Labor and Employment Law Commons^™

The Thirteenth Amendment And Minimum Wage Laws, Ruben J. Garcia

Nevada Law Journal

The Thirteenth Amendment is undergoing a renaissance in scholarship and advocacy. Labor scholars and advocates are looking at the Thirteenth Amendment as a new source of constitutional rights for several reasons. First, its prohibition against involuntary servitude applies both to the public and private spheres. Second, its capacious text and history allows for new interpretive approaches. Third, the idea of a constitutional floor for free labor is an appealing one in an era of retrenchment in legislatures and the courts.

The Trump Administration and the Republican Congress can significantly change the direction of labor policy in the coming years. Now, …

Finding A Better Way Around Employment At Will: Protecting Employees' Autonomy Interests Through Tort Law, William Corbett

Journal Articles

No abstract provided.

Free Trade, Immigrant Workers, And Employment Discrimination, Angela D. Morrison

Faculty Scholarship

This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs.

This article shifts the focus. Instead, it argues that …

Combating The Actor's Sacrifice: How To Amend Federal Labor Law To Influence The Labor Practices Of Theaters And Incentivize Actors To Fight For Their Rights, Shelley Attadgie

Cardozo Law Review

Part I of this Note will provide a background of the stage theater industry and the current federal and state labor laws and regulations. Section L.A will introduce the basic structure of the acting world, the differences between union and non-union actors, and the conflict surrounding the recent repealing of the Los Angeles 99-seat Theatre Waiver. Section I.B will discuss current minimum wage laws, focusing on the provisions of the Fair Labor Standards Act (FLSA). Part II of this Note will analogize the actor's situation in the line with the relevant statutes, regulations, and case law to determine whether theaters …

#Metoo & Tax, Margaret Ryznar

Washington and Lee Law Review Online

Recently, legislative efforts have taken aim at sexual harassment in the workplace. Among these may be a surprising but effective approach—disallowing tax deductions for sexual harassment settlements subject to non-disclosure agreements. This Essay analyzes such a 2017 tax reform provision.

Restoring Unemployment Insurance As Social Insurance, Christopher J. O'Leary

Presentations

No abstract provided.

Salary History Should Be Her Story: Upholding Regulations Of Salary History Through A Commercial Speech Analysis, Elizabeth Lester-Abdalla

William & Mary Law Review

No abstract provided.

Bc Teachers’ Federation V. British Columbia: The Supreme Court Takes A School Holiday, Eric Tucker

Articles & Book Chapters

Constitutional labour rights in Canada now protect workers’ freedom to organize and bargain collectively and to strike. These associational freedoms are especially important for public sector workers, the most frequent targets of legislation limiting their freedoms. However, the Supreme Court of Canada judgments recognizing these rights and freedoms have also introduced important ambiguities about their foundation, scope and level of protection. This brief comment locates these ambiguities in the context of Canada’s political economy and industrial relations regime, which are beset by contradiction and conflict. It then explores the origins and development of the jurisprudential ambiguities in constitutional labour rights …

Ilo Convention 185 On Seafarers' Identity Document Thirteen Years After Entering Into Force : Analysing Implementation Challenges And Future Outlook, Vera Njeng Ntungwe

World Maritime University Dissertations

No abstract provided.

Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle

Articles

This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely …

Wrongful Termi(Gay)Tion: A Comparative Analysis Of Employment Non-Discrimination Laws And The Lgbtq+ Workplace Protections In South Africa And The United States, Jared Ham

Cornell Law Review

Although the United States has made great strides toward equality for its LGBTQ+ citizens in recent years, South Africa has demonstrated far greater progress concerning equal protection and employment non-discrimination of its LGBTQ+ citizens. The South African Constitution, South African Constitutional Court cases, and laws passed by the South African Parliament all mandate that LGBTQ+ South Africans be treated equally to their heterosexual counterparts. Discrimination against LGBTQ+ South Africans is expressly forbidden— including in the employment context. The United States still lacks comprehensive federal employment non-discrimination laws or workplace protections for LGBTQ+ individuals. Extending Title VII—either via court decision or …

Interactive Strategies For Advancing Marginalized Actors In Transnational Governance Contests: Labour And The Making Of Iso 26000, Stepan Wood

All Faculty Publications

This chapter explores the role of organized labour in drafting the ISO 26000 guidance standard on social responsibility (SR) as a case study of the circumstances in which weaker actors can take advantage of transnational business governance interactions (TBGIs) to achieve regulatory outcomes that advance their interests. Organized labour initially opposed the development of an ISO standard on SR and was vastly outnumbered when it joined this project in a defensive posture. Yet it achieved remarkably wide and strong protection for workers in ISO 26000 compared to other leading SR initiatives. Integrating theories of legitimation and regulatory enrolment, I theorize …

Regulation A+: New And Improved After The Jobs Act Or A Failed Revival?, Neal Newman

Faculty Scholarship

This piece is a follow-up to a previous article that I wrote on Regulation A. In April of 2012, then President Barack Obama signed into law the Jumpstart our Business Start Ups (JOBS) Act. Under the JOBS Act’s Title IV, Congress made revisions to a private offering exemption referred to as Regulation A with the intention of reviving an exempt offering option that was close to dormant. The primary Regulation A criticism being that issuers were required to do too much in terms of providing business and financial disclosure where the most the issuer could raise though a Regulation A …

Vol. 35, No. 4, Roxana M. Underwood

The Illinois Public Employee Relations Report

Managing Public Employee Speech in the Age of Social Media – Instituting Policies Regulating Public Employee Conduct While Balancing Access to the “Democratic Forums of the Internet”, by Roxana M. Underwood

Recent Developments

Total Eclipse Of The Court? Janus V. Afscme, Council 31 In Historical, Legal, And Public Policy Contexts, William A. Herbert, Sarah Cudahy, John Wirenius

Publications and Research

The article examines the historical rise and institutionalization of the agency shop in public sector labor relations and its sudden fall in the Supreme Court’s Janus v. AFSCME, Council 31 decision. The authors demonstrate that the rapid rise of public sector unionism took place during a period when most state laws did not require or even permit the agency shop. We also explore the history of the agency shop in New York including the leading role New York City government played in advocating in Albany for legal changes to permit the agency shop to be negotiated. The article then describe …

Google, Charlottesville, And The Need To Protect Private Employees’ Political Speech, Chloe M. Gordils

Brooklyn Law Review

At a time when the freedom of speech is increasingly under attack, the question becomes: what protections are available to employees of private companies who wish to engage in political expression while off the clock? Although public employees are in many ways protected by the First Amendment from government intrusion into their political speech, private employees in many states are left largely unprotected. This note examines the current statutory protections offered to protect private employees from being fired or retaliated against based on their political opinions, and argues that the inconsistency and unpredictability of state laws call for a uniform …

A Stute Observation: Re-Examining Washington's Enforcement Of Workplace Safety Regulations, Ben Moore

Washington Law Review

In 1973, the Washington State Legislature enacted the Washington Industrial Safety and Health Act. The stated purpose of the Act was to ensure safe working conditions for the working men and women of Washington. Seventeen years later, the Washington State Supreme Court held that general contractors are per se liable for the WISHA violations of their subcontractors. However, the Washington Department of Labor and Industries has adopted a policy of citing general contractors for subcontractor violations only in limited circumstances. This Comment first outlines the development of worker safety laws in Washington, then examines the effects of the Department’s policy …

Employment Law—The Split Over The Shift: The Burden Of Proving Causation In Claims For Breach Of Fiduciary Duty Under Erisa, William J. Swartzwelder

University of Arkansas at Little Rock Law Review

No abstract provided.

The Practice And Tax Consequences Of Nonqualified Deferred Compensation, David I. Walker

Faculty Scholarship

Although nonqualified deferred compensation plans lack explicit tax preferences afforded qualified plans, it is well understood that nonqualified deferred compensation results in a joint tax advantage when employers earn a higher after‐tax return on deferred sums than employees could do on their own. Several commentators have proposed tax reform aimed at leveling the playing field between cash and nonqualified deferred compensation, but reform would not be easy or straightforward. This Article investigates nonqualified deferred compensation practices and shows that joint tax minimization often takes a backseat to accounting priorities and participant diversification concerns. In practice, the largest source of joint …

Dads Are Parents, Too: Why Amending The Pregnancy Discrimination Act Is Necessary For Courts To Determine If A Parental Leave Policy Violates Title Vii, Krista Gay

Brooklyn Journal of Corporate, Financial & Commercial Law

To attract millennials desiring a work-life balance, large companies have begun to offer new parent leave to both male and female employees and commonly offer longer leave to women than men. Although a company may offer pregnancy disability leave to women without offering similar leave to men, if the company classifies the leave as parental bonding leave, it must be offered equally. If it is not, as highlighted by recent lawsuits against JP Morgan and Estée Lauder, a Title VII claim can arise. Historically, courts have had difficulty deciding if such a policy does in fact violate Title VII, because …