Labor and Employment Law Commons^™

Solomon And Strikes: Labor Activity, The Contract Doctrine Of Impossibility Or Impracticability Of Performance, And Federal Labor Policy, Daniel P. O'Gorman

Hofstra Labor & Employment Law Journal

No abstract provided.

The Nlrb's Deferral Policy Under Fire: The D.C. Circuit's Criticism And The Future Of The Deferral Policy, Celeste J. Mattina

Hofstra Labor & Employment Law Journal

No abstract provided.

Does Cercla Preempt New York State Law Claims For Cost Recovery And Contribution?, Kristi Weiner

NYLS Law Review

No abstract provided.

The Relative Bargaining Power Of Employers And Unions In The Global Information Age: A Comparative Analysis Of The United States And Japan, Kenneth G. Dau-Schmidt, Benjamin C. Ellis

Articles by Maurer Faculty

In this paper, we examine and compare the impact of American and Japanese labor law on the relative bargaining power of the labor and management within the context of the new global economy based on information technology. We begin by providing a simple economic definition of bargaining power and examining how it can be influenced by economic and legal factors. Next, we discuss the impact of new information technology and the global economy on the employment relationship and how this has decreased union bargaining power relative to management bargaining power. Finally, we compare various facets of American and Japanese labor …

Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya

Faculty Articles and Papers

This paper presents a method for detecting stealth precedent erosion, i.e., when an appellate court majority deliberately writes the opinion in case y to reduce the scope of its precedent x, but does not expressly refer to precedent x in the opinion. Applying this method, the paper provides a strong basis for concluding that in Ricci v. DeStefano (2009), a United States Supreme Court case decided under Title VII of the Civil Rights Act of 1964, the Court majority eroded by stealth United Steelworkers of America v. Weber (1979), and Johnson v. Transportation Agency (1987), both cases that read Title …

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

Choice Of Law And Employee Restrictive Covenants: An American Perspective, Gillian Lester, Elizabeth Ryan

Faculty Scholarship

Employees are increasingly mobile across state lines. This is partly the result of technological change facilitating individual movement and communication, but also a result of corresponding changes in corporate organization to establish offices and interests in multiple jurisdictions. With these developments, there has been a rise in litigation surrounding the enforcement of employee covenants not to compete when the parties or issues involved have connections to multiple jurisdictions. The emerging body of law intrigues and confounds lawyers and commentators because of its complexity and unpredictability. This essay is an effort to describe recent legal developments in the United States, situating …

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

Articles

The Genetic Information Nondiscrimination Act of 20081 ("GINA") is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual's genetic information, with some exceptions.

One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us -the use …

The Global Dimensions Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

Recently, unusual “factories” have appeared in Third World countries; these factories do not manufacture goods, but instead feature computer workers, typing and clicking away, playing video games, collecting coins and swords, and fighting monsters. Known as “gold farmers,” these workers are paid to harvest virtual treasures for online gamers in the developed world. First World gamers want to advance quickly within their online role-paying games of choice and, tired of the repetitive tasks necessary to build a high-level character, would prefer to pay others to do the work. As a result, gold farming operations have appeared in many countries …

Why Care About Caregivers? Using Communitarian Theory To Justify Protection Of "Real" Workers, Nicole Buonocore Porter

Faculty Publications

What is the caregiver conundrum? Simply put, it is the difficulty caregivers face when trying to balance their caregiving responsibilities with their work responsibilities. Caregivers face conflicts both at home and at work when work responsibilities clash with responsibilities at home. In many cases, these conflicts create serious hardships on the caregivers and their loved ones.

Finding a solution to this pressing problem is puzzling because courts and scholars disagree on the scope of the problem. Thus far, courts only protect employees who experience caregiver discrimination because the employer incorrectly assumes the employee will not meet the workplace requirements. In …

Revitalizing Union Democracy: Labor Law, Bureaucracy, And Workplace Association, Matthew Dimick

Journal Articles

Do core doctrines of labor-relations law obstruct the internal democratic governance of labor unions in the United States? Union democracy is likely an essential precondition for the broader strategic and organizational changes unions must undertake in order to recruit new union members — the labor movement’s cardinal priority. Yet according to widely accepted wisdom, the weakness of democracy within labor unions is the unavoidable outcome of an “iron law of oligarchy” that operates in all such membership-based organizations. This Article challenges this conventional thinking and argues that the triumph of oligarchy over democracy in US labor unions is not inevitable, …

Reply: Good Intentions Matter, Katharine T. Bartlett

Faculty Scholarship

While writing the article to which Professors Mitchell and Bielby have published responses, I was mindful of the many ways in which the article could be misinterpreted. In taking issue with the assumption that legal controls work in a direct, linear manner to deter crimination, I thought I might be misunderstood to say that people are not responsive to incentives. In worrying about how legal sanctions exert external pressure that may crowd out the inclination of well-intentioned people to self-monitor for bias, I feared that the article would be read mistakenly to oppose strong and appropriate legal rules against discrimination. …

Labor And The Bank: Investigating The Politics Of The World Bank's Employing Workers' Index, Suzan Kang

Publications and Research

For many years, trade unions have pressured international financial organizations such as the World Bank to better incorporate protections for workers. A recent development in this contestation was the World Bank’s 2009 announcement regarding its controversial “Employing Workers Index” in its widely circulated Doing Business report. Trade unions had argued that the index, which promoted flexible labor market policies, did not respect the international norm of worker protections, and urged the World Bank to change the index. As a result, the Doing Business Group pledged to reform the Employing Workers Index and to create a new index on protecting workers. …

In Defense Of Transnational Domestic Labor Regulation, David J. Doorey

Vanderbilt Journal of Transnational Law

Transnational domestic labor regulation (TDLR) is unilateral regulation introduced by a government to influence labor practices in foreign jurisdictions. TDLR has the potential to empower foreign workers and influence the balance of power in foreign industrial relations systems in ways that might lead to improved labor conditions. Particularly interesting is the potential for TDLR to harness or steer private labor regulation--the many non-state sources of labor practice governance already active in shaping labor conditions within global supply chains. However, whether governments should try to influence foreign labor practices at all is a controversial question. This Article explores the arguments both …

Sharing The Stage: Using Title Vii To End Discrimination Against Female Playwrights On Broadway, Marisa Rothstein

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Regulating The Use Of Genetic Information: Perspective From The U.S. Experience, Pauline Kim

Scholarship@WashULaw

This essay comments on an empirical study documenting the policies, practices, and attitudes of Australian employers regarding the use of genetic information from the U.S. perspective. The U.S. Congress recently enacted the Genetic Information Nondiscrimination Act of 2008 (GINA), which, among other things, prohibits employment discrimination on the basis of genetic information and restricts employers’ access to their employees’ genetic information. Just as the Australian study found no evidence of systematic use of genetic testing or screening by employers, GINA was passed in the absence of any evidence of widespread employment discrimination on the basis of genetic characteristics. Although it …

The Reverse-Morals Clause: The Unique Way To Save Talent's Reputation And Money In A New Era Of Corporate Crimes And Scandals, Porcher L. Taylor Iii, Fernando M. Pinguelo, Timothy D. Cedrone

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Depression Era Sit-Down Strikes And The Limits Of Liberal Labor Law, Ahmed A. White

Publications

This paper explores the history of sit-down strikes from the New Deal Era and beyond and traces their influence on the substance of modern labor law. It argues that, even as the sit-down strikes proved essential to the development of a meaningful system of labor rights, the strikes also had a very different effect. As this paper undertakes to demonstrate, legal and political attacks on labor rights that were originally aimed at the sit-down strikes metastasized into a more general campaign to prohibit a range of militant strike practices, even those bearing little outward resemblance to the original sit-down strikes. …

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

All Faculty Scholarship

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …

A Taxonomy Of Virtual Work, Miriam A. Cherry

All Faculty Scholarship

Millions of people worldwide entertain themselves or supplement their incomes – or both – by meeting with fellow employees as avatars in virtual worlds such as Second Life, solving complicated problems on websites like Innocentive, or casually “clicking” to make money for simple tasks on Amazon.com’s Mechanical Turk. Virtual work has great promise – increasing efficiency by reducing the time and expense involved in gathering workers who live great distances apart, and allowing for efficient use of skills so that the whole is truly greater than the sum of its parts. At the same time, virtual work presents its own …