Labor and Employment Law Commons^™

Rivera V. Nibco:A Tentative Limitation Of The Supreme Court's Decision Inhoffman Plastic Compounds, Inc. V. Nlrb, Rebecca L. Ennis

Richmond Journal of Law and the Public Interest

In 2002, the United States Supreme Court handed down its decision in Hoffman Plastic Compounds, Inc. v. NLRB. This landmark decision seemingly eliminated any chance illegal immigrant employees had to obtain awards of backpay after being discharged in violation of the National Labor Relations Act (NLRA). More importantly, however, the decision sent a message to the country that illegal entry into the United States was a violation that was to be taken more seriously by the courts than grossly unfair employment practices. The Court of Appeals for the Ninth Circuit recently handed down a decision in Rivera v. NIBCO, Inc. …

The Pbgc Wins A Case Whenever The Debtor Keeps Its Pension Plan, Israel Goldowitz, Garth Wilson, Erin Kim, Kirsten Bender

Marquette Benefits and Social Welfare Law Review

The Pension Benefit Guaranty Corporation, the federal agency charged with insuring private-sector defined benefit pension plans, has long had a prominent role in corporate bankruptcies. PBGC focuses its effort on the continuation of pension plans, in true reorganizations and in sales of businesses. To this end, ERISA has made it more difficult for a sponsor to terminate a plan in its own economic interest. For example, a sponsor’s latitude to terminate an underfunded plan was limited to circumstances involving the sponsor’s financial distress. Likewise, the termination premium, which was added to ERISA in recent years, is an obligation that survives …

Towards The Development Of Governance Principles For The Administration Of Social Protection Benefits: Comparative Lessons From Dutch And American Experiences, Frans Pennings, Paul M. Secunda

Marquette Benefits and Social Welfare Law Review

The purpose of this article is to introduce a new approach to social protection benefit provision through an analysis and comparison of two of the advanced benefit systems in the world. Both the Dutch and American examples teach us that meaningful social benefit protection is possible, consistent, and necessary within market-based societies.

Our recommendation is that advanced-market societies start a discussion on social protection benefits based on the dual principles of federalism/subsidiarity and fiduciary duty. Federalism provides that the national/federal government should provide the principles and minimal framework for benefit provision, while regional authorities, employers, and insurance companies should be …

Table Of Contents

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Essay: A Positive Perspective On Regulation Of The Workplace Relationship, Dana M. Muir

Marquette Benefits and Social Welfare Law Review

Positive Organizational Scholarship studies how business organizations and their employees excel and thrive. It takes the opposite perspective from the traditional organizational research that examines negative deviance and how that deviance inhibits organizational performance. Like traditional organizational scholars, legal scholars (as well as lawyers, legislators, judges, and regulators) typically focus on problems. Examples abound in the field of employment law. For example, to what extent does employment discrimination still exist and how can it be eliminated? And, what constraints prevent Americans from achieving retirement security and how can those constraints be eliminated? This Essay proposes that we examine the Positive …

Griggs At Midlife, Deborah A. Widiss

Articles by Maurer Faculty

Griggs v. Duke Power, the Supreme Court case that held that policies that disproportionately harm minority employees can violate federal employment discrimination law even without evidence of “intentional” discrimination, recently turned forty. Griggs is generally celebrated as a landmark decision, but disparate impact’s current relevance (and its constitutionality) is hotly debated. Robert Belton’s The Crusade for Equality in the Workplace offers a rich and detailed history of the strategic choices that led to the plaintiffs’ victory in Griggs. This Review uses Belton’s history as a jumping off point to consider the contemporary importance of disparate impact in efforts to challenge …

Mediator Misunderstanding Of Bargaining Basics: Heading In An Ugly Direction, Joseph B. Stulberg

Cardozo Journal of Conflict Resolution

A mediator facilitates bargaining conduct among negotiating parties. She conducts the session in a way that is designed to improve everyone's understanding of the situation, promote thoughtful problem solving, and develop settlement terms acceptable to all. When performing her tasks, a mediator must prefer or promote a particular bargaining approach by and among the parties. The only question is: which bargaining theory and approach should she privilege?

Copyright Alert System: Six-Strikes And Forced Arbitration Might Not Be The Answer, Brett Schiff

Cardozo Journal of Conflict Resolution

Ongoing technological advancements are imminent and new forms of media will increasingly be created further broadening one's ability to share both his or her own intellectual property and the intellectual property of others almost instantaneously. Rising piracy and the growing use of peer-to-peer ("P2P") file-sharing resulted in representatives from the Motion Picture Association of America ("MPAA"), the Recording Industry Association of America ("RIAA"), and the nation's five largest Internet Service Providers ("ISPs")-AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon-joining forces. The Copyright Alert System ("CAS"), similar to foreign copyright enforcement graduated response systems, is the privatized, contractual United States graduated …

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Akron Law Faculty Publications

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Athletic Compensation For Women Too? Title Ix Implications Of Northwestern And O'Bannon, Erin E. Buzuvis

Faculty Scholarship

The NCAA has been relying on Title IX requirements to defend its polices prohibiting compensation for college athletics; it argues that paying athletes in revenue sports, coupled with the commensurate obligation under Title IX to pay female athletes, would be prohibitively expensive.

As a response to the NCAA’s argument, the Author seeks to advance two positions: first, that Title IX would, as argued by the NCAA, require payment of female athletes using some measure of equality; and second, that it is not Title IX that renders the prospect of athlete compensation cost prohibitive, but rather, the fact that college athletics …

Market Norms And Constitutional Values In The Government Workplace, Pauline Kim

Scholarship@WashULaw

The conventional wisdom that public employees enjoy greater rights by virtue of the Constitution may no longer hold true. In recent cases, the Supreme Court has analogized public and private employment, with the effect of eroding the speech and privacy rights of government employees. This essay critically examines this trend, arguing that reliance on an analogy to the private sector is mistaken, because the arguments for giving private employers broad managerial discretion do not apply with the same force, or at all, to government employers. Rights-based arguments do not apply to government agencies, which are publicly-funded to achieve publicly-defined purposes …

Addressing Systemic Discrimination: Public Enforcement And The Role Of The Eeoc, Pauline Kim

Scholarship@WashULaw

Cases challenging systemic discrimination have always constituted an important slice of litigation under Title VII. Early government enforcement efforts sought thorough-going reform of employment practices in major industries. Private litigants have also pursued cases alleging systemic discrimination through class action litigation. The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, however, made it considerably more difficult for private plaintiffs to pursue claims of systemic discrimination by raising the bar for certifying class actions. In the wake of the Court’s decision in Wal-Mart, many urged the Equal Employment Opportunity Commission (“EEOC”) to use its enforcement powers to take up the …

Re-Assembling Labor, John D. Inazu, Marion G. Crain

Scholarship@WashULaw

Organized labor’s judicial, political, and public image is often associated with violence and anarchy. These descriptions are not spun out of whole cloth: violent uprisings that challenged the political and economic order were common in the early days of American labor unionism. But the assumptions underlying past judicial rhetoric and labor law doctrine have outlived their original context. Historical antecedents applied to modern protests like Fast Food Forward, OUR Walmart and the Occupy Movement yield troubling and inconsistent results.

Although these tensions have not gone unnoticed, scholarly commentary to date has overlooked the important connection between the collective, group-based nature …

Young V. United Parcel Service, Inc.: Mcdonnell Douglas To The Rescue?, William Corbett

Journal Articles

The Pregnancy Discrimination Act of 1978 can be interpreted in two obvious ways: one interpretation requires employers to make reasonable accommodations for pregnant employees, and the other does not require such accommodations. In Young v. United Parcel Service, Inc., the Supreme Court held that in some cases employees may be able to prove intentional pregnancy discrimination based on an employer's failure to make accommodations for the pregnant employee when the employer makes accommodations for other disabled employees. Rather than reaching this result by interpreting the statute to require reasonable accommodations, however, the Court held that plaintiffs with "indirect evidence" of …

The Political Economy And Legal Regulation Of Transnational Commercial Surrogate Labor, Cyra A. Choudhury

Vanderbilt Journal of Transnational Law

India's commercial surrogacy business has been the focus of intense media scrutiny for the past decade. In that time, it has grown from a $400 million industry to over $2 billion. While the growth in the surrogacy market has been rapid and widespread, the Indian government has struggled to regulate it as a business, as a medical practice and for the protection of surrogates. After nearly a decade of proposed draft bills, the government has yet to enact comprehensive regulation. It is now clear that the state will not ban such a lucrative source of income. Scholars of surrogacy have …

The Law And Economics Of Catalyzing Fans, Miriam A. Cherry

Faculty Publications

(Excerpt)

In the past decade new technologies have enabled large groups of people, separated by geographical distance and sometimes even national boundaries, to join together for pursuit of social good or economic gains. For example, we have seen thousands of participants engage in the editing of Wikipedia, contributing their expertise to build a base of knowledge on the web. Charities, artists, and now even for-profit businesses are able to use crowdfunding to raise financial support for their endeavors. Prediction markets allow participants to forecast outcomes of future events, creating incentives for accuracy either through monetary rewards or reputational advantage. Crowdsourcing …

Fitting The Forum To The Pernicious Fuss: A Dispute System Design To Address Implicit Bias And 'Isms In The Workplace, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This paper proposes a dispute system design to address workplace discrimination caused by implicit biases so that employees and employers involved in such disputes can secure a more responsive justice than existing legal processes are able to provide. Workplace discrimination caused by implicit bias continues to contaminate our work environment despite our focused legal efforts to combat such overt "isms" as sexism, racism, ageism, and ableism. Although overt expressions of bias have significantly decreased in recent years, expressions of implicit bias, the primary cause of workplace discrimination, persists.

This paper extends the research on implicit bias to dispute system …

"Is That Me I See On The Tv?" An Analysis Of The O'Bannon Decision, Zachary S. Beal

Cardozo Arts & Entertainment Law Journal

No abstract provided.

An Empirical Analysis Of Noncompetition Clauses And Other Restrictive Postemployment Covenants, Randall S. Thomas, Norman Bishara, Kenneth Martin

Vanderbilt Law School Faculty Publications

Employment contracts for most employees are not publicly available, leaving researchers to speculate about whether they contain postemployment restrictions on employee mobility, and if so, what those provisions look like. Using a large sample of publicly available CEO employment contracts, we are able to examine these noncompetition covenants, including postemployment covenants not to compete ("CNCs" or "noncompetes'), nonsolicitation agreements ("NSAs"), and nondisclosure agreements ("NDAs'). What we found confirms some long-held assumptions about restrictive covenants but also uncovers some surprises.

We begin by discussing why employers use restrictive covenants and examining how the courts have treated them. We then analyze an …

My Coworker, My Enemy: Solidarity, Workplace Control, And The Class Politics Of Title Vii, Ahmed A. White

Publications

No abstract provided.