Labor and Employment Law Commons^™

Teaching The Post-Sex Generation, Kerri Lynn Stone

Faculty Publications

There is a trend that I have observed in the course of leading my classes in discussions about the kinds of behavior that may constitute unlawful discrimination: the emergence of an attitude among students that society is simply “post-sex,” or no longer in need of most or all anti-sex discrimination jurisprudence. This Article details my own approach to teaching and to raising and conducting discussions about how anti-discrimination legislation and jurisprudence works in theory, in practice, and how it would/could work in an ideal world. I enjoy teaching students with a diversity of viewpoints. However, when I began to encounter …

The Collective Bargaining Chips Are Down: How Wisconsin’S Collective Bargaining Restrictions Place The U.S. In Violation Of International Labor Laws, Amanda Webster

University of Baltimore Journal of International Law

On the surface, the United States serves as an international advocate and supporter of the basic principles of the International Labor Organization, which are to promote social justice and human rights through globally humane working conditions. Yet, on a deeper level, there exists a strained and contradictory relationship between the U.S. and the ILO. Despite being the largest ILO member state and a principal policymaker, the U.S. continues to refrain from ratifying key international labor law treaties. This inaction enables U.S. state and federal bodies to enact and uphold legislation that directly violate existing international labor law obligations. U.S. laws …

Implausible Injuries: Wal-Mart V. Dukes And The Future Of Class Actions And Employment Discrimination Cases, Marcia L. Mccormick

All Faculty Scholarship

In 2001, a class action suit was brought against Wal-Mart, where plaintiffs sought to certify a class of every woman who did work for the giant retailer or had worked for it since 1998, seeking relief related to promotion and pay policies. Plaintiffs alleged that they were all discriminated against on the basis of sex. The Supreme Court agreed with Wal-Mart, finding that the class did not meet requirements for class actions set by Rule 23. This article explores the reasoning behind the Supreme Court’s split decision that the class did not meet the commonality standard, which relied significantly on …

The Roberts Court And The Law Of Human Resources, Matthew T. Bodie

All Faculty Scholarship

The rise of human resources departments parallels the increase in the myriad statutory and regulatory requirements that govern the workplace. The Supreme Court's decisions in labor and employment law cases are largely monitored and implemented by HR professionals who must carry out these directives on a daily basis. This article looks at the Roberts Court's labor and employment law cases through the lens of human resources. In adopting an approach that is solicitous towards HR departments and concerns, the Roberts Court reflects a willingness to empower these private institutional players. Even if labor and employment law scholars do not agree …

What Brady V. N.F.L. Teaches About The Devolution Of Labor Law, Michael C. Duff

All Faculty Scholarship

In this essay I argue that the Eight Circuit got things very wrong when it found, in Brady v. National Football League, that a district court’s injunctions issued against the NFL in connection with player-filed antitrust suits were barred by the Norris LaGuardia Act of 1932 (NLGA). I argue that the Court’s misreading of the NLGA strikes at the “statutory music” of labor law so dramatically as to represent a judicial unmooring from it. I chronicle other recent important, but relatively minor, judicial departures from the music. I also discuss a major but less recent departure – the employer lockout. …

Reimagining The Law Of Self-Employment: A Comparative Perspective, Jayesh Rathod, Michal Skapski

Scholarly Articles in Law Reviews & Journals

U.S. employment law has traditionally disfavored bright-line rules to distinguish between traditional “employees” and independent contractors, instead relying on more flexible criteria, to be applied on a case-by-case basis. This fluidity has enabled employers to structure these relationships – and the corresponding bundle of worker rights and benefits – in ways that serve their own material and normative interests. Indeed, recent employment law literature has noted a dramatic shift towards independent contracting and contingent worker schemes in the U.S., even when the actual workplace dynamics are more akin to an employer-employee relationship. These same trends are now visible on the …

A Supreme Court Ruling That's About Way More Than Preemption, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

What Marriage Equality Arguments Portend For Domestic Partner Employee Benefits, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Procedural Hurdles And Thwarted Efficiency: Immigration Relief In Wage And Hour Collective Actions, Llezlie Green

Scholarly Articles in Law Reviews & Journals

Wage theft and its frequent exploitative companions, trafficking and involuntary servitude, have seen substantial increases in recent years. Low-wage workers often bear the brunt of these practices. Vulnerable populations, such as immigrant workers, and more specifically, undocumented workers, experience wage theft and other forms of workplace-related exploitation at alarmingly high rates. Individual adjudications of these claims are neither efficient nor, in many cases, feasible, given attorneys’ aversion to shouldering the risks and costs in cases that may yield only limited attorneys’ fees. The collective adjudication of Fair Labor Standards Act (FLSA) claims, however, largely resolves these challenges and provides an …

Worker Cooperative Creation As Progressive Lawyering: Moving Beyond The One-Person, One-Vote Floor, Gowri Krishna

Articles & Chapters

Community Economic Development (CED) scholars posit that creating worker cooperatives, businesses owned and managed by their workers, is a progressive approach to CED that has the potential to go beyond job creation and spur grassroots political activism. Yet many workers’ rights organizations and workers’ rights advocates, especially those serving low-wage immigrant workers, struggle with how to connect worker cooperatives to broader efforts for change. This Article argues that forming a worker cooperative that acts as a change agent requires more than simply structuring the business as a worker cooperative. Cooperative corporation laws and cooperative principles set a floor — typically, …

The Employment And Economic Advancement Of African-Americans In The Twentieth Century, Kenneth G. Dau-Schmidt, Ryland Sherman

Articles by Maurer Faculty

In this article we examine the progress of African–Americans in the American labour market over the course of the twentieth century. We trace their progress as African-Americans moved from low-skill low-wage jobs in southern agriculture to a panoply of jobs including high-skill, high-wage jobs in industries and occupations across the country.We also document the migrations and improvements in educational achievement that have made this progress possible. We examine the progress yet to be made and especially the problems of lack of education and incarceration suffered by African–American males. Finally, we examine the importance of anti-discrimination laws and affirmative action in …

Gilbert Redux: The Interaction Of The Pregnancy Discrimination Act And The Amended Americans With Disabilities Act, Deborah Widiss

Articles by Maurer Faculty

Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, some courts permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities …

Promises To Keep: Ensuring The Payment Of Americans' Pension Benefits In The Wake Of The Great Recession, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

In this essay, I examine the problem of designing a pension plan within the context of our larger public policy of encouraging workers to save for retirement. I discuss the various problems and risks inherent in encouraging workers to adequately save for retirement, invest those assets efficiently, and ensure the planned level of retirement consumption for the remainder of their lives. I also discuss the three major types of pension plans in the American retirement system, defined benefit, defined contribution, and hybrid, and assess how well each of these types of plans deals with the problems encountered in designing a …

Community Syndicalism For The United States: Democratic Production In Resisting Hegemonic Globalization And Law, Kenneth M. Casebeer

Articles

No abstract provided.

Federal Labor Law And The Mashantucket Pequot: Union Organizing At Foxwoods Casino, Derek Ghan

American Indian Law Review

No abstract provided.

Enforceability Of Choice-Of-Law Clauses In The Context Of Misclassification Litigation: Bridging The Gap Between Worker And Employer, Koleen S. Sullivan

Georgia Law Review

Picture this: a California resident working in California
files suit against the employer for allegedly misclassifying
the worker as an independent contractor instead of an
employee. The employer is headquartered in Georgia and
the worker has signed an employment contract including a
choice-of-law clause selecting Georgia law. Does Georgia
law apply? If the language of the clause is broad enough
to include a misclassification claim, perhaps. What if the
application of Georgia law violates California public
policy? The answer to this is almost assuredly a
resounding "no." But should Georgia law apply?
This Note argues that it should, under the …

Decertifying Players Unions: Lessons From The Nfl And Nba Lockouts Of 2011, Nathaniel Grow

Vanderbilt Journal of Entertainment & Technology Law

This Article analyzes the National Football League (NFL) and National Basketball Association (NBA) lockouts of 2011, focusing in particular on the role union dissolution played in each work stoppage. Although the existing academic literature had generally concluded that players unions in the four major US professional sports leagues were unlikely to disband during a labor dispute, the unions in both the NFL and NBA elected to dissolve in response to lockouts by ownership. This Article provides an explanation for why the prior literature misjudged the role that union dissolution would play during the 2011 work stoppages. It argues that previous …

The Cost Of Non-Compensable Workplace Harm, Henry L. Chambers Jr.

Law Faculty Publications

This essay briefly addresses the limited fashion in which Title VII remedies sex discrimination in the workplace. Those limitations fall into three broad categories. The first encompasses how courts have applied procedural rules to Title VII claims. The second involves Title VII's explicit limitation on its coverage. The third includes substantive limitations that courts have placed on causes of action that are clearly covered by Title VII. This essay addresses those categories in turn.

Collective Representation Of Workers In The United States: Evolution Of Legal Regimes Concerning Collective Autonomy And Freedom Of Association, Barbara J. Fick

Journal Articles

The United States Constitution does not directly address the collective representation of workers. The First Amendment right to freedom of association has, however, been interpreted to protect the right of individuals to form and join trade unions. This Article discusses the evolution of legal regimes concerning collective autonomy and freedom of association within the United States.

Title Ix’S Protections For Transgender Student Athletes, Scott Skinner-Thompson, Ilona M. Turner

Publications

This article examines legal authority and policy to determine whether transgender students in K-12 schools must be permitted to participate in athletics according to their gender identity, and without any requirement for medical intervention. The articles concludes that such a policy is consistent with legal authority under Title IX and Title VII and, more importantly, best advances the well-being of already vulnerable transgender youth by helping to incorporate and include such students in activities that are critical to physical, social, mental, emotional development, and health.

Part II of this article briefly details the history of Title IX with respect to …