Labor and Employment Law Commons^™

Efficiency And Its Discontents, Michael Fischl

Faculty Articles and Papers

Review of Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford 2014).

Redefining 'Employee' In The Gig Economy: Shielding Workers From The Uber Model, Ben Z. Steinberger

Fordham Journal of Corporate & Financial Law

Increasingly, companies in the gig-economy utilize independent contractors, rather than traditional employees, as a means to cut costs and decrease employment related liability. These companies rely on independent contractors for work and retain control over work typically performed by employees. But there are significant legal distinctions between employees and independent contractors; namely employees are protected in ways that independent contractors are not. Traditionally, employees are defined as workers over whom an employer exerts or retains the right to control the manner and means of the work. While the traditional test to determine whether an individual is an employee is set …

Unmarked? Criminal Record Clearing And Employment Outcomes, Jeffrey Selbin, Justin Mccrary, Joshua Epstein

Journal of Criminal Law and Criminology

An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively lowlevel misdemeanors. In an era of heightened security concerns, easily available data, and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential. In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We studied a random sample of participants in one such …

Employment Discrimination On The Basis Of Criminal History: Why An Anti-Discrimination Statute Is A Necessary Remedy, Elizabeth Westrope

Journal of Criminal Law and Criminology

The harms of mass incarceration do not end when an individual is released from prison. Instead, criminal records haunt approximately 70 million people throughout the United States today. Criminal histories follow persons convicted of crimes for the rest of their lives, creating collateral consequences that make it difficult for these individuals to get back on their feet and re-integrate into society. Gaining employment is one of the most crucial steps for returning citizens to take in order to regain stability in their lives. Yet, it remains one of the biggest obstacles. Employers are often wary of hiring persons with criminal …

A Bridge Over Troubled Waters: The High-Skilled Worker Rule And Its Impact On Employment-Based Immigration, Robert D. Aronson, Debra A. Schneider

Mitchell Hamline Law Review

No abstract provided.

High Stakes For High-Skilled Immigrants: An Analysis Of Changes Made To High-Skilled Immigration Policy In The First Year Of The Trump Administration In Comparison To Changes Made During The First Year Of Previous Presidential Administrations, Kevin Miner, Sarah K. Peterson

Mitchell Hamline Law Review

No abstract provided.

The Preferred Preferences In Employment Discrimination Law, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

In theory, customer preferences cannot justify discriminatory treatment by employers. The reality is more complicated. Built into the structure of federal employment discrimination law are several openings for customer preferences to provide employer defenses to what would otherwise likely be actionable discrimination.

This Article explores when and which customer preferences can enter those openings. It focuses on what I deem the “preferred preferences”: the customer preferences that have formed the basis of successful employer defenses to discrimination claims. This Article identifies and evaluates six such preferences: (1) aesthetic appeal; (2) physical privacy from employees of the opposite sex; (3) psychological …

Developing Workplace Law Programming: A Labor Of Love, Michael Z. Green

Faculty Scholarship

Professor Green reflects and comments on his work in developing workplace law programming as a key component of the annual SEALS program.

Amicus Curiae Brief Of The American Civil Liberties Union Of Massachusetts, Massachusetts Law Reform Institute, Pioneer Valley Workers Center, United Food And Commercial Workers Local 1459, University Of Massachusetts Labor Relations And Research Center, And Professor Michael Wishnie In Support Of Plaintiffs-Appellants, William C. Newman, Harris Freeman

Faculty Scholarship

This Amicus Curiae Brief is filed on behalf of the American Civil Liberties Union of Massachusetts, Massachusetts Law Reform Institute, Pioneer Valley Workers Center, United Food and Commercial Workers Local 1459, University of Massachusetts Labor Relations and Research Center, and Professor Michael Wishnie in Support of Plaintiffs-Appellants, Arias-Villano v. Chang & Son Enters., 481 Mass. 625 (2019).

Working Time, Dinner Time, Serving Time: Labour And Law In Industrialization, Douglas Hay

Articles & Book Chapters

Many economic historians agree that increased labour inputs contributed to Britain’s primary industrialisation. Voluntary self-exploitation by workers to purchase new consumer goods is one common explanation, but it sits uneasily with evidence of poverty, child labour, popular protest, and criminal punishments explored by social historians. A critical and neglected legal dimension may be the evolution of contracts of employment. The law of master and servant, to use the technical term, shifted markedly between 1750 and 1850 to advantage capital and disadvantage labour. Medieval in origin, it had always been adjudicated in summary hearings before lay magistrates, and provided penal sanctions …

Wage And Inequalities In Canada (2018), Eric Tucker, Isaac Handley

Articles & Book Chapters

Canada is a federal state and, pursuant to its constitution, labour and employment law is principally a matter of provincial jurisdiction. The federal government’s powers in this field are limited to the federal public service and federally regulated businesses, which is estimated to cover about 10% of the labour force. Therefore, there are no nationally applicable laws governing the minimum wage or employment discrimination. In the discussion that follows, we refer to the common features that can be found in all or most Canadian jurisdictions, but draw principally upon the Province of Ontario, Canada’s most populous province, for specific examples.

2017 Survey Of Rhode Island Law: Cases And Public Laws Of Note

Roger Williams University Law Review

No abstract provided.

The Cambridge Handbook On The Law Of The Sharing Economy, Nestor M. Davidson, Michèle Finck, John Infranca

Suffolk University Law School Faculty Works

This is a draft of the table of contents and introduction of the forthcoming Cambridge Handbook on the Law of the Sharing Economy (2018). The handbook grapples conceptually and practically with what the sharing economy – which includes entities ranging from large for- profit firms like Airbnb, Uber, Lyft, TaskRabbit, and Upwork to smaller, nonprofit collaborative initiatives – means for law, and how law, in turn, is shaping critical aspects of the sharing economy. Featuring a diverse set of contributors from multiple academic disciplines and countries, the book compiles the most important, up- to- date research on the regulation of …

Holacracy And The Law, Matthew T. Bodie

All Faculty Scholarship

No law requires companies to have CEOs, officers, supervisors, chains of command, or even employees. But traditional managerial structures are so ingrained in our political economy that legal doctrines take them for granted. What if they were to disappear? Under holacracy, a new version of participatory management adopted at companies like Zappos and Medium, companies are replacing managers, organizational charts, and subordinates with governance circles, roles, and lead links. The promise of holacracy is a system of management that devolves responsibilities to teams, empowers workers to act freely within specified zones of authority, and energizes the entire organization around an …

The Future Encyclopedia Of Luddism, Miriam A. Cherry

All Faculty Scholarship

In common parlance, the term “Luddite” means someone who is anti-technology, or maybe, just not adept at using technology. Historically, however, the Luddite movement was a reaction born of industrial accidents and dangerous machines, poor working conditions, and the fact that there were no unions to represent worker interests during England’s initial period of industrialization. The Luddites did not hate technology; they only channeled their anger toward machine-breaking because it had nowhere else to go. The attached book chapter is an alternate history (written circa 2500) that depends on the critical assumption that the Luddites succeeded in their industrial campaign …

The Future Encyclopedia Of Luddism, Miriam A. Cherry

All Faculty Scholarship

In common parlance, the term “Luddite” means someone who is anti-technology, or maybe, just not adept at using technology. Historically, however, the Luddite movement was a reaction born of industrial accidents and dangerous machines, poor working conditions, and the fact that there were no unions to represent worker interests during England’s initial period of industrialization. The Luddites did not hate technology; they only channeled their anger toward machine-breaking because it had nowhere else to go. The attached book chapter is an alternate history (written circa 2500) that depends on the critical assumption that the Luddites succeeded in their industrial campaign …

A Tale Of Two Standards: Why Wyoming Courts Should Apply The Actual Substantial Evidence Standard When Reviewing Workers’ Compensation Cases, Michael C. Duff

All Faculty Scholarship

In Wyoming, as in almost all states, facts in contested workers’ compensation cases are developed within an administrative agency. When agency factual findings are challenged in court, the level of judicial deference applied to the agency is important and may be outcome determinative. Wyoming courts claim to apply the “substantial evidence” standard of review, often expressed as evidence that a “reasonable mind could accept” as supporting an agency determination. The Wyoming Supreme Court, however, also sometimes upholds workers’ compensation agency decisions that are deemed “not contrary to the overwhelming weight of the evidence.” It is unclear whether this latter formulation …

How The U.S. Supreme Court Deemed The Workers' Compensation Grand Bargain 'Adequate' Without Defining Adequacy, Michael C. Duff

All Faculty Scholarship

During the second and third decades of the twentieth century, the U. S. Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation and the National Association of Manufacturers, of European workers’ compensation systems during the first decade of the twentieth century. Some of those systems had been in existence since the 1870s and 1880s, and many employers preferred them to newly-emerging American employer liability statutes that retained …

A Critical Examination Of A Third Employment Category For On-Demand Work (In Comparative Perspective), Miriam A. Cherry, Antonio Aloisi

All Faculty Scholarship

A number of lawsuits in the United States are challenging the employment classification of workers in the platform economy. Employee status is a crucial gateway in determining entitlement to labor and employment law protections. In response to this uncertainty, some commentators have proposed an “intermediate”, “third,” or “hybrid” category, situated between the categories of “employee” and “independent contractor.”

After investigating the status of platform workers in the United States, the authors provide snapshot summaries of five legal systems that have experimented with implementing a legal tool similar to an intermediate category to cover non-standard workers: Canada, Italy, Spain, Germany, and …

Unmarked? Criminal Record Clearing And Employment Outcomes, Jeffrey Selbin, Justin Mccrary, Joshua Epstein

Faculty Scholarship

An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively low-level misdemeanors. In an era of heightened security concerns, easily available data, and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential.

In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We studied a random sample of participants in one such …