law over the last twenty-five …

Proving Violations Or Proving Affirmative Defenses Under The Occupational Safety And Health Act Of North America, Michael R. Smith

North Carolina Central Law Review

No abstract provided.

A Primer On Power Balancing Under The National Labor Relations Act, James B. Zimarowski

University of Michigan Journal of Law Reform

The focus of this Article is twofold. First, it addresses the substantive power control mechanisms established and regulated by the National Labor Relations Board (Board) and the courts. Second, it examines the power balancing methodology embraced by these dispute resolution forums. This Article takes the position that power balancing analysis designed to achieve the NLRA's multidimensional policies is a more fruitful endeavor than the analysis of economic efficiency or a partisan approach subject to political considerations.

Keeping The Camel's Nose Out Of The Tent: The Constitutionality Of N.L.R.B. Jurisdiction Over Employees Of Religious Institutions, Ellyn S. Rosen

Indiana Law Journal

No abstract provided.

The Personnel Manual Exception To Employment-At-Will: Is Job Security Merely An Illusion?—Stewart V. Chevron Chemical Co., 111 Wash. 2d 609, 762 P.2d 1143 (1988), Marilou Rickert

Washington Law Review

Washington recognizes the personnel manual exception to the employment-at- will doctrine but applies the exception restrictively. In Stewart v. Chevron Chemical Co., the Washington Supreme Court reversed a plaintiff's judgment for wrongful discharge. This Note analyzes the court's decision and finds it a step backward from previous Washington law establishing exceptions to the employment-at-will doctrine. After Stewart, Washington provides less protection for employees than do other states. This Note suggests that a better rule would allow the trier of fact to decide whether a personnel manual is contractually binding.

Dedication To Karl Krastin, Lester Brickman

Articles

The article pays tribute to Karl Krastin, highlighting his significant influence on the author's academic and professional journey. Krastin, a proponent of the "Law, Science, and Policy" approach, played a pivotal role in mentoring the author and other scholars, guiding them towards Yale's graduate program and into law teaching. His leadership as dean at Toledo College of Law fostered institutional growth and intellectual development, despite challenges arising from his democratic management style.

Challenging Discriminatory Guesswork: Does Impact Analysis Apply, Michael A. Middleton

Faculty Publications

This article initially examines the traditional theories of proof in Title VII cases. It then discusses approaches by lower courts in resolving the competing concerns raised in applying those traditional theories in challenges to subjective selection devices. This article next discusses the Supreme Court's resolution of the problem in Watson and suggests a workable alternative resolution that will not undermine the broad prophylactic purposes of Title VII.

Specific Incident Polygraph Testing Under The Employee Polygraph Protection Act Of 1988, Ryan K. Brown

Washington Law Review

The Employee Polygraph Protection Act of 1988 was enacted to protect private individuals from unjust termination or denial of job opportunities resulting from unwarranted polygraph tests. The Act, however, allows private employers to continue using polygraphs as part of "ongoing investigations" of employee misconduct. This Comment examines the ambiguous language of this exemption that courts will encounter when determining whether employers have violated the Act. The Comment proposes that, unless legislative history or federal regulations indicate otherwise, ambiguities in the specific incident exemption should be broadly construed to avoid employer liability.

Baseline Questions In Legal Reasoning: The Example Of Property In Jobs, Jack M. Beermann, Joseph William Singer

Faculty Scholarship

In what follows, we critique at-will employment by focusing on the baselines that underlie the analysis. Our ultimate goal is to develop persuasive arguments to move courts and businesses to provide greater job security for workers. One possible reason the courts have been so reluctant to change employment law is that judges analyze job security issues from the standpoint of a series of baselines which have the effect of creating a presumption against job security that is almost impossible to overcome. These baseline assumptions effectively place the burden of proof on advocates of job security.

Judges fail to recognize that …

The New Fordism In Canada: Capital's Offensive, Labour's Opportunity, Daniel Drache, Harry J. Glasbeek

Osgoode Hall Law Journal

The breakdown in the links of mass production and mass consumption poses problems throughout the advanced industrial world. In each nation-state the ensuing struggles will take different forms. In postwar Canada, the link between mass consumption and mass production did not lead to the same kind of trade union participation in decision-making as it did in much of Europe. Workers were unable to establish embedded rights of worker participation. What was known as the fordist model in Europe did not have deep roots in Canada. Canadian workers are now being attacked by employers whose bargaining powers were never seriously blunted, …

The Law Of Worker Ownership, Christopher S. Axworthy, David Perry

Osgoode Hall Law Journal

This article discusses Canadian, U.K., U.S., French, and Swedish models of worker ownership and the legal principles which apply to them. Based on the evidence that, in contrast to other traditional forms of workplace organization, worker participation in ownership and management gives rise to greater efficiency and productivity, lower employee absentee rates, greater job satisfaction, reduced need for managerial supervision, the lowest cost per job created and a democratic workplace, the article argues for comprehensive legislation to address the relevant issues surrounding worker ownership, so that worker co-operatives and other forms of worker ownership can reach their full potential in …

Drug Testing In The Workplace: Sacrificing Fundamental Rights In The War On Drugs, Bret Lubic

West Virginia Law Review

No abstract provided.

Substantiating "Competitive Disadvantage" Claims: A Broad Reading Of Truitt, Brandon David Lawniczak

Michigan Law Review

This Note argues that the broad reading of Truitt is correct. It advocates a broad rule which would require an employer to disclose substantiating financial information to its employees' union whenever it claims that meeting a proposed wage demand would place the firm at a competitive disadvantage. Because the appropriateness of substantiating financial information is factually dependent, this Note will not focus on the type or amount of information that should be disclosed. Instead, it will focus on the legal and policy justifications for a broad disclosure rule. Part I reviews Truitt and discusses the various interpretations given to it …

Finding A "Manifest Imbalance": The Case For A Unified Statistical Test For Voluntary Affirmative Action Under Title Vii, David D. Meyer

Michigan Law Review

This Note analyzes the "manifest imbalance" standard developed in Weber and Johnson and the various approaches the lower courts have taken in trying to apply the test. Part I examines the Weber and Johnson opinions in some detail, and argues that the Court intended to permit affirmative action aimed at remedying the evident effects of past discrimination, regardless of whether the employer or society at large is to blame. Section I.A describes the diverging constitutional and statutory standards for evaluating voluntary affirmative action programs, and the policies behind the divergence. Sections I.B and I.C take a closer look at the …

Mackey V. Lanier Collections Agency & Serv., Inc.: The Supreme Court Diminishes Erisa Preemption Protection For Welfare Benefit Plans, Richard F. Armknecht Iii

Brigham Young University Journal of Public Law

No abstract provided.

Plant Closing Notification: Dividing The Costs Of Closures Through Federal Regulation, Suzanne Richey Fitz, J. Benjamin Tyler

BYU Law Review

No abstract provided.

The Trade Bill's Approach To Helping Dislocated Workers: Will It Work?, Carl L. Britsch

BYU Law Review

No abstract provided.