Labor and Employment Law Commons^™

Gig Economy: Settlements Leave Labor Issues Unsettled, Miriam A. Cherry

All Faculty Scholarship

This short paper, which appeared on the Law360 blog, is an effort to think through the consequences of the proposed April 2016 settlement of the Uber drivers' lawsuits. This paper makes reference to the special issue of the Journal of Comparative Labor Law & Policy that is dedicated to the legal and economic issuessurrounding crowdwork.

Hidden From View: Disability, Segregation And Work, Elizabeth Pendo

All Faculty Scholarship

The employment provisions of the Americans with Disabilities Act of 1990 were intended to bring working-age people with disabilities into the workplace by providing options for them to seek and gain meaningful, integrated employment. Although the ADA has made significant gains, the rate of progress in employment has been disappointing. While the lack of progress of people with disabilities in the traditional workplace has received attention, the work done by many, especially those with severe disabilities in segregated workplaces, remains hidden in sheltered workshops. This chapter explores the intersection of the concepts of disability, invisibility, and work and identifies the …

Religious Accommodations For Sabbatarian Observance Among Library Staff, Paul A. Hartog

The Christian Librarian

Over the last twenty-five years, litigation related to religious discrimination in the workplace has been on the rise. One of the tension points has been the religious practice of Sabbath keeping, leading to employment scheduling conflicts. Title VII and its subsequent amendments require that employers seek “reasonable accommodations” for Sabbatarian observance. Such adjustments should not cause “undue hardship” to the employer, who is required to make a “good faith effort” at accommodation. This article discusses creative alternatives that managers of public libraries and nonsectarian academic libraries may implement when accommodating Seventh-Day Adventist and similar Sabbatarian staff members.

Madonnas And Whores In The Workplace, Jessica K. Fink

Faculty Scholarship

Much has been written about “lookism” – the preferential treatment given to those who conform to societal standards of beauty. But in a recent case before the Iowa Supreme Court, a gender discrimination plaintiff alleged a sort of “reverse-lookism,” claiming that her male employer terminated her long-term employment because the employee was too physically attractive, thus tempting the employer to think about entering into an extramarital affair. To the great surprise of many who followed this case, the Iowa Supreme Court sided with the employer, declining to find him liable for gender discrimination. As one might expect, uproar ensued, with …

Working Time And Flexibility In Canada, Eric Tucker, Leah F. Vosko

Articles & Book Chapters

Canada is a federal state and, under its constitution, legislative jurisdiction over labour and employment is vested primarily in its provinces and territories. As a result, there is no generally applicable national regime regulating hours of work, but rather a patchwork of laws with limited reach. It is not possible to cover all these laws in a brief overview and so we have chosen to focus on the laws of Ontario, Canada’s most populous province. However, it is also fair to say that while provincial laws vary, the law of Ontario reflects the general pattern of hours of work laws …

Green V. Donahoe, Gerard Quinn

NYLS Law Review

No abstract provided.

Louisiana Municipal Police Employees’ Retirement System V. Wynn, Benjamin Eisenstein

NYLS Law Review

No abstract provided.

Fulk V. Norfolk Southern Railway Company, Jonathon Sizemore

NYLS Law Review

No abstract provided.

Navistar, Inc. V. Forester, Adrienne Baffa

NYLS Law Review

No abstract provided.

Will Work For Free: The Legality Of Unpaid Internships, Nicole M. Klinger

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note addresses the current ambiguity in the law regarding if unpaid interns are employees under the Fair Labor Standards Act. The Note explores relevant case law throughout the circuit courts, but primarily focuses on the Second Circuit’s recent decision in Glatt v. Fox Searchlight Pictures. It argues that the primary benefits test created by the Second Circuit in Glatt does not adequately protect unpaid interns nor does it inform employers of the standards they need to meet in order to adopt legal unpaid internship programs. Instead, courts should adopt a clearer, more rigid test that finds an intern not …

Allowing States To Help Workers Safe For Retirement: Department Of Labor's Proposed Rulemaking That Provides A Safe Harbor For State Savings Programs Under Erisa, William A. Nelson

Marquette Benefits and Social Welfare Law Review

There is a “retirement crisis” in America. Contributing to

this crisis is the fact that millions of Americans do not have

access to a retirement savings plan through their employers.

States, concerned with the economic stability of their citizens,

have created laws that require private sector employers to

implement state-administered payroll deduction IRA programs

in their workplaces. Even though many states are currently

debating whether to adopt state payroll deduction programs,

this Article will focus on Oregon, Illinois, and California, which

have enacted laws along those lines.

One obstruction to wider adoption of such state measures

has been uncertainty about …

Essay: Understanding Employment Discrimination Litigation In China Through The Notion Of "Rights Apathy", Sheera Chan, Mimi Zou

Marquette Benefits and Social Welfare Law Review

The psycho-legal concept of “rights apathy” is developed in

this Essay as an underlying factor of the very low rate of

incidence of workplace discrimination lawsuits filed in China,

despite an increasingly elaborate legal framework “on paper”

and workers’ rising awareness of their legal rights under

anti-discrimination laws. “Rights apathy” is underpinned by the

notions of “frustration” and “learned helplessness,” depicting the

indifference of workers in exercising their legal rights before a

tribunal or court. A number of institutional problems, namely

defects in existing anti-discrimination provisions, judicial

practices, and contradictions in other laws, policies, and

practices, can contribute to the …

Comment: Transgender Employment Discrimination Equality In Wisconsin: The Demise Of A Former Lgbtiq+ Rights Trailblazer, Alexandra A. Klimko

Marquette Benefits and Social Welfare Law Review

Wisconsin, once known as “The Gay Rights State” and a

pioneer of the LGBTIQ+ civil rights movement, has

disappointingly failed to create transgender-inclusive

employment discrimination legislation, much like the majority of

American states. As a result, Wisconsin transgender employees

face shocking workplace discrimination with saddening

repercussions felt by transgender individuals who call Wisconsin

home. This Comment identifies the federal, state, and city

approaches that have extended equal employment

discrimination legal protections to transgender workers in the

United States. Further, this Comment urges the Wisconsin

legislature to incorporate “gender identity or expression” to

Wisconsin’s Fair Employment Act as a non-discrimination

category, …

Brief For Legal Ethics And Labor Law Professors As Amici Curiae Supporting Appellants, Nat'l Fed'n Of Indep. Bus. V. Perez, Ruben J. Garcia

Court Briefs

No abstract provided.

The Psychology And Neurobiology Of Mediation, Elizabeth E. Bader

Cardozo Journal of Conflict Resolution

This article grew out of a moment in mediation when a party became furious with me after receiving the opening offer from the other side. As I tried to understand what was happening, I suddenly realized it was not about the offer at all. It was about him. He feared a loss of "face" in front of the other parties.

Criminal Labor Law, Benjamin Levin

Scholarship@WashULaw

This Article examines a recent rise in suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In this …

People Analytics And The Regulation Of Information Under The Fair Credit Reporting Act, Pauline Kim, Erika Hanson

Scholarship@WashULaw

People analytics — the use of big data and computer algorithms to make personnel decisions — has been drawing increasing public and scholarly scrutiny. Concerns have been raised that the data collection intrudes on individual privacy, and that algorithms can produce unfair or discriminatory results. This symposium contribution considers whether the Fair Credit Reporting Act’s regulation of consumer information used for employment purposes can respond these concerns. The FCRA establishes certain procedural requirements, and these can sometimes help individual workers challenge inaccurate information about them. However, the statute does little to curb intrusive data collection practices or to address the …

And Ain't I A Woman: Feminism, Immigrant Caregivers, And New Frontiers For Equality, Shirley Lin

Faculty Scholarship

No abstract provided.

Mike Zimmer, Mcdonnell Douglas And "A Gift That Keeps Giving", William Corbett

Journal Articles

No abstract provided.

People Analytics And Invisible Labor, Miriam A. Cherry

Faculty Publications

(Excerpt)

In recent years, I have been writing about two increasingly salient labor and employment law issues: the presence of invisible labor and the rise of people analytics.' First, invisible labor could include emotion work, such as being a colleague's "work wife," or could include "identity work" that is time and effort spent on making others feel comfortable with the worker. Invisible labor might also include uncompensated time spent in "looking good" and "sounding right." It could also include instances where technology obscures work that is being done through a website platform or mobile application. The second trend is …