Labor and Employment Law Commons^™

The Unsettled State Of Pregnancy Discrimination Claims Under The Florida Civil Rights Act Of 1992, Donna L. Eng

UF Law Faculty Publications

Florida's employment law practitioners are no doubt aware that employment discrimination actions may be brought under both Title VII of the Civil Rights Act of 1964 (Title VII), and under the Florida Civil Rights Act of 1992 (FCRA). Both sections contain similar verbiage, and for years, courts have held the Florida Civil Rights Act be interpreted in conformity with Title VII. However, the statutes differ in an important respect: While Title VII expressly forbids sex discrimination on the basis of pregnancy, the Florida Civil Rights Act of 1992 does not.

The Status Of Teachers Unions: Are Rumors Of Their Demise Exaggerated?, Charles J. Russo

Educational Leadership Faculty Publications

Recent legislation raised questions about the status of teachers unions and public-sector collective bargaining. Although the changes in Florida, Idaho, and Tennessee occurred with a minimum of disruption, the same was not true in Ohio and Wisconsin. Voters in Ohio repudiated a law that would have placed significant limits on the rights of public employees to bargain collectively (McNeil 2011a). Conversely, voters in Wisconsin defeated a recall election intended to remove the governor and legislators who acted to curtail the bargaining power of teachers unions (Stein 2012).

Organized labor and collective bargaining in education have grown to the point at …

Petition For A Writ Of Certiorari. Brush V. Sears Holding Corp., 568 U.S. 1143 (2013) (No. 12-268), 2013 U.S. Lexis 925, Eric W. Scharf, Wayne R. Atkins, Eric Schnapper, Brian D. Buckstein

Court Briefs

QUESTION PRESENTED

Section 704(a) of Title VII prohibits an employer from retaliating against an employee because he or she opposed discrimination forbidden by Title VII. The lower courts are divided as to how such anti-retaliation provisions apply to management officials, such as personnel or EEO officials, whose duties include assuring compliance with Title VII or implementing an employer’s anti-discrimination policy.

The question presented is: Are management officials: (1) subject to exclusion from protection under section 704(a) if their actions are within the scope of their official duties (the rule in the Fifth, Eighth, Tenth and Eleventh Circuits),
(2) protected under …

Zozal V. Israel Prison Service Commissioner, Esther Hayut, Miriam Naor, Uzi Vogelman, Salim Joubran, Eliezer Rivlin, Neal Hendel, Yoram Danziger

Translated Opinions

Facts: The petitioner began working at the Israel Prison Service (“the IPS”) in 1986. In April of 2009, two months after her fifty-seventh birthday, she was forced to retire. At this age, she was already six months past what was defined in the Civil Service Retirement Law, 5730-1970, as the “retirement age for IPS wardens.” According to the IPS procedures relating to IPS employees of her age and experience, her continued employment after that age was dependent on approval by the IPS Commissioner (following a recommendation made by an internal committee). Such extensions of employment past the “retirement age for …

Danbury Hatters In Sweden: An American Perspective Of Employer Remedies For Illegal Collective Actions, César F. Rosado Marzán, Margot Nikitas

All Faculty Scholarship

The European Court of Justice's ("ECJ") Laval quartet held that worker collective actions that impacted freedom of services and establishment in the E.U. violated E.U. law. After Laval, the Swedish Labor Court imposed exemplary or punitive damages on labor unions for violating E.U. law. These cases have generated critical discussions regarding not only the proper balance between markets and workers’ freedom of association, but also what should be the proper remedies for employers who suffer illegal actions by labor unions under E.U. law. While any reforms to rebalance fundamental freedoms as a result of the Laval quartet will have to …

Punishment And Work Law Compliance: Lessons From Chile, César F. Rosado Marzán

All Faculty Scholarship

Workplace law activists and reformers find it increasingly more difficult to obtain redress for violation of workers’ rights. Some of them are calling for stricter enforcement and tougher penalties to bring employers into compliance. However, after seven and half months of participant observation at the Labor Directorate and the labor courts of Chile, institutions that use punishment as their main tools of enforcement, I am skeptical about the likelihood of success of mere punishment for effective workplace law enforcement and compliance. I am skeptical even though Chile is a country recognized as the Latin American “jaguar” for its successful economy …

The Talent Agencies Act: Reconciling The Controversies Surrounding Lawyers, Managers, And Agents Participating In California's Entertainment Industry, Gary E. Devlin

Pepperdine Law Review

No abstract provided.

Medicating The Ada - Sutton V. United Airlines, Inc.: Considering Mitigating Measures To Define Disability, Ian D. Thompson

Pepperdine Law Review

No abstract provided.

Unpacking The Employee-Misconduct Defense, Sachin S. Pandya

Faculty Articles and Papers

When a worker sues an employer, the employer sometimes learns thereafter that the worker had committed some misconduct at the time of hire or while on the job. In those cases, most American work laws provide the employer with a defense that precludes employer liability, or at least limits remedies, if the employer shows that, had it known of the worker’s misconduct at the time of its allegedly wrongful act, it would have fired the worker because of that misconduct. This Article evaluates the prevailing arguments for and against the employee-misconduct defense as it appears in the National Labor Relations …

Vol. 29, No. 3, Tamara Cummings, John C. Kelly

The Illinois Public Employee Relations Report

Multi-Year Collective Bargaining Agreements and the AFSCME/ State of Illinois Dispute by Tamara Cummings and John H. Kelly

Recent Developments

Using The Resource-Based Theory To Determine Covenant Not To Compete Legitimacy, Norman D. Bishara, David Orozco Professor

Indiana Law Journal

This Article addresses the legitimacy of competing interests involved in the enforcement of covenants not to compete (“noncompetes”). To date, the courts and legislatures have not relied on a principled theoretical framework to identify and assess the competing interests between firms and individuals in this setting. This Article fills the research void by providing a theoretical framework that identifies the legitimacy of these competing claims. The framework integrates managerial research involving the resource-based theory of the firm and the knowledge-based perspective of competitive advantage with the legal analysis and enforcement of noncompete terms. A descriptive framework of the parties’ competing …

Description Of Supported Employment Practices, Cross-System Partnerships, And Funding Models Of Four Types Of State Agencies And Community Rehabilitation Providers, Kelly Haines, Joseph Marrone, John Halliday, Michael Tashjian, Martha Klemm, Susan Stoddard, Susan M. Foley

All Institute for Community Inclusion Publications

In 2005, the National Institute on Disability and Rehabilitation Research (NIDRR) awarded the VR Rehabilitation Research and Training Center (RRTC) to the Institute for Community Inclusion (ICI) at the University of Massachusetts Boston and its partners, InfoUse in Berkeley, California and the Center for the Advancement and Study of Disability Policy. In 2010, NIDRR provided supplemental funds to the ICI so that the VR-RRTC could include a focus on the provision of supported employment (SE) services. This SE research would focus on vocational rehabilitation (VR)agency partnerships with other state entities, and sources and models for long-term funding (extended services). The …

Labor And Employment, Patrick L. Coyle, Alexandra V. Garrison

Mercer Law Review

Courts within the Eleventh Circuit handed down a number of important opinions affecting labor and employment during the January 1, 2011 to December 31, 2011 survey period. The following is a discussion of those opinions.

Facebook Firings And Twitter Terminations: The National Labor Relations Act As A Limit On Retaliatory Discharge, Bryan Russell

Washington Journal of Law, Technology & Arts

In every state except Montana, at-will employment is the default rule, leaving employers free to discharge employees for their use of social media. The National Labor Relations Act’s (NLRA) protection of collective action, however, is emerging as a substantial limitation to at-will terminations. In Hispanics United of Buffalo, the National Labor Relations Board concluded that Facebook posts critical of the non-profit employer were protected as collective action and that the employer’s retaliatory termination of five employees violated Section 8 of the NLRA. To be protected as collective action under the NLRA, an employee’s use of social media must be …

A Model Of Responsive Workplace Law, David J. Doorey

Osgoode Hall Law Journal

The North American model of workplace law is broken, characterized by declining frequency of collective bargaining, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether the theory of “decentred regulation” offers useful insights into the challenge of improving compliance with employment standards laws. It argues that the dominant political perspective on workplace regulation today is managerialist. Politicians with a managerialist orientation reject both the pluralist idea that collective bargaining is always preferred and the neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers …

First Amendment Protection For Union Appeals To Consumers, Michael C. Harper

Faculty Scholarship

This article explains why decisions of the National Labor Relations Board under President Obama holding non-picketing secondary appeals to consumers not to be illegal under the National Labor Relations Act were necessary under a 1988 decision of the Supreme Court, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council. The article also explains why both the Supreme Court decision and the Board’s recent decisions were compelled by the first amendment and could not be based on the language of § 8(b)(4)(ii)(B) of the National Labor Relations Act as interpreted by the Court in other cases. The …

Leveling The Playing Field: Reforming The H-2b Program To Protect Guestworkers And U.S. Workers, Penn State Law Immigrants' Rights Clinic, National Guestworker Alliance

Center for Immigrants' Rights Clinic Publications

This report highlights cases of exploitation from Texas to Tennessee, and calls for four indispensible reforms that would end employer abuse and protect both guest workers and U.S. workers: (1) Guaranteeing guest workers the right to organize without fear of retaliation; (2) Prohibiting employers from using guest workers as cheap, exploitable alternatives to U.S. workers; (3) Eliminating debt servitude and other elements of human trafficking in the program; and (4) Subjecting employers to meaningful government enforcement and community oversight.

An Analysis Of The United States Employment Immigration System In Attracting And Retaining Skilled Workers And The Effects Of Its Dichotomous Objectives—Competitiveness Versus Protectionism: A Case For Reform?, Vignaswari Saminathan

Pace Law Review

The aim of this Article is to analyze the dichotomous objectives of U.S. immigration policy and to determine what recourse exists to improve the competitiveness of the U.S. immigration system and to ensure adequate protection for U.S. workers. Given that the H-1B visa, the temporary nonimmigrant visa category, has become a very important stepping stone to legal permanent residency, this Article will examine the developments and impact of the dichotomous measures within the context of the H-1B as well as the second employment-based preference category (EB-2) and the third employment-based preference category (EB-3). As such, Part II of this Article …

Private Resolution Of Public Disputes: Employment, Arbitration, And The Statutory Cause Of Action, Griffin Toronjo Pivateau

Pace Law Review

In this Article, I argue that arbitration agreements fall somewhere along the middle of the rights/contract continuum. My understanding of the nature of arbitration agreements relies on a previously existing area of employment law. There is a particular aspect of the employment relationship that, while open to contract, remains subject to constraints imposed by the law. A noncompete agreement permits an employee to contract with his employer to not work for a competitor following the termination of the employment relationship. This right to contract away the right to compete is, however, narrowly construed by the court system. A court may …

Continuing The White-Collar Unionization Movement: Imagining A Private Attorneys’ Union, Kimberly Y. Chin

Pace Law Review

Given the still-rebounding legal market and the secrecy that characterized the employment decisions at many of the nation’s top law firms during the height of attorney layoffs, this Article imagines the formation of private attorney labor unions as a possible solution. Part I briefly discusses the National Labor Relations Act of 1935, the primary piece of legislation that governs employees’ right to organize and collectively bargain, focusing primarily on who is covered with particular attention placed on the inclusion of professional employees. Part II introduces an understanding of white-collar professionals as a distinct economic class, highlighting specifically its similarities and …