Labor and Employment Law Commons^™

Challenging Gender Discrimination In Closely Held Firms: The Hope And Hazards Of Corporate Oppression Doctrine, Meredith R. Miller

Scholarly Works

The #MeToo Movement has ushered sexual harassment out of the shadows and thrown a spotlight on the gender pay gap in the workplace. Harassment and unfair treatment have, however, been difficult to extinguish. This has been true for all workers, including partners – those women who are owners in their firms and claim that they have suffered harassment or unfair treatment based on gender. That is because a partner’s lawsuit for discrimination often will suffer an insurmountable hurdle: plaintiff’s status as a partner in the firm means that they may not be considered an “employee” under the relevant employment discrimination …

The Lost Approach To Flsa Settlement Agreements: A Freedom-Of-Contract Approach, Madison G. Conkel

Georgia Law Review

In jurisdictions that require judicial oversight of Fair Labor
Standards Act settlement agreements, a question lingers: What
exactly should judges review? Some judges have begun
categorically striking confidentiality provisions from
settlement agreements by pointing to the purposes and goals of
the FLSA. The academic community lauds these courts’ efforts
to prevent employers from mandating employees’ silence about
the terms of their settlement agreements. This Note, however,
makes the counterargument: confidentiality provisions should
be permitted in FLSA settlements agreements as a bargaining
chip for employees who bring individual suits. If higher courts
in a given jurisdiction require judicial oversight of these …

Mopping Up The Mess: A Call To Adopt The Seventh Circuit’S Standard For Assessing Comparator Evidence In Title Vii Discrimination Claims, Alexander S. Edmonds

Georgia Law Review

In McDonnell Douglas Corp. v. Green, the U.S. Supreme
Court developed a framework to assist courts in assessing
individual disparate treatment claims based on
circumstantial evidence. Under that test, plaintiffs alleging
discrimination under Title VII must first show a prima facie
case of discrimination. Since McDonnell Douglas, courts have
modified the test by requiring plaintiffs to demonstrate that
they were treated less favorably than a similarly situated
comparator employee who is outside the plaintiff’s protected
class. Courts disagree, however, on what it means for
employees to be similarly situated. Some courts strictly
interpret the similarly situated requirement; others caution
against …

Two Sides Of The Same Coin: Examining The Misclassification Of Workers As Independent Contractors, Julia H. Weaver

Georgia Law Review

Under current National Labor Relations Board
interpretations of the National Labor Relations Act, employers
may only be punished for misclassifying their employees as
independent contractors if a separate violation of the NLRA is
present. As the U.S. economy increasingly focuses on gig work,
millions of workers are affected by misclassification, which
results in lower pay and fewer employment protections.
Misclassification also strips the government of billions of
dollars in tax revenue.
The NLRB considered the issue of making the
misclassification of employees a standalone violation of Section
8(a)(1) of the NLRA in the case Velox Express, Inc., yet it
declined …

Transaction Cost Economics, Labor Law, And The Gig Economy, Seth C. Oranburg, Liya Palagashvili

Scholarly Articles

The rapid growth of technology not only is creating innovative goods and services, but it is also altering the workplace and the traditional understanding of relationships between employee and employer. This can be seen today with the rise of the gig economy and alternative work arrangements. Our paper seeks to explain how technology has reduced the transaction costs of contracting in the market. In particular, we identify the innovations that have led to reductions in triangulation, transfer, trust, and measurement costs. These costs are relevant for creating greater exchanges between consumers and labor suppliers and, hence, more work for contractors …

Law, Labor, And The Hard Edge Of Progressivism: The Legal Repression Of Radical Unionism And The American Labor Movement's Long Decline, Ahmed White

Publications

No abstract provided.

Wage Theft Criminalization, Benjamin Levin

Publications

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes …

Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar

Brooklyn Journal of International Law

The global COVID-19 pandemic is causing the large-scale end of life and severe human suffering globally. This massive public health crisis created a significant economic crisis and is reflected in a recession of global production and the collapse of confidence in the functions of markets. Corporations and boards of directors around the world are required to design specific strategies to tackle the negative consequences of the crisis. This is especially true for small and medium-sized enterprises (SMEs) that suffered tremendous economic loss, and their continued existence as ongoing concern is under considerable risk. Given these uncertain financial times, this Article …

Your Uber Driver Is Here, But Their Benefits Are Not: The Abc Test, Assembly Bill 5, And Regulating Gig Economy Employers, Brian A. Brown Ii

Brooklyn Journal of Corporate, Financial & Commercial Law

In September 2019, California passed Assembly Bill 5 (AB 5) which adopts the ABC test as the standard for determining whether an individual worker is an employee or an independent contractor. This legislation is aimed at gig economy employers, such as Uber, whose workers are arguably misclassified as independent contractors, ultimately denying them access to benefits and the ability to unionize. This Note will discuss AB 5 by identifying the successes and pitfalls of the legislation. While AB 5 is a step in the right direction, the bill still needs to be refined to avoid gaps in enforcement. Further, this …

The Modern Pay For Play Model: Laws That Protect Student-Athletes' Fundamental Right To Commercialze Their Names, Images, And Likeness, Paul A. Schwabe Jr.

Brooklyn Journal of Corporate, Financial & Commercial Law

In O’Bannon v. NCAA, the United States District Court for the Northern District of California entered a permanent injunction against the National Collegiate Athletic Association enjoining the collegiate sports governing body from enforcing limits on student-athlete compensation derived from the use of their name, images, and likenesses rights. The court concluded that NCAA rules unreasonably restrained trade in violation of the Sherman Anti-Trust Act, however, neither the court nor the NCAA laid out a framework for lawfully implementing these new economic rights to student-athletes. Since that ruling, only one state’s legislature, California, has attempted to pass legislation to prevent the …

Proposed Federal Osha Standards For Wildfire Smoke, Keenan Layton

Seattle Journal of Technology, Environmental, & Innovation Law

With the rise of global temperatures, climatologists predict a corresponding increase in the frequency and severity of wildfires in the Pacific Northwest. Rising temperatures are expected to create drier conditions in forests, thereby creating environmental conditions more prone to forest fires. Wildfires have become a common enough occurrence in the Pacific Northwest that summers have become synonymous with smoky conditions, but the issue is not constrained to this region. Though the Pacific Northwest has recently acted as a harbinger of increasing wildfires, environmental scientists forecast an increase in fire risk throughout the Western United States. The predicted rise in forest …

Federation Divided, Max M. Balton

Capstones

At the start of the 2020 school year, a lack of covid safety plans led teachers like Rosy Clark to protest, urging her union the United Federation of Teachers to act. She and other progressives in the dissident caucus, Movement of Rank and File Educators, were willing to strike to ensure their safety. Union leadership hesitated largely because public union strikes are illegal under the state’s Taylor Law.

This four-part audio documentary looks at the history of the UFT and this contentious state law. The union began striking under more onerous strike prohibition legislation. Its roots are steeped in radical …

Health Insurance And The Undocumented Immigrant, Anja Diercks

Honors Theses

The purpose of this thesis is to perform a comparative analysis on how seven different countries (USA, South Africa, Germany, England, Canada, France and Singapore) organize their healthcare system to cope with the issue of undocumented immigrants and whether or not these systems in place were “fair.” The thesis will also explore the possible ways the United States could change to be more inclusive and fairer in the world of healthcare and health insurance for the undocumented immigrant. A study on what fairness means both in ethical and economical terms is done to suggest a new basis of a fair …

Unvested: How Equity And The Deferred Payment Gamble In Startups Shortchange Employees Targeted By Discrimination, Katie Black

University of Miami Law Review

The new American Dream is not limited to Silicon Valley. Startups span the nation. They exist in a vast array of sizes and ideologies. Nonetheless, by their very nature, startups are boundary-pushing enterprises. For all the world-altering good they can do, sometimes, that crashing-into-walls mentality comes at the price of pushing human and legal boundaries as well. While the entity tries to grow and create, almost hydraulically using what little human and financial capital it may have to build the once-impossible, startup employees can be left to bear the cost when it is their boundaries that are broken. Discrimination is …

The Third Circuit Searches For An "Economic Reality" In Verma V. 3001 Castor, Jack F. O'Connor

Villanova Law Review (1956 - )

No abstract provided.

Vol. 37, No. 4, Karl R. Ottosen

The Illinois Public Employee Relations Report

One Lawyer's Perspective on 2020 Public Sector Labor Relations and the Impact of Covid-19 and Race Relations

By Karl R. Ottosen

Recent Devlopements

Gender Pay Discrimination & The Equal Pay Act: Legal Research & Methods, Emily Sullivan

Law Student Works

More than 50 years since the Equal Pay Act (1963) was passed, the subject of wage inequality between the sexes remains a critical topic for women, members of Congress, advocacy groups, business and legal communities. Within the last decade, the legal community has seen a wave of litigation alleging discrimination across a wide variety of industries, including within the legal field itself. Wage discrimination has negative consequences for women, communities, and employers—discrimination in the workplace is inefficient and resulting litigation is costly.

In this Pathfinder guide, you will find a brief background on the Equal Pay Act as it pertains …

Preserving Fabled Amateurism: The Benefits Of The Ncaa’S Adoption Of The Olympic Amateurism Model, John Kealey

Journal of Law and Policy

After a century of denying student-athletes from receiving compensation outside the cost of attendance for their athletic contributions to their respective universities, the NCAA finally announced it would change its amateurism rule. The change came in response to multiple class action lawsuits and, more recently, legislation from many states, namely California and New York, which would have mandated that universities do not interfere with student-athletes desire to commercially exploit their own names, image, and likenesses. However, these statutes are potentially flawed in that each could exacerbate or perpetuate the anti-trust and first amendment issues inherent to the current amateurism rule. …

Content, Context, What's Next? A Garcetti-Pickering Analysis For Public Employees In Court, Austin Longnecker

West Virginia Law Review

No abstract provided.

Protecting Protected Activity, Daiquiri J. Steele

Washington Law Review

The United States Supreme Court recently rolled back protections in employment retaliation cases by requiring plaintiffs to prove that their protected activity was the but-for cause of adverse actions by their employers. As a result, employers may escape liability even though the employee-plaintiffs have proven that employers had an impermissible motive in taking adverse actions. In doing so, the Court undermined the underlying statutes’ retaliation provisions created to help enforce the underlying statute, leading to a court-instituted failure to protect activity that Congress sought to protect.

While legal scholars have paid much attention to the establishment of a but-for causation …