Labor and Employment Law Commons^™

State Labor Law And Federal Police Reform, Stephen Rushin, Allison Garnett

Faculty Publications & Other Works

No abstract provided.

The Uberization Of Arbitration Clauses, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

In the early part of this decade, the Supreme Court’s decisions interpreting the Federal Arbitration Act (FAA) strictly enforced predispute arbitration clauses (PDAAs) with class action waivers and so-called “delegation” provisions in consumer contracts. Just after the Court’s 2013 ruling that clauses with class action waivers did not prevent claimants from vindicating their statutory rights, Uber— a company at the heart of the “gig economy”—started inserting PDAAs in agreements with its drivers and passengers. Uber’s move has generated dozens of challenges to its clause in lawsuits across the country, and thus dozens of federal court opinions contributing to modern FAA …

Making The Minimum Wage Work: An Examination Of The Economic Impact Of The Minimum Wage, Steve P. Calandrillo, Taylor Halperin

Articles

With the passage of the Fair Labor Standards Act in 1938, Congress mandated a federal “living wage” in order to “maintain the minimum standard of living necessary for the health, efficiency, and general well-being of workers.” Advocates have long insisted that increases in the minimum wage result in a net gain to employees’ standard of living. Critics have countered that those gains come at the expense of higher prices and shrinking overall employment numbers, leaving a new class of potential workers out in the cold.

This Article synthesizes the empirical economic impact data from minimum wage increases over the past …

Deflategate: What's The Steelworkers Trilogy Got To Do With It?, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Contracting Correctness: A Rubric For Analyzing Morality Clauses, Patricia S. Abril, Nicholas Greene

Articles

Morality clauses give a contracting party the right to terminate if the other party behaves badly or embarrassingly. A curious product of twentieth-century Hollywood, these contract clauses have traditionally been used to control the antics of entertainers and athletes. The current politically-sensitive historical moment, combined with the internet's ability to broadcast widely and permanently, has put everyone's off-duty speech, conduct, and reputation under the microscope. Media reports detailing people's digital falls from grace abound. For fear of negative association, businesses are more attuned than ever to the extracurricular acts of their agents and associates-and are increasingly binding them to morality …

Better Than Basic Income? Liberty, Equality, And The Regulation Of Working Time, Matthew Dimick

Journal Articles

Basic income has attracted the attention of academics, policy makers, and politicians around the globe. Basic income—a no-strings-attached cash transfer made to all citizens of a country, rich or poor—has been lauded as a plan to eliminate poverty, reduce income inequality, redress imbalances in the labor market, remedy the impending problem of mass technology-induced unemployment—the “robot apocalypse”—and make possible meaningful lives for those otherwise dependent on menial work in the labor market. It has also been proposed as an efficient, nonpaternalistic, and stigma-free alternative to existing welfare state policies. This Article compares basic income to an alternative policy proposal: the …

On Writing Labour Law History: A Reconnaissance, Eric M Tucker

Articles & Book Chapters

Labour law historians rarely write about the theoretical and methodological foundations of their discipline. In response to this state of affairs, this article adopts a reconnaissance strategy, which eschews any pretense at providing a synthesis or authoritative conclusions, but rather hopes to open up questions and paths of inquiry that may encourage others to also reflect on a neglected area of scholarship. It begins by documenting and reflecting on the implications of the fact that labour law history sits at the margins of many other disciplines, including labour history, legal history, labour law, industrial relations and law and society, but …

"Dependent Contractors" In The Gig Economy: A Comparative Approach, Miriam A. Cherry, Antonio Aloisi

American University Law Review

No abstract provided.

Rehabilitate, Don't Recidivate: A Reframing Of The Ban The Box Debate, Jacqueline G. Kelley

Roger Williams University Law Review

No abstract provided.

2016 Survey Of Rhode Island Law: Cases And Public Laws Of Note

Roger Williams University Law Review

No abstract provided.

Employment As Fiduciary Relationship, Matthew T. Bodie

All Faculty Scholarship

Under traditional agency law doctrine, employees are agents of their employers and owe an agent’s concomitant fiduciary duties. Employers, in turn, are merely principals and have no corresponding fiduciary duties. A new wave of thinking has unsettled this approach by concluding that only high-level employees have fiduciary responsibilities to their employers. Taking this controversy as a starting point, this Article reconceives the employment relationship as a mutual fiduciary relationship in which both employers and employees are fiduciaries of one another. Even though current law does not consider employers to be fiduciaries of their employees, employers have long had significant statutory …

The Best Way Out Is Always Through: Changing The Employment At-Will Default To Protect Personal Autonomy, Matthew T. Bodie

All Faculty Scholarship

Employment at-will is the default rule of termination for the vast majority of American employment relationships. The rule creates a presumption—a strong one—that the contract for employment allows either party to terminate the contract at any point in time. Since its inception, this bright line rule has given way to carefully curated exceptions, primarily to protect against discrimination and retaliation. This Article proposes that state courts create a new exception to the at-will rule—or, perhaps more accurately, acknowledge an intricacy within the existing default. The personal-autonomy presumption would modify at-will to make clear that employers will not take any action …

Are Uber And Transportation Network Companies The Future Of Transportation (Law) And Employment (Law)?, Miriam A. Cherry

All Faculty Scholarship

Transportation network companies (“TNCs”) such as Uber and Lyft manage ridesharing platforms that have increased efficiency and convenience for many passengers. These platforms, however, have also opened the door to many legal and regulatory issues pertaining to their business practices, employment structures, and transportation law and policy. This article provides a perspective on the economic, social, technical, and political aspects of TNCs in two steps, focusing on transportation and employment. First, it examines the future of TNCs in transportation, noting that TNCs could do more in terms of environmentalism to live up to the promise of the “sharing” economy. Second, …

The Sharing Economy And The Edges Of Contract Law: Comparing U.S. And U.K. Approaches, Miriam A. Cherry

All Faculty Scholarship

Technology and the rise of the on-demand or sharing economy have created new and diverse structures for how businesses operate and how work is conducted. Some of these matters are intermediated by contract, but in other situations, contract law may be unhelpful. For example, contract law does little to resolve worker classification problems on new platforms, such as ridesharing applications. Other forms of online work create even more complex problems, such as when work is disguised as an innocuous task like entering a code or answering a question, or when work is gamified and hidden as a leisure activity. Other …

Dependent Contractors' In The Gig Economy: A Comparative Approach, Miriam A. Cherry, Antonio Aloisi

All Faculty Scholarship

Lawsuits around the misclassification of workers in the on-demand economy have ballooned in the United States in recent years. That is because employee status is the gateway to many substantive legal rights. Inresponse, some commentators have proposed an in-between hybrid category just for for the gig economy. However, such an intermediate category is not new. In fact, it has existed in many countries for decades, producing successful results in some, and misadventure in others. We use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In Italy, the quasi-subordinate category created an opportunity …

The Next Iteration Of Progressive Corporate Law, Matthew T. Bodie

All Faculty Scholarship

A wave of progressive corporate law scholarship in the late 1980s and early 1990s reimagined corporate law from the perspective of employees, consumers, and other stakeholders left behind by shareholder primacy. Almost thirty years later, it is time to revisit this literature and consider what progressive corporate law should be in the 21st Century. This essay argues for three changes: (1) a move to the theory of the firm as the underlying economic literature; (2) a focus on employees, rather than stakeholders more generally, and (3) an effort to change statutory and structural aspects of corporate law, such as board …

Lessons From The Dramatists Guild For The Platform Economy, Matthew T. Bodie

All Faculty Scholarship

Are platform workers part of a firm or are they working as individual businesses? Are they providing their labor as part of a team, or do they hold on to individual capital throughout their transactions? This essay explores the question of employee versus independent contract through the specific examples of dramatists and screenwriters. Dramatists have chosen to conduct their work as separate artists; they maintain copyright over their work, and they retain control over its use. Screenwriters, on the other hand, work as part of a team; they hand over their copyright to the production company and cede control over …

Workplace Freakonomics, Matthew T. Bodie

All Faculty Scholarship

Data analytics has revolutionized our economy, and employment is no exception. Sometimes called people analytics or HR analytics, the study of worker behavior and activity now includes the collection of massive amounts of data that is then crunched by algorithms looking for both expected and unexpected patterns. This work is akin to the "freakonomics" approach, which asks unusual questions and is prepared to find answers that may upset conventional wisdom. This paper explores the possibility of a "workplace freakonomics" approach to using big data in the workplace, and considers the legal and ethical ramifications for wide-ranging explorations of employee data.

Comment On Chapter 4 Of The Restatement Of Employment Law: Principles Of Employer Liability For Tortious Harm To Employees, Michael C. Duff

All Faculty Scholarship

Teachers of torts and workers' compensation law may find the emphasis of Chapter 4 of the Restatement of Employment Law more than a little odd. Throughout the chapter the reader is reminded repeatedly that in most of the tortious scenarios presented a workers' compensation statute "may" apply. In fact, this is a gross understatement. With the exception of intentional torts (sometimes) and nonphysical tortious harms (most times) nearly all injury that could befall an employee in a United States workplace is covered exclusively by workers' compensation law.¹ In other words, for most employees in the United States the exclusive …

Glatt V. Fox Searchlight Pictures, Inc., Rodger Quigley

NYLS Law Review

No abstract provided.