Labor and Employment Law Commons^™

Regulating Strikes In Essential Services - Canada, Eric Tucker

Articles & Book Chapters

This chapter was written as a part of a comparative law project examining the regulation of strikes in essential services. It describes and analyses Canada's experience with strikes in essential services, including the historical development of essential service strike regulation, Canada's shifting understanding of essentiality and, most recently, the implications of constitutional labour rights, including the right to strike, for essential service strike regulation. It also looks at the law in action through a consideration of the application of these laws in their specific contest.

The Employment Standards Enforcement Gap And The Overtime Pay Exemption In Ontario, Mark P. Thomas, Leah F. Vosko, Eric Tucker, Mercedes Steedman, Andrea M. Noack, John Grundy, Mary Gellatly, Lisa Leinveer

Articles & Book Chapters

Employment Standards (es) legislation sets minimum terms and conditions of employment in areas such as wages, working time, vacations and leaves, and termination and severance. es legislation is designed to provide minimum workplace protections, particularly for those with little bargaining power in the labour market. In practice, however, es legislation includes ways in which legislated standards may be avoided, including through exemptions that exclude specified employee groups, fully or partially, from legislative coverage. With a focus on the Ontario Employment Standards Act, this article develops a case study of exemptions to the overtime pay provision of the act and regulations …

Carrying Little Sticks: Is There A ‘Deterrence Gap’ In Employment Standards Enforcement In Ontario, Canada?, Eric Tucker, Leah F. Vosko, Rebecca Casey, Mark Thomas, John Grundy, Andrea M. Noack

Articles & Book Chapters

This article assesses whether a deterrence gap exists in the enforcement of the Ontario Employment Standards Act (ESA), which sets minimum conditions of employment in areas such as minimum wage, overtime pay and leaves. Drawing on a unique administrative data set, the article measures the use of deterrence in Ontario’s ESA enforcement regime against the role of deterrence within two influential models of enforcement: responsive regulation and strategic enforcement. The article finds that the use of deterrence is below its prescribed role in either model of enforcement. We conclude that there is a deterrence gap in Ontario.

An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias

Articles

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, …

Just Transitions, Ann M. Eisenberg

Faculty Publications

The transition to a low-carbon society will have winners and losers as the costs and benefits of decarbonization fall unevenly on different communities. This potential collateral damage has prompted calls for a “just transition” to a green economy. While the term, “just transition,” is increasingly prevalent in the public discourse, it remains under-discussed and poorly defined in legal literature, preventing it from helping catalyze fair decarbonization. This Article seeks to define the term, test its validity, and articulate its relationship with law so the idea can meet its potential.

The Article is the first to disambiguate and assess two main …

A New Standard For Governance: Reflections On Worker Representation In The United States, Julian Constain

Fordham Journal of Corporate & Financial Law

The contemporary state of corporate law in the United States is one that is skewed toward the archaic principle of shareholder primacy. This narrow conception of corporate purpose has resulted in governance mechanisms that tend to overlook the many stakeholders that are affected by, and, in turn, affect the bottom line of modern corporations. In the wake of the recently proposed Accountable Capitalism Act, this Note investigates the viability of adopting a system of mandated worker board representation—codetermination—in the United States. The Note employs a comparative analysis of the German and Swedish experiences with codetermination, and then evaluates the policy, …

Canines At The Company, Felines At The Factory: The Risks And Rewards Of Incorporating Service Animals And Companion Animals Into The Workplace, Rebecca J. Huss

Dickinson Law Review (2017-Present)

With unemployment rates at historically low levels, the ability of an employer to attract and retain productive employees is key to a company’s success. Simultaneously, the percentage of persons in the United States with disabilities is increasing. Additionally, many persons without disabilities consider allowing companion animals at work a valuable employee benefit. This Article focuses on the legal and workplace implications of incorporating service animals and companion animals at work.

This Article begins by analyzing when an employer must accommodate a request by an employee with a disability to be accompanied by a service animal at work under the Americans …

Inclusion Riders And Diversity Mandates, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

In this piece, I situate these sorts of diversity requests within the broader context of other customer/client preferences that implicate Title VII. To be sure, the “inclusion riders” are not literal customer/client requests, but rather requests from celebrities who are themselves being hired by the employer for a specific project. Broadly speaking, however, they raise the same legal issue regarding third-party preferences that implicate protected characteristics under Title VII.

As a starting point, the general rule within employment discrimination law is that customer preferences cannot justify discriminatory treatment by employers. That baseline has led courts to rule that employers cannot, …

The Birth Of A Nation: A Study Of Slavery In Seventeenth-Century Virginia, Randolph M. Mclaughlin

Elisabeth Haub School of Law Faculty Publications

Race based slavery in North America had its origins in seventeenth-century Virginia. Initially, the position of the African worker was similar to that of the indentured servants from England. During the early to mid-seventeenth century, both African and English indentured servants served for a period of years and received the protections to which a servant was entitled. However, during the 1640s there appeared examples of Africans also being held as slaves. Thus, during the seventeenth century there existed a dual system of servitude or bondage for the African worker. One basis for this duality was the common law practice that …

A New #Metoo Result: Rejecting Notions Of Romantic Consent With Executives, Michael Z. Green

Faculty Scholarship

With the growth of the #MeToo movement since October 2017, more than 200 prominent male executives have lost their jobs. Some pushback has occurred as many of these executives have asserted their behavior was not inappropriate because their acts were consensual. Essentially, this argument requires companies evaluating this behavior to find nothing wrong when executives use their vast power and influence to have romantic and sexual relationships with their subordinates who do not say “no.”

Those suggesting that the #MeToo movement has gone too far believe it will result in unintended consequences where totally benign and even positive engagement between …

Enforcing Employment Standards For Migrant Agricultural Workers In Ontario, Canada: Exposing Underexplored Layers Of Vulnerability, Leah F. Vosko, Eric Tucker, Rebecca Casey

Articles & Book Chapters

Over 50,000 migrant agricultural workers are employed in Canada each year, almost half of whom are destined for the Province of Ontario. These workers are among the most vulnerable in the country and therefore most in need of labour and employment law protection. One important source of employment rights in Ontario is the Employment Standards Act (ESA), which establishes basic minimum entitlements in areas such as wages, working time, and vacations and leaves. Drawing on an analysis of the Ontario Ministry of Labour’s(MOL’s) Employment Standards Information System (ESIS), a previously untapped administrative data source containing information on all of Ontario’s …

Nfl National Anthem Protests: An Impending Labor Law Violation?, M'Kenzee Galloway

Marquette Sports Law Review

None

Artificial Intelligence Is Here, Get Ready!, Jessica G. Martz

Catholic University Journal of Law and Technology

No one is certain whether Artificial Intelligence (“AI”) will make the future a better place or make it look like an apocalyptic Hollywood blockbuster. An opinion that is emerging among experts and nation-state leaders is that the nation-states that lead in AI advancements and implementation will likely have a greater influence on and power over the world economic and national security stages. The goal of this book review is to encourage the reader to enter the conversation about the role AI will play in global society and American life because AI will influence the job market in the near future. …

Labor Law Illiteracy: Epic Systems Corp. V. Lewisand Janus V. Afscme, Michael J. Yelnosky

Roger Williams University Law Review

No abstract provided.

Don’T Burn The Looms—Regulation Of Uber And Other Gig Labor Markets, Henry H. Perritt Jr.

SMU Science and Technology Law Review

No abstract provided.

A Global System Of Work, A Global System Of Regulation?: Crowdwork And Conflicts Of Law, Miriam A. Cherry

All Faculty Scholarship

On-demand platforms are changing and reshaping our conceptions of both the firm and the work relationship in far-reaching and critical ways, allowing companies to hire workers and to seek customers across national boundaries. Confronted with low pay, wage theft, and other problematic working conditions, gig workers around the world have turned to the courts, attempting to invoke the protections of traditional labor and employment law. While some commentators believe existing forms of labor and employment regulations can stretch to cover on-demand work, others have called for new legal initiatives specifically crafted for online platforms. The goal of this paper is …

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 …

Labor Interests And Corporate Power, Matthew T. Bodie

All Faculty Scholarship

Labor unions exert significant power through collective bargaining, pension fund investing, and political advocacy. But in each of these areas, unions face inherent structural limitations that severely constrain these powers. Workers need participation rights in corporate governance to overcome the multiplicity of forces arrayed against them. And rather than obviating the need for unions, worker corporate power would facilitate a different kind of labor representation — a transition to labor power that advocates for occupational interests and forms coalitions across the shifting political interests of different worker groups.

The Female Body In The Workplace: Judges And The Common Law, Maritza I. Reyes

Journal Publications

If the common law serves to liberate women, everybody, including judges, should understand the role they do play and should play in the development of the common law. As a career law clerk in the federal courts, I witnessed the decision-making process inside the chambers of federal judges and in the courtrooms. I came to the conclusion that judges, more than statutory law, influence what happens to female bodies in the workplace. Litigants initially drive the common law by filing complaints. However, judicial decisions affect not only the litigants in their individual cases, they also serve as precedent for future …

Discrimination By Design?, Naomi Cahn, June Carbone, Nancy Levit

Faculty Works

Platform world is speeding the redesign of employment. Bricks-and-mortar firms once hired through narrow portals and then invested in the workers they hired, providing job security and predictable career ladders. Platform world flings the doors wide open to income-generating efforts, providing new opportunities but also offering security and predictable advancement to almost no one.

Other legal scholars have mined these same data for gender disparities; they have found disparities in the platform economy arising from customer biases and individual preferences, and manifested in men’s and women’s different experiences in everything from pricing plumbing services to fraud prevention. Neutral-appearing algorithms may …