Labor and Employment Law Commons^™

Criminal Labor Law, Benjamin Levin

Publications

This Article examines a recent rise in civil 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 …

Accommodating Everyone, Nicole Buonocore Porter

Faculty Publications

This Article attempts to eliminate “special treatment stigma” by accommodating everyone. Special treatment stigma occurs when some employees (usually individuals with disabilities and workers with caregiving responsibilities) are provided with accommodations in the workplace. This receipt of “special treatment” causes employers and coworkers to resent these employees. This Article argues that the best way to ameliorate the stigma that accompanies special treatment in the workplace is to accommodate everyone through a universal accommodation mandate. This mandate would require employers to accommodate all employees who request an accommodation in the workplace, regardless of the reason for the accommodation. As long as …

Religious Employers And Labor Law: Bargaining In Good Faith, Charlotte Garden

Faculty Articles

This Article explores an important question that follows in the wake of last Term’s decision in Hobby Lobby v. Burwell: When employee rights under the National Labor Relations Act (NLRA) and employer religious commitments conflict, which will have priority? This is a surprisingly difficult question to which multiple statutory regimes arguably apply. First, there is the NLRA itself. The NLRA does not exempt religious employers on its face, but the Supreme Court nonetheless construed it to exclude certain religious employers in NLRB v. Catholic Bishop. Catholic Bishop is remarkable: as an exercise of constitutional avoidance the Court adopted an implausible …

Building Labor's Constitution, Kate Andrias

Articles

In the last few years, scholars have sought to revitalize a range of constitutional arguments against mounting economic inequality and in favor of labor rights. They urge contemporary worker movements to lay claim to the Constitution. But worker movements, for the most part, have not done so. This Essay takes seriously that choice. It examines reasons for the absence of constitutional argumentation by contemporary worker movements, particularly the role of courts and legal elites in our constitutional system, and it contends that labor’s ongoing statutory and regulatory reform efforts are essential prerequisites to the development of progressive constitutional labor rights. …

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 …

Politics At Work After Citizens United, Ruben J. Garcia

Loyola of Los Angeles Law Review

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, …

Creative Capitalism And Human Trafficking: A Business Approach To Eliminate Forced Labor And Human Trafficking From Global Supply Chains, Dana Raigrodski

Articles

A great amount of revenue generated by businesses in the global economy can be linked to the trafficking and enslavement of human beings. Yet, the current discourse on human trafficking fails to recognize the magnitude of benefit consumers, businesses, and economies gain from the work of forced and trafficked labor. Moreover, the limited efforts that seek to address this situation have focused on ways to encourage businesses to voluntarily adopt more socially responsible practices. These measures have had only limited success, and are generally believed to be in tension with the for-profit purposes of businesses.

Hence, the task of convincing …

Reasons For Counseling Reasonableness In Deploying Covenants-Not-To-Compete In Technology Firms, Robert W. Gomulkiewicz

Articles

Some states ban the enforcement of employee covenants-not-to-compete (“non-competes”) but most enforce them to the extent they are reasonable. As such, “reasonableness” provides the touchstone for enforceability analysis. The academic literature commenting on the reasonableness of non-competes is large and growing. Scholars usually direct their comments to judges, legislators, and other scholars.

Rarely do they address practicing lawyers. That omission is particularly unfortunate because practicing lawyers, more than judges, legislators, and scholars, can affect whether non-competes work both fairly and effectively. This Article fills that void by providing reasons, directed to practicing lawyers, for deploying non-competes in a reasonable manner. …

2015 Survey Of Rhode Island Law: Cases And Public Laws Of Note, Roger Williams University Law Review Staff

Roger Williams University Law Review

No abstract provided.

En-Gendering Economic Inequality, Michele E. Gilman

All Faculty Scholarship

We live in an era of growing economic inequality. Luminaries ranging from the President to the Pope to economist Thomas Piketty in his bestselling book Capital in the Twenty- First Century have raised alarms about the disparity between the haves and the have-nots. Overlooked, however, in these important discussions is the reality that economic inequality is not a uniform experience; rather, its effects fall more harshly on women and minorities. With regard to gender, American women have higher rates of poverty and get paid less than comparable men, and their workplace participation rates are falling. Yet economic inequality is neither …

The Jocks And The Justice: How Sotomayor Restrained College Athletes, Phillip J. Closius

All Faculty Scholarship

Two judicial opinions have shaped the modem college athletic world. NCAA v. Board of Regents of the University of Oklahoma declared the NCAA's exclusive control over the media rights to college football violated the Sherman Act. That decision allowed universities and conferences to control their own media revenue and laid the foundation for the explosion of coverage and income in college football today. Clarett v. NFL held that the provision then in the National Football League's (NFL) Constitution and By-Laws that prohibited players from being eligible for the NFL draft until three years from the date of their high school …

Imagining U.S. Labor Relations Without Union Security, Ann C. Hodges

Law Faculty Publications

Attacks on union finances are intensifying. These assaults, which come in various forms, have the potential to jeopardize the current systems of labor relations in the United States in both private and public sectors. This essay analyzes what might happen if the challenges are successful. Unions may shrink further in size or power, or alternatively, respond to new conditions in ways that strengthen them. Removal of union security might prompt legal change such as elimination of the duty of fair representation, elimination of the system of exclusive representation, or permitting the union to charge nonmembers for actual representation. These changes, …

Derivative Racial Discrimination, Kevin Woodson

Law Faculty Publications

This Article introduces the concept of derivative racial discrimination, a process of institutional discrimination in which certain social and cultural dynamics impede the careers of minority workers in predominantly white firms even in the absence of racial biases and stereotypes. Derivative racial discrimination is a manifestation of cultural homophily, the universal tendency of people to gravitate toward others with similar cultural interests and backgrounds. Although not intrinsically racial, cultural homophily disadvantages minority workers in predominantly white work settings due to various race-related social and cultural differences. Seemingly inconsequential in isolation, these differences produce racial disparities in the accrual of valuable …

My Hair Is Not Like Yours: Workplace Hair Grooming Policies For African American Women As Racial Stereotyping In Violation Of Title Vii, Dawn D. Bennett-Alexander, Linda F. Harrison

Cardozo Journal of Equal Rights & Social Justice

This article argues that workplace discrimination based on hair grooming policies disproportionately impacts African American women. The article seeks to establish that natural hair is an immutable characteristic, as is all hair, made mutable by social policies that impose an "acceptable" standard of beauty that was never meant to include or reflect black women. Often placed under workplace or other institutional grooming policies, the article posits that these policies are no more than a continuation of race-based policies that reflect unlawful stereotyping under Title VII and should be eliminated. Lastly, the article proposes a set of questions that test the …

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 …

A More Fundamental Distinction For The Contemporary Economy Between Employee And Independent Contractor Status, Michael C. Harper

Faculty Scholarship

The common law remains an intellectual battle ground in Anglo-American legal systems, even in the current age of statutes. This is true in significant part because the common law provides legitimacy for arguments actually based on policy, ideology, and interest. It also is true because of the common law's malleability and related susceptibility to significantly varied interpretations.

Mere contention over the meaning of the common law to provide legitimacy for modern statutes is most often not productive of sensible policy, however. It generally produces no more than reified doctrine unsuited for problems the common law was not framed to solve. …

Introduction To Thinking About A Post-Aca World: Litigation, Cost Shifting And Enforcement Of Statutory Rights, Maria O'Brien

Faculty Scholarship

At its annual gathering in 2016, members of the Employee Benefits and Executive Compensation and Law, Medicine and Healthcare Sections of the Association of American Law Schools (AALS) jointly sponsored a discussion of the future of the Affordable Care Act (ACA) following the Supreme Court's decision in King v. Burwell.' What follows are the papers generated for the panel discussion. The panelists² were asked to evaluate the future of the ACA from a distinct perspective.

Recent Cases: Eeoc V. Abercrombie & Fitch Stores, Inc.: Religious Accommodation In The Workplace, Elizabeth King

Faculty Scholarship

In EEOC v. Abercrombie & Fitch Stores, Inc., the plaintiff, Samantha Elauf, was rejected from a sales clerk position because her headscarf clashed with Abercrombie & Fitch’s employee dress code.¹ This code, Abercrombie’s “Look Policy,” required all employees to dress in a “classic East Coast collegiate style” and prohibited “caps.”² However, Elauf, a practicing Muslim, wore a headscarf (or “hijab”) as a representation and obligation of her religion.³ After Abercrombie rejected her employment application, the Equal Employment Opportunity Commission (“EEOC”) sued the company on Elauf’s behalf, alleging a Title VII violation for failure to accommodate a …

After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien

Faculty Scholarship

This paper examines the recent U.S. Supreme Court retiree health care decision in Tackett v. M & G Polymers and focuses, in particular, on the ostensibly odd silence with respect to a critical contract term — whether the parties in fact agreed that these benefits were vested. Although the union in Tackett insisted these welfare benefits were clearly intended to vest and the employer now asserts they can be modified at any time, the collective bargaining agreement and supporting documents are ambiguous on this question. This paper examines how and why this “silence” persisted for so many decades and concludes …