Labor and Employment Law Commons^™

Employee Self-Representation And The Law In The United States, Matthew W. Finkin

Osgoode Hall Law Journal

Collective representation has been a legal focal point in the United States for nearly a century. Little attention has been paid to the law in the obverse situation: individual self-representation. This essay explores how, on some issues, the law supports a regime of individual bargaining while, on others, is antithetical to it. In other words, US law is incoherent on the matter. By reference to law in Australia and New Zealand, this paper argues that more legal space can be created for employees to represent themselves.

Workplace Voice And Civic Engagement: What Theory And Data Tell Us About Unions And Their Relationship To The Democratic Process, Alex Bryson, Rafael Gomez, Tobias Kretschmer, Paul Willman

Osgoode Hall Law Journal

We offer an explanation for the phenomenon of declining democratic engagement by assuming that what happens at work is the primary driver of what occurs outside of the workplace. If workers are exposed to the formalities of collective bargaining and union representation, they also perhaps increase their attachment to, and willingness to participate in, structures of democratic governance outside of the workplace as well. In order for this argument to hold, one first needs to test whether individual union members are more prone to vote and participate in civil society than non-members: other research refers to this as the union …

What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson

University of Michigan Journal of Law Reform

This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class …

Solving The Problem From Hell: Tripartism As A Strategy For Addressing Labour Standards Non-Compliance In The United States, Janice Fine

Osgoode Hall Law Journal

The crises of wage theft and industrial accidents in low-wage America reflect erosion of the social contract but they also reflect a crisis in labour standards enforcement. This article draws upon archival material, case studies, and interviews to make the case for tripartism—an enforcement regime that partners workers’ organizations with government inspectors to patrol workers’ industries and labour markets for unfair competition. It extends to the federal level previous work in which Jennifer Gordon and i have documented dynamic contemporary examples of tripartism at the state and local levels. The article explores historical precedents for tripartist collaboration on the federal …

A Dilemma Of Doctrinal Design: Rights, Identity And The Work-Family Conflict, Lauren Sudeall

Vanderbilt Law School Faculty Publications

This symposium article suggests that with regard to the work-family conflict, we may have exhausted doctrine’s potential in setting a constitutional foundation for women to be treated as equals in the workplace and requiring that they not be discriminated against in the event that they decide to start a family. For purposes of this piece, those accomplishments constitute the first phase or “first generation” of progress. This article is concerned with how doctrine relates to “second generation” issues arising from the work-family conflict: how to balance work and family once some initial level of equality has been achieved; how to …

Attacks On Public-Sector Bargaining As Attacks On Employee Voice: A (Partial) Defence Of The Wagner Act Model, Joseph Slater

Osgoode Hall Law Journal

The attacks on public-sector union rights in the United States that began in 2011 are one of the most important developments in labour law in recent memory. These events shed light on employee voice issues, and on the continuing viability of the “Wagner Act” model. While declining union density rates in the private sector have prompted some to question this model, high-density rates in the public sector show that unions can flourish under it. This article gives an overview of public-sector unions in the US and summarizes the recent attacks on their rights. It then addresses rulings in both Missouri …

After Dothard: Female Correctional Workers And The Challenge To Employment Law, Brenda V. Smith, Melissa C. Loomis

Scholarly Articles in Law Reviews & Journals

This article examines a profession where women have made great strides - corrections. Using an equality framework, corrections and other non-traditional professions were the first target of the feminist movement in the 1970s. By and large, feminists were successful in creating greater porosity for women in law enforcement, emergency services, corrections, and the military. While women have entered these traditionally masculine spaces, they still suffer from an achievement gap. They are still underrepresented in leadership positions and marginalized in these settings; are still the targets of discrimination based on race, gender, and perceived sexual orientation; and are less likely than …

Union Dues In The Public Sector: Legislative Changes And Legal Challenges, Ann C. Hodges

Law Faculty Publications

The economic crisis that began in 2008 led many states and localities to look for ways to reduce labor costs, which form a substantial portion of government budgets. Some state legislatures focused on collective bargaining laws, with Wisconsin being the most high profile example. Along with the restrictions on bargaining, a number of states moved to limit the collection of union dues. The limitations were not across the board, but primarily directed at either political expenditures of unions or at particular unions, most commonly education unions. Not surprisingly, the laws enacted were immediately subjected to legal challenge sinceunions, like every …

Play Ball: What Can Be Done To Prevent Strikes And Lockouts In Professional Sports And Keep The Stadium Lights On, Alexandra Baumann

Journal of the National Association of Administrative Law Judiciary

This comment analyzes the role that the National Labor Relations Board and the Federal Mediation and Conciliation Service play in ending strikes and lockouts caused by collective bargaining in professional sports. It then looks at what can be done to prevent lockouts and strikes in the future, which would not only benefit fans, but also stadium employees, players, and owners, as none of them make money if there are no games.

Grinding Decline In Springfield: Is The Finance Control Board The Answer?, Robert Forrant

New England Journal of Public Policy

Springfield, Massachusetts, the Bay State’s third largest city, suffered staggering manufacturing job loss over the last thirty years of the twentieth century. In 2004, the financial impact of job loss, coupled with dubious fiscal management, plunged the city into near bankruptcy. In response, state government passed legislation appointing a Finance Control Board to manage city business. Wage freezes for City workers were continued and cuts in numerous essential services occurred to deal with the debt. But the question remains, can a Control Board approach grow a large stock of well-paying jobs — large enough to grow the city’s and the …

A Survey Of Recent Employment Disputes Of Educators Engaged In Serving English Language Learners, Scott Ellis Ferrin

Brigham Young University Education and Law Journal

No abstract provided.

The Lesson Of The 2011 Nfl And Nba Lockouts: Why Courts Should Not Immediately Recognize Players' Union Disclaimers Of Representation, Ross Siler

Washington Law Review

The NFL and NBA lockouts of 2011 challenged the limits of the balance courts have struck between collective bargaining protections and antitrust liability. In each lockout, the respective players’ union argued that the bargaining relationship with team owners ended once the union disclaimed interest in continuing as its players’ bargaining representative. The players further argued that with the bargaining relationship terminated, the nonstatutory labor exemption no longer shielded owners from antitrust liability for their cooperative agreements and activity. Ultimately, both lockouts settled without courts deciding whether a disclaimer of representation marks what the Supreme Court has described as an “extreme …

Rif’D Off: The Denial Of Education Opportunities Through Seniority-Based Layoff Policies And The Judiciary’S Role In Reform, Amy Conant

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Narrative Pluralism And Doctrinal Incoherence In Hosanna-Tabor, Frederick Mark Gedicks

Mercer Law Review

The federal laws prohibiting employment discrimination are among the most important statutes ever enacted. They constitute the most significant federal commitment to eradication of the unjustified discrimination in the economic sector that has persisted since Reconstruction. The laws nevertheless did not address one significant issue: whether and how anti-discrimination norms should apply to ministers and other religious leaders employed by churches and other religious congregations.

The laws are not wholly silent, to be sure. They allow religious groups to discriminate in favor of members of their own religion when they hire leaders, thus avoiding (what we might hope are) hypothetical …

The Supreme Court's Interpretation Of The Fair Labor Standards Act's Anti-Retaliation Provision In Kasten V. Saint- Gobain Performance Plastics Corporation: Putting Policy Over Plain Language?, Lawrence D. Rosenthal

Mercer Law Review

Similar to statutes such as Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), all of which contain anti-retaliation provisions, the Fair Labor Standards Act (FLSA), which protects employees with respect to wages and hours, also contains such provision. Unfortunately, not all of these provisions are identical, which has led courts to interpret them differently, granting more protection under some provisions and less protection under others. ...

This Article will examine the FLSA's anti-retaliation provision, and it will focus on whether its language covers …

Policeman, Citizen, Or Both? A Civilian Analogue Exception To Garcetti V. Ceballos, Caroline A. Flynn

Michigan Law Review

The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee's speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke "pursuant to her official duties," her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely "as a citizen" and not at all "as an employee." But this is a false dichotomy - especially because the value of the employee's speech to the public is no less if she …

Notification Of Employee Rights Under The National Labor Relations Act: A Turning Point For The National Labor Relations Board, Amanda L. Ireland

Nevada Law Journal

No abstract provided.

Thoughts On The Latest Battles Over Erisa's Remedies, Brendan S. Maher

Faculty Scholarship

It is extraordinarily unlikely that the drafters of ERISA foresaw the effect the statute would have on federal courts and American economic life. It was originally conceived as a "pension bill of rights" designed to ensure that workers received the fixed monthly pension payment (based on tenure and average salary) that they had been promised. It grew, however, into the most litigated statute in the United States Code; to govern increasingly popular individual retirement savings accounts, e.g., 401(k) accounts;4 to be the central statute regulating employment based health insurance, which covers over one hundred and sixty million people; to be …

Ohio Sb5 And The Attempt To “Yeshiva” Public University Faculty, Mary Ellen Benedict, Louis M. Benedict

Journal of Collective Bargaining in the Academy

In 2011, the introduction of Ohio Senate Bill 5 (SB5) attempted to drastically curtail public sector collective bargaining in Ohio. The bill included a proposed amendment designed by the Inter-University Council of Ohio, an organization of the top administrators of the state universities in Ohio, under the guise of applying the United States Supreme Court’s decision in NLRB v. Yeshiva to faculty at Ohio’s public universities. The avowed intent of the proposed language was to classify all faculty as supervisors or managers and thereby make them ineligible to bargain collectively. After mounting opposition and grass roots efforts, SB5 was ultimately …

It's All About The Power, James Castagnera

Journal of Collective Bargaining in the Academy

No abstract provided.