Labor and Employment Law Commons^™

Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg

Faculty Scholarship

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment – from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to …

Proposal: Protecting U.S. Agricultural Workers Utilizing Existing Legal Structures And Augments To The U.S. Farm Bill, Alexia M. Kulwiec

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Taking Care Of The Caretakers: An Argument For A Cross-Sectoral Approach To Mental Health Resources For Farmers, Ranchers, And Agricultural Workers, Mary Dallas

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Rise And Fall Of Unions In The Coal Industry: How The New Era Of Labor Union Resurgence Can Protect The Miners That Remain, Emily Allender

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Arbitration Of Worker Contracts: New Prime's Proper Statutory Interpretation Of The 1925 Federal Arbitration Act, Margaret L. Moses

Cardozo Journal of Conflict Resolution

This article will discuss how, in a future case, if the Court applied the reasoning of its unanimous opinion in New Prime-that the language of the statute should be interpreted consistent with the meaning it had to the Congress that adopted it-no worker would be covered by the FAA. Part I will consider the scope of the Commerce Clause, and the expansion in the Court's understanding of Congress' power under the Clause that occurred post-1925. In Part II, the article will deal with the purpose of the FAA as understood at the time of its adoption, as well as …

Why Is There So Much Pre-Retirement Liquidity In The U.S. Pension System?, Kathryn L. Moore, John Turner

Law Faculty Books and Chapters

Some analysts argue that there is a retirement savings crisis in the United States. While the extent of the crisis is contested, most analysts agree that retirement savings in this nation is inadequate. Although the reasons for the retirement savings shortfall are many and complex, this paper focuses on one factor that leads to inadequate retirement savings in the United States: pre-retirement liquidity or leakage.

Pre-retirement liquidity or leakage refers to the ability of individuals to withdraw money from their retirement savings account prior to retirement and use that money for nonretirement purposes. The Employee Benefit Research Institute (EBRI) writes, …

Equitable Hiring Policy In Higher Education At The University Of Montana, Victoria Mckinley Bigelow, Kinsey Anderson

Graduate Student Portfolios, Professional Papers, and Capstone Projects

Higher Education; University of Montana; Equity; Hiring; University; College; Montana; Missoula; Public Administration; Organization; Missoula; Diversity; Women; Policy

New Labor Viscerality? Work Stoppages In The "New Work" Non-Union Economy, Michael C. Duff

Saint Louis University Law Journal

COVID-19 work stoppages involving employees refusing to work because they are fearful of contracting coronavirus provide a recent dramatic opportunity for newer workplace law observers to grasp a well-established legal rule: both unionized and non-union employees possess rights to engage in work stoppages under the National Labor Relations Act (“NLRA”). This article explains that employees engaging in concerted work stoppages, in good faith reaction to health and safety dangers, are prima facie protected from discharge. The article carefully distinguishes between NLRA § 7 and § 502 work stoppages. Crucially, and contrary to § 502 work stoppages, the health and safety-related …

The New Enforcement Regime: Revisiting The Law Of Employee Competition (And The Scholarship Of Professor Charles Sullivan) With 2020 Vision, Rachel Arnow-Richman

UF Law Faculty Publications

This Article, prepared for Seton Hall Law School’s 2019 Symposium on the scholarship of Professor Charles Sullivan, labels and critiques “the new enforcement regime” in employee mobility law. For centuries, employee noncompetes have been regulated primarily through the common law rule of reason. The last decade, however, has witnessed a surge in public initiatives seeking to restrict employers’ use and enforcement of these agreements. They include proposed legislation, regulatory undertakings, class action litigation, and state enforcement programs that seek reforms ranging from an end to the use of noncompetes with vulnerable workers to the outright prohibition of all forms of …

The Politics Of Pregnancy Accommodation, Stephanie Bornstein

UF Law Faculty Publications

How can antidiscrimination law treat men and women “equally” when it comes to the issue of pregnancy? The development of U.S. law on pregnancy accommodation in the workplace tells a story of both legal disagreements about the meaning of “equality” and political disagreements about how best to achieve “equality” at work for women. Federal law has prohibited sex discrimination in the workplace for over five decades. Yet, due to long held gender stereotypes separating work and motherhood, the idea that prohibiting sex discrimination requires a duty to accommodate pregnant workers is a relatively recent phenomenon—and still only partially required by …

Finding Balance, Forging A Legacy: Harassers’ Rights And Employer Best Practices In The Era Of Metoo, Rachel Arnow-Richman

UF Law Faculty Publications

This article, prepared for the Annual Jack Pemberton Lecture on Workplace Justice, calls for the development of best practices for handling accused harassers in response to the MeToo movement. It contends that much of MeToo’s legacy will be determined by the voluntary choices of employers as they implement new policies and practices surrounding sexual harassment. It is therefore crucial that employers gain a better understanding of the nature and scope of sexual harassment and the risks of both over- and under-enforcement of anti-harassment norms. Through analysis of Harvey Weinstein’s final contract as Co-Chairman of the Weinstein Companies, the article juxtaposes …

Selling Out, Andrew B. Dawson

Articles

When bankruptcy policy competes with other federal and state regulatory policies, which should take priority? Bankruptcy law, provided it is used to save a struggling business from having to close its doors. Bankruptcy's supremacy, then, can preserve the debtor's going concern value, save jobs, and limit the collateral damage from a business failure. But should this bankruptcy supremacy apply only when the debtor is pursuing a traditional reorganization under chapter 11, or should it also apply when bankruptcy is used to bring about a quick sale of substantially all of the debtor's assets?

This Article addresses this question in the …

Saving Money On Health Insurance Just Got A Lot Easier . . . Or Did It?: The Preserving Employee Wellness Programs Act And Its Impact On The Future Of Employee Health, Zachary Maciejewski

Indiana Law Journal

This Note addresses the growing use of employer-sponsored wellness programs in the American workplace and the concomitant harms and risks these programs impose on employee privacy and insurance costs. Specifically, this Note analyzes the Preserving Employee Wellness Programs Act (PEWPA)—a proposed law that would allow employers to require employees to disclose genetic information to qualify for an employer-sponsored wellness program (and the program’s associated insurance premium benefits). This Note ultimately argues that employees and employee advocacy groups must work to thwart PEWPA to preserve employee privacy in the face of mounting corporate pressure to alter the structure of employer-sponsored health …

Title Vii And The Unenvisaged Case: Is Anti-Lgbtq Discrimination Unlawful Sex Discrimination, Ronald Turner

Indiana Law Journal

As discussed herein, courts and individual judges recognizing or not finding actionable Title VII anti-LGBTQ14 claims have offered different rationales in support of their conflicting positions, including three justifications discussed in this project: (1) the meaning of Title VII’s “because of sex” prohibition, (2) the Supreme Court’s and circuit courts’ construction of the “because of sex” provision in the context of sex stereotyping and gender nonconformity discrimination as applied to the anti- LGBTQ question, and (3) associational discrimination theory. Claim-recognizing jurists have looked to Title VII’s text, Supreme Court and circuit court precedent, and the views of the Equal Employment …

O Brother Where Art Thou? The Struggles Of African American Men In The Global Economy Of The Information Age, Kenneth G. Dau-Schmidt

Indiana Journal of Law and Social Equality

As early as the late 1980’s, William Wilson argued that widespread economic transitions had altered the socioeconomic structure of American inner cities to the detriment of African Americans. Wilson identified declines in manufacturing work and its replacement with poorly compensated service sector work as driving racial segregation and leaving African Americans jobless, poor and alienated from American society. These transitions were particularly problematic for African American men since manufacturing work was their primary gateway to middle-class employment while African American women had already focused more on service work.

Since the initial exposition of Wilson’s theory of deindustrialization, Wilson’s framework of …

The Theorized Relationship Between Organizational (Non)Compliance With The United Nations Guiding Principles On Human Rights And Desired Employee Workplace Outcomes, Magda B. L. Donia, Salvador Herencia Carrasco, Sara L. Seck, Robert Mccorquodale, Sigalit Ronen

Articles, Book Chapters, & Popular Press

Despite the presence of guiding legislation such as the United Nations Guiding Principles, respect for human rights is subject to the conscience of organizational actors. Given that some transnational corporations are more powerful than nation states, they play an important role in the economies in which they operate, often with far-reaching impact on the labor conditions and human rights protections within these countries. In the current global context, respect for human rights may be undermined when organizational decision-makers are tempted to ignore unethical practices due to considerations such as competition and short-term financial incentives. We propose that the higher standards …

Adverse Employment Actions In Failure-To-Accommodate Claims: Much Ado About Nothing, Nicole Buonocore Porter

Faculty Publications

This Article addresses a circuit split in the disability law jurisprudence. Under the Americans with Disabilities Act (ADA), employees generally bring two types of claims against their employers—discrimination claims and failure-to-accommodate claims. Succeeding on a discrimination claim requires proving that the employee suffered an adverse employment action. Succeeding on a failure-to-accommodate claim does not. But several courts—including a recent case in the Tenth Circuit—have added this adverse-employment-action requirement into failure-to-accommodate claims. In doing so, these courts have camouflaged important issues about an employer’s obligation to provide a reasonable accommodation to disabled employees. Although I believe that courts that require an …

Accommodating Pregnancy Five Years After Young V. Ups: Where We Are & Where We Should Go, Nicole Buonocore Porter

Faculty Publications

This Article will explore how pregnant employees fare when they are denied accommodations in the workplace that would have allowed them to work safely through their pregnancies. The two most commonly used legal avenues for pregnant plaintiffs are the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). Successful cases under the ADA were rare until Congress expanded the ADA’s definition of disability in 2008. PDA claims became easier after the Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc. This Article will analyze both the body of PDA cases decided since Young, and …

Essentializing Labor Before, During, And After The Coronavirus Pandemic, Deepa Das Acevedo

Faculty Articles

In the era of COVID-19, the term essential labor has become part of our daily lexicon. Between March and May 2020, essential labor was not just the only kind of paid labor occurring across most of the United States; it was also, many argued, the only thing preventing utter economic and humanitarian collapse. As a result of this sudden significance, legal scholars, workers’ advocates, and politicians have scrambled to articulate exactly what makes essential labor “essential.” Some commentators have also argued that the rise of essential labor as a conceptual category disrupts—or should disrupt—longstanding patterns in the way the nation …

Erasing Race, Llezlie Green

Scholarly Articles in Law Reviews & Journals

Low-wage workers frequently experience exploitation, including wage theft, at the intersection of their racial identities and their economic vulnerabilities. Scholars, however, rarely consider the role of wage and hwur exploitation in broader racial subordination frameworks. This Essay considers the narratives that have informed the detachment of racial justice from the worker exploitation narrative and the distancing of economic justice from the civil rights narrative. It then contends that social movements, like the Fight for $15, can disrupt narrow understandings of low-wage worker exploitation and proffer more nuanced narratives that connect race, economic justice, and civil rights to a broader antisubordination …