Labor and Employment Law Commons^™

Telecommuting And Workers' Compensation In Wisconsin: Adopting Standards For The Work-From-Home Revolution, Elliott J. Manuel

Marquette Law Review

The modern trend of telecommuting has gained popularity in recent years, with many employees working from home in lieu of reporting to brick-and-mortar offices. Yet the law has failed to keep up with this trend, particularly in the context of workers’ compensation. And with the rise in telecommuting, a rise in workers’ compensation claims for injuries sustained in the home is likely to follow. While the common law provides a framework for resolving telecommuter claims in Wisconsin, this framework invites inconsistent application and fails to abide by the purpose of Wisconsin’s Workers’ Compensation Act. In anticipation of the inevitable rise …

Expanding The Ban On Forced Arbitration To Race Claims, Michael Z. Green

Faculty Scholarship

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural …

Misrepresentations In Labor Trafficking: State Laws As An Alternative Theory Of Liability For Recruiters, Hannah Garvin

Georgia State University Law Review

When addressing labor trafficking of migrants, the focus is typically on prosecuting the traffickers directly involved in obtaining a victim’s labor, but traffickers cannot exploit labor without victims. Research has shown that recruiters, both those intending to provide labor traffickers with victims and those who have no knowledge of the subsequent exploitation perpetrated by the supposed employer, often misrepresent job opportunities to migrants. Both types of recruiters profit off of the exploitation of migrants and ultimately continue to propagate labor trafficking. To effectively deter trafficker-recruiters and ensure independent recruiters are acting ethically, an all-encompassing method of accountability needs to be …

Is The Statutory 60-Day Deadline For Filing A Petition For Review Of A Final Mspb Order Jurisdictional?, Anne Marie Lofaso

Law Faculty Scholarship

Case at a Glance: The Department of Defense (DOD) furloughed employee Stuart R. Harrow in 2013. Harrow timely challenged DOD’s decision before an administrative judge, who affirmed it. Harrow timely appealed the judge’s decision to the Merit System Protection Board (MSPB or “Board”), which could not act on the appeal for over five years because it lacked a quorum. On May 11, 2022, the MSPB issued a final order, affirming the judge’s decision. However, Harrow did not learn of the decision until August 30. Harrow promptly filed a petition to review the Board’s order with the Federal Circuit, which denied …

The "I" Is For Inclusive: Addressing The Need To Federally Regulate Employers' Use Of Artificial Intelligence In Hiring Practices, Caitlyn Shu

Hofstra Labor & Employment Law Journal

No abstract provided.

Amazon, Spacex And Other Companies Are Arguing The Government Agency That Has Protected Labor Rights Since 1935 Is Actually Unconstitutional, Kate Andrias

Faculty Scholarship

Amazon, SpaceX, Starbucks and Trader Joe’s have all responded to allegations that they have violated labor laws with the same bold argument. The National Labor Relations Board, they assert in several ongoing legal proceedings, is unconstitutional.

SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”

If these companies prevail, the entire process for holding union elections and for prosecuting employers who break labor laws – in place since …

Front Matter

Hofstra Labor & Employment Law Journal

No abstract provided.

A Different Model For Show Business: Creating An Agency Employer In The Performing Arts, Kathy-Ann Hart

Hofstra Labor & Employment Law Journal

The inner workings of the entertainment business are often invisible. The end product of a beautiful film, a riveting play, a compelling television show or even a funny commercial is perhaps all most people ever know about show business. Not a lot is known or shared transparently about film financing, casting or about talent representation.

Choose Your Words Carefully: Social Media, Social Justice And The Workplace, Susan Greene

Hofstra Labor & Employment Law Journal

No abstract provided.

Reproductive Rights And Employer Health Insurance: Exploring Abortion Benefit Options In A Post-Roe Era, Emily E. Manning

Hofstra Labor & Employment Law Journal

No abstract provided.

It's The Final Countdown: How A Legislative Solution Might Rectify The Staffing Shortages & Horrors Of Rikers Island, Rochelle Podolsky

Hofstra Labor & Employment Law Journal

No abstract provided.

Employer-Sponsored Reproduction, Valarie K. Blake, Elizabeth Mccuskey

Faculty Scholarship

This Article interrogates the current and future role of employer-sponsored health insurance in reproductive choice, revealing the magnitude of impact that employers’ insurance coverage choices have on Americans’ access to reproductive care, as well as the legal infrastructure that prioritizes employer choice over individual autonomy.

Over half the population depends on employers for health insurance. The laws regulating those plans grant employers discretion in what services to cover, with exceptionally wide latitude for employers’ choices about reproductive care services, like abortion, contraception, infertility, and pre-exposure prophylaxis (PrEP). In their role as health care funders, employers pursue their own economic interests, …

The Braidwood Exploit: On The Rfra Declaratory Judgment Class Action And Title Vii Employer Liability, Marcia L. Mccormick, Sachin S. Pandya University Of Connecticut Law School

University of Richmond Law Review

This Article identifies a distinctive legal strategy for using the Religious Freedom Restoration Act (“RFRA”) to obtain an exemption for for-profit businesses to Title VII liability for their religiously motivated discrimination against gay and transgender employees and job applicants. The litigation strategy involves a declaratory judgment class action against the Equal Employment Opportunity Commission under RFRA. We primarily show how this strategy tries to exploit a key ambiguity in the compelling interest inquiry in RFRA and pre-1990 Free Exercise Clause doctrine, i.e., how to specify the size of the set of persons other than the RFRA claimant who would likely …

Faculty Handbook As Contract, Karen Halverson Cross

Cardozo Law Review

Colleges and universities, like other employers, typically have in place policies that govern the employment relationship with their faculty. Many such policies—policies against employee misconduct or policies on accommodations for persons with disabilities—are comparable to what employees might encounter outside of academia. Most higher education institutions also have in place policies that are more unique to academia, such as policies establishing shared governance bodies, affirming academic freedom as a core value, or outlining procedures on the granting and revocation of faculty tenure. These faculty policies may be aggregated in a faculty handbook, published separately on the institution’s web site, or, …

When Amazon Drivers Kill: Accidents, Agency Law, And The Contractor Economy, Keith Cunningham-Parmeter

William & Mary Law Review

Amazon vans and Uber drivers frequently crash into other cars. Despite the many injuries and deaths that result from these accidents, Amazon and Uber deny responsibility for such claims because they categorize their drivers as “independent contractors.” But this contractor defense distorts the basic rules of agency law. Over a century ago, courts crafted agency standards that forced businesses to pay for the harms that their workers caused. Since that time, American firms have attempted to skirt this rule by labeling their workers as “contractors” rather than as “employees.” Aware of this age-old tactic to avoid liability, courts historically built …

Backdating #Metoo, Jessica K. Fink

Cardozo Law Review

The #MeToo movement radically altered the way that people think about workplace sexual harassment. For decades, women were expected to tolerate a broad range of sexualized conduct at work. However, the revelation of Harvey Weinstein’s misdeeds in late 2017, followed by the exposure of countless other bad actors, dramatically shifted the social narrative regarding appropriate workplace behavior. Conduct that employees once ignored or overlooked suddenly became the basis for vociferous objection; the perfunctory responses to harassment that many employers once adopted suddenly stood out as glaringly deficient.

While society has undergone great shifts in its understanding of and response to …

Garrity Immunity And The U.S. Armed Forces, Bretton H. Laudeman, Gabriel J. Chin

BYU Law Review

The U.S. military is one of the nation’s largest and most important public employers. Given the unique nature of military service, the service branches have a strong interest in ensuring the integrity of their ranks. Yet the military lacks a critical force-management tool used by every other public employer to investigate workplace misconduct: the ability to demand answers to potentially incriminating questions under Garrity v. New Jersey, 385 U.S. 493 (1967). The Garrity solution, known as “Garrity immunity,” strikes a critical balance between the government’s interests in workplace oversight and accountability with the employee’s Fifth Amendment right against self-incrimination by …

Guarantees Of Payment Of Wages In Enterprise Contracts And Its Contemporary Applications In Accordance With The Enforced Legislation In Palestine, Muayad K. Hattab Phd, Ashraf Muhammad Hussein Dr

UAEU Law Journal

remuneration under the contracting contract, and the mechanisms of enforcing the employer to implement his obligation to pay the remuneration, in light of the Palestinian legislative reality, which is still dependent upon the Mejella (Journal of Judicial Rules), as the Civil Law in force in Palestine. The study attempted to find a solution to the legislative shortcoming represented in the fact that the provisions of the Mejella devoid of a clear and explicit regulation of the provisions of the contracting contract and the responsibilities of the parties to that contract, especially with regard to obligating the employer …

Brief For Amicus Curiae Professor Edward A. Zelinsky In Support Of Appellants And Reversal, Edward A. Zelinsky

Amicus Briefs

DOL’s tie-breaking rule violates ERISA’s duty of loyalty under ERISA § 404(a)(1)(A). ERISA’s duty of loyalty requires ERISA-regulated trustees to invest plan resources for the “exclusive purpose of . . . providing” economic benefits to plan participants and their beneficiaries, “solely in the interest of the participants and beneficiaries.” The tie-breaking rule violates this stringent statutory duty of loyalty because it permits plan trustees investing plan resources to consider “collateral benefits,” i.e., the welfare of third parties or social goals. But ERISA‟s plain text does not permit this result. The words ““solely” and “exclusive purpose” in § 404(a)(1)(A) do not …

So Many Roads, So Much At Stake: The Composition Of Faculty Bargaining Units, William A. Herbert, Joseph Van Der Naald

Publications and Research

This book chapter from Contingent Faculty and the Remaking of Higher Education: A Labor History traces the history of faculty bargaining unit composition in higher education. It examines the evolution in higher education from wall-to-wall bargaining units to professional craft units of tenured, tenure-track, and contingent faculty to separate contingent faculty units. The chapter presents historical examples of bargaining units, starting with early CIO wall-to-wall units in the 1940s, and the facts, preferences, and legal doctrines that has resulted in faculty being placed in combined or separate bargaining under collective bargaining laws. It will also explore the conflicting and congruous …