Labor and Employment Law Commons^™

The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …

Efficient Deterrence Of Workplace Sexual Harassment, Joni Hersch

Vanderbilt Law School Faculty Publications

Although sexual harassment imposes costs on both victims and organizations, it is also costly for organizations to reduce sexual harassment. Legislation, education, training, and litigation have all been unsuccessful in eradicating workplace sexual harassment. My proposal is to establish financial incentives of sufficient magnitude to incentivize organizations to eliminate sexual harassment. The key challenge is in monetizing the harm caused by sexual harassment. I propose a new approach that draws on my research, which calculated the risk of sexual harassment by gender, industry, and age based on charges filed with the Equal Employment Opportunity Commission. Using these risk measures, I …

No Longer A Second-Class Class Action? Finding Common Ground In The Debate Over Wage Collective Actions With Best Practices For Litigation And Adjudication, Scott A. Moss, Nantiya Ruan

Publications

Rule 23 class actions include all potential members, if granted certification. For wage claims, 29 U.S.C. § 216(b) allows not class but collective actions covering only those opting in. Courts have practiced Rule 23-style gatekeeping in collective actions – requiring certification motions, which they deny if members lack enough commonality. Our 2012 article argued against this practice. No statute or rule grants judges the § 216(b) gatekeeping power early cases assumed, and with good reason: opt-in reduces the agency problems justifying Rule 23 gatekeeping; and Congress passed § 216(b) as not a stricter, opt-in form of class action, but liberalized …

Powerful Speakers And Their Listeners, Helen Norton

Publications

In certain settings, law sometimes puts listeners first when their First Amendment interests collide with speakers’. And collide they often do. Sometimes speakers prefer to tell lies when their listeners thirst for the truth. Sometimes listeners hope that speakers will reveal their secrets, while those speakers resist disclosure. And at still other times, speakers seek to address certain listeners when those listeners long to be left alone. When speakers’ and listeners’ First Amendment interests collide, whose interests should prevail? Law sometimes – but not always – puts listeners’ interests first in settings outside of public discourse where those listeners have …

A New Look At The Ada's Undue Hardship Defense, Nicole Buonocore Porter

Faculty Publications

...This Article will not only summarize and attempt to categorize the undue hardship cases but will also identify three trends that become apparent when engaging in a thorough analysis of this body of cases.

This Article will proceed in four additional parts. Part II will provide the background of the undue hardship provision, including the statutory language and its regulations, the legislative history, and the undue hardship cases decided under the precursor to the ADA—the Rehabilitation Act of 1973. Part III will delve into the undue hardship cases under the ADA. Even though most people think about undue hardship as …

Disabling Ada Retaliation Claims, Nicole Buonocore Porter

Faculty Publications

In this article, I set out to explore what effect the expansion of the definition of “disability” would have on the post-Amendments retaliation cases. What I discovered surprised me. Despite the common belief that retaliation cases are often more successful than cases alleging status-based discrimination, this did not prove to be true with respect to this dataset of ADA retaliation cases. In fact, as indicated by the title of this article, courts are continuing to disable employees’ retaliation claims under the ADA. Plaintiffs lost (i.e., did not survive a motion to dismiss or a motion for summary judgment) in three-quarters …

Explaining "Not Disabled" Cases Ten Years After The Adaaa: A Story Of Ignorance, Incompetence, And Possibly Animus, Nicole Buonocore Porter

Faculty Publications

I set out to find and read every case that addressed the definition of disability from the point my last article left off until the present (January 1, 2014 through December 31, 2018). This resulted in 976 cases. Of those 976 cases, the court erroneously held that the plaintiff was not disabled in 210 of them...

This Article attempts to explain what went wrong—why did courts incorrectly hold that the plaintiff was not disabled in more than 200 cases? The answer, I’ve concluded, is a little bit of ignorance (courts and parties that were apparently unaware that the ADAAA was …

Employees As Regulators: The New Private Ordering In High Technology Companies, Jennifer S. Fan

Articles

There is mounting public concern over the influence that high technology companies have in our society. In the past, these companies were lauded for their innovations, but now as one scandal after another has plagued them, from being a conduit in influencing elections (think Cambridge Analytica) to the development of weaponized artificial intelligence, to their own moment of reckoning with the #MeToo movement, these same companies are under scrutiny. Leaders in high technology companies created their own sets of norms through private ordering. Their work was largely unfettered by regulators, with the exception of the Securities and Exchange Commission’s oversight …

Disrupting Adhesion Contracts With #Metoo Innovators, Xuan-Thao Nguyen

Articles

Adhesion contracts are everywhere. Take it or leave it, the dominant party holds the leverage while the weaker party adheres. Ninety percent of employment contracts contain mandatory arbitration clauses, and attempts to challenge arbitration requirements meet with judicial indifference or hostility. Ultimately, arbitration clauses eviscerate the employee's right to a jury trial and access to the court system in general. In recent years, employers in the tech sector have faced unexpected resistance from innovators. Just as innovators are known for disrupting old business models through technological innovations, #MeToo reformers are disrupting the seemingly insurmountable adhesion contract regime. They organize, protest, …

Labor Law Illiteracy: Epic Systems Corp. V. Lewis And Janus V. Afscme, Michael Yelnosky

Law Faculty Scholarship

No abstract provided.

Private Ordering And Improving Information Flow To The Board Of Directors: The Duty To Inform Bylaw, Jennifer O'Hare

Faculty Publications

It seems that almost every day there is another report of a corporate scandal at a public company. Whether the scandal involves sexual harassment by senior management or widespread illegal conduct by employees, the first question asked by investors and the media is usually, “Where was the board?” And the board’s response is almost always, “We didn’t know.” Directors of public companies rely on officers to provide the information the board needs to manage the corporation, but, strangely enough, officers may not even be legally required to provide information to the board. The Delaware General Corporation Law is silent on …

Worker Participation, Sustainability, And The Puzzle Of The Volkswagen Emissions Scandal, Matthew T. Bodie

All Faculty Scholarship

In September 2015, Volkswagen's "clean diesel" technology was exposed as a sham. Not only were the company's vehicles discharging dangerously high levels of nitrogen oxide, but VW had intentionally rigged its emissions systems to cheat on environmental tests. In the wake of resignations and criminal investigations, the company's governance system came under justifiable attack. Were VW's famously worker-friendly governance policies to blame? This Chapter examines the root causes of the emissions scandal and concludes that VW's governance culture suffered from dictatorial leadership as well as a cozy relationship between management and labor leaders. This culture of complacency led to a …

Permitted Incentives For Workplace Wellness Plans Under The Ada And Gina: The Regulatory Gap, Elizabeth Pendo

Articles

Although workplace wellness plans have been around for decades, they have flourished under the Patient Protection and Affordable Care Act (“PPACA”) into a $6 billion-dollar industry. Under PPACA, a “wellness plan” is a program of health promotion or disease prevention offered by an employer that is designed to promote health or prevent disease and which meets the other applicable requirements of that subsection. Employers look to these programs to promote healthy lifestyles, improve the overall health of employees and beneficiaries, and reduce rising healthcare costs.

PPACA’s amendments to the Health Insurance Portability and Accountability Act (“HIPAA”) permit employers to offer …

Following The Fifth Circuit: Title Vii As The Sole Remedy For Employment Discrimination On The Basis Of Sex In Educational Institutions Receiving Federal Funds, Alicia Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Right To Be An Asshole: The Need For Increased First Amendment Public Employment Protections In The Age Of Social Media, Alexis Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

A Common-Sense Defense Of Janus: Forthcoming Changes In The Public Sector, Maria O'Brien

Faculty Scholarship

Many scholars and others have, for some time now, been calling attention to the alarming growth in post-employment and other benefits for unionized employees in the public sector. ¹⁷ A fairly well-understood phenomenon is thought to explain the inability of state and local governments to resist outsized demands from their public unions. As ¹⁸ Is and others ¹⁹ have argued, the central problem with public sector unions is that they find it easy to capture their employers (taxpayers) in ways that private sector unions cannot. The role played by often eager and feckless elected officials in this process has also …

Using The Anglo-American Respondeat Superior Principle To Assign Responsibility For Worker Statutory Benefits And Protections, Michael C. Harper

Faculty Scholarship

When viewed flexibly, not to find doctrinal rules, but rather to find insight from judges' collective judgment on social values, the common law may have particular value for modern policy makers. For instance, a common law insight could set policy makers in both the United States (U.S.) and the United Kingdom (U.K.) on a promising path for defining when workers are to be protected and benefitted by employment statutes. That insight reflects the underlying rationale for the common law that made relevant the initial distinction between employees and independent contractors - the common law of vicarious liability through respondeat superior. …

Peril And Possibility: Strikes, Rights, And Legal Change In The Era Of Trump, Kate Andrias

Faculty Scholarship

Thank you, I am delighted to be here. When Professor Fisk and the editors of the Journal asked if I would be willing to give the Feller Lecture this year, I did not hesitate for a moment. It goes without saying that, for a labor law professor, to give a lecture that commemorates David Feller is truly a special honor. While I never had the chance to meet him, his work as an advocate and scholar serves as an example for everyone in the field. I am grateful to the Journal and to the Feller family for the opportunity to …

Sticking To The Union? A Study On The Unionization Of Academic Law Libraries, Sarah C. Slinger

Scholarly Works

This article analyzes the responses of law library directors to a survey assessing rates of unionization, experience with unionization, and attitudes on unionization. These results ultimately show that while there is a low rate of unionization in academic law libraries, unions may become more prevalent in the future.

Taxation Of Automation And Artificial Intelligence As A Tool Of Labour Policy, Vincent Ooi, Glendon Goh

Research Collection Yong Pung How School Of Law

Rapid developments in automation technology pose a risk of mass displacement of human labour, resulting in the need to support and retrain displaced workers (a negative externality). We propose an “automation tax” that would slow the adoption of automation technology in appropriate circumstances, giving workers and social support systems time to adapt. This could be easily implemented through changes to the existing schedular system of depreciation/ capital allowances, reducing the uncertainty of its application and implementation costs. Such a system would be flexible enough to keep up with rapid technological developments. Two main dimensions may be adjusted to produce intended …