Labor and Employment Law Commons^™

Battling The Form: A Front-End Approach To Default-Use Noncompetes, Rachel Arnow-Richman

UF Law Faculty Publications

A growing consensus holds that employer overuse of noncompete agreements adversely affects workers and the economy. But there is little agreement on how best to regulate these instruments. States have experimented with an array of idiosyncratic reforms that capture the most egregious misuses, while the Federal Trade Commission (FTC), has issued an outright ban that would prohibit all employee noncompetes and comparable instruments nationwide.

This Article argues that any effective reform strategy must target what it terms “default-use” noncompetes—boilerplate restraints imposed by employers as a matter of course without close consideration of their underlying justification. Some unlawful noncompetes are clearly …

The Uniform Restrictive Agreement Act In A Vast Sea Of Strange Reform: An Introduction, Rachel Arnow-Richman

UF Law Faculty Publications

No abstract provided.

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Human Capital Disclosure & Corporate Governance: The New Evidence, George S. Georgiev

Faculty Articles

This Article explores the evolution of human capital disclosure—firm-supplied information about various workforce-related matters—as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management (“HCM”) disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in board of directors’ oversight responsibilities in a number of areas, including HCM, while labor’s power has unexpectedly increased in some …

Quantifying An Inconvenient Truth : Revisiting A Culture Of Adjustment On Work/Rest Hours, Bikram S. Bhatia, Raphael Baumler, Maria Carrera-Arce, Michael E. Manuel, Inga Bartuseviciene

Reports

No abstract provided.

Benefits Transparency, Samantha Prince

Faculty Scholarly Works

Recently, several states and cities have enacted equal pay laws in a push for pay transparency in job postings to inform and help reduce wage gaps. Some of these laws also require a description of the employee benefits that the company offers. However, none of these laws require a detailed description of said benefits, even though employee benefits on average make up 24% of an employee’s compensation.

Businesses can choose how much to disclose with respect to their benefits and they may even engage in what this author calls “benefits washing”—a practice where companies provide vague or misleading information about …

The New Yellow Dog Contract: Mandatory Arbitration Agreements And Collective Action Waivers In The Aftermath Of Epic Systems, Eric Lundy

Nevada Law Journal Forum

Since the 1980s, the Supreme Court has consistently found arbitration agreements in employment contracts to be enforceable, citing a strong national policy favoring arbitration. This line of cases came to its apogee in 2018 with Epic Systems Corp. v. Lewis. The Court held that the statutory right to engage in concerted activities for the purpose of mutual aid or protection did not confer upon employees the right to bring class actions against their employer when they had signed an arbitration agreement with a collective action waiver. While the Court’s decision was widely criticized in the academic community, it sent a …

Why Do Banks Fail Together? Evidence From Executive Compensation, Deniz Anginer, Jinjing Liu, Cindy A. Schipani, H. Nejat Seyhun

Fordham Journal of Corporate & Financial Law

Recent bank failures have elicited extensive interest about the causes, focusing on incompetence of bank executives, policymakers, bank regulators and supervisors and even uninsured depositors. Yet, before we can prescribe solutions to bank failures, we need to identify the correct causes of the underlying problems. We argue that the problem is not so much with incompetence of executives, depositors, or regulators per se, but rather with managerial incentives.

We provide both a conceptual basis as well as empirical evidence to show that bank executives have incentives to increase systemic risks in order to maximize the benefits of bank bailouts. Consequently, …

Another Major Question: The Department Of Labor Should Retire The Tiebreaker Rule And Reemploy Pecuniary Language In Erisa, Brandon Chesner

Fordham Journal of Corporate & Financial Law

The Employee Retirement Income Security Act of 1974 (“ERISA”) soon turns 50. Instead of celebrating with cake, retirees and future retirees alike get to witness a new chapter in the debate over the consideration of Environmental, Social, or Governance (“ESG”) factors in investing with plan assets. As employees cross the bridge into retirement, they look to their 401(k)s and pension plans for peace of mind, for it is ERISA that has been working silently in the background establishing minimum standards, practices, and fiduciary duties to protect participants. In recent years, the U.S. Department of Labor (“DOL”) has passed three regulations—two …

Minnesota's Misclassification Solutions Lead The Way But Leave Undocumented Workers Behind: How Minnesota Can Increase Worker Protections, Mckayla Murphy Zelaya

Mitchell Hamline Law Review

No abstract provided.

An Exacerbated Power Imbalance: The Danger In Allowing Ai To Render Arbitral Awards In Employment Arbitration, Elizabeth G. Stein

Mitchell Hamline Law Review

No abstract provided.

Somethings Old, Somethings New And A Lot That’S Blue: Political Economic Reflections On Worker Subordination And The Law In Contemporary Capitalism, Eric Tucker

All Papers

Debates over worker subordination are central to discussions of the efficacy of protective labour and employment law whose central mission in a capitalist political economy, after all, is to reduce but not eliminate subordination. When protective labour and employment law seems to be fulfilling its mission discussions of worker subordination seem to ebb, but the topic becomes more urgent as the efficacy of the law declines. Not surprisingly, as labour law’s efficacy has been declining over the past several decades, we are in the midst of a revival of debates over worker subordination, the premise of this special issue. While …

Labour, Labour Law And Capitalist Rent-Seeking: Rentier Capitalism And Labour In Historical Perspective, Eric Tucker

All Papers

The rise of rentier capitalism in advanced capitalist countries has detrimentally affected large numbers of worker and impaired the efficacy of protective labour and employment laws. However, capitalist rent-seeking is not unique to rentier capitalism, but rather has taken a variety of forms over time. This chapter begins by exploring the evolving meaning of rent and changing practices of capitalist rent-seeking. It then considers the ways in which workers responded to those practices in both rent-rich and rent-poor sectors of the economy, including through the enactment of labour and employment laws appropriate to, but only partially successful in addressing labour …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Older Women Workers, The Pandemic, Employment Discrimination And Lifetime Disadvantage, Susan Bisom-Rapp

Faculty Scholarship

As a group, older women workers were among those most severely impacted by the COVID-19 crisis. Drawing from both intersectionality and cumulative disadvantage theory, the Model of Lifetime Disadvantage created by Bisom-Rapp and Sargeant helps frame the position of these workers in the labor market prior to and during the pandemic. The model also explains why and how disjointed, incremental legal interventions are unable to meet the challenge of gendered ageism, which surged during the crisis. Disasters produce impacts unevenly on individuals and communities. Older women are a diverse group, whose social position is mediated by race, ethnicity, sexual orientation …

Sosa V. City Of Woonsocket, 297 A.3d 120 (R.I. 2023)., Samantha B. Larkin

Roger Williams University Law Review

No abstract provided.

The Role Of Interpersonal Conflict As A Cause Of Work-Related Stress In Construction Managers In Ireland, Patrick J. Bruce, Victor Hrymak, Carol M. Bruce Dr, Joseph Byrne

Articles

Construction is a project-driven industry that places a high premium on product delivery on time, within budget and to required standards. Modern construction projects have become more complex in nature, the complex relational and lengthy process of designing and building makes construction a process in which conflict is virtually ensured (Jaffar et al., 2011; Wang et al., 2023). These characteristics of the industry contribute to workplace stress. Therefore, it is not surprising that research has confirmed a strong presence of workplace stress within the industry, (Lingard and Francis, 2004; Vaux and Dority, 2020). Many construction managers experience excessive levels of …

Using State And Local Governments’ Purchasing Power To Combat Wage Theft, Courtlyn G. Roser-Jones

Washington and Lee Law Review

Regulatory efforts to curb wage theft are failing. And for good reason: these laws generally empower individual workers to pursue their rights when employers neglect to pay them what they are owed and deter employers with substantial penalties. But the vast majority of workers do not take formal action against their employers. So, when the penalties for committing wage theft are almost entirely triggered by claims workers do not bring, they do not deter employer behavior. Instead, because the likelihood of being penalized at all is so low, some employers make profit-maximizing decisions to commit wage theft on a large …