Labor and Employment Law Commons^™

Outsiders Looking In: Advancing The Immigrant Worker Movement Through Strategic Mainstreaming, Jennifer J. Lee

Utah Law Review

The immigrant worker movement faces the age-old problem of social movements: whether change should be pursued from the inside or outside. Shaped by dominant cultural norms, the current legal framework generally disadvantages immigrant workers. They suffer from workplace exploitation, anti-immigrant hostility, and exclusion. By examining the interplay between law and culture, this Article offers a unique perspective on how immigrant workers have the power to change law through cultural narratives.

Change pursued from the inside by immigrant workers, community advocates, and public interest attorneys has more immediately provided positive results for immigrant workers. They have done so by mainstreaming immigrant …

A Failure To Supervise: How The Bureaucracy And The Courts Abandoned Their Intended Roles Under Erisa, Lauren R. Roth

Pace Law Review

This Article addresses how courts failed to adequately supervise employers administering pension plans before ERISA. Relying on a number of different legal theories—from an initial theory that pensions were gratuities offered by employers to the recognition that pension promises could create contractual rights—the courts repeatedly found ways to allow employers to promise much and provide little to workers expecting retirement security. In Section III, this Article addresses how Congress failed to create an effective structure for strong bureaucratic enforcement and the bureaucratic agencies with enforcement responsibilities failed to fulfill those functions. Finally, in Section IV, this Article discusses how the …

Vol. 31, No. 3, Eric Madiar

The Illinois Public Employee Relations Report

Illinois Public Pension Reform: What's Past is Prologue, by Eric Madiar

Recent Developments

Raising The Floor Of Company Conduct: Deriving Public Policy From The Constitution In An Employment-At-Will Arena, Steven J. Mulroy, Amy H. Moorman

Florida State University Law Review

No abstract provided.

Employment Arbitration At The Crossroads: An Assessment And Call For Action, Stephen L. Hayford, Jamie Darin Prenkert, Anjanette H. Raymond

Journal of Dispute Resolution

Arbitration agreements must be on equal footing with all types of contracts. This stark reality demands that the various stakeholders in the arbitration community converge in the interest of designing and institutionalizing arbitration mechanics and processes that, as a start, exceed the minimum requirements to avoid arguments of substantive unconscionability and, more broadly, provide the fair, just, and accountable alternative dispute resolution system the FAA and the U.S. Supreme Court have indicated it can be. This paper seeks to guide this next stage of the debate by first reviewing the doctrinal developments over the past thirty years that led to …

Restoring Our Children's Future: Ending Disparate School Discipline Through Restorative Justice Practices, Kaeanna Wood

Journal of Dispute Resolution

This note opens the discussion on disparate school discipline with a case harboring egregious facts, then goes on to explore the history of zero-tolerance policies as the primary method of school discipline, federal civil rights laws prohibiting discrimination based on race in school discipline, and the rise of restorative practices as a means of school discipline. In conclusion, this note argues that in implementing restorative justice practices as an alternative dispute resolution method, schools can end a pattern of disproportionately disciplining African American and Hispanic students and create an environment that fosters success for all children.

Labor And Employment, Brooks Allan Suttle, Kandis Wood Jackson

Mercer Law Review

There were a number of important decisions in the labor and employment law arena handed down by courts within the Eleventh Circuit during the January 1, 2013 to December 31, 2013 survey period. The following is a discussion of the most significant of those opinions.

Making The Machine Work: Technocratic Engineering Of Rights For Domestic Workers At The International Labour Organization, Leila Kawar

Indiana Journal of Global Legal Studies

In September 2013, the International Labour Organization (ILO) Convention concerning decent work for domestic workers entered into force, thereby bringing domestic workers into the mainstream of labor law. This article explores how the interests of the ILO's constituents were shaken up and reconfigured to build support for new labor protections amidst the shifting global context of deregulation. I argue that technocratic devices-charts, questionnaires, and paragraph formatting-wielded by ILO insiders contributed to this development by creating epistemic space for this new category of employees to be recognized and for consensus to be secured on appropriate labor standards for this group. I …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

Following a relatively quiet and uneventful 2012 survey period, the United States Supreme Court stepped up its activity significantly in the area of employment discrimination during the 2013 survey period. The Supreme Court handed down several significant rulings. In University of Texas Southwestern Medical Center v. Nassar, the Court established a "but-for" rule of causation for purposes of Title VII retaliation cases. In Vance v. Ball State University, the Supreme Court determined the parameters of who qualifies as a "supervisor" for purposes of establishing vicarious liability in workplace harassment actions under Title VII.

At the circuit level, the …

An Emerging Liability: Managing Flsa Exposure From Internship Programs In The Private Sector, Chris J. Perniciaro

Mercer Law Review

According to the Wage and Hour Division (WHD) of the Department of Labor (DOL), unpaid internships in private for-profit businesses are illegal under the Fair Labor Standards Act (FLSA or the Act) except for very narrow circumstances. Consistent with the WHD's position, civil litigation against employers providing unpaid internships has significantly increased via the private right of action contained in the statute. Over twenty lawsuits have been filed by unpaid interns alleging violations of federal and state minimum wage laws. A major force behind these new lawsuits is Glatt v. Fox Searchlight Pictures Inc., a June 2013 decision from …

Systematic Ict Surveillance By Employers: Are Your Personal Activities Private?, Arlene J. Nicholas

Faculty and Staff - Articles & Papers

This paper reviews the various methods of information and communications technology (ICT) that is used by employers to peer into the work lives and, in some cases, private lives of employees. Some of the most common methods – such as computer and Internet monitoring, video surveillance, and global positioning systems (GPS) – have resulted in employee disciplines that have been challenged in courts. This paper provides background information on United States (U.S.) laws and court cases which, in this age of easily accessible information, mostly support the employer. Assessments regarding regulations and policies, which will need to be continually updated …

Bottom-Up Workplace Law Enforcement, Charlotte S. Alexander, Arthi Prasad

Indiana Law Journal

This Article presents an original analysis of newly available data from a landmark survey of 4387 low-wage, front-line workers in the three largest U.S. cities. We analyze data on worker claims, retaliation, and legal knowledge to investigate what we call “bottom-up” workplace law enforcement, or the reliance of many labor and employment statutes on workers themselves to enforce their rights. We conclude that bottom-up workplace law enforcement may fail to protect the workers who are most vulnerable to workplace rights violations, as they often lack the legal knowledge and incentives to complain that are prerequisites for enforcement activity.

"Horton And The Who": Determining Who Is Affected By The Emerging Statutory Battle Between The Faa And Federal Labor Law, James R. Montgomery

Journal of Dispute Resolution

In the early 20th century, social changes brought about a system designed to protect employees. As part of the American system of labor laws, workers are given certain rights to proceed collectively, to "band together," and to proceed as a unit. Labor laws were first enacted in the United States during a period of Supreme Court jurisprudence that granted a broad array of powers to corporations, in the form of "liberty of contract." Justice Holmes dissented in Lochner v. New York, and planted a seed in his opinion that would later go on to support the idea behind federal labor …

Willingness To Accept Equals Willingness To Pay For Labor Market Estimates Of The Value Of Statistical Life, W. Kip Viscusi, Thomas J. Kniesner, James P. Ziliak

Vanderbilt Law School Faculty Publications

Our research clarifies the conceptual linkages among willingness to pay for additional safety, willingness to accept less safety, and the value of a statistical life (VSL). We present econometric estimates using panel data to analyze the VSL levels associated with job changes that may affect the worker’s exposure to fatal injury risks. Our baseline VSL estimates are $7.7 million and $8.3 million (Y$2001). There is no statistically significant divergence between willingness-to-accept VSL estimates associated with wage increases for greater risks and willingness-to-pay VSL estimates as reflected in wage changes for decreases in risk. Our focal result contrasts with the literature …

Operation Arbitration: Privatizing Medical Malpractice Claims, Myriam E. Gilles

Articles

Binding arbitration is generally less available in tort suits than in contract suits because most tort plaintiffs do not have a pre-dispute contract with the defendant, and are unlikely to consent to arbitration after the occurrence of an unforeseen injury. But the Federal Arbitration Act applies to all "contract[s] evincing a transaction involving commerce, " including contracts for healthcare and medical services. Given the broad trend towards arbitration in nearly every other business-to-consumer industry, coupled with some rollbacks in tort reform measures that have traditionally favored medical professionals in the judicial system, it is very possible that we may witness …

Breastfeeding And A New Type Of Employment Law, Marcy Karin, Robin Runge

Catholic University Law Review

No abstract provided.

Preserving The Sanctity Of Collective Bargaining: The Compensability Of Travel Time Following Flsa Section 203(O) Donning And Doffing Activity, Nicholas Hart

Catholic University Law Review

No abstract provided.

Same Sex Marriage In A Post-Perry And Windsor America, Kathryn L. Moore, Allison I. Connelly, Ross T. Ewing

Law Faculty Scholarly Articles

These materials accompanied a presentation at the 2014 Kentucky Bar Association Annual Convention entitled Same Sex Marriage in a Post-Perry and Windsor America. The focus of this presentation was on: the legal landscape following major LGBTQ civil rights cases; how these cases would impact families in Kentucky; and any employment or retirement issues.

Federalism And Business Decisions In The October 2005 Term, Carter G. Phillips

Touro Law Review

No abstract provided.

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981, Eileen Kaufman

Touro Law Review

No abstract provided.