Labor and Employment Law Commons^™

Dinner For Two: Employer Mandate, Meet Erisa; How Dave & Buster’S Response To The Affordable Care Act’S Employer Mandate May Open The Door For Employees To Seek Erisa Relief, Kendall Victoria Dacey

Pepperdine Law Review

When the Affordable Care Act (ACA) became law in late March, 2010, Dave & Buster’s (D&B) had a choice: it could either comply and offer its full-time employees the minimum health insurance coverage required by the new “employer mandate” or it could ignore the new requirements and incur a penalty. Dissatisfied with either option, D&B made the drastic decision to circumvent the ACA entirely, and reduced its full-time staff below the ACA’s employee threshold so as to avoid triggering any penalty or having to pay increased health care costs. However, by dodging the employer mandate, D&B may have come in …

Transition Support Mechanisms For Communities Facing Full Or Partial Coal Power Plant Retirement In New York, Lisa Anne Hamilton, Radina Valova, Karl R. Rábago

Environmental Law Program Publications @ Haub Law

New York State is undergoing a rapid and unprecedented energy transformation, particularly in the electricity sector. As new resources and technologies emerge to meet the demands of 21st century life, regulators must balance the need for cost effective and equitable participation in wholesale power markets while maintaining reliability on the grid. Furthermore, it is critical that all New Yorkers participate fully in the promise of a revitalized and equitable energy future. Such a transformation requires that the needs of all communities are factored into the polices and regulations that move New York toward the bold goals set forth under its …

Essay: Setting The Bases Of A Policy Framework To Cover Old-Age Risk

Marquette Benefits and Social Welfare Law Review

This Essay proposes a coherent vision about the protection of old-age pensions and establishes a public policy strategy that allows the protection of a country's entire population. If attempts to connect the action of the State, through the notion of the welfare state, with the protection of pension systems. It proposes three levels of protection: (1) the welfare state, (2) state regulation, and (3) pension scheme regulation. The first Section of this Essay reviews welfare states, explains their categories, and discusses their protective effects. The second Section examines how to structure the various pension schemes into a coherent pension system …

Prosecutorial Discretion Power At Its Zenith: The Power To Protect Liberty, Peter L. Markowitz

Articles

On November 20, 2014, President Obama, frustrated by congressional inaction on immigration, announced an ambitious and potentially transformative prosecutorial discretion policy to forego the deportations of millions of low priority undocumented immigrants. That announcement immediately sparked legal challenges, which quickly wound their way to the Supreme Court, and a nationwide debate about the limits of the President’s prosecutorial discretion authority. President Obama’s actions are part of a larger trend whereby modern presidents have increasingly used robust assertions of prosecutorial discretion powers to achieve policy goals that they could not realize through legislation.

There are clear dangers in allowing a president …

Law-And-Economics Approaches To Labour And Employment Law, Stewart J. Schwab

Cornell Law Faculty Publications

This article describes the distinctive approaches that law and economics takes to labour and employment law. The article distinguishes between ‘economic analysis of law’ and ‘law and economics’, with the former applying economic models to generally simple legal rules while the latter blends messier institutional detail with legal and economic thought. The article describes three eras of law-and-economics scholarship, recognizing that economics teaches that markets work and markets fail. Era One emphasizes that labour laws and mandatory employment rules might reduce overall social welfare by preventing a benefit or term from going to the party that values it most highly. …

Incomprehensible Discrimination, James Grimmelmann, Daniel Westreich

Cornell Law Faculty Publications

The following (fictional) opinion of the (fictional) Zootopia Supreme Court of the (fictional) State of Zootopia is designed to highlight one particularly interesting issue raised by Solon Barocas and Andrew Selbst in Big Data’s Disparate Impact. Their article discusses many ways in which data-intensive algorithmic methods can go wrong when they are used to make employment and other sensitive decisions. Our vignette deals with one in particular: the use of algorithmically derived models that are both predictive of a legitimate goal and have a disparate impact on some individuals. Like Barocas and Selbst, we think it raises fundamental questions about …

Erisa Preemption After Gobeille V. Liberty Mutual: Completing The Retrenchment Of Shaw, Edward A. Zelinsky

Hofstra Labor & Employment Law Journal

Gobeille v. Liberty Mutual Insurance Co. is the U.S.Supreme Court’s most recent preemption decision under the Employee Retirement Income Security Act of 1974 (ERISA). In Gobeille, the Court completed the process of reconciling the restrained approach to ERISA preemption announced in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. with the Court’s literal and expansive approach adopted earlier in Shaw v. Delta Air Lines, Inc. Gobeille consummated this reconciliation by confirming the sub silentio retrenchment of Shaw and its “plain language” approach in favor of Traveler’s broader construction of ERISA preemption.

Gobeille held …

All Quiet On The Employment Front: Mandatory Arbitration Under The Userra, Bradford J. Kelley

Hofstra Labor & Employment Law Journal

No abstract provided.

Not Every Cloud Has A Silver Lining: The Implications Of Cloud-Based Computing And Bring Your Own Devices On Employee Monitoring And The Dynamic Shift In The Definition Of The Workplace, Ashtyn Hemendinger

Hofstra Labor & Employment Law Journal

No abstract provided.

Taking Care Of The Fmla: Traveling With Family Members Under The Family And Medical Leave Act, Lindsay Korn

Hofstra Labor & Employment Law Journal

No abstract provided.

The Uber Million Dollar Question: Are Uber Drivers Employees Or Independent Contractors?, Richard A. Bales, Christian Patrick Woo

Mercer Law Review

It was a snowy evening in Paris when 2008 LeWeb Technology Conference attendees Travis Kalanick and Garrett Camp were trying to catch a taxicab. Frustrated with being stuck in the cold without a ride, the two eventually found a way back to their apartment on the outskirts of the city and started talking with a few other entrepreneurs about potential start-ups. Not surprisingly, an idea they discussed that night was a smartphone application, or app, that could pick up passengers the moment they requested a ride. Although neither Kalanick nor Camp probably knew it at the time, this simple idea …

Compliance Requires Inspection: The Failure Of Gender Equal Pay Efforts In The United States, Renalia Dubose

Mercer Law Review

On Friday, January 29, 2016, President Barack Obama expanded a previous executive order by requiring the Department of Labor to collect wage data based on gender, race, and ethnicity from contractors with at least 100 employees doing business with the federal government. That previous executive order was the April 8, 2014 Executive Order 13665 entitled Non-Retaliation for Disclosure of Compensation Information and was designed to amend the September 24, 1965 Executive Order 11246 entitled Equal Employment Opportunity by President Lyndon Johnson. Executive Order 13665 was issued to require transparency concerning compensation among private entities doing business with the federal government …

Public Employee Speech: Answering The Unanswered And Related Questions In Lane V. Franks, John E. Rumel

Hofstra Labor & Employment Law Journal

No abstract provided.

Title Ix Sexual Assault Investigations In Public Institutions Of Higher Education: Constitutional Due Process Implications Of The Evidentiary Standard Set Forth In The Department Of Education's 2011 Dear Colleague Letter, Lance Toron Houston

Hofstra Labor & Employment Law Journal

This Article examines the constitutional due process impact of the vastly opposite and conflicting standards of review in Title IX sexual assault investigations. Thousands of unionized public employees are subject to the terms and conditions of a public university collective bargaining agreement, which requires a heightened standard of "clear and convincing evidence" to discipline employees. At the same timeperhaps unknowingly-the employee is also held to the strict federally mandated standard of a "preponderance of the evidence," which has a lower standard of review. In short, under the same facts and within the same Title IX investigation, the employee is subject …

Some Thoughts On "Healthism" And Employee Benefits In The Age Of Trump, Brendan S. Maher

Faculty Scholarship

I look forward to the publication of HEALTHISM: HEALTH STATUS DISCRIMINATION AND THE LAW (hereinafter Healthism), by Jessica L. Roberts of the University of Houston Law Center and Elizabeth Weeks Leonard of the University of Georgia Law School.

On November 4, 2016, at the invitation of Professors Roberts and Weeks, I participated in a conference in which the discussants commented on Roberts and Weeks' forthcoming book and shared thoughts about the relevance of that work to various related fields. What follows here is somewhat different than those comments-although the general themes are the sameand is so in part because, four …

Petitioner's Reply Brief. Riley V. Elkhart Community Schools, 137 S.Ct. 1328 (No. 16-533), 2017 U.S. S. Ct. Briefs Lexis 593, 2017 Wl 712023, Eric Schnapper, Robin Remley

Court Briefs

QUESTIONS PRESENTED (1) To establish a prima facie case of discrimination in promotion or hiring, is a plaintiff required to show that the position in question was filled by someone outside his or her protected group? (2) In Patterson v. McLean Credit Union, this Court held that in a case of alleged discrimination in hiring or promotion, a plaintiff “might seek to demonstrate that [the employer's] claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position.” Ash v. Tyson Foods, Inc. recognized that the …

Corporate America And "The Perks" Of Being A Woman: Increasing Gender Diversity In Corporate Boardrooms, Enkelena Gjuka

Journal of Civil Rights and Economic Development

No abstract provided.

English-Only Policies: The Need For And Benefits Of The Employment Language Fairness Act, Nick Stratouly, Esq.

Journal of Civil Rights and Economic Development

No abstract provided.

Murray Energy Corporation V. Mccarthy, Sarah M. Danno

Public Land & Resources Law Review

Holding that the widespread effects of environmental regulation on the coal industry constituted sufficient importance, the Northern District of West Virginia ordered the Environmental Protection Agency to conduct analysis on employment loss and plant reduction resulting from regulatory effects. In admonishing the EPA’s inaction, the court ruled that the Agency had a non-discretionary duty to evaluate employment and plant reduction. Furthermore, the court held that the EPA’s attempt to put forth general reports in place of required evaluations was an invalid attempt to circumvent its statutory duty.

Trott V. H.D. Goodall Hospital: When Analyzing Employment Discrimination Cases Under Maine Law, Should Maine Courts Continue To Apply The Mcdonnell Douglas Analysis At The Summary Judgment Stage?, Ari B. Solotoff

Maine Law Review

Since 2003, the Maine Supreme Judicial Court has applied the Supreme Court’s McDonnell Douglas burden-shifting analysis on summary judgment in employment discrimination claims brought under Maine law. Recently, however, some justices of the Law Court have questioned McDonnell Douglas’s continuing application to summary judgment determinations. They argue that the framework is outdated, overly mechanical, and unnecessary. In Trott v. H.D. Goodall Hospital, the court set forth three guiding principles for lawyers and judges to follow in employment discrimination cases facing disposition at summary judgment. In doing so, the court signaled that McDonnell Douglas should continue to be applied at summary …