Labor and Employment Law Commons^™

Employment Equality In A Color-Blind Society, Earl M. Curry Jr.

Akron Law Review

The purposes of this article are first, to look at the rights of Negroes, under law, to bring economic pressure to bear for employment equality, including the demand for a quota, and secondly to see how that law is satisfying today's social needs. To achieve this latter purpose, perhaps we must ask whether our society can afford to be legally color-blind? We shall look first to the private self-help devices that have been used by minorities, and then to one area of governmental intervention that has dealt directly with minority employment and the use of quotas or goals to achieve …

Arbitration - Dispute Involving Hazardous Working Conditions Is Within The Scope Of Broad Arbitration Clause Of A Collective Bargaining Agreement In Absence Of Forceful Indication Of Exclusionary Intent; Gateway Coal Co. V. United Mine Workers, Raymond T. Royko

Akron Law Review

The collapse of a ventilation structure substantially reduced the air flow into a mine operated 'by the Gateway Coal Co., seriously increasing the danger of accumulation of dust, flammable gas and possible explosion. Three assistant foremen, whose duties included checking and recording the airflow in the mine, made false entries in their logbooks that failed to disclose the reduced air flow. The three foremen were suspended, and criminal proceedings were instituted against them. While the charges remained pending, the Company, after receiving permission from the Pennsylvania Department of Environmental Resources, reinstated the foremen. Ruling that the continued presence of the …

From Hierarchies To Markets: Fedex Drivers And The Work Contract As Institutional Marker, Julia Tomassetti

Georgetown Law Faculty Publications and Other Works

Judges are often called upon today to determine whether certain workers are “employees” or “independent contractors.” The distinction is important, because only employees have rights under most statutes regulating work, including wage and hour, anti-discrimination, and collective bargaining law. Too often judges exclude workers from statutory protection who resemble what legal scholars have described as typical, industrial employees — long-term, full-time workers with set wages and routinized responsibilities within a large firm. To explain how courts reach these counterintuitive results, the article examines recent federal decisions finding that FedEx delivery drivers are independent contractors rather than employees. It argues that …

The Occupational Safety And Health Act: A Promise That Failed, Howard M. Metzenbaum

Akron Law Review

When Congress passed the Occupational Safety and Health Act (OSHA) in 1970, it commanded industry to provide its employees with workplaces free from recognized dangers. The legislation declared that the safety of workers is a public concern, a concern vital to the community at large. Spokesmen for the then-presiding Nixon Administration praised the Act heartily and vowed to implement it energetically. "This bill opens up a whole new vista for the Labor Department," said the Secretary of Labor. "We plan to launch the administration of the Act with all the vigor and momentum we can generate."

Four years later, the …

Mensah V. Corevel Corp., 131 Nev. Adv. Op. 60 (Aug. 06, 2015), Jaymes Orr

Nevada Supreme Court Summaries

The Court held self-employed workers may still be entitled to temporary disability and the employee’s lost wages should be calculated by considering business income and losses and not strictly evidence of a traditional salary

State Public Utility Labor Relations, Donald W. Brodie

Akron Law Review

THE STATE LEVEL public utility commission or comparable regulatory agency (hereinafter referred to as commission) is largely responsible for setting the rates consumers must pay for regulated goods and services and is responsible for monitoring the quality of those goods and services. Labor and labor-related costs may be a significant portion of the rates. In the exercise of its rate and service jurisdiction, the commissions make decisions which will have direct or indirect effects on labor relations. It is the purpose of this paper to examine those effects by reviewing how the commissions treat issues involving labor relations.' The emphasis …

State Public Utility Labor Relations, Donald W. Brodie

Akron Law Review

THE STATE LEVEL public utility commission or comparable regulatory agency (hereinafter referred to as commission) is largely responsible for setting the rates consumers must pay for regulated goods and services and is responsible for monitoring the quality of those goods and services. Labor and labor-related costs may be a significant portion of the rates. In the exercise of its rate and service jurisdiction, the commissions make decisions which will have direct or indirect effects on labor relations. It is the purpose of this paper to examine those effects by reviewing how the commissions treat issues involving labor relations.' The emphasis …

Employee Medical Reimbursement Plans In The Age Of Erisa, Robert D. Rosewater

Akron Law Review

THE EMPLOYEE MEDICAL reimbursement plan presents a new dimension in the spectrum of available corporate fringe benefits. Its attractiveness lies in the relative ease by which the plan may be adopted and administered as well as the favorable federal income tax consequences to both the corporation and its participating employees. These plans undoubtedly will proliferate as other traditional fringe benefits become less attractive due to changes in tax laws,2 as medical expenses continue to increase, and as the advantages of employee medical reimbursement plans become more widely known. The scope of this article is to discuss the purposes of these …

Administrative Agencies; Subpoena Power; Relevancy; Right Of Privacy; Atchison, Topeka & Sante Fe Ry. Co. V. Lopez, David L. Hostetler

Akron Law Review

The Kansas Supreme Court in Sante Fe has joined the majority of states in declaring that administrative "fishing expeditions" via the use of subpoena powers are now permissible. No probable cause need be shown and confidential information may be subject to subpoena if there is even a mere possibility of relevance to a matter within the scope of the agency's authority. The state's interest in preventing discrimination in employment practices has been declared a "compelling state interest" such as to override any claims to rights of privacy. Although primarily discussing only arrest and conviction records, the court in actuality upheld …

Bona Fide Occupation Qualifications And The Military Employer: Opportunities For Females And The Handicapped, Tim M. Callaghan

Akron Law Review

This article explores the hiring and job placement policies of the United States military departments' in light of the concept of the bona fide occupational qualification (BFOQ). In essence a BFOQ criterion is a requisite to the actual performance of an employment task; a potential employee may be refused a position if he lacks an ability or characteristic which can be labeled as a BFOQ.

Although the study of military employment practices may induce emotional argumentation, this article avoids any conclusions based upon traditional roles of potential employees and deals with two classes of potential employees. The first class of …

Petition For A Writ Of Certiorari. Paske V. Fitzgerald, 136 S.Ct. 536 (2015) (No. 15-162), 2015 U.S. S. Ct. Briefs Lexis 2659, 2015 Wl 4651685, Eric Schnapper, Margaret A. Harris

Court Briefs

QUESTIONS PRESENTED McDonnell Douglas Corp. v. Green established a common method of analyzing evidence of an unlawful discriminatory motive. If a plaintiff establishes a prima facie case of discrimination, the defendant must articulate a legitimate, non-discriminatory purpose for the disputed action; where the defendant has done so, the plaintiff has the burden of demonstrating that the proffered purpose was a pretext for discrimination. This Court has repeatedly explained that the burden of establishing a prima facie case is “not onerous.” United States Postal Service Board of Governors v. Aikens held, in the context of a case which had gone to …

Manufacturer's Liability As A Dual Capacity Of An Employer, John D. Lambert

Akron Law Review

In recent years, a new theory of recovery for employees' injuries arising out of an employment situation has emerged where the employer's product is the proximate cause of the injury. In most situations the theory of recovery for the employee would be workmen's compensation statutes with their schedules which limit the amount the employee recovers. Recently, to avoid this inadequate measure of damages, employees' attorneys have, with increasing regularity, alleged that the injury arose out of a second or dual capacity of the employer, unrelated to and independent of the normal employer-employee obligations and duties.

A Legal Overview Of The Osha Noise Standard, Peter T. Parashes

Akron Law Review

SINCE AUGUST 27, 1971, when it became effective, the Occupational Safety and Health Administration's (OSHA) regulation concerning noise levels has been the source of considerable controversy and confusion.... The law concerning the noise standard is itself far from settled. The multitude of decisions from the Occupational Safety and Health Review Commission...and administrative law judges have left many questions unanswered and have allowed substantial uncertainty to remain regarding the interpretation and application of the standard

Selected Campaign Tactics Permitted Under The National Labor Relations Act, John D. Frisby Jr.

Akron Law Review

The thrust of this discussion is to concentrate on several tactics utilized mainly by employers (Soliciting and/or Remedying Grievances during an Election Campaign and Interrogation and Polling) and a tactic used solely by the union (Waiver of Initiation Fees). Following these discussions, a chapter will be devoted to Interference with the Board's Election Process by both parties. Finally, the issue of Misrepresentations in an election campaign will be discussed in depth as this issue is very important today in light of the ever changing approach of the Board over the past several decades.

Seniority Systems And Title Vii, Arthur J. Marinelli

Akron Law Review

Seniority provisions frequently work to the disadvantage of minorities because earlier employment discrimination, prior to the passage of the Civil Rights Act of 1964,1 leaves them with fewer years of service. A conflict is thus created between the tradition of seniority and the goals of equal opportunity and affirmative action. The applicability of Title VII to seniority systems and the affirmative action tools for achieving the national policy of equal opportunity will be the focus of this article.

Impact Of Rico Upon Labor Unions, Robert M. Twiss

Akron Law Review

This paper will examine Title IX of the Organized Crime Control Act of 1970, relating to Racketeer Influenced and Corrupt Organizations (RICO). It will then discuss how Title IX pertains to labor unions and whether the assets of a labor organization may be forfeited under the civil forfeiture provisions of the Act.

Judicial Interference With The Nlrb: Yeshiva University And The Definition Of "Managerial", Jane Clark Casey

Akron Law Review

On February 20, 1980, the United States Supreme Court, in NLRB v. Yeshiva University, decided that the full-time faculty members of Yeshiva University are managerial employees excluded from the coverage of the National Labor Relations Act. The decision was an affirmation of the Second Circuit Court of Appeals and a rejection of the position taken by the National Labor Relations Board. This paper reviews judicial interference with National Labor Relations Board decision-making generally, comments on the merits of the Yeshiva decision, and assesses the particular significance of the Court's interference with the National Labor Relations Board definition of "managerial."

Title Vii, Equal Employment Opportunity Commission, Disclosure Policy, Equal Employment Opportunity Commission V. Associated Dry Goods Corp, Kenneth L. Wittenauer

Akron Law Review

Amid judicial turmoil, the EEOC developed procedural guidelines to best effectuate its interpretation of Title VII policies. The Commission's procedural regulations permit the disclosure of the investigative files of the individual and of individuals with similar charges against the same employer even before a lawsuit has been filed. However, the EEOC has been forced to restrict access to its files in those jurisdictions which follow Sears while maintaining a more liberal disclosure policy in the remaining jurisdictions.

Occupational Safety And Health Act, Industrial Union V. American Petroleum Institute, Patrick M. Vitone

Akron Law Review

The Occupational Safety and Health Administration [hereinafter cited as OSHA] was created pursuant to Title 29 of the United States Code, to define the terms of this battle. In Industrial Union v. American Petroleum Institute, the federal judiciary has taken a hand at making these terms somewhat more clear. It is the object of this casenote to analyze the impact of the Industrial Union decision on the regulatory processes of OSHA, a task which involves a synthesis of the plurality, concurring and dissenting opinions.

Secondary Picketing Of A Neutral Employer, Nlrb V. Retail Store Employees Union, Frances C. Elliott

Akron Law Review

This note compares Justice Powell's reasoning in Safeco with the rationale of Tree Fruits and concludes that although Justice Powell was correct in limiting the Tree Fruits principles, he may have created a more substantial problem for future courts attempting to apply the Safeco principles in light of Tree Fruits. This note will explore the constitutional ramifications of the Sajeco decision and of the Labor Act itself as interpreted by Justice Powell and conclude that the legislative history is clear in its mandate that all secondary picketing is violative per se of the Labor Act. To illustrate the difficulties which …