Virtual Whistleblowing,
2012
Saint Louis University School of Law
Virtual Whistleblowing, Miriam A. Cherry
All Faculty Scholarship
With the advent of YouTube, blogs, social networking, and whistleblower websites such as WikiLeaks, the paradigm of whistleblowing is changing. The new paradigm for “virtual whistleblowing” is increasingly online, networked, and anonymous. While whistleblowing can take place in many contexts, this symposium article concentrates on the impact of technological changes on employment law whistleblowing. My contention for some time has been that existing regulation has been inadequate to cover existing forms of whistleblowing. Therefore, it is not surprising that existing whistleblowing laws have also failed to keep pace with the changes brought by modern technology. If older laws cannot be …
Fixing Section 409a: Legislative And Administrative Options,
2012
University of Georgia School of Law
Fixing Section 409a: Legislative And Administrative Options, Gregg D. Polsky
Scholarly Works
This symposium contribution to the Villanova Law Review describes the legislative calamity that is section 409A of the Internal Revenue Code. Section 409A manages, all at once, to (i) fail to better neutralize the tax treatment of deferred compensation with that of current compensation, (ii) impose significant compliance costs on sophisticated taxpayers, and (iii) provide a dangerous trap for unsophisticated taxpayers.
Ideally, Congress should repeal section 409A and replace it with a system that taxes deferred compensation more neutrally vis-a-vis current compensation. Failing that, Congress should either replace section 409A with a broad grant of authority to the Treasury and …
Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law,
2012
Florida International University College of Law
Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone
Faculty Publications
This Article traces the genesis of this misguided doctrine, its proliferation, and it’s many flaws. It explains what the doctrine has come to mean and which facets of a comment can render it “stray” as a matter of law. Part II evaluates this unwieldy and untenable doctrine and its haphazard and misguided application over the past two decades. Specifically, it was never intended to be a formal doctrine. As employed by courts, the term “stray” means too many things and is too ambiguous for the doctrine to be coherent or effective. Moreover, courts ascribe varying degrees of significance to the …
Islamic Law Meets Erisa: How America's Private Pension System Unintentionally Discriminates Against Muslims And What To Do About It,
2012
Vanderbilt University Law School
Islamic Law Meets Erisa: How America's Private Pension System Unintentionally Discriminates Against Muslims And What To Do About It, Beverly I. Moran
Vanderbilt Law School Faculty Publications
This article asks whether Muslims whose religious beliefs prevent investment in their employers’ private pension plans have a right to religious accommodation. This is a real issue for a growing part of the population whose spiritual lives are governed by rules that prohibit the giving or taking of interest. As one might expect, the investments available through most American pension plans involve some aspect of interest making those investments unsuitable retirement vehicles for devote Muslims. Consequently, in order to secure their retirement income, Muslims are faced with either violating their religious beliefs, losing years of investment opportunity as they wait …
Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim,
2012
University of Colorado Law School
Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin
Publications
This Article provides an historically-rooted analysis of a recent spate of civil RICO complaints arising from labor union organizing campaigns. The Article historicizes contemporary civil RICO suits against labor unions by analogizing to nineteenth century conspiracy prosecutions of unions. In tracing this history of organized labor’s social standing, the Article addresses the cultural framing of the union and its place in political and cultural discourse over the past century. The civil RICO complaints have received limited scholarly attention mainly focusing on issues of federal preemption; this Article argues for a broad reading of the cases as a way to understand …
Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry,
2012
University of Colorado Law School
Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin
Publications
This Article challenges the corporate-constructed image of American business and industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and doctrinal corporate law, this Article examines the ways that social and legal actors understand what it means for a corporation or its products to be American. In a global economy, what does it mean for a corporation to present the impression of national citizenship? Considering the recent bailout of American automotive corporations, the automotive industry today becomes a powerful vehicle for problematizing the conflicted public/private nature of the corporate …
Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers,
2012
University of Colorado Law School
Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers, Ming H. Chen
Publications
This Article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies incorporate immigrants into labor law enforcement in accordance with the agencies' professional ethos and organizational mandates. Building on Miles' Law that "where you stand depends on where you sit," this Article argues that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose …
The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules,
2012
University of Colorado Law School
The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan
Publications
Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs' class certification motion. But for certain employment rights cases--mainly wage claims but also age discrimination and gender equal pay claims--29 U.S. C. § 216(b) allows not class actions but "collective actions" covering just those opting in affirmatively. Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion proving …
The Moral Dimension Of Employment Dispute Resolution,
2012
University of Michigan Law School
The Moral Dimension Of Employment Dispute Resolution, Theodore J. St. Antoine
Articles
Dispute resolution may be viewed from the perspective of economics or negotiation or contract law or game theory or even military strategy. In this Article, I should like to consider employment dispute resolution in particular from the perspective of morality. I do not necessarily mean "morality" in any religious sense. By "morality" here I mean a concern about the inherent dignity and worth of every human being and the way each one should be treated by society. Some persons who best exemplify that attitude would style themselves secular humanists. Nonetheless, over the centuries religions across the globe have played a …
Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decisionmaking,
2012
University of Washington
Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decisionmaking, Christine N. Cimini
Articles
This Article examines judicial decisionmaking in labor and employment cases involving undocumented workers. Labor and employment laws, designed to protect all workers regardless of immigration status, often conflict with immigration laws designed to deter the employment of undocumented workers. In the absence of clarity as to how these differing policy priorities should interact, courts are left to resolve the conflict. While existing case law appears to lack coherence, this Article identifies a uniform judicial reliance upon “fault-based” factors. This Article offers a structure to understand this developing body of law and evaluates the legitimacy of the fault-based decisionmaking modalities utilized …
Review Of Labor And Employment Law Decisions From The United States Supreme Court's 2010-11 Term,
2012
University of Washington School of Law
Review Of Labor And Employment Law Decisions From The United States Supreme Court's 2010-11 Term, Eric Schnapper
Articles
In the 2010-11 term, the U.S. Supreme Court decided nine significant labor and employment cases. Although some of these cases affected only the construction of a specific statute or constitutional provision, several of them addressed issues likely to affect the interpretation and implementation of a wide range of federal employment laws. Most of these decisions, rather than definitively resolving a question, raise a range of new issues likely to be litigated for years to come. Thus, for practitioners and academics alike, recognizing the new questions that have now been raised is at least as important as understanding what matters the …
Who Captures The Rents From Unionization? Insights From Multiemployer Pension Plans,
2012
American University Washington College of Law
Who Captures The Rents From Unionization? Insights From Multiemployer Pension Plans, D. Bruce Johnsen
American University Business Law Review
No abstract provided.
Gina, Privacy, And Antisubordination,
2012
Stetson University College of Law
Gina, Privacy, And Antisubordination, Bradley A. Areheart
Georgia Law Review
This Essay briefly considers both the current and
optimal role of privacy in employment discrimination
jurisprudence. The recently-passed Genetic Information
Nondiscrimination Act (GINA) is illustrative of a possible
trend in employment discrimination toward privacy. In
particular, GINA includes a prohibition on the use of
genetic information in all employment decisions, affording
a measure of genetic privacy to potential and current
employees.
GINA stands in contrast to prior employment
discrimination statutes, which have often encouraged or
required employers to be knowledgeable of and consider a
particular identity trait through policies such as
reasonable accommodation, affirmative action, and the
disparate impact doctrine. …
Balancing The Scales: Reforming Georgia's Common Law In Evaluating Restrictive Covenants Ancillary To Employment Contracts,
2012
University of Georgia School of Law
Balancing The Scales: Reforming Georgia's Common Law In Evaluating Restrictive Covenants Ancillary To Employment Contracts, Alan F. Pryor
Georgia Law Review
Crafting effective and enforceable restrictive covenants
ancillary to employment contracts has befuddled and
vexed attorneys, courts, and businesses in Georgia for
decades. Tracing its development through more than four
hundred years of judicial decisions, Georgia's common law
has grown increasingly contradictory, confusing, and
convoluted. Until the passage of the Restrictive Covenant
Act, Georgia judges grew increasingly hostile to restrictive
covenants; however, they failed to maintain a coherent set
of guidelines for evaluating such covenants. The
Restrictive Covenant Act marks a turning point in Georgia
employment law, and this Note provides a defense of the
Act.
The Restrictive Covenant Act is …
Free Speech And Parity: A Theory Of Public Employee Rights,
2012
Notre Dame Law School
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Journal Articles
More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …
Title Vii Works - That's Why We Don't Like It,
2012
University of Missouri School of Law
Title Vii Works - That's Why We Don't Like It, Chuck Henson
Faculty Publications
In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …
Chair's Message,
2012
Benjamin N. Cardozo School of Law
Tribal Rituals Of The Mdl: A Comment On Williams, Lee, And Borden, Repeat Players In Multidistrict Litigation,
2012
Benjamin N. Cardozo School of Law
Tribal Rituals Of The Mdl: A Comment On Williams, Lee, And Borden, Repeat Players In Multidistrict Litigation, Myriam E. Gilles
Articles
No abstract provided.
Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry,
2012
Washington University in St. Louis School of Law
Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin
Scholarship@WashULaw
This Article seeks to challenge the corporate-constructed image of American business and American industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and the realities of doctrinal corporate law, I hope to examine the ways that we as social actors, legal actors, and (perhaps above all) consumers understand what it means for a corporation or a corporation’s product to be American. In a global economy where labor, profits, and environmental effects are spread across national borders, what does it mean for a corporation to present the impression of national …
Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim,
2012
Washington University in St. Louis School of Law
Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin
Scholarship@WashULaw
This Article provides an historically-rooted analysis of a recent spate of civil RICO complaints arising from labor union organizing campaigns. The Article historicizes contemporary civil RICO suits against labor unions by analogizing to nineteenth century conspiracy prosecutions of unions. In tracing this history of organized labor’s social standing, the Article addresses the cultural framing of the union and its place in political and cultural discourse over the past century. The civil RICO complaints have received limited scholarly attention mainly focusing on issues of federal preemption; this Article argues for a broad reading of the cases as a way to understand …
