Labor and Employment Law Commons^™

Vol. 39, No. 3, Jerry Marzullo, Catherine Humphrey

The Illinois Public Employee Relations Report

Possible Wisdom and Wit Regarding the Arbitration of Discipline

By Jerry Marzullo, Esq., and Catherine Humphrey

Sidelined Again: How The Government Abandoned Working Women Amidst A Global Pandemic, Jessica K. Fink

Faculty Scholarship

Among the weaknesses within American society exposed by the COVID pandemic, almost none has emerged more starkly than the government’s failure to provide meaningful and affordable childcare to working families—and, in particular, to working women. As the pandemic unfolded in the spring of 2020, state and local governments shuttered schools and daycare facilities and directed nannies and other babysitters to “stay at home.” Women quickly found themselves filling this domestic void, providing the overwhelming majority of childcare, educational support for their children, and management of household duties, often to the detriment of their careers. As of March 2021, more than …

Ministerial Employees And Discrimination Without Remedy, Charlotte Garden

Indiana Law Journal

The Supreme Court first addressed the ministerial exemption in a 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The ministerial exemption is a defense that religious employers can invoke in discrimination cases brought by employees who qualify as “ministerial,” and it is rooted in the First Amendment principle that government cannot interfere in a church’s choice of minister. However, Hosanna-Tabor did not set out a test to determine which employees are covered by this exemption, and the decision was susceptible to a reading that the category was narrow. In 2020, the Court again took up the ministerial exemption, …

Compelled Disclosure And The Workplace Rights It Enables, Catherine Fisk

Indiana Law Journal

Worker and consumer protection laws often rely on the regulated entity to notify workers or consumers of their legal rights because it is effective and efficient to provide information at the time and place where it is most likely to be useful. Until the Supreme Court ruled in NIFLA v. Becerra in 2018 that a California law regulating crisis pregnancy centers was an unconstitutional speaker-based, contentdiscriminatory regulation of speech, mandatory disclosure laws were constitutionally uncontroversial economic regulation. Yet, the day after striking down a disclosure law in NIFLA, the Court in Janus v. AFSCME Council 31 expanded the right of …

Without Accommodation, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

Under the Americans with Disabilities Act (ADA), workers with disabilities have the legal right to reasonable workplace accommodations provided by employers. Because this legal right is unique to disabled workers, these workers could, in theory, enjoy greater access to the types of accommodations that are desirable to all workers including the ability to work from home, to work flexible hours, and to take leave. This Article compares access to these accommodations, which have become increasingly desirable during the COVID-19 pandemic, between disabled workers and nondisabled workers. Using 2017-2018 data from the American Time Use Survey's Leave and Job Flexibilities Module, …

Freedom From Speech, Mary Anne Franks

Articles

The importance of freedom of speech in a democratic society is usually taken as a given, but freedom from speech is no less important in safeguarding the values of truth, autonomy, and democracy. Freedom from speech includes both the right of the individual to not be forced to speak and the freedom to avoid the speech of others. This essay attempts to highlight the significance of freedom from speech in order to clarify the importance of the First Amendment right against compelled speech; provide an explanation for when the right of free speech yields to other rights; and offer a …

Tribal Labor And Employment Law: The Evolution Of The Navajo Preference In Employment Act, Paul Spruhan

Faculty Scholarship

For nearly 40 years, the Navajo Nation (“Nation”) has regulated labor and employment (except for occupational safety and worker’s compensation) through one statute, the Navajo Preference in Employment Act (NPEA). Despite its seemingly narrow title, the NPEA is a comprehensive law on the subject. First passed in 1985, it has gone through general and specific revisions to reflect tribal leaders’ views on the balance between the interests of employees and employers, both within and outside the tribal government. In its own right, the NPEA is an important manifestation of a Navajo-specific view of labor and employment that every attorney practicing …

Arbitration And The Right To Have Your Day In Court: Meeting Again At The Turning Of The Tide, Lucas Clover Alcolea

Pepperdine Dispute Resolution Law Journal

This article aims to explore court decisions which have made arbitration less attractive to businesses—both those which have refused to enforce arbitration clauses and paradoxically and those which have enforced arbitration clauses—as well as to provide an overview of businesses' reactions to those decisions and make some predictions about the future direction of travel. To that end, this article will be divided into three main parts. The first will explore the decision of New Prime Inc. as well as the various federal appellate decisions that have applied it. The second will explore the challenges posed by mass arbitration, and the …

The Wagner-Peyser Act And U.S. Employment Service: 75 Years Of Matching Job Seekers And Employers, Christopher J. O'Leary, Randall W. Eberts

Presentations

No abstract provided.

Employee Benefits Law—Shifting The Burden Out Of Neutral: Why Burden-Shifting Is Necessary In Erisa Breach Of Fiduciary Duty Claims, William G. Mcgrath

University of Arkansas at Little Rock Law Review

No abstract provided.

Employment Law—Just Let Them Handle It Amongst Themselves: An Argument In Favor Of Abandoning The Application Of The Lynn's Food Stores Standard To Flsa Settlement Agreements, Matthew C. Lewis

University of Arkansas at Little Rock Law Review

No abstract provided.

The Stubborn Persistence Of The Lawyer Exemption In Canadian Collective Bargaining Legislation, David J. Doorey

Dalhousie Law Journal

In 1948, the Canadian government introduced transformative collective bargaining legislation that would serve as a template for provincial labour law in the postwar period. However, some employees were excluded entirely from this legislation, including employees in five professions, law among them. By the 1970s, the federal government and most provinces had repealed the professional exclusion from the primary collective bargaining legislation. However, four jurisdictions—Ontario, Alberta, Nova Scotia, and Prince Edward Island (Exclusionary Provinces)—have stubbornly preserved the exclusion. This essay traces the history and justifications proffered for the lawyer exclusion from Canadian collective bargaining legislation from the 1940s to present day. …

Adding Sexual Harassment Prevention To The Menu: Sexual Harassment Prevention As A Condition Of Food Safety Licensing In The Restaurant Industry, Susan R. Fiorentino, Sandra M. Tomkowicz

Villanova Law Review (1956 - )

No abstract provided.

Delayed & Denied: Recalibrating The Erisa Attorney's Fee Factors For Healthcare Claims, Katherine T. Vukadin

Villanova Law Review (1956 - )

No abstract provided.

Design Professional Liability For Construction Worksite Accidents - How Arkansas Led The Way To A National Consensus, Marc M. Schneier

Arkansas Law Review

Three major developments underlie the law of architect or engineer (a/e) liability to construction workers, beginning in the second half of the twentieth century: (1) a change from a no-duty regime to a duty of care under a foreseeability test, (2) reactions to that expanded liability by changes to standard form documents by industry associations (in particular the American Institute of Architects (AIA)), (3) currently culminating in a broad national consensus. The Arkansas Supreme Court was instrumental in framing the issues of this jurisprudence early in its development and later contributed to its continued evolution.

Construction Law: The English Route To Modern Construction Law, Vivian Ramsey

Arkansas Law Review

In this Article, I will look at the way that construction law has developed in the English common law world from its roots in the law of England and Wales. Whilst common law traditions are now applied to many jurisdictions, the number of jurisdictions in which English precedents are binding is now small. But, in many common law jurisdictions decisions of the English courts are still treated as “persuasive.” English decisions in the field of construction law have an extensive reach in terms of their persuasiveness. First, having a long-established court system, including a specialist court for 150 years, has …

Transparency And Reliance In Antidiscrimination Law, Steven L. Willborn

Catholic University Law Review

All antidiscrimination laws have two structural features – transparency and reliance – that are important, even central, to their design, but have gone largely unnoticed. On transparency, some laws, like the recent salary-ban laws, attempt to prevent the employer from learning about the disfavored factor on the theory that an employer cannot rely on an unknown factor. Other laws require publication of the disfavored factor, such as salary, on the theory that it is harder to discriminate in the sunlight. Still other laws are somewhere between these two extremes. The Americans with Disabilities Act, for example, limits but does not …

A Nun, A Synagogue Janitor, And A Social Work Professor Walk Up To The Bar: The Expanding Ministerial Exception, Patrick Hornbeck

Buffalo Law Review

Some employees who hold significant positions within some religious organizations fall outside the protections of certain laws, especially employment discrimination laws. But which employees, which organizations, and which laws? In its 2020 decision in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court reaffirmed the “ministerial exception” doctrine, a constitutional immunity that is “extraordinarily potent” where applicable.1 The doctrine exempts religious employers from liability for nearly all forms of discrimination, some torts, and some breaches of contract, even when an employer does not act for religious reasons.

This Article argues that Our Lady of Guadalupe School marks a …

Walking Between The Lines: Why The Wright Line Standard Is Not Always Applicable While Employees Demand Safer Covid-19 Working Conditions, Michelle Verkhoglaz

Brooklyn Journal of Corporate, Financial & Commercial Law

Before the National Labor Relation Board’s (NLRB) July 2020 decision in General Motors LLC and Charles Robinson, employers faced difficulty in disciplining employees that engaged in protected activity under the National Labor Relations Act (NLRA) when their behavior was abusive. However, this changed after the NLRB adopted the Wright Line standard in General Motors, a burden-shifting analysis that gives employers the opportunity to prove that the employer would have taken the same action even without the NLRA protected activity. Compared to the NLRB’s prior standards, this standard offers employers a clear-cut defense and the ability to adhere to discrimination laws …

From Healthcare To Hiring: Impacts Of Social And Public Policy On Disabled Veterans In The United States, Benjamin Michael Stoflet

Student Scholarship

The United States Government is struggling to fulfill commitments it has made to service members suffering from disabilities incurred during honorable service to the country. The Department of Veterans Affairs (VA) disability compensation structure, job training programs, and methods of alternative dispute resolution is a patchwork resulting from decades of legislation creating a system where veterans often become locked in a complicated and often combative process to obtain benefits they have earned. Employers, advocacy groups, academics, and federal officials agree that there are systematic issues within the VA negatively impacting disabled veterans. These include a lack of patient-centered care, divergent …