Labor and Employment Law Commons^™

Race-Based Reverse Employment Discrimination Claims: A Combination Of Factors To The Prima Facie Case For Caucasian Plaintiffs, Shirley W. Bi

Cardozo Law Review de•novo

This Note discusses the practical impact resulting from the different modifications of the first prong of the McDonnell Douglas burden-shifting framework in reverse discrimination cases. Part I of this Note will provide background information on traditional Title VII racial discrimination claims, when a minority plaintiff alleges racial discrimination in her workplace. Then, it will introduce the three step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, which is the foundation for reverse racial discrimination cases. This Note focuses on the first of the four prongs of the prima facie analysis used by federal courts. Part II will …

The Road To Adopting And Implementing Systemic Disclosure Changes In The Dallas County District Attorney’S Office, Susan Hawk, Patricia J. Cummings

Cardozo Law Review de•novo

Discovery and Brady are currently two of the most discussed and debated topics in our criminal justice system. Americans have become more and more aware of the number of individuals convicted and incarcerated for crimes they did not commit. In 2007, in a very bold and innovative move, the Dallas County District Attorney’s Office created the Conviction Integrity Unit (CIU) to reexamine questionable convictions to determine if a particular defendant was in fact guilty.

Lifetime Disadvantage, Susan Bisom-Rapp, Malcolm Sargeant

Faculty Scholarship

Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women's labor force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards …

Stripping Away Employment Rights: The Unconscionability Of Class Waivers In Employment Agreements, Nikki Clark

Journal of Dispute Resolution

As support for arbitration clauses began to grow, employers began to include arbitration clauses in employment agreements because it lowers the cost and uncertainty of litigation. Many of these arbitration clauses contain waivers of the right to class action. This Note argues that a waiver of collective action, whether express or unknowing, should be per se unconscionable to provide consistency and to resolve the inconsistency between and even within federal circuits.

The Wages Of Human Trafficking, Rana M. Jaleel

Brooklyn Law Review

This article asks a deceptively straightforward question: What is the wrong of human trafficking? If the answer seems obvious, a closer look at anti-trafficking law reveals a doctrinal crisis. Human trafficking law has traditionally concerned itself with movement and how compelled or chosen migration estranges vulnerable people from the locales, customs, and resources that might otherwise shield them from exploitation. According to the U.S. State Department, however, movement is no longer a central element of human trafficking. Instead, “many forms of enslavement” are thought to comprise the core of the crime. The revocation of the movement requirement and the equation …

Student-Athletes Vs. Ncaa: Preserving Amateurism In College Sports Amidst The Fight For Player Compensation, Audrey C. Sheetz

Brooklyn Law Review

While student-athletes are the backbone of the $11 billion college sports industry, they do not currently receive any of this revenue derived from the use of their names, images, and likenesses. The National College Athletic Association’s mission is to maintain the amateur status of student-athletes. In doing so, it precludes student-athletes from receiving any type of compensation outside of the actual cost of tuition. Amateurism, as a concept, promotes the distinction between professional and student athletes, and is the crux of the NCAA’s argument for prohibiting the compensation of student-athletes. Recently, however, the controversy surrounding the amateur status of college …

Towards Reasonable: The Rise Of State Pregnancy Accommodation Laws, Stephanie A. Pisko

Michigan Journal of Gender & Law

In light of the recent Supreme Court decision Young v. UPS, pregnancy accommodation in the workplace is once again at the forefront of employment law. Pregnancy is not considered a disability under the ADA, nor is it within the scope of Title VII protections, but states are passing their own pregnancy accommodation laws. These laws will affect employers and employees alike, but exactly how is uncertain. Perhaps the most natural (and obvious) result of the explosion of state pregnancy accommodation laws will be a federal law, or an amendment to the ADA categorizing pregnancy as a disability. But there …

The Minefield: Designing And Implementing Human Resource Policies In The Age Of Social Media, Christopher R. Mcmillan

The Graduate Review

Human resource managers have had to navigate a minefield of laws and regulations while continuing to manage the traditional business functions of the employer. Now, human resource departments across the nation are tasked with managing the traditional employee-employer relationship in light of an ever-changing technological and legal landscape. Businesses across the nation have had to adjust to a rise in the use of social-media and have suffered the consequences of instantaneous communication between employees and the media. These same businesses must reconcile the need to protect its goodwill and livelihood, while incorporating the safeguards provided by legislation and regulations in …

Wage Theft As Public Larceny, Elizabeth J. Kennedy

Brooklyn Law Review

Home care for the elderly and disabled is a rapidly expanding industry in which structural and regulatory factors contribute to worker vulnerability and exploitation. Systemic exclusion from core federal employment and labor laws, as well as many state and local regulations, results in minimal consequences for employers who violate standards. Despite recent movement at the federal level to create a “new mindset” of rights and regulations, home care workers must be equipped with creative ways to enforce these new rights and to challenge existing gaps in enforcement. With the understanding that two-thirds of the home care industry is financed by …

Millenial Feminisms: How The Newest Generation Of Lawyers May Change The Conversation About Gender Equality In The Workplace, Meghan M. Boone

University of Baltimore Law Review

Much has been written about the "Millennial generation" and how they are re-shaping the modem workplace, including the legal profession. This body of literature ranges from heralding the Millennial generation as the vanguard for a new age of optimistic, creative team-players, to decrying Millennials as technology-obsessed, entitled, and lazy. Because Millennials have only recently begun to enter the legal profession en masse, the question of how Millennials will change the modem legal profession is still an open one-although one that has already attracted considerable attention. Less attention, however, has been paid to how Millennials unique approach to their professional lives …

Using The Nfl As A Model? Considering Zero Tolerance In The Workplace For Batterers, Deseriee A. Kennedy

University of Baltimore Law Review

"Domestic abuse is a workplace issue. '

The impact of domestic violence can increasingly be felt in the workplace, and it can adversely affect the safety and productivity of employees. Legislators and employers have begun to recognize the effect of domestic violence on employment, and many have adopted policies to protect the interests of domestic violence survivors. This article suggests that wider adoption of domestic violence policies are needed and these policies should be broadened to directly address batterers in the workplace. The article argues that employer based sanctions would increase batterer accountability and workplace safety. It uses the newly …

Blind Justice: The Need To Introduce Diverse Perspectives Into Our Legal System, Edward H. Richardson

University of Baltimore Law Review

Peggy Young was finally pregnant. This was the third time that she attempted in vitro fertilization. The first time, in 2005, the procedure was successful, but Young suffered a miscarriage. The second attempt at in vitro fertilization, in February 2006, failed. The third round, in July of 2006, was a success. Each time that Young underwent an in vitro fertilization attempt, she requested, and received, a leave of absence from her job at United Parcel Service (UPS).

But what should have been a joyous occasion-a pregnancy resulting in the birth of Young's daughter Triniti- turned into a battle with UPS …

Protecting Common Law Rights Of The Unionized Worker: Demystifying Section 301 Preemption, Phillip Closius

University of Baltimore Law Review

Employers are frequently subject to employee lawsuits alleging a tort. Non-unionized employees may seek damages for such conduct by their employers in state court. Unionized employees, however, face the risk that employers will seek to transfer the case to a federal district court in an attempt to immunize tort liability by claiming the complaint is preempted by § 301 of the Labor Management Relations Act of 1947 (LMRA). Although § 301 remains essentially unchanged from the date of its adoption, judicial confusion over the scope of its preemptive effect frequently has broadened an employer’s ability to defeat state tort claims …

Portlandia, Ridesharing, And Sex Discrimination, Ari Herbert

Michigan Law Review Online

This Essay discusses and assesses the legal hurdles that See Jane Go and SafeHer may face. Part I of this Essay explains how the plain text of Title VII and the pertinent Equal Employment Opportunity Commission (EEOC) guideline can fairly be read either to allow or condemn See Jane Go and SafeHer’s hiring practices. Part II then highlights precedent that supports See Jane Go’s and SafeHer’s discriminatory driver–passenger practices. Part III concludes by arguing that the legal system ought to make room for apps like See Jane Go and SafeHer in the current framework.

"Other Than Honorable" Discrimination, Marcy L. Karin

Journal Articles

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the most comprehensive federal civil rights law that exists related to the workplace. Its goal is to help people who serve in the military reintegrate back into civilian work and remain attached to the workforce. It does so by offering a mix of anti-discrimination protection and labor standards. Despite the promise of robust reemployment rights and post-service assistance, Congress has excluded people with a certain “character of service,” including those with “other than honorable” separations, from these protections. This statutory exclusion has a disparate impact on people with service-connected disabilities, …

Workplace Law Cases In The Tenth Term Of The Roberts Court: Between The Usual Ideological Lines, Ruben J. Garcia

Scholarly Works

My review of the Supreme Court's October 2014 Term will focus on cases involving workplace law statutes such as the Fair Labor Standards Act of 1938 (FLSA), Title VII of the Civil Rights Act of 1964 (Title VII), the Labor Management Relations Act of 1947 (LMRA) and the Whistleblower Protection Act of 1989 (WPA). These cases can be viewed through the lens of the following trends: 1) the Court continues its judicial narrowing of the Fair Labor Standards Act and federal labor law; 2) plaintiffs who have the backing of the administrative agencies are more likely to be successful; and …

Politics At Work After Citizens United, Ruben J. Garcia

Scholarly Works

There are seismic changes going on in the political system. The United States Supreme Court has constitutionalized the concentration of political power in the "one percent" in several recent decisions, including Citizens United v. FEC. At the same time, unions are representing a shrinking share of the workforce, and their political power is also being diminished. In order for unions to recalibrate the balance of political power at all, they must collaborate with grassroots community groups, as they have done in several recent campaigns. There are, however, various legal structures that make coordination between unions and nonunion groups difficult, …

"An Equally Divided Court": Workplace Law In The U.S. Supreme Court 2015-2016, Ruben J. Garcia

Scholarly Works

The 2015-2016 Term of the United States Supreme Court was scarcely halfway over when Justice Antonin Scalia passed away on February 12, 2016. This event and the political gridlock over his successor defined the Term in some ways more than the actual decisions of the Court, particularly when the resulting vacancy led an “equally divided” Supreme Court to affirm the courts below in a one sentence judgment. The most watched of these cases in workplace law was Friedrichs v. California Teachers Association, where the Supreme Court’s 4-4 tie avoided the overruling of decades of precedent upholding the constitutionality of agency …

Subsidized Egg Freezing In Employment: Autonomy, Coercion, Or Discrimination?, Ann C. Mcginley

Scholarly Works

In 2014, Apple and Facebook announced that they would provide up to $20,000 for female employees to freeze their eggs as an employment benefit. These announcements raised mixed reviews. Some applauded the decision because they believe that egg freezing may offer to women more control over their reproductive choices. Others argued that the new benefit sends the wrong message to women and that encouraging good parenting by giving better parental leave and child care policies would be more beneficial to families. Others were concerned that this “benefit” applies only to professional or managerial-class women, but may not be helpful to …

Temp Organizing Gets Big Boost From Nlrb, Harris Freeman, George Gonos

Faculty Scholarship

Workers employed by temporary staffing agencies may find it easier to organize and bargain as the result of the National Labor Relations Board decision in the Browning-Ferris Industries (BFI) case. This Article describes how the decision revamped the Board’s test for what is considered a “joint employer,” imposing new legal obligations on employers who hire through temp agencies and potentially also on giant corporate franchisors. Unions may now get access to these agreements at several points in the process of organizing: 1) in the context of proving joint employment, when the Board is determining the appropriate bargaining unit; 2) when …