Labor and Employment Law Commons^™

The Section 301 Surge Continues: Investigating The Adoption/Enforcement/Administration Of Forced Labor Import Bans, Desiree Leclercq

Faculty Datasets

This blog post critiques the March 12, 2026, announcement by the Office of the U.S. Trade Representative (USTR) launching a sweeping Section 301 investigation into 60 economies—including the European Union, Canada, and Mexico—for failing to effectively prohibit forced labor imports. While the U.S. claims these regulatory failures harm domestic commerce, the author argues that the investigation highlights deep flaws in American trade governance. Specifically, the critique outlines four primary deficiencies in the U.S. approach: inadequate Customs and Border Protection (CBP) procedures lacking independent oversight, a dramatic decline in CBP enforcement actions, mistargeted pressure against the EU despite its superior evidentiary …

Does Textualism Constrain Supreme Court Justices?, James J. Brudney, Lawrence Baum

Northwestern University Law Review

A principal justification for textualism is the constraint hypothesis. Conservative Justices and leading textualist scholars contend that—in stark contrast to reliance on legislative history—focus on the ordinary meaning of enacted text leaves little room for the Justices to be policy-oriented or ideological in their interpretations. This Article represents the first systematic study probing the validity of the constraint hypothesis, one that employs both quantitative and qualitative analysis.

The Article examines the Justices’ reliance on interpretive resources in over 660 statutory decisions in the field of labor and employment, decided by the Burger Court, the Rehnquist Court, and the Roberts Court—during …

Negligent Hiring: Recidivism And Employment With A Criminal Record, Benjamin Pyle

Northwestern University Law Review

This Article tackles a difficult legal and policy challenge— reducing the impact of criminal records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, …

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Winging It: Convergence, Convivencia, And Belonging Of Latina Lawyers, Verónica C. Gonzales

Fordham Law Review

No abstract provided.

Academic Freedom And Collective Bargaining: A Joint Report By The National Center For The Study Of Collective Bargaining In Higher Education And The Professions And The Aaup’S Center For The Defense Of Academic Freedom, William A. Herbert, Isaac A. Kamola, Timothy R. Cain, Erin Ward, Anita Levy, Kathryn Ritchie, Ariana Gonzalez

Publications and Research

This is a joint report by the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College (National Center) and the Center for the Defense of Academic Freedom (CDAF) at the American Association of University Professors. It presents excerpts from forty-five collective bargaining agreements in higher education to demonstrate the wide range of ways academic freedom is defined in contracts, or not, and how the negotiated definitions incorporate, quote, follow, mirror, or deviate from the principles set forth in the 1940 Statement of Principles on Academic Freedom and Tenure (hereinafter 1940 Statement).

By Fair Means: The Inapplicability Of Bristol-Myers Squibb To Flsa Collective Action Lawsuits, Paige Maxa

Washington Law Review

The Fair Labor Standards Act (FLSA), passed by Congress in 1938, sets federal workplace standards and protects over 100 million workers in the United States. The FLSA also includes a collective action provision, which allows workers to privately sue their employers for FLSA violations in a unique way. A collective action lawsuit is a distinct form of aggregate litigation that allows an employee to sue their employer for FLSA violations on behalf of other similarly situated employees in one action. Similarly situated employees who wish to join a collective action must affirmatively opt in and consent to participate in the …

Exception To Abolition: Reforming Prison Labor Through Constitutional And State-Level Change, Caren Abourjeily

Nevada Law Journal

No abstract provided.

Necessity Or Preference? Navigating The Role Of Physical Presence In The Post-Pandemic Workplace, Shelby Wray

Cardozo Law Review

The COVID-19 pandemic fundamentally altered how society conceptualizes the spatial boundaries of the workplace, proving that businesses can operate effectively without requiring employees’ physical presence. As remote work gained legitimacy during the pandemic, longstanding assumptions about where jobs can be performed—and where legal protections apply—have come into question. In particular, the scope of the Americans with Disabilities Act (ADA) has become increasingly hazy, especially regarding when the ADA is triggered outside of the physical workplace.

Currently, there is a circuit split as to whether employees with disabilities are entitled to ADA protections for their commute to work. This Note addresses …

When Uniform Standards Are Missing: Judicial Inconsistency In Wages During Termination Proceedings In Indonesia, Fitriana Fitriana, Tri Hayati, Aloysius Uwiyono

The Indonesian Journal of Socio-Legal Studies

This article examines how courts lack uniform judicial standards for determining Upah Proses, which refers to wages payable during termination proceedings in Indonesia. Constitutional Court Decision No. 37/PUU-IX/2011 requires employers to pay Upah Proses until courts issue a final and binding judgment. However, subsequent instruments introduce conflicting limitations and ambiguous provisions, including Supreme Court Circular Letter No. 3 of 2015 and Law No. 6 of 2023. Such inconsistencies create normative disharmony across constitutional, statutory, and administrative frameworks. The absence of coherent interpretive guidance divides the judiciary, leading courts to issue divergent rulings, even in cases with similar factual circumstances. The …

The Gig Is Up: How Rideshare Companies Operate Under The Guise Of Nontraditional Employment To Circumvent Labor Protections, Hope E. Newkirk

Pace Law Review

App-based rideshare platforms’ rapid expansion has transformed gig work from a temporary, flexible labor model into a sustained form of employment that serves as the primary source of income for millions of workers. Despite this evolution, leaders in the rideshare industry continue to classify drivers as independent contractors, thereby avoiding statutory obligations related to minimum wage, overtime, unemployment insurance, workers’ compensation, and healthcare benefits. This Comment argues that as platform-based labor becomes more permanent and economically dependent, the continued reliance on independent contractor classification becomes increasingly inconsistent with the governing legal standards designed to distinguish employees from independent contractors.

This …

Stuckey Vs. Apex Materials, Llc, 142 Nev. Adv. Op. 17 (Feb. 26, 2026), William Mcadorey

Nevada Supreme Court Summaries

Employees pursuing prevailing-wage or overtime claims under NRS Chapter 338 must utilize the administrative remedies provided therein.

An Alternative Sacrifice: Religious Arbitration Agreements In Ministerial Employment Contracts, Grace E. Brandt

Pepperdine Dispute Resolution Law Journal

After decades of development in lower courts, the Supreme Court unanimously affirmed the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012) and provided additional guidance in Our Lady of Guadalupe School v. Morrissey-Berru (2020). The precise contours of the exception remain uncertain, but the doctrine—grounded in the Free Exercise and Establishment Clauses of the First Amendment—effectively bars civil courts from reviewing claims against religious institutions that implicate ministerial employment decisions. Thus, ministers are unable to pursue redress for legitimate harms that occur within the scope of their religious employment, even if unrelated to religious doctrine. This …

Off The Gridiron Conflict: Why The Nfl Should Use Mediation To Resolve Internal Disputes, Bryan Weitzman

Pepperdine Dispute Resolution Law Journal

The National Football League (NFL) is a multibillion-dollar enterprise built on a sport that fundamentally depends on communication, cooperation, and collaboration. Yet the league resolves nearly all internal disputes through adversarial arbitration mechanisms embedded in the NFL Constitution and the NFL/NFL Players Association Collective Bargaining Agreement. This comment argues that the NFL’s exclusive reliance on arbitration is conceptually inconsistent with the values that the sport instills and structurally prejudicial to players, coaches, and employees—particularly where the Commissioner retains final arbitral authority. An examination of alternative dispute resolution (ADR) principles and case studies demonstrates how the NFL’s current internal dispute resolution …

P*Law Week 2026: Student-Led Expert Panels Focusing On Public Service Law, Benjamin N. Cardozo School Of Law

Cardozo Law News Archive

Cardozo School of Law's annual Public Law Advocacy Week (P*LAW), hosted by the Center for Public Service Law, featured student-led panels on disability rights, labor law, LGBTQ+ rights, immigration law, environmental law, and international accountability. The event brought together students, alumni, faculty, and practitioners to discuss pressing public interest issues and careers in public service law.

Unleash The “Potential” Of The Collective Action Mechanism In Flsa Suits, Anthony Decaprio

Catholic University Law Review

Congress enacted the Fair Labor Standards Act (FLSA) to provide relief to low-income workers at risk of being taken advantage of by their larger, more sophisticated employer. The FLSA provides a collective action mechanism that allows similarly situated workers to bring suits together against a common employer outside the strictures of Rule 23 of the Federal Rules of Civil Procedure. To ensure all potentially similarly situated workers have sufficient notice of the suit in order to affirmatively opt-in, the Supreme Court authorized the district courts to facilitate notice to all “potential plaintiffs.”

The circuits are currently split regarding the standard …

For What? Resolving The Causation Split For Fmla Retaliation Claims, Lucy Wess

Catholic University Law Review

For over thirty years, the Family and Medical Leave Act (FMLA) has provided working Americans the opportunity to maintain their professional careers while juggling personal and familial health care needs. Like many other employment law statutes, the FMLA prohibits retaliation by employers against employees who exercise their rights under the statute. However, a circuit split as to the correct causation standard for FMLA retaliation claims leaves plaintiffs and defendant employers uncertain of case outcomes as well as the legality of the employer’s conduct. The Fourth and Eleventh Circuits held that the but-for causation standard is the proper standard in such …

Outbound Investment Restrictions And International Law’S Challenge, Harlan Grant Cohen

Seattle University Law Review

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the …

Resilient Dispute Resolution Systems For International Energy Conflicts, Guillermo J. Garcia Sanchez

Seattle University Law Review

Energy-related conflicts are on the rise, spanning diverse issues such as the impacts of rare mineral mining on local communities, the impacts of sanctions on energy investments due to the Russia-Ukraine war, and the impacts of expanded subsidies on the electric vehicle and solar panel industries. Increasingly, companies, communities, and governments are clashing over the challenges of pursuing disparate and sometimes competing energy policies. This Article argues that dispute resolution mechanisms in the energy investment sector must be fundamentally rethought. Traditional semi-adjudicatory models, which focus on winners and losers, fail to accommodate the complex and multifaceted nature of contemporary energy …

Restricting Data Flows Is A Sign Of Weakness, Nikolas Guggenberger

Seattle University Law Review

There has been a seismic shift in American attitudes toward the free flow of data across borders.  In less than a decade, the United States has transitioned from condemning barriers to digital trade to constructing a digital fortress of its own. It passed legislation requiring TikTok’s parent company to divest its U.S. operations or face a nationwide ban affecting 170 million U.S. users, citing national security concerns about its ties to China and the potential for data surveillance and content manipulation. Upon legal challenge by TikTok on First Amendment grounds, the Supreme Court affirmed the ban’s constitutionality. Recent federal legislation …