Labor and Employment Law Commons^™

A New Day: Ending “Forced” Arbitration Of Sexual Assault And Harassment, Cardozo Dispute Resolution Society

2022–2023 Flyers

No abstract provided.

Ambiguities And Absences: Occupational Health And Safety Regulation Of Platform-Mediated Work In Ontario, Canada, Eric Tucker

Articles & Book Chapters

Platform-mediated work, whether location-based, as in the case of Uber, or cloud-based, as in the case of Amazon Mechanical Turk, poses severe challenges to effective occupational health and safety (OHS) regulation. While the work performed in the platform environment is not usually very different from work performed in more traditional employment settings, the platform environment often exacerbates those risks by, for example, increasing stress and incentivizing long hours and work intensification. Regulating these hazards is impeded by ambiguities surrounding the legal relationship between platform operators and platform workers that make it uncertain whether the OHS regime even applies. As well …

Racial Pay Equity In “White” Collar Workplaces, Nantiya Ruan

Brooklyn Law Review

The racial pay gap in the US is staggering. Wealth disparities between Black, Latinx, and white households reflect the compound negative effects of discrimination, inequality, and lack of opportunities experienced by communities of color. One understudied way to address racial pay equity and the wealth gap is to examine how to widen career paths of high-paying, stable careers for people of color. Career paths are not equal. Some jobs are dead-end, minimum wage-paying, with little to no hope of promotion into a salary that catapults an earner into the next socioeconomic class. Others have growth potential, comfortable wages, and important …

The ‘Contract’ And Its Discontents: Can It Address Protection Gaps For Migrant Agricultural Workers In Canada?, Tanya Basok, Eric Tucker, Leah F. Vosko, C. Susana Caxaj, Jenna L. Hennebry, Stephanie Mayell, Janet Mclaughlin, Anelyse M. Weiler

Articles & Book Chapters

Canada's Seasonal Agricultural Worker Program has often been portrayed as a model for temporary migration programmes. It is largely governed by the Contracts negotiated between Canada and Mexico and Commonwealth Caribbean countries respectively. This article provides a critical analysis of the Contract by examining its structural context and considers the possibilities and limitations for ameliorating it. It outlines formal recommendations that the article co-authors presented during the annual Contract negotiations between Canada and sending states in 2020. The article then explains why these recommendations were not accepted, situating the negotiation process within the structural context that produces migrant workers' vulnerability, …

The Evolution Of Chapter 11: How Corporate Restructuring Has Evolved And Its Important Role In The Recovery Of A Struggling Economy, Eduardo Cervantes

DePaul Business & Commercial Law Journal

No abstract provided.

Covid-19 Vs. Constitution; Limited Government's Unlimited Response, John A. Losurdo

DePaul Business & Commercial Law Journal

No abstract provided.

The "No License, No Chips" Policy: When A Refusal To Deal Becomes Reasonable, Sheng Tong

DePaul Business & Commercial Law Journal

No abstract provided.

The Dark Triad: Private Benefits Of Control, Voting Caps And The Mandatory Takeover Rule, Jorge Brito Pereira

DePaul Business & Commercial Law Journal

No abstract provided.

Privatization Of Employment Claims: Perhaps A Hybrid Approach Will Free American Society From The Epic Trap The Supreme Court Has Sprung Without Forfeiting All Advantages Of Arbitration, Weyman Johnson, Kailyn G. Coots, Alexander Edmonds

William & Mary Business Law Review

Mandatory individual arbitration, as a condition of employment, binds many U.S. employees after the Supreme Court’s 2018 decision in Epic Systems Corp. v. Lewis. In effect, fundamental employment protections—such as relief under current anti-discrimination statutes—are privatized. Now, only a legislative fix will break those bonds. Congress and state legislatures have ventured into the fray, though preemption problems plague the latter, and both seem fixated on either excessively narrow categories (harassment claims in employment) or politically distasteful, broad solutions (no individual arbitration allowed in employment or consumer contracts). This Article acknowledges the quandary that the Epic decision, and the Court’s …

Tackling Discrimination In The Nfl: How The Recent Cte Race-Norming Agreement Highlights The Need To Provide Broader Anti-Discrimination Protections For Nfl Players Through Collective Bargaining Agreements, Victoria Nauman

William & Mary Business Law Review

Chronic traumatic encephalopathy (CTE) is becoming a commonly known consequence of playing football. Many have become stunned at the effects of CTE among some of the National Football League’s (NFL) most popular players. While the NFL agreed to compensate players who have suffered the effects of CTE, they did not do so fairly. The NFL employed practices of racial-baselining cognitive brain evaluations to systemically provide Black players with lower CTE settlement payouts than their white counterparts. Though shocking, this is but one instance of the NFL discriminating against their players of color in a majority-minority league. However, settling out of …

Osha’S Covid-19 Vaccine Mandate: Why Justice Gorsuch’S Analysis Of The Mandate As An Elephant In A Mousehole Misses The Mark, Wyatt Rex Allred

BYU Law Review

Administrative law doctrines such as Chevron seek to strike a balance between adequate delegated power and sufficient checks on such power. The major questions doctrine reinforces the latter. Recent decisions finding major questions, however, have shown a departure from textualist principles, which formed the doctrine s foundation. Justice Gorsuch's opinion in NFIB v. OSHA is an example of this desertion of textualist principles and should thus be viewed as an improper application of the major questions doctrine. Rather than remodeling the major questions doctrine, textualist judges should acknowledge that this form of anti-textual analysis is nothing short of a revival …

A Case For Brandeisian Federalism: The Erisa Preemption Clause And State Health Care Reform, Jordan May

DePaul Journal of Health Care Law

The United States spends more for health care per capita than any other country in the world. Despite spending more, the United States has weaker health care outcomes than other similarly developed countries. This fact alone makes health care an important subject for policy reform. Given the current partisan gridlock in Congress, it is difficult to foresee any significant legislation in the area of health care reform at the federal level in the near future. As a result, Congress has allocated major health care reform efforts to the states. However, ERISA stands as a huge obstacle to state health care …

When Does The National Labor Relations Act Preempt A State Tort Claim For Property Damage Arising From Workers’ Alleged Failure To Take Precautions To Protect Employer Property Before Going On Strike?, Anne Marie Lofaso

Law Faculty Scholarship

Glacier Northwest’s unionized ready-mix concrete truck drivers went on strike after the parties had reached an impasse and their collective bargaining agreement had expired. Several strikers returned their trucks fully loaded, rendering the concrete useless, although the trucks were not damaged. This case presents a question whether the drivers’ strike, which is regulated by federal law, subjects their union to a state law tort claim for damage to the concrete.

In Support Of Ureaa: The Case For Timely, Uniform, And Comprehensive Action Against Restrictive Employment Agreements, Ryan Greenberg

University of Miami Business Law Review

Tens of millions of American workers across a range of occupations are bound by restrictive employment agreements. The COVID-19 pandemic has caused people to leave their jobs in search of more money, flexibility, and happiness—deemed the Great Resignation—shining a new light on the volatility of labor markets. But restrictive employment agreements limit workers’ exit options and stymie competition, in tension with our nation’s antitrust laws. The effects of these agreements are particularly damaging to low-wage workers. Rightfully so, policymakers across jurisdictions and political ideologies are increasingly introducing measures to curtail the abuse of these agreements. This area of the law …

Unfair By Default: Arbitration's Reverse Default Judgment Problem, Alexi Pfeffer-Gillett

Scholarly Articles

It is a foundational principle of civil law that a defendant who fails to respond to allegations is deemed to have admitted those allegations and can be subjected to default judgment liability. This threat of default judgment incentivizes defendants to respond to claims, thereby discouraging delay tactics and helping ensure cases are resolved efficiently on the merits.

In consumer and employment arbitration, though, the fairness and efficiency benefits of traditional default judgment are flipped, rewarding rather than punishing unresponsive defendants. This difference from civil litigation arises out of arbitration’s fee structures: if a defendant-company fails to pay its share of …

Deducting Dobbs: The Tax Treatment Of Abortion-Related Travel Benefits, Samantha J. Prince

Faculty Scholarly Works

In 2022, Dobbs v. Jackson Women's Health Organization overturned both Roe v. Wade and Planned Parenthood v. Casey thereby giving the states carte blanche to do as they wish regarding abortion access. The decision created upheaval in the United States. However, it also provided the impetus for the creation of a new employee benefit, abortion-related travel benefits.

Thirteen states had anti-abortion trigger bans that were unenforceable until Dobbs. Several other states have passed legislation that criminalizes, or significantly restricts, abortion access. Women residing in these states will now endure greater financial, health, and temporal challenges to travel out of state …

Swipe Right Into A Disciplinary Hearing: How The Use Of Dating Apps Could Earn An Attorney More Than A Bad First Date, Zachary S. Aman

Catholic University Journal of Law and Technology

The Model Rules of Professional Conduct seek to police the conduct of attorneys. Each jurisdiction adopts its own rules of professional conduct to apply to the attorneys licensed within it. Notably, the model rules prohibit any sexual relationship between the attorney and client unless that relationship precedes the attorney-client relationship. Traditionally, defining a "sexual relationship" was simple, particularly if the attorney and client engaged in sexual intercourse. The introduction of dating apps, however, has blurred the line.

This article outlines the inherent risks of attorneys using dating apps at a time when most newly-licensed attorneys make up the majority of …

Whose Ledger Is Really Red? Confidential Arbitration Killed The Black Widow, Daniel Charles Smolsky

Duquesne Law Review

After filing a complaint against the Walt Disney Company in July 2021, Scarlett Johansson ensured that she would follow through with litigation to protect other Hollywood talent. Despite that assurance, Johansson settled her suit with Disney only sixty-three days after filing her complaint. This Article explores what Johansson's shockingly swift settlement reveals about not only the entertainment industry, but the majority of modern employment disputes. Did Disney abuse its power and intentionally sacrifice box-office profits at Johansson's expense, or did Johansson leverage her public influence to compel an unwarranted settlement? Whose ledger is really red and perhaps more importantly why …

Increasing Representation: Expanding Intersectional Claims In Employment Discrimination, Anna Maria Sicenica

Duquesne Law Review

The trend of globalization has only continued to bring workers from different races, religions, and countries to the United States. Moreover, in a country where women continue to become a larger part of the workforce every year, and as the age of retirement continues to grow, there will inevitably be more women who will face discrimination on multiple grounds: specifically, for their age and sex. Thus, it is no wonder that "intersectional claimants," or claimants that belong to least two or more protected classes under the law, now make up the majority of the workforce.

However, despite the fact that …

Foreword Introduction To Symposium: Enhancing Anti-Discrimination Laws In Education And Employment, Susan D. Carle

American University Journal of Gender, Social Policy & the Law

When this Symposium was first conceived in the Summer of 2021, the nation was just emerging from the first phases of the COVID-19 pandemic. This was the beginning of trying to go back to life as normal. Given this reawakening, the Symposium’s planning committee felt the urgency of a need to regroup, rethink, and reassess the state of employment antidiscrimination law. We were not sure where others would be on this possible project, given the newness of the hopeful end to lockdowns and social isolation and return to “normal” concerns. But we quickly found that those who joined the Symposium …