Labor and Employment Law Commons^™

The Devil You Don’T Know: Implicit Bias Keeps Women In Their Place, Michele N. Struffolino

Pace Law Review

While men’s claims of gender bias in the family law system are acknowledged, this article focuses on how bias, whether implicit or explicit under the guise of unconscious attitudes or behavior, continues to place women at a systemic disadvantage. Although implicit bias also impacts outcomes in child abuse and neglect actions involving the state, the focus of this article is the impact of implicit bias in actions between women and men in the family courts, in particular those issues involved in the dissolution of the relationship and the family unit. First, the emergence of implicit social cognition theory will be …

The Final Rule: A Call For Congressional Action To Return The Flsa And The Middle Class To Its Former Glory, Ashley Singrossi

University of Miami Business Law Review

2017 was full of change in America. But not for the middle class. The middle class remained stagnant, if not shrinking—as it has been for decades. Many scholars and economists theorize why the class that is the backbone of America—that once flourished as the beacon of hope for hard–working people around the world—has steadily declined over the past few decades. The answer lies in labor regulation. Federal labor regulations helped build America’s robust middle class. But those regulations are outdated and ineffective. If we want to see the middle class restored to its prosperity, and stop it from slowly slipping …

Whistling In The Wind: Why Federal Whistleblower Protections Fall Short Of Their Corporate Governance Goals, Meera Khan

University of Miami Business Law Review

Teetering on the line between hero and villain, whistleblowers have a remarkably unusual role in contemporary American society. Those who blow the whistle on public sector activities, like Edward Snowden and the Watergate Scandal’s “Deep Throat”, are often vilified in history as treasonous and unprincipled rogues. In the private sector, however, whistleblowers are seen as moral compasses for corporate behavior, and are even afforded federal protections for speaking out against internal malfeasance. The piecemeal evolution of whistleblower legislation including the Sarbanes–Oxley Act of 2002 and the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 created regulatory and enforcement …

Op-Ed: California’S Most Powerful Voice On Wall Street? Its Pensions, David H. Webber

Shorter Faculty Works

The fight over public pensions in California is almost exclusively described as a dispute between people worried about tax hikes and public servants wanting to get paid what they were promised. But this is only part of the pension story — one focused on the “liability” side of the balance sheet.

Due Process And The Independent Medical Examiner System In The Maine Workers' Compensation Act, Sean T. Carnathan

Maine Law Review

Workers' compensation became front page news during the summer of 1991, when Maine's governor refused to sign the state's budget unless the Legislature reformed the system. Although the vehemence of the governor's demands stunned both the public and the Legislature, the dire state of workers' compensation was well known to those involved. In fact, the Legislature has debated reforming the system nearly every year, and sixteen significant changes have been made since the program's inception in 1915. In 1991, the Legislature focused on cutting costs. The system requires two types of highly paid professionals—doctors and lawyers. Therefore, an obvious way …

Dolores V. State, Dep’T Of Employment Sec. Div., 134 Nev. 34 (May 3, 2018), Xheni Ristani

Nevada Supreme Court Summaries

The Court considered whether, pursuant to NRS 612.380, an employee that resigns when faced with a resign-or-be-fired option does so voluntarily, and is thereby disqualified from unemployment benefits. The Court determined that where the record shows that the appellant’s decision to resign was freely given and stemming from his own choice, the resignation is voluntary.

Headscarf Bans, Equal Treatment, And Minority Integration In The Workplace, Elizabeth A. Clark

Notre Dame Law Review Reflection

Andrea Pin’s Essay on the Achbita and Bougnaoui cases effectively highlights the significance of the cases and the singularity of the rulings, as well as the tension they create with other European Union norms and policies. The European Court of Justice’s (ECJ) rulings in these cases are also in tension with the court’s own discrimination law and exacerbate the pressing European question, particularly significant in light of the recent migration crisis, of how best to incorporate ethnic and religious minorities into a society.

Born Free: Toward An Expansive Definition Of Sex, Laura Palk, Shelly Grunsted

Michigan Journal of Gender & Law

The State of New York recently issued its first physician-certified “intersex” birth certificate, correcting a 55-year-old’s original birth certificate. This is a positive step towards eliminating the traditional binary approach to a person’s birth sex, but it creates potential uncertainties in the employment discrimination context. Over the past several years, the definition of what constitutes “discrimination on the basis of sex” has both expanded (with the legalization of same-sex marriage) and narrowed (restricting the use of gender specific bathrooms). Until recently it appeared that a broader definition of the term “sex” would become the judicial—and possibly legislative—norm in a variety …

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …

The Invisible Minority: Discrimination Against Bisexuals In The Workplace, Elizabeth Childress Burneson

University of Richmond Law Review

The Lesbian, Gay, Bisexual, Transgender, and Queer (“LGBTQ+”) community has won major legal victories in the last twenty years, but at least one group remains left behind in those victories. The bisexual population is often ignored, erased, and discriminated against by both homosexual and heterosexual individuals and communities. This is true despite the fact that bisexuals outnumber both lesbian women and gay men. This erasure and discrimination affects bisexuals in different areas of life and the law, including the employment context. Title VII of the Civil Rights Act of 1964 (“Title VII”), which protects against employment discrimination on the basis …

The Time Has Come For Congress To Finish Its Work On Harmonizing The Definition Of "Employee", Russel A. Hollrah, Patrick A. Hollrah

Journal of Law and Policy

The meaning of the term “employee” is critically important for the purposes of laws governing work relationships. This is because these laws, for the most part, cover only employees, and do not cover self-employed individuals, commonly referred to as independent contractors or independent entrepreneurs. Currently more than ten different tests are used to determine whether an individual qualifies as an “employee” for purposes of federal and state statutes. This multiplicity of tests has frequently left independent entrepreneurs and their clients uncertain whether their contractual relationships will be respected for purposes of applicable statutes. This exposes companies doing business with independent …

Picketing In The New Economy, Hiba Hafiz

Cardozo Law Review

The rise of the contingent and gig economies and of outsourced and subcontracted work has left many workers with insufficient bargaining power to successfully negotiate collective bargaining agreements with their direct employers. This problem is exacerbated by a statutory ban on worker picketing and boycotts of non-employers, or "secondaries," even where those employers collude with direct employers on wage-fixing or the suppression of union activity; have monopsony power over direct employers; or have substantial indirect control over worker wages through contractual arrangements.

This Article is a crucial intervention in modernizing the labor law on worker picketing in the New Economy. …

Spiller V. State: Determining The Nature Of Public Employees' Rights To Their Pensions, Andrew C. Mackenzie

Maine Law Review

In Spiller v. State, a divided Maine Supreme Judicial Court, sitting as the Law Court, held that certain legislative changes to public employee pension benefits did not impair the employees' constitutional rights because there was no clear indication that the employees had a contractual right to their pensions. These changes were enacted as a reduction of state expenditures in reaction to Maine's fiscal deficit. The majority found that the changes were not unconstitutional and thus were permissible. The dissenting opinion, however, found that a contract existed between the State and the employees and that it had been breached. Although the …

Employees Or Independent Contractors: A Call For Revision Of Maine's Unemployment Compensation "Abc Test", Christopher J. Cotnoir

Maine Law Review

The Maine Employment Security Law governs whether one person performing services for another is an independent contractor or an employee for unemployment tax purposes. It requires many employers to pay unemployment taxes on individuals who, under the usual common law rules governing the employer-employee relationship, are independent contractors. This result, caused partly by the structure of the statute and partly by judicial interpretation, has the effect of discouraging business expansion, limiting entrepreneurial opportunities, and ultimately, hampering statewide economic development. This Comment first provides the historical background of unemployment compensation legislation at the federal and state levels. Employer liability and employee/independent …

Treating Employees Like Widgets: The Legal Impact Of Workforce Management Systems On Contingent Workers, Stefanie Brody

Louis Jackson National Student Writing Competition

No abstract provided.

The Impact Of Rfra On Employment Discrimination: Will The Hobby Lobby Decision Erode The Purpose Of Title Vii?, Naomi Bensdorf Frisch

Louis Jackson National Student Writing Competition

No abstract provided.

Vindicating Statutory Employment Rights In The Age Of Mandatory Arbitration: State Attorney General Parens Patriae Litigation As An Alternative To Class Actions, Aaron Bibb

Louis Jackson National Student Writing Competition

No abstract provided.

What Would We Do Without Them: Whistleblowers In The Era Of Sarbanes-Oxley And Dodd-Frank, Sean Griffith, Jane A. Norberg, Ian Engoron, Alice Brightsky, Tracey Mcneil, Jennifer M. Pacella, Judith Weinstock, Jason Zuckerman

Fordham Journal of Corporate & Financial Law

No abstract provided.

2008 Financial Crisis And The Deviation From The Taylor Rule, Uzoma H. Okoye

Honors College Theses

In this paper, we derive possible causes of the 2008 financial crisis, as well as provide evidence of a possible deviation from the Taylor rule by the Federal Reserve. This research draws up mostly primary sources such as published books and speeches by John B. Taylor himself, as well as articles from academic journals related to the topic. Other prior research tends to take a side on the argument as to whether the Federal Reserve deviated or not. This paper serves as a descriptive analysis of different sides of the argument to come up with suggestions regarding the Fed’s actions.

Deflategate Pumped Up: Analyzing The Second Circuit’S Decision And The Nfl Commissioner’S Authority, Josh Mandel

University of Miami Law Review

Deflategate was one of the most controversial scandals in NFL history, and while many became fascinated due to their love of football, Deflategate was ultimately rooted in law. NFL Commissioner Roger Goodell suspended Tom Brady, the legendary quarterback for the New England Patriots, for four games for engaging in “conduct detrimental to the integrity of and public confidence in the game of professional football.” More specifically, Goodell suspended Brady because he was generally aware of Patriots staff deflating footballs prior to the 2015 AFC Championship game, and because he failed to cooperate with the investigation into the deflated footballs.

Commissioner …