Labor and Employment Law Commons^™

Graduate Student Employee Unionization In The Second Gilded Age, William A. Herbert, Joseph Van Der Naald

Publications and Research

In debates on the future of work, a common theme has been how work became
less secure through the denial of employee status. Though much of the attention
has focused on other industries, precarity has also affected those working in
higher education, including graduate student employees, contributing to what is
now called the “gig academy.” While universities have reassigned teaching and
research to graduate assistants, they have also refused to recognize them as
employees. Nevertheless, unionization has grown considerably since 2012, most
significantly at private institutions. Utilizing a unique dataset, this chapter
demonstrates that between 2012 and 2019, graduate student …

Biographical Data And Black Box Empiricism: Lessons Learned For Algorithmic Assessments In Personnel Selection, Ketaki Sodhi, Marc Cubrich

Psychology from the Margins

As the popularity of biodata in selection assessments grew in the 1980s and into the 1990s, the field of industrial and organizational psychology witnessed many attempts to develop biodata theories and guide the development of biodata items. The insights that emerged from this body of research are increasingly relevant in the current era of big data, artificial intelligence (AI), and machine learning. More than ever, AI and machine learning are being used to score candidates and make hiring recommendations. Many organizations are using data-driven approaches to develop machine learning and AI algorithms, which are frequently atheoretical, based on correlations or …

Maternity Rights: A Comparative View Of Mexico And The United States, Roberto Rosas

The Scholar: St. Mary's Law Review on Race and Social Justice

Women play a large role in the workplace and require additional protection during pregnancy, childbirth, and while raising children. This article compares how Mexico and the United States have approached the issue of maternity rights and benefits. First, Mexico provides eighty-four days of paid leave to mothers, while the United States provides unpaid leave for up to twelve weeks. Second, Mexico allows two thirty-minute breaks a day for breastfeeding, while the United States allows a reasonable amount of time per day to breastfeed. Third, Mexico provides childcare to most federal employees, while the United States provides daycares to a small …

Vol. 38, No. 4, Jane Flanagan, Scott Lerner

The Illinois Public Employee Relations Report

Pandemic State: Navigating the State of Illinois' Response to the Challenges of Covid-19 in the Workplace

by Jane Flanagan and Scott Lerner

Recent Developments

The Disparate Treatment Of Rights In U.S. Trade, Desirée Leclercq

Fordham Law Review

Rights advocates are increasingly urging U.S. trade negotiators to include new binding and sanctionable provisions that would protect human rights, women’s rights, and gender equality. Their efforts are understandable. Trade agreements have significant advantages as a process for advancing international rights. Even though Congress and the executive incorporate international environmental standards and labor rights into U.S. trade agreements, they have refused to incorporate gender rights and broader human rights. The rationale behind the United States’s disparate treatment of rights in trade has received almost no scholarly attention. That is a mistake. Using labor rights as a case study, this Article …

Working On The Other Side Of The Fence: Relief For Incarcerated Individuals After Employment Discrimination, Hannah C. Merrill

William & Mary Journal of Race, Gender, and Social Justice

One of America’s largest workforces, comprised of 1.5 million incarcerated workers, remains unprotected by employment discrimination statutes and vulnerable to abuse from a system designed to exploit their labor. This Note highlights the effects of the lack of protection against employment discrimination for incarcerated workers. This Note will analyze the circuit split regarding the application of employment discrimination statutes to prisoners based on varying understandings of the term “employee” and explain why both approaches fail incarcerated workers. Although one approach bars suit from incarcerated employees altogether, the other only allows suit when the incarcerated individual is working in an “optional” …

Osha’S Comprehensive Failure To Protect Workers During The Covid-19 Pandemic, Nancy M. Modesitt

Dickinson Law Review (2017-Present)

Under the Trump Administration, the Occupational Safety and Health Administration (“OSHA”), failed to protect workers from COVID-19, which has led to deadly workplace outbreaks of the virus. OSHA’s failures began when it refused to produce legally-binding rules, known as emergency temporary standards, that would mandate the most basic step of requiring masks in the workplace to protect workers from the risks of infection on the job. In addition, while OSHA did produce non-binding guidance for employers, that guidance was unclear and fundamentally deficient in failing to require masks in all workplaces and failing to require recordkeeping that would identify potential …

Can Private Sector Unionization Be Saved?: An Analysis Of The Pro Act As A Model For Effective Nlra Reform, Christopher Adinolfi

Fordham Law Review

In February 2020, the U.S. House of Representatives passed the Protecting the Right to Organize Act (“PRO Act”), one of the most prolabor pieces of legislation since the creation of the current labor relations framework in 1935. For almost seventy-five years, the substantive text of the National Labor Relations Act (NLRA) has remained largely unchanged, despite the pervasive increase of anti-labor hostility from companies seeking to avoid the unionization of their workers. Across all stages of unionization, organizers and bargaining agents face coercive management tactics, diminished negotiating positions, the loss of collective action tools, and a National Labor Relations Board …

Firing Employment At Will And Discharging Termination Claims From Employment Discrimination: A Cooperative Federalism Approach To Improve Employment Law, William Corbett

Journal Articles

The article focuses on employment at will and employment discrimination law-and explores how each encroaches upon and weakens the other. It mentions federal-state cooperative approach to "firing" employment at will and discharging termination claims from the federal employment discrimination laws. It also mentions cooperative federalism approach to improve employment law and basics of a wrongful discharge statute.

The Ministerial Exception: Our Lady Of Guadalupe School And Antidiscrimination Employment Laws, Shelly A. Yeini

Vanderbilt Journal of Transnational Law

The Ministerial Exception (ME) is a legal doctrine providing that antidiscrimination employment laws do not apply to the relationship between religious institutions and their ministers. Such a notion appears in various democracies, as it aims to confront a shared problem: the attempt to solve the clash between antidiscrimination employment laws and religious autonomy. Liberal democracies strive to protect employees from discrimination, as well as to accommodate freedom of religion, which cannot be fulfilled without the existence of religious organizations. While being able to choose their staff is at the heart of the existence of religious institutions, the fulfillment of such …

Firing Employment At Will And Discharging Termination Claims From Employment Discrimination: A Cooperative Federalism Approach To Improve Employment Law, William R. Corbett

Cardozo Law Review

No abstract provided.

Court Packing Is A Chimera, Brian L. Frye

Cardozo Law Review

The dream of the 1930s is alive in Washington. Democrats see Republicans hemorrhaging voters as Trump struggles with the economy and the pandemic and are salivating at the prospect of retaking not only the White House, but also the Senate. Of course, you should never sell a bearskin until you’ve caught the bear. But even a blowout victory can’t get Democrats the prize they really want, a Supreme Court majority. So, in back-to-the-future fashion, many progressives are pushing the idea of court packing. After all, in politics, rules are made to be broken.

Contra Publius: The House As Cure For The Complaisance And Venality Of The Senate, Sam Solomon

Cardozo Law Review

No abstract provided.

Employers’ Secret Weapon: How The After-Acquired Evidence Doctrine Allows Employers To Get Away With Disability Discrimination, Emma Schwab

Cardozo Law Review

No abstract provided.

The Right To Dine: Why New York City's Restaurant Culture Is Worth Saving, Evelyn Baert

Cardozo International & Comparative Law Review

The note argues that New York City's restaurant culture, akin to Paris's, holds significant cultural and economic value and should be preserved through comprehensive government relief measures. It advocates for adopting a French-inspired approach to economic aid, emphasizing the importance of restaurants as social and cultural hubs beyond mere economic entities.

Title Vii Prohibits Employment Discrimination... Except When It Doesn't: Eliminating The Small Firm Exemption, Hayley Bronner

Cardozo International & Comparative Law Review

The note argues that the small firm exemption in Title VII of the Civil Rights Act of 1964, which excludes employers with fewer than fifteen employees from coverage, undermines the law's purpose of eradicating employment discrimination. The exemption, initially a political compromise, lacks an evidence-based foundation and disproportionately affects vulnerable groups such as women and minorities. The analysis suggests that eliminating this exemption is essential to achieve universal protection and align Title VII with broader state and international laws, proposing measures like damage caps to mitigate potential burdens on small businesses.

Becoming Visible, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

This Article will consider the consequences of a large number of workers making their health conditions known to their employers during the pandemic. Becoming visible will likely have short-term costs for both employers and employees-—in terms of health-status discrimination, privacy, and administrative burdens. Nonetheless, this Article will ultimately argue that becoming visible also has a major benefit: improved information flow between employers and employees. Although the long-run cost-benefit analysis of increased health-status visibility during the pandemic remains to be seen, increased visibility ultimately has the potential to improve the employer-employee relationship.

State Joint Employer Liability Laws And Pro Se Back Wage Claims In The Garment Industry: A Federalist Approach To A National Crisis, Andrew Elmore

Faculty Scholarship

The garment industry, one of the largest manufacturing bases in the United States, withholds millions of dollars annually from its employees in unpaid minimum wages. However, courts have not clearly addressed the question of whether the Fair Labor Standards Act, which establishes federal wage and hour laws, makes garment manufacturers and retailers liable for the minimum wage violations of their contractors. The U.S. Department of Labor (DOL), the federal agency that enforces wage and hour laws, investigates few garment contractors, and collects little of the total owed back wages. Further, the DOL's relationship with the INS compromises its ability to …

A Democratic View Of Public Employee Speech Rights, R. George Wright

Catholic University Law Review

The question of the scope of public employee free speech rights is of obvious importance. Such cases are frequently litigated. The speaker's continuing employment is commonly at stake. The appropriate functioning of the government agency may be at issue as well. But government agencies are intended to operate not only with internal efficiency but with proper accountability to the public. And such accountability requires an appropriate degree of agency openness, transparency, and meaningful disclosure on publicly significant matters. Adequately assuring the democratic accountability of government agencies, it turns out, requires greater protection of public employee speech than is currently available.

Taxation Of Long-Term Unemployment In The Digital Economy: Facing The Twenty-First Century Challenges, Limor Riza

Catholic University Law Review

The article examines the policy of taxing long-term unemployment. We claim that tax systems should not tax the unemployed regardless of whether they reenter the labor market. Unemployment is a socioeconomic problem. The fear of expanding unemployment increases due to COVID-19 that shut down large sectors of the economy for a long period and also due to the digital economy. As early as the 1930s, Keynes expressed his fear of the economic challenges his grandchildren's generation would face, coining the term "technological unemployment." Several contemporary economists substantiate this fear by showing that some occupations are bound to disappear. Unemployment insurance …