Labor and Employment Law Commons^™

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 …

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 …

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 …

The Blue Devil's In The Details: How A Free Market Approach To Compensating College Athletes Would Work, David A. Grenardo

Pepperdine Law Review

Everyone involved in the business of major college athletics, except the athletes, receives compensation based on a free market system. The National Collegiate Athletic Association’s (NCAA) cap on athlete compensation violates antitrust law, and athletes should be allowed to earn their free market value as everyone else does in this country. This Article provides a detailed approach to compensating college athletes under a free market model, which includes a salary cap, the terms of a proposed standard player’s contract, a discussion of who can represent players, and payment simulations for football and basketball teams. A free market approach would not …

Vol. 36, No. 2, Lisa R. Callaway, Rebecca C. Barnard

The Illinois Public Employee Relations Report

Labor Relations Collaboration from Start to Finish: A Case Study on a First Contract for Westminster Colorado Firefighters, by Lisa R. Callaway and Rebecca C. Barnard

Recent Developments

Discrimination Without Discriminating? Learned Gender Inequality In The Labor Market And Gig Economy, Arianne Renan Barzilay

Cornell Journal of Law and Public Policy

The "sharing" economy, and in particular the exchange of labor and services within it, is generating wide-spread attention from scholars. It has been celebrated as a disruption to current forms of labor and consumption. This depiction suggests a new, sui generis form of economy, which can and should be understood in and of itself or at most, by its contrast with the current labor market in which workers are employees. Yet, I argue, emerging research on gender discrimination in the gig economy suggests that this understanding occludes a major feature of the gig economy-its operation in the shadow of the …

On Race, Teacher Activism, And The Right To Work: Historicizing The "Red For Ed" Movement In The American South, Jon N. Hale

West Virginia Law Review

No abstract provided.

Energy Re-Investment, Hari M. Osofsky, Jacqueline Peel, Brett H. Mcdonnell, Anita Foerster

Indiana Law Journal

Despite worsening climate change threats, investment in energy—in the United States and globally—is dominated by fossil fuels. This Article provides a novel analysis of two pathways in corporate and securities law that together have the potential to shift patterns of energy investment.

The first pathway targets current investments and corporate decision-making. It includes efforts to influence investors to divest from owning shares in fossil fuel companies and to influence companies to address climate change risks in their internal decision-making processes. This pathway has received increasing attention, especially in light of the Paris Agreement and the Trump Administration’s decision to withdraw …

Will Conservative Justices Sound The Death Knell Of State Action? Be Careful For What You Wish, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

The Ethics Of Non-Lawyer Advocacy: Expectations, Rules, And Complications, John F. Wirenius

Cardozo International & Comparative Law Review

The article examines the ethical challenges and legal complexities surrounding nonattorney advocacy in labor relations, particularly under the National Labor Relations Act (NLRA) and similar state statutes. It highlights the tension between holding non-lawyer union representatives to attorney ethical standards and the need for simpler, practical norms. The analysis emphasizes the importance of balancing due process for pro se parties with maintaining the integrity of advocacy roles, suggesting that resorting to fundamental statutory values and reciprocal duties can provide a baseline for ethical conduct.