Labor and Employment Law Commons^™

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Temporary/Forever: The Fissured Economy, Obstacles To Employment, And Regulating The Future Of Exploitation In Temp Work, Kevin Herrera

Loyola University Chicago Law Journal

Among workers in United States, contingent and temporary work arrangements have grown to represent a substantial segment of available jobs, with spikes in their predominance corresponding to major economic shake ups like the Great Recession and the COVID-19 pandemic. These arrangements are part of a larger trend of the “fissuring” of United States employment, wherein applicants are hired by one company and then sent to do their job at another, obscuring who actually employs the worker. Jobs through temp staffing agencies are a particularly dominant form of fissuring among low-wage workers and create conditions under which accountability for workplace abuses …

Liability, Property, And Inalienability Rules In Employee Data Regulation, Matthew T. Bodie

Articles

Legal protections for workers’ data have usually taken the form of privacy protections designed to deter data processing that is excessive or invasive. Such protections generally fall into the category of liability rules, under which rights can be infringed as long as compensation is provided for the violation. As Guido Calabresi and A. Douglas Melamed have described in “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” liability rules are contrasted with either property rules that prevent the involuntary transfer of rights or inalienability rules that prohibit rights transfers altogether. This article explores how property rules and inalienability …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

The Working Student Problem: Why Unpaid Interns In The Kentucky Equine Industry Need Greater Statutory Protection, Sarah Turri

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

In this note, Sarah Turri explores how working students in Kentucky’s equine industry are treated like unpaid interns, working long hours for little or no pay. She explains that this leaves them without minimum wage or civil rights protections and worsens inequality in the equestrian sport. Turri argues for extending statutory protections to working students and proposes that Kentucky follow other states in safeguarding these vulnerable workers.

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Employment And Identity, Matthew T. Bodie

Articles

Work shapes our identities, and our identities shape our work. The tension between personal identity and work identity drives popular culture, as seen in shows like Severance and The Bear, and it frames our conceptions about who we are and what gives our lives meaning. In many respects the law has assumed a clear separation between work lives and personal lives, divvying up control and responsibility over these realms on that basis. But the divide, never absolute, has blurred considerably through technological change, legal developments, and social expectations, resulting in a more pervasive employer presence in both our workspaces and …

Genetic Privacy, Ifeoma Ajunwa, Forrest Briscoe

Indiana Law Journal

The last decade has brought many technological advances to genetic testing. Increasingly, genetic testing, which was previously reserved for clinical or medical settings, has made its way to other spaces. Most significantly, we are now seeing the re-introduction of genetic testing to the workplace. Although the Genetic Information Nondiscrimination Act (GINA), which became law in 2009, would seemingly prohibit genetic testing in the workplace, genetic testing, as part of workplace wellness programs, is lawful under the aegis of the Affordable Care Act (ACA). This poses a threat to genetic privacy in the workplace. While some, like the actor Angelina Jolie, …

In Search Of A Sea-Life Balance In An Adverse Environment : Understanding Seafarers' Life, Work And Turnover, Bikram Singh Bhatia, Raphael Baumler, Maria Carrera-Arce

Reports

The Officers’ Union of International Seamen (OUIS) commissioned the World Maritime University (WMU) to conduct the Work & Health Balance at Sea (WHEAB) project to examine some dimensions of seafarers’ working lives.

Building on exploratory interviews, a survey was designed and administered. The current report presents findings on work patterns (onboard and home periods), working hours, work-related stress, safety management system, shore leave, mental well-being, and career intention.

The survey gathered responses from 4,372 seafarers, mainly from India (n=1,098; 25.1%), the Philippines (n=690; 15.8%), the United States (U.S.) (n=501; 11.5%), and other worldwide regions (n=2,083; 47.6%). The overrepresentation of U.S. …

The History Of Policing And The Impact On Minority Communities: The Case Against Police Abolition, F. Lee Francis

MC Law Review

This article critically examines the implications of former FBI Director James Comey’s assertions regarding the rise in violent crime and the phenomenon known as “The Ferguson Effect,” which posits that law enforcement officers are increasingly hesitant to engage in proactive policing due to fear of public backlash and viral scrutiny. Comey’s comments, made in a 2015 speech, sparked significant debate about the psychological impact of heightened scrutiny on police behavior and the potential consequences for public safety.

Through a multi-part analysis, the article first traces the historical development of policing in ancient civilizations and its evolution in the United States …

Right Not To Work: Unions And Title Vii, Seth C. Oranburg

Law Faculty Scholarship

This article explores how Title VII's mandate for religious accommodation conflicts with union seniority rights, as revealed in Groff v. DeJoy. It argues that labor unions often oppose Sabbath accommodations not out of hostility to religion, but to protect bargained-for entitlements. The piece highlights a growing legal tension: whether co-worker burdens count as “undue hardship” under Title VII—a question with major implications for religious liberty in unionized workplaces.

Employment Law Reform From A Contracts Perspective, Rachel Arnow-Richman

UF Law Faculty Publications

For most of history, pro-worker legal reform has meant legislative action. By contrast, this Essay, prepared for the 75th Annual NYU Conference on Labor & Employment Law, looks to contract law as the source and site of progressive change.

This may seem odd. Contract has primarily been a tool of management. Terms set by the “parties” to an employment relationship, are likely to be those imposed by the employer. Yet contract law is essential to employment law reform. Protective legislation is incremental and discrete. Beyond its provisions, the employment relationship is defined entirely by private ordering. The day-to-day experience of …