Labor and Employment Law Commons^™

Janus's Two Faces, Kate Andrias

Articles

In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.1 Stunning in its disregard of principles of stare decisis, Janus overruled the forty-yearold precedent Abood v Detroit Board of Education. 2 The Janus decision marks the end of the post–New Deal compromise with respect to public sector unions and the FirstAmendment.Looking to the future, Janus lays the groundwork for further attack on labor rights—as …

Code Of Silence, Melissa Mortazavi

Cardozo Law Review

To read the literature on professional responsibility is to inhabit a world focused on what is said explicitly about what it means to be a lawyer: the aspirations of the canons, the commands of the Model Rules of Professional Responsibility, the clarifications of court and ethics opinions, and the guidance of the Restatement. However, it often neglects what is not said: spaces where silence reigns. This Article takes a different approach; it listens to the taciturn.

This Article draws insight from when the bar chooses to be silent in the face of widely known violations of the law of lawyering. …

The Sec's Part 205.3(D)(2) And Wadler V. Bio-Rad Labs. Should Be Revisited: The Sec Exceeded Authority In Creating A Reporting Out Provision For In-House Attorneys, Briana Sheridan

Cardozo Law Review

This Note proceeds in three parts. Part I introduces relevant statutory law. Part I discusses federal law, notably Section 307 of the Sarbanes-Oxley Act and the SEC's Part 205.3(d)(2), as well as the American Bar Association (ABA) Model Rules and conflicting state law. Part II first examines case law involving the preemption of state ethics laws, including Wadler v. Bio-Rad Laboratories, which concluded broadly that Part 205 preempts California law.23 Part II then examines the doctrine of federal preemption, which is followed by a preemption analysis of Part 205.3(d)(2). Part III recommends that Part 205.3(d)(2) should be revisited, as the …

Verbal Hate Crimes In The Workplace: The Effect Of Mental And Emotional Injury Of The Lgbt Community On The Commerce Clause, Elizabeth Olsen

Journal of Law and Policy

Mental and emotional abuse, particularly of the LGBT community in the workplace, is not a new phenomenon; however, it is one that is detrimental to both workers and companies, and is becoming increasingly prevalent as more workers are openly identifying as members of the LGBT community. The Hate Crimes Prevention Act should be amended to prevent verbal violence against protected characteristics in the workplace specifically, as workplace verbal abuse has as a significant an impact on companies and businesses, and, in turn, interstate commerce and the Commerce Clause.

Arbitration In Internal Dispute Resolution Programs: The Scarlet Letter “A” In Sexual Harassment Claims, Sarah Sachs

Pepperdine Dispute Resolution Law Journal

This Comment evaluates the use of arbitration and mediation as effective alternative dispute resolution mechanisms for resolving workplace sexual harassment claims. Part II discusses the legal development of sexual harassment claims in the workplace. Part III evaluates companies who use internal dispute resolution programs with mediation and arbitration to resolve workplace harassment claims. Finally, Part IV analyzes the advantages and disadvantages of companies designing and implementing internal dispute resolution programs to adjudicate workplace sexual harassment claims.

Preface, Peter L. Strauss

Chicago-Kent Law Review

No abstract provided.

Mandatory Reassignment As A Reasonable Accommodation Under The Americans With Disabilities Act Turns “Nondiscrimination Into Discrimination”, Christina M. Loguidice

Brooklyn Law Review

This note directly addresses one of the most pertinent and core civil rights issues—employment rights of individuals with disabilities—and proposes a unique contribution to current scholarship. The problem lies in the interpretation of the Americans With Disabilities Act’s provision that suggests that reassignment “may” be a reasonable accommodation, which is defined as any accommodation required for an employee with a disability to equalize success and opportunity in the workplace. The word “may” in the provision creates confusion over whether reassignment is always reasonable. Hence, circuit courts are divided on the issue of whether mandatory reassignment is always a reasonable accommodation …

Production Liability, Aditi Bagchi

Fordham Law Review

It is well known that many consumer goods are produced under dangerous working conditions. Employers that directly supervise the production of these goods evade enforcement. Activists and scholars have argued that we must hold the manufacturers and retailers that purchase goods made in sweatshops accountable. However, there has been little movement toward such accountability. Responsibility for the conditions under which goods are made—what I call “production liability”—entails assigning responsibility for workers to firms that do not directly employ them. Production liability, therefore, conflicts with deep intuitions about the boundaries of individual responsibility. This Article offers a moral and economic defense …

Reforming Pensions While Retaining Shareholder Voice, David H. Webber

Faculty Scholarship

Public pension and labor union funds have been the driving force in diversified shareholder activism. They have also fended off attacks on jobs and proactively created jobs for fund contributors. These funds currently represent almost $4 trillion in assets over which workers have substantial control. That worker control - and the collective nature of defined benefit pension plans - is the necessary precondition for their shareholder activism. Both worker control and collective investment are directly threatened by the rise of defined contribution funds, particularly by well-funded efforts to promote the 401(k) in the public sector, the last bastion of the …

Missing The Forest For The Weeds: Filling The Holes In Louisiana’S Medical Marijuana Statutes To Protect Employees, Catherine Briley

Louisiana Law Review

The article discusses the status, as of May 2019, of marijuana legislation in the U.S. at both federal and state levels, with focus on the state of Louisiana, in the context of employment law, including significant court decisions that either uphold or dismiss statutory protections from wrongful termination for marijuana use.

Playing For Pay Or Playing To Play: Student-Athletes As Employees Under The Fair Labor Standards Act, Christine Colwell

Louisiana Law Review

The article analyzes the National Collegiate Athletics Association (NCAA) amateurism principles in relations to the National Labor Relations Act (NLRA) in the lawsuit Berger v. NCAA and proposes a revision of the NCAA amateurism principles to decrease litigation related to the matter.

Recent Case Shows Flaws In Va Benefits, David E. Boelzner

Popular Media

No abstract provided.

Nevada Department Of Human Resources V. Hibbs: Universalism And Reproductive Justice, Samuel Bagenstos

Book Chapters

The Family and Medical Leave Act (FMLA) was the first bill signed into law by President Bill Clinton—just two weeks after he took office. Enactment of the statute was a longstanding goal of the Democratic Party. It also represented a legislative victory for what I will call feminist universalism—the notion that sex equality is best served by rules and policies that reject differentiation between women and men. Ten years after Congress enacted the FMLA, the Supreme Court upheld the statute against a constitutional challenge in Nevada Department of Human Resources v. Hibbs. The Hibbs Court, in a surprising opinion by …

Compensation Is All-American: Former College Football Star Chris Spielman’S Case Against His Alma Mater And How It Could Affect The Ncaa’S Amateurism Rules, Jason Mcintyre

Pace Law Review

The lawsuit, Spielman v. IMG College, arose when Ohio State University (“OSU”) entered into a marketing deal through their marketing agency, IMG College (“IMG”), with corporations Honda Motor Co. (“Honda”) and Nike USA Inc. (“Nike”), to hang banners depicting images of former college athletes at school sporting events. Charles “Chris” Spielman, the named Plaintiff and former NCAA football player at OSU, brought this lawsuit because he claims that OSU and IMG unreasonably and illegally restrained trade by denying him the right to profit from his name, image, and likeness.

This case plays a role in the ongoing conversation of whether …

Graduate Student Employees Or Employee Graduate Students? The National Labor Relations Board And The Unionization Of Graduate Student Workers In Postsecondary Education, Leslie Crudele

William & Mary Business Law Review

This Note concerns the ongoing debate over the unionization of graduate student employees at private universities. An issue that the National Labor Relations Board (the Board) has historically been inconsistent on, graduate student unionization remains a contentious topic as university administrators continue to try to oppose student unionization efforts while graduate student employees seek to assert their collective bargaining rights under the National Labor Relations Act (the NLRA or the Act).

This Note will propose two considerations that the Board should take into account concerning issues of graduate student employee unionization: the appropriate bargaining unit and bargainable issues in academia. …

#Metoo Meets The Ministerial Exception: Sexual Harassment Claims By Clergy And The First Amendment's Religion Clauses, Ira C. Lupu, Robert W. Tuttle

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Black Hair(Tage): Career Liability Or Civil Rights Issue?, Kaili Moss

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Chronic Harm, Ann Kennedy

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Deploying Mindfulness To Gain Cognitive Advantage: Considerations For Military Effectiveness And Well-Being, Amishi P. Jha, Scott L. Rogers, Eric Schoomaker, Edward Cardon

Articles

Mindfulness involves paying attention to present moment experience without discursive commentary or emotional reactivity. Mindfulness training (MT) programs aim to promote this mental mode via introduction to specific mindfulness exercises, related in-class discussion, and ongoing engagement in mindfulness exercises. MT is being increasingly offered to high-demand, high-stress military/uniformed and civilian cohorts with a wide array of reported benefits. Herein, we begin by discussing recent theoretical models regarding MT’s mechanisms of action from a cognitive training/cognitive neuroscience perspective, which propose that MT engages and strengthens three key processes [e.g., 1]. These are: 1) attentional orienting, which is the ability to select …

Taxing The Robots, Orly Mazur

Pepperdine Law Review

Robots and other artificial intelligence-based technologies are increasingly outperforming humans in jobs previously thought safe from automation. This has led to growing concerns about the future of jobs, wages, economic equality, and government revenues. To address these issues, there have been multiple calls around the world to tax the robots. Although the concerns that have led to the recent robot tax proposals may be valid, this Article cautions against the use of a robot tax. It argues that a tax that singles out robots is the wrong tool to address these critical issues and warns of the unintended consequences of …