Labor and Employment Law Commons^™

The Importance Of Immutability In Employment Discrimination Law, Sharona Hoffman

Faculty Publications

This article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 29 two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.

The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment …

Dedications To The Memory Of Eric J. Schmertz, Distinguished Professor Of Law And Dean Emeritus, Hofstra University School Of Law (1982-1989) - In Rememberence Of Eric J. Schmertz, Stuart Rabinowitz, Nora V. Demleitner, Malachy T. Mahon, Eric Lane, Alan N. Resnick, John Dewitt Gregory, David B. Feldman, Jeffrey P. Englander, Joanne F. Goldstein

Hofstra Labor & Employment Law Journal

No abstract provided.

The Judiciary's Efforts To Save Public Employers From The Bargains They Have Made: The Non-Delegability And Against Public-Policy Doctrines, James A. Shaw

Hofstra Labor & Employment Law Journal

No abstract provided.

Putting A Plug In America's Brian Drain: A Proposal To Increase The U.S. Retention Of Foreign Students Post-Graduation, Christine Chester, Amanda Cully

Hofstra Labor & Employment Law Journal

No abstract provided.

The Strongest Defense You've Never Heard Of: The Constitution's Federal Enclave Doctrine And Its Effect On Litigants, States, And Congress, Emily S. Miller

Hofstra Labor & Employment Law Journal

No abstract provided.

Speak The Truth And Tell No Lies: An Update For The Employee Polygraph Protection Act, David Barnhorn, Joey E. Pegram

Hofstra Labor & Employment Law Journal

No abstract provided.

Whistleblower Protection And The Challenge To Public Employment Law, Robert Vaughn

Contributions to Books

Whistleblowers who are public employees are protected by statutes which vary in scope and character, but authorise employees to disclose information outside of the chain of command and under standards that replace internal agency rules or guidelines. During the last decade a number of countries enacted whistleblower statutes that protect public employees who disclose various types of misconduct or incompetence. At the same time, a number of international treaties and conventions addressing governmental corruption have included provisions protecting whistleblowers. The recent activity in providing protection for public sector whistleblowers as well as movements for honesty and transparency in government present …

Eliminating The Need For Caps On Title Vii Damage Awards: The Shield Of Kolstad V. American Dental Association, Michael C. Harper

Faculty Scholarship

After recounting the legislative history of the Civil Rights Act of 1991, this article reconsiders the legislative compromise that allowed in this Act for capped compensatory and punitive damages as remedies for Title VII violations. This reconsideration is made in light of the Court’s decision in Kolstad v. American Dental Association, granting employers protection from a punitive damage remedy if they can demonstrate a good faith effort to comply with the Act. The article argues that this holding obviates the need for damage cap protection of innocent employers. It does so by enabling employers to shield themselves from the threat …

A Solution To Holdouts In The National Football League: How Salary Arbitration Can Limit A Growing Problem, Roger Quiles

Cardozo Journal of Conflict Resolution

This Note will explore the intricacies of Major League Baseball's salary arbitration system, as established in the league's CBA with the MLB Players' Association (hereinafter, "MLBPA"), in order to create a suitable and similar forum for the NFL. The MLB salary arbitration model is not perfectly transposed to the NFL, but can be slightly modified to reflect the differences between the sports. The primary difference is that the NFL establishes a salary cap that a team's payroll may not exceed, whereas MLB teams can carry as big of a payroll as they want. Though the salary cap raises several questions …

Clarifying Stereotyping, Kerri Lynn Stone

Faculty Publications

This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It …

The Challenge Of Temporary Work In Twenty-First Century Labor Markets: Flexibility With Fairness For The Low-Wage Temporary Workforce, Harris Freeman, George Gonos

Faculty Scholarship

As the Commonwealth wrestles with the social and economic aftershocks of the worst economic recession in 80 years, the widespread use of temporary staffing arrangements is a sober reminder that the “standard” employment relationship, a cornerstone of the prosperity of the post-­World War II era, is no longer available to a large segment of the American workforce. “Job ladders” have disintegrated, depriving capable and dedicated workers of predictable promotions. Regular step increases in pay and cost-­of-­living adjustments are in many occupational categories a thing of the past. Simply put, the “good jobs” working people need to support families, pay the …

The First Of Thousands? The Long View Of Local 1330'S Challenge To Management Rights And Plant Closings, Harris Freeman

Faculty Scholarship

This Article introduces and frames a symposium issue of Harvard Law School’s Unbound, Journal of the Legal Left that is devoted to an assessment of Local 1330, United Steel Workers v. U.S. Steel (6th Cir. 1980) on the 30th anniversary of the decision. The Author provides a historical and legal context for the federal courts’ decisions on the Steelworkers’ novel community property and contractual claims brought by the plaintiffs in an effort to prevent U.S. Steel from closing its manufacturing operations Youngtown, Ohio. In this context, the Author discusses the relationship of the plaintiffs’ community property claim to the origins …

Reemployment Under Userra Sections 4312 & 4313: At Will Employment Vs. Temporary Employment, Richard L. Pate

WCBT Faculty Publications

As thousands of service members return to the U.S., severe economic conditions render acclimation to civilian life especially difficult. In 2010, as the combat mission in Iraq approached an end, the unemployment rate of Iraq and Afghanistan era veterans had reached 13.1 percent. The Uniform Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301-4333 (1994) ("USERRA"), was enacted, in great part, to mitigate harms such as those caused by the aforementioned perfect storm. Among other things, USERRA protects service members by entitling them to reemployment after military service. More specifically, USERRA Sections 4312 & 4313 entitle returning service members …

Salary Caps In Professional Sports: Closing The Kovalchuk Loophole In National Hockey League Player Contracts, Simon Bernstein

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Did The Mlbpa Strike Out? An Analysis Of Union Liability In Major League Baseball's Anonymous 2003 Steroid Testing, David Adelsberg

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux

Publications

The Supreme Court has recently decided to hear argument in the largest private-employer civil rights case in American history, Dukes v. Wal-Mart Stores, Inc. This historic case involves up to 1.5 million women suing Wal-Mart, one of the largest companies in the world, for alleged gender discrimination in pay and promotions, in violation of Title VII of the Civil Rights Act of 1964. Like many employees who challenge companywide employment discrimination, the plaintiffs in Dukes brought their case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and sought injunctive and declaratory relief, …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux

Publications

No abstract provided.

Excluding Unemployed Workers From Job Opportunities: Why Disparate Impact Protections Still Matter, Helen Norton

Publications

No abstract provided.

Section 5 Constraints On Congress Through The Lens Of Article Iii And The Constitutionality Of The Employment Non-Discrimination Act, Craig Konnoth

Publications

The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.

However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key …