Labor and Employment Law Commons^™

Whistleblowing And Free Speech: Garcetti's Early Progeny And Shrinking Constitutional Rights Of Public Employees, J. Michael Mcguinness

Touro Law Review

No abstract provided.

Vol. 31, No. 2, Margaret Angelucci, Amanda Clark, Susan Matta

The Illinois Public Employee Relations Report

The Future of Public Sector Bargaining: One Decision to undo Them All, by Margaret Angelucci, Amanda Clark, and Susan Matta

Recent Developments

Access To Justice: Ensuring Equal Pay With The Paycheck Fairness Act, Deborah Thompson Eisenberg

Congressional Testimony

No abstract provided.

Employers As Risks, Amy B. Monahan

Chicago-Kent Law Review

In evaluating health and retirement security in the United States, much recent work has focused on shortcomings in individual decision making. For example, in explaining why 401(k) plans are suboptimal for achieving retirement security, a significant volume of literature has catalogued the mistakes individuals make when attempting to save for retirement through such plans. This article seeks to move the discussion of suboptimal decision making in a new direction, by focusing on the impact that employer decision making has on the ability of employees to achieve health and retirement security. The article argues that employer decision making regarding whether to …

Pre-Dispute Mandatory Arbitration In Employment Agreements, Bahareh (Bee) Moradi

Upper Level Writing Requirement Research Papers

No abstract provided.

How Lawyers Manage Intragroup Dissent, Scott L. Cummings

Chicago-Kent Law Review

This essay, adapted from the keynote speech for the conference, reflects upon how lawyers respond to dissent within social movements—over the goals of social change efforts and the means of pursuing them. Drawing upon case studies from the LGBT rights and labor contexts, it describes specific challenges to managing dissent within “top-down” and “bottom-up” lawyering models. From the top-down, it explores how lawyers in the California marriage equality movement addressed repeated legal challenges over litigation tactics. From the bottom-up, it describes how lawyers for a community-labor coalition dealt with competing conceptions of the public good in a campaign to stop …

Expanding The After-Acquired Evidence Defense To Include Post-Termination Misconduct, Holly G. Eubanks

Chicago-Kent Law Review

In 1995, the United States Supreme Court formulated the after-acquired evidence defense in employment discrimination litigation. The defense, if successfully established, allows the defendant to limit the damages available to the plaintiff. In order to assert the defense, a defendant must establish that it would have terminated the plaintiff based on after-acquired evidence of wrongdoing if the defendant had known of the wrongdoing prior to the termination. The defense, as generally accepted, applies to misconduct that occurs during employment and misconduct that occurs prior to employment in the application process. This note considers the potential expansion of the defense to …

Atwater V. Nflpa: Casting Doubt On The Effect Of Exculpatory Language In Collective Bargaining Agreements, Timothy L. Kianka

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Choices, Bias, And The Value Of The Paycheck Fairness Act: A Response Essay, Nicole Buonocore Porter

Faculty Publications

In the previous article written by Gary Siniscalco, Lauri Damrell, and Clara Morain Nabity [The Pay Gap, the Glass Ceiling, and Pay Bias: Moving Forward Fifty Years After the Equal Pay Act], the authors argue that the pay gap is not primarily caused by employer discrimination, but rather can be attributed to many factors, including the "glass ceiling" and choices made by women regarding occupation, caregiving, and commitment to the workforce. Thus, they argue that we should not place blame on employers and focus on the reach of anti-discrimination laws, and should instead acknowledge that there is a …

Finding A Fix For The Fmla: A New Perspective, A New Solution, Nicole Buonocore Porter

Faculty Publications

When the Family and Medical Leave Act ("FMLA") was enacted in 1993, it was considered landmark legislation.... Yet, despite the promise of the FMLA, by almost all accounts it has not achieved much.... Over the years, scholars have proposed many solutions to improve the FMLA.

[...]

In this article, I am taking a different perspective and proposing a reform that I have not seen proposed before. Of all of the problems with the FMLA, the one that gets the least attention is the frequency with which employees abuse their rights under the FMLA and the difficulty employers have administering the …

Women, Unions, And Negotiation, Nicole Buonocore Porter

Faculty Publications

In a period when union membership is at an all-time low (at least in the private sector), some (or perhaps many) people have given up hope that the labor movement can be revived. I believe that the labor movement still has the potential to be successful but needs to be re-imagined and reinvigorated. One way (among many) of doing this is to increase women's attachment to the labor movement. Now that women comprise nearly 47 percent of the workforce, it makes sense to have a concentrated effort to increase their union participation.

Not only will more women in unions increase …

Fishers Of Men: The Neglected Effects Of Environmental Depletion On Labor Trafficking In The Thai Fishing Industry, Joanna G. Sylwester

Washington International Law Journal

Migrant fishermen are left out. Both Thailand’s labor trafficking laws and anti-trafficking measures espoused by international bodies fail to effectively protect men coerced into working in Thailand’s fishing industry. Thailand is a prominent destination for human trafficking victims because of the country’s economic, social, and political conditions. The majority of trafficking victims identified within Thailand are migrants from Thailand’s neighbors—predominantly Myanmar (Burma)—who often escape from conditions of poverty or political persecution. Because of a high demand for Thai fish products and labor shortages in the fishing industry, the commercial fishing industry is a hotbed for labor trafficking. The Government of …

Tip-Pooling At Nevada Casinos—The Case At The Wynn And Why The Nevada State Gaming Control Board And Gaming Commission Should Set Strict Regulations On Tip-Pooling To Protect The Rights Of Dealers, Casinos, And The Reputation Of The Nevada Gaming Industry, Kandis Mcclure

UNLV Gaming Law Journal

No abstract provided.

Petition For A Writ Of Certiorari. Debord V. Mercy Health System Of Kansas, Inc., 134 S. Ct. 2664 (2014) (No. 13-1118), 2014 U.S. S. Ct. Briefs Lexis 1120, Eric Schnapper, Mark A. Buchanan

Court Briefs

QUESTION PRESENTED

Section 704(a) of Title VII of the Civil Rights Act of 1964 forbids an employer to retaliate against any employee because that worker "opposed" unlawful discrimination.

The question presented is:

Does section 704(a) prohibit retaliation against a worker because of the worker's statements:

(1) only when the statements are made to the worker's own employer or to federal or state anti-discrimination agencies (the rule in the Tenth and Fourth Circuits), or (2) also when the worker's statements are made to any other person (the rule in the First, Second, Third, Fifth, Sixth and Ninth Circuits)?

I’M The One Making The Money, Now Where’S My Cut? Revisiting The Student-Athlete As An “Employee” Under The National Labor Relations Act, John J. Leppler

Pace Intellectual Property, Sports & Entertainment Law Forum

This Article argues why the National Collegiate Athletic Association’s (NCAA) Big-Time Division I College Football and Men’s Basketball student-athletes are legally “employees” and why these student-athletes are inadequately compensated for their revenue-producing skills.

Part II of this Article sets forth the common law “right of control” test and the National Labor Relation Act’s (NLRA) special statutory test for students in a university setting, and shows how the National Labor Relations Board (NLRB) and the judiciary determine whether a particular person, specifically a university student, meets these standards and is legally an “employee”. Moreover, the NCAA asserts it does not have …

Neither Panacea, Placebo, Nor Poison: Examining The Rise Of Anti-Unemployment Discrimination Laws, Seth Katsuya Endo

Pace Law Review

Since 2009, the unemployment rate in the United States has remained above eight percent, which means that more than twelve million individuals have been looking for work at any given time. With so many affected individuals, unemployment has become an issue of public concern, particularly as stories describing employers refusing to consider currently unemployed candidates for job opportunities have proliferated. In response to these trends, about twenty states and the federal government have passed, or are considering, legislation designed to prohibit employers from discriminating against individuals based on their employment status.

The goal of this Article is to survey the …

Labor Law And The Race To The Bottom, Steven L. Willborn

Mercer Law Review

The overwhelming consensus in American legal scholarship is that races to the bottom are real, strong, and very threatening. Since 2001, about 85% of labor-law articles discussing race to the bottom have accepted it, most of them uncritically. Only a few articles have expressed skepticism.

The strength of this consensus is odd in a number of respects. First, in other, more empirically driven disciplines, the consensus cuts strongly in the opposite direction. Since 2001, 70% of the articles mentioning race to the bottom in economics and political science were skeptical of the claim, and, whether accepting or rejecting it, none …

The Analysis Of The Hcs Department's Injury And Illness Prevention Program, Matthew Evers

BioResource and Agricultural Engineering

The Horticulture and Crop Science department had created their own Injury and Illness Prevention Program (IIPP) which was placed online using Cal Poly’s “PolyLearn” module. The program had just been created and generally covered some of the basic IIPP elements required by CalOSHA law, however it had various points of improvement to fulfill all IIPP regulations. It was found that the program content was not in compliance with CalOSHA laws regarding hazard inspection, training, and record keeping, but through meetings with the various department staff, these areas were brought into compliance with CalOSHA requirements, or are expected to be …

What's So Reasonable About Reasonableness? Rejecting A Case Law-Centered Approach To Title Vii's Reasonable Belief Doctrine, Matthew W. Green Jr.

Law Faculty Articles and Essays

The article critiques recent application of the reasonable belief doctrine under Title VII of the Civil Rights Act of 1964. Title VII’s anti-retaliation provision, in pertinent part, provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice [under Title VII].” Literally read, the provision requires that an employee oppose a practice Title VII actually makes unlawful. If the employee does so and is retaliated against, the statute affords the employee relief. While the U.S. courts of appeals have …

Introduction: Democracy At Work, Ruben J. Garcia

Nevada Law Journal

No abstract provided.