Labor and Employment Law Commons^™

Don’T Mess With Mr. In-Between, Brian Langille, Ben Mayer-Goodman

Dalhousie Law Journal

In a separate, related paper, we reveal and criticize an important “methodical error” which is commonly made in labour law jurisprudence. In this paper, we undertake a review of the attempts by Canadian and UK legislators and decision makers to overcome some of the problems of applying labour law’s traditional orthodoxy in the face of an ever more complex world by creating new categories “in between” the existing classes of employees and independent contractors. These attempts often fail precisely because they perpetuate the traditional approach and its methodological error, maintaining its perverse incentive structures. Our advice: “Don’t mess with Mr. …

Crip Time, Castoriadis, And Transcending The Duty To Accommodate In The Workplace, Ravi Malhotra, Jacqueline Moizer

Dalhousie Law Journal

Disabled people often experience time in a manner that is distinct from able-bodied individuals. Disabled people may have shorter careers, have difficulty maintaining full-time employment, and may be forced to work part-time due to the impact of their impairments. Many disabled people face considerable barriers every day in accessing services to participate fully in the workplace, including accessible transportation and attendant services. These underfunded services are often late if delivered at all, wreaking havoc on the ability of workers with disabilities to plan their day and make firm commitments. Yet disability scholars have attempted to reclaim this experience as one …

Legal Responses To Work-Related Intimate Partner Violence In Canada: Troubling Privatization, Jennifer Koshan

Dalhousie Law Journal

Intimate partner violence and coercive control can manifest in abusers’ attempts to sabotage their partners’ participation in employment. Work-related intimate partner violence (WRIPV) also implicates employers, governments, and society more broadly, challenging the individualizing frame often applied to IPV. However, the legal recognition of WRIPV has been slow and sporadic, disproportionately impacting women experiencing intersecting inequalities, who are more vulnerable to IPV and to work-related inequalities. This article examines how governments have responded to WRIPV, situating their responses in the continuing legacy of the public/private distinction. Using a rights-based framework, I evaluate the two newest Canadian reforms concerning WRIPV: occupational …

The National Labor Relations Act Patch Notes: Recent Changes To The Federal Employment Law Landscape, Its Impact On Esport Players, And What These Changes Indicate About The Future, Emet Mah

The Journal of Business, Entrepreneurship & the Law

This Note explores this possibility of esports players unionizing, and exercising their rights under the National Labor Relations Act. Part II provides background on the esport industry as a business and its evolution over time. Part III outlines some of the major issues affecting the esport industry, particularly focusing on the lack of player representation. Part IV examines the industry’s current use of player associations and will explore their shortcomings, prompting the need for formal unionization. Part V will cover the benefits of unionization and how esport players might come under the coverage of the NLRA.

Shackles Or Safeguards?: Tailoring Ndas And Noncompetes To Protect Interests Without Imposing Uniform Restraints, Nadia Brenden

The Journal of Business, Entrepreneurship & the Law

To better understand the implications of the FTC’s sweeping proposal and the need for a state-by-state approach, the following sections dive into the legal, historical, and comparative foundations of restrictive covenants, trace their evolution across jurisdictions, and explain why states—not federal agencies—are best positioned to strike the right balance. Part II provides an overview of legal doctrines governing the transmission of proprietary information, a history of the early applications of employment contracts, and a comparative analysis of international noncompete standards. Part III describes how different jurisdictions apply trade secret, contract, and employment law to protect business interests through enforceable agreements. …

Into The Twilight Zone: Reverse Citizenship Discrimination, Damage Caps, And Escalating Incoherence, William R. Corbett

Brooklyn Law Review

Federal employment discrimination law has become such an asymmetrical and largely incoherent body of law that those who find themselves in its midst can feel as though they have entered another realm or dimension—the “twilight zone.” The role of Section 1981 (42 U.S.C. § 1981) in federal employment discrimination law poses some significant mysteries and problems. The statute was enacted as part of the Civil Rights Act of 1866 to ensure the rights of recently liberated slaves, and it was amended in 1870. One of the rights guaranteed by Section 1981 is the right to make and enforce contracts on …

Equal Pay, Unequal Opinions: Navigating The Ongoing Circuit Split On Prior Pay As An Affirmative Defense Under The Equal Pay Act, Emily G. Young

University of Cincinnati Law Review

No abstract provided.

Ncaa Women Athletes And Nil Pay Disparities: Are They Students Under Title Ix, Employees Under Title Vii, Or Both?, Michael H. Leroy

University of Cincinnati Law Review

Title IX requires schools to eliminate gender disparities in financial benefits and publicity for athletes. This Article shows that men’s basketball players in major National Collegiate Athletic Association (NCAA) conferences were paid an average of $171,272 in 2024, compared to $16,222 for women. Analysis of a prominent basketball program shows that it coordinates with its Name, Image, and Likeness (NIL) collective to monetize NIL donor access in favor of men.

This Article provides legal arguments to show that NIL pay disparities create Title IX liability for NCAA schools: (1) Congress intended Title IX to end sex discrimination against students, (2) …

A View From Inside: The Federal Government's Pivotal Role In Securing And Advancing Access To Justice, Kalpana Kotagal

University of Cincinnati Law Review

No abstract provided.

Maritime Personal Injury In The New England Fishery, Ralph J. Gillis

Maine Law Review

Commercial fishing, as carried on by the "down east" fisherman, is an industry fast succumbing to the economic inequities of vessel operation. Over the past two decades, the prices for fish boats have not increased as rapidly as the operating costs involved in fitting and maintaining the fishing vessel. Today, this situation has been compounded by the economic inability of the individual trawler owner to obtain protection and indemnity insurance to compensate crew members for injuries received during the course of maritime employment. The present consequence of these developments is that, although judicial and legislative regulatory guidelines have been set …

Maine's Public Labor Law, Ronald D. Russell

Maine Law Review

The latter half of the last decade saw a rapid increase in activity on the part of labor organizations formed by public employees in Maine. This activity received an impetus from an opinion of the Attorney General and from a Legislative Research Committee Report based on the Labor Relations Act of 1941. Through different methods of reasoning both documents concluded that public employees had the right to form labor organizations, but neither document defined the relationship between these employees and their public employer. Although the activity of these organizations was evidenced by the formation of agreements with municipalities and by …

Dismissals For Pregnancy In Government Employment, Maine Law Review

Maine Law Review

For those who litigate sex discrimination cases, the most difficult problems theoretically are those which involve characteristics that are not common to both sexes. Discrimination on the basis of pregnancy is the most obvious example and is probably the most difficult to attack. Male employers, judges and even obstetricians are outsiders to the experience of pregnancy, and to many of them the process verges on the mysterious. Masculine attitudes toward pregnancy range from protectiveness to contempt, but they are seldom neutral. Because counsel for women plaintiffs contesting pregnancy employment regulations work in a sensitive area, they should be especially careful …

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Social Media And Protection Of The Youth: Assessing Policy Safeguards And Political Implications, Genesis N. Rivera

Honors Capstones

The purpose of this paper is to explain the potential gaps in U.S. state-level policies from Illinois, Utah, and California. The scope of this paper focuses on policies that specifically address the emerging issue of child influencers. Through a comparative analysis, I found that states like Illinois, California, and Utah all lack enforcement mechanisms, which rational choice theory explains are crucial for ensuring policy effectiveness. Many states, such as California and Utah, followed Illinois’s legal framework through policy diffusion. Therefore, I propose that, in order for states to adopt stronger measures, they should implement France’s more developed legal framework. Through …