Labor and Employment Law Commons^™

Automation: A Guide For Policymakers, James Bessen, Maarten Goos, Anna Salomons, Wiljan Van Den Berge

Faculty Scholarship

Advancing technologies are increasingly able to fully or partially automate job tasks. These technologies range from robotics to machine learning and other forms of artificial intelligence, and are being adopted across many sectors of the economy. Applications range from selecting job applicants for interviewing, picking orders in a warehouse, interpreting X-rays to diagnose disease, and automated customer service. These developments have raised concern that workers are being displaced by advancing automation technology. Indeed, over 18 recent studies predict job losses from new automation technologies, including some predictions of massive job losses (Winick 2018). A large literature on worker displacement [1] …

The State Qui Tam To Enforce Employment Law, Andrew Elmore

Faculty Scholarship

This Article examines the states' response to Epic Systems v. Lewis, which held enforceable under the Federal Arbitration Act (FAA) mandatory arbitration agreements that require employees to waive their participation in collective and class actions in employment contracts. Recent evidence shows that mandatory arbitration can erode access to justice for and deterrence of employment law claims. States in response are considering qui tam statutes, which assign the state interests in penalties for employment law violations to private enforcers in return for a bounty, to substitute for the loss of class action enforcement after Epic Systems.

These statutes can …

Dehumanization “Because Of Sex”: The Multiaxial Approach To The Rights Of Sexual Minorities, Shirley Lin

Lewis & Clark Law Review

Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton …

Speech Inequality After Janus V. Afscme, Charlotte Garden

Faculty Articles

This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.The Article has two Parts. In Part I, I explain how the Court reached its decision in Janus before critiquing the decision’s …

Avoidance Creep, Charlotte Garden

Faculty Articles

At first glance, constitutional avoidance—the principle that courts construe statutes so as to avoid conflict with the Constitution whenever possible—appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent. Then, successive decisions often magnify the problems of avoidance—a phenomenon I call “avoidance creep.” When a court distorts a statute in service of constitutional avoidance, a later court may amplify the distortion, incrementally changing both statutory and constitutional doctrine in ways that are unsupported by any existing rationale for …

Should Employers Have The Ability To Enforce Non-Compete Agreements Without Also Offering A Written Employment Contract?, Rowan Reid

Kentucky Law Journal

No abstract provided.

Aging On Air: Sex, Age, And Television News, Rebecca H. White

Scholarly Works

The best piece of advice I received when I began teaching law was to adopt Charlie Sullivan's and Mike Zimmer's casebook for my Employment Discrimination class. Before I became a law professor, I had no clue how important choosing the right textbook is, not only for the students but for the teacher. I also was unaware of how much I had to learn about a subject I thought I knew well. I had been litigating employment discrimination cases for several years, but when I began teaching, I quickly learned how much I did not know. Charlie's and Mike's casebook, through …

Retaliation: 462 Clark County School District V. Breeden, 532 U.S. 268 (2001), Rebecca White

Scholarly Works

Clark County School District v. Breeden, to my mind, has always been a sleeper case. A per curiam opinion, it takes up no more than five pages in the US reports, yet when I taught this case to my employment discrimination students, we often would spend a full class period – and sometimes more – on it. Why? Because it presents virtually every issue that can crop up under section 704 of Title VII of the Civil Rights Act of 1964, the statute’s antiretaliation provision.

Labor, Trade, And Populism: How Ilo-Wto Collaboration Can Save The Global Economic Order, Sungjoon Cho, Cesar F. Rosado-Marzan

American University Law Review

Populists are trying to take down the global economic order and its institutions. While some of those forces might be fueled by racism, they also play to legitimate social concerns that include massive plant closings and deindustrialization, inadequate skills programs, and lack of decent jobs. Some of these problems also concern the Global South, as workers there face exploitation, unhealthy working conditions, and other social ills caused by global capitalism. In light of these problems, this Article argues that the International Labor Organization (ILO) should design new conventions on lead firm liability and mass layoffs. While other scholars and policymakers …

Broader-Based And Sectoral Bargaining Proposals In Collective Bargaining Law Reform: A Historical Review, Sara Slinn

All Papers

Labour legislation regulating Canada’s private sector has incorporated forms of broader-based or sectoral certification and bargaining (BBB) in varying degrees for decades, particularly in British Columbia and Quebec. However, BBB had not been the subject of significant post-war labour law reform discussion until the 1990s. This decade saw a wave of interest in introducing BBB arise across several jurisdictions. Originating in Ontario in the late 1980s, it spread to British Columbia as a key part of labour law reform discussions in the early and late 1990s and became a minor issue in the federal labour law reform review process later …

Just A Minute, Isn’T That De Minimis: California Should Not Burden Or Require National Employers To Compensate Employees For De Minimis Off-The-Clock Work Activities, Alan Persaud

FIU Law Review

No abstract provided.

Foreword: The Labor Constitution In 2020, Ruben J. Garcia

Scholarly Works

No abstract provided.

Outsourcing Discrimination, Llezlie Green

Scholarly Articles in Law Reviews & Journals

The significant growth in employers’ use of labor intermediaries—that is, third parties that stand between the workers and the organizations for whom they complete work— has fundamentally changed how many low-wage workers enter and function in the workplace. Temporary staffing agencies that hire and place workers with companies and organizations have taken on a gatekeeper role to low-wage jobs in many industries. Recent litigation and various reports allege flagrant hiring discrimination by temporary staffing agencies whose clients encourage them not to hire African American workers and hire and send Latinx immigrants instead. This Article explores the discriminatory treatment of low-wage …

Equality Is A Brokered Idea, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

The State Qui Tam To Enforce Employment Law, Andrew Elmore

Articles

No abstract provided.

Payday, Yonathan A. Arbel

Articles

Legislation lags behind technology all too often. While trillions of dollars are exchanged in online transactions-safely, cheaply, and instantaneously-workers still must wait two weeks to a month to receive payments from their employers. In the modern economy, workers are effectively lending money to their employers, as they wait for earned wages to be paid.

The same worker who taps a credit card to pay for groceries in semiautomated checkout lines depends on dated payroll systems that only transfer payments on a "payday." Workers, especially those living paycheck-to-paycheck, are hard-pressed to meet their daily needs and turn to expensive, short-term credit …

Illusory Conflicts: Post-Employment Clearance Procedures And The Ftc’S Technological Expertise, Lindsey Barrett, Laura M. Moy, Paul Ohm, Ashkan Soltani

Georgetown Law Faculty Publications and Other Works

The federal government restricts what former employees can work on after they leave the government, and for good reason. These post-employment conflict restrictions attempt to address the “revolving door” problem, where employees take information learned from their position in government to unfairly advantage industry. But an unintended consequence of overbroad conflict rules is that they impede well-meaning, former federal employees from providing their knowledge and general expertise to other enforcement agencies with similar missions, such as those at the state level. This is playing out right now with FTC technologists, at a time when the agency—and, indeed, consumer protection agencies …

Discounting Credibility: Doubting The Stories Of Women Survivors Of Sexual Harassment, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

For decades, federal and state laws have prohibited sexual harassment on the job; despite this fact, extraordinarily high rates of gender-based workplace harassment still permeate virtually every sector of the American workforce. Public awareness of the seriousness and scope of the problem increased astronomically in the wake of the #MeToo movement, as women began to publicly share countless stories of harassment and abuse. In 2015, the Equal Employment Opportunity Commission’s Task Force on the Study of Harassment in the Workplace published an important study analyzing a wide range of factors contributing to this phenomenon. But the study devotes only limited …

The New Principle-Practice Gap: The Disconnect Between Diversity Beliefs And Actions In The Workplace, Jamillah Bowman Williams, Jonathan Cox

Georgetown Law Faculty Publications and Other Works

Following increased calls for racial justice, many organizations have pledged to play their part in dismantling systemic racism. One common step leaders take is to invest in diversity and inclusion programs. Yet, despite organizations’ bold claims to value diversity and the investment of billions of dollars on related efforts, workplace discrimination continues to be a major factor in the lives of people of color. Additionally, existing research highlights a principle-policy gap, wherein people--particularly White Americans--espouse support for the principles of diversity, yet their support wanes for policies that address inequalities. In this survey study, we explore attitudes about organizational diversity …