Labor and Employment Law Commons^™

Employee Mobility And The Low Wage Worker: The Illegitimate Use Of Non-Compete Agreements, Jacqueline A. Carosa

The Docket

No abstract provided.

What’S Good For The Goose Is Good For The Gander, Or Is It? The Pitfalls Of Using The Court’S Neoliberal Construction Of The First Amendment To Protect Secondary Picketing, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

After Janus, Martin Malin, Catherine Fisk

All Faculty Scholarship

The Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31 upended public sector labor law by finding a novel First Amendment right of public employees to refuse to pay union fees and declaring unconstitutional scores of laws and thousands of labor contracts. This Article assesses the constraints on public sector labor law post-Janus, examines the variety of legislative responses, and proposes a path forward.Janus makes it difficult to address the collective action problem facing all large groups. Although it is in the interest of every member of a group to engage in collective action …

Vol. 36, No. 4, Helen J. Kim

The Illinois Public Employee Relations Report

Which ULP is It?: An Examination of Retaliation under Sections 10(a)(1) and 10(a)(2) of the Illinois Public Relations Act by Helen J. Kim

Recent Developments

Platform Pleading: Analyzing Employment Disputes In The Technology Sector, Joseph A. Seiner

Washington Law Review

The technology sector has created thousands of new jobs for workers across the country in an emerging multi-billion dollar industry. Many companies in this platform-based sector are attempting to characterize their workers as independent contractors rather than employees, thus stripping them of both federal and state workplace protections—including the right to bargain collectively, receive fair compensation, and avoid discrimination. The federal courts, which have always grappled with the question of worker classification, are now struggling to define employment with respect to these gig sector jobs. The result has been scattered court decisions with inconsistent and conflicting analyses. This Essay seeks …

Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David I. Walker

Faculty Scholarship

Mutual funds, pension funds and other institutional investors are a growing presence in U.S. equity markets, and these investors frequently hold large stakes in shares of competing companies. Because these common owners might prefer to maximize the values of their portfolios of companies, rather than the value of individual companies in isolation, this new reality has lead to a concern that companies in concentrated industries with high degrees of common ownership might compete less vigorously with each other than they otherwise would. But what mechanism would link common ownership with reduced competition? Some commentators argue that one of the most …

Employees As Regulators: The New Private Ordering In High Technology Companies, Jennifer S. Fan

Utah Law Review

There is mounting public concern over the influence that high technology companies have in our society. In the past, these companies were lauded for their innovations, but now as one scandal after another has plagued them, from being a conduit in influencing elections (think Cambridge Analytica) to the development of weaponized artificial intelligence, to their own moment of reckoning with the #MeToo movement, these same companies are under scrutiny. Leaders in high technology companies created their own sets of norms through private ordering. Their work was largely unfettered by regulators, with the exception of the Securities and Exchange Commission’s oversight …

Hiring Algorithms In The Canadian Private Sector: Examining The Promise Of Greater Workplace Equality, Connor Bildfell

Canadian Journal of Law and Technology

Private-sector employers are increasingly using hiring algorithms as a tool for screening job applicants, comparing qualifications, and ultimately determining which candidates should be selected. Within this context, hiring algorithms make no small promise: a hiring process that is not only more efficient and effective, but also more supportive of workplace equality. This promise rests largely on the notion that traditional human-driven models of hiring are beset by subjective biases and prejudices, whereas hiring algorithms, which are driven by hard data and objective evidence, can eliminate certain human biases and prejudices, thereby promoting workplace equality. But can hiring algorithms deliver on …

Racial Prejudice In The Criminal Justice System, Tori Cooper

Jessie O'Kelly Freshman Essay Award

Racial prejudice against African Americans has been the leading cause of high incarceration rates amongst the African American community. Within the United States, the census reported that African Americans make up about 17.9 percent of the population, with one-third of the people making up the incarcerated population in America. The disparity in those numbers highlights the current situation that is plaguing the nation. Blatant cases of racial profiling that have received media attention are a true testament of the broken law enforcement system from coast to coast. Racial prejudice cases have affected the black American community since the beginning of …

Unfit To Be Seen: Customer Preferences And The Americans With Disabilities Act, Craig Westergard

Brigham Young University Journal of Public Law

No abstract provided.

Employment Law, Bret G. Daniel, Erin B. Edwards

University of Richmond Law Review

Virginia has historically been regarded as an employer-friendly jurisdiction. However, in recent years, the Fourth Circuit Court of Appeals has issued an increasing number of opinions that tend to favor employees. With a state legislature largely reluctant to interfere in the employer-employee relationship, developments in employment law generally occur via Fourth Circuit jurisprudence. Given the predominance of federal employment law in Virginia, the following discussion regarding developments in this practice area focuses less on state statutes and courts, and more on decisions handed down from the federal bench. This Article provides an update on recent developments in employment law in …

An Analysis Of Intentional Infliction Of Emotional Distress Claims In The Virginia Workplace, Stephen Allred

University of Richmond Law Review

This Article first traces the development of the tort of intentional infliction of emotional distress as applied to the workplace in the Commonwealth of Virginia in Part I, and offers some observations about the significant hurdles a plaintiff may face in trying to successfully hold an employer accountable for conduct that many in our society would deem unacceptable. After reviewing the evolution of the doctrine since it was first recognized in Virginia nearly fifty years ago in Part II, Part III returns to the incident described above involving Linda Bodewig and her employer, and offers an analysis of how her …

The Other Janus And The Future Of Labor’S Capital, David H. Webber

Faculty Scholarship

Two forms of labor’s capital—union funds and public pension funds—have profoundly reshaped the corporate world. They have successfully advocated for shareholder empowerment initiatives like proxy access, declassified boards, majority voting, say on pay, private fund registration, and the CEO-to-worker pay ratio. They have also served as lead plaintiffs in forty percent of federal securities fraud and Delaware deal class actions. Today, much-discussed reforms like revised shareholder proposal rules and mandatory arbitration threaten two of the main channels by which these shareholders have exercised power. But labor’s capital faces its greatest, even existential, threats from outside corporate law. This Essay addresses …

The Lawyer As Accomplice: Cannabis, Uber, Airbnb, And The Ethics Of Advising “Disruptive” Businesses, Charles M. Yablon

Articles

This Article examines the legal and ethical problems of corporate lawyers who advise businesses that operate just beyond the edge of legality. These include manufacturers and sellers of cannabis products (a felony under federal law, even if ostensibly permitted by state statutes) as well as a substantial number of startup companies, like Uber and Airbnb, whose “disruptive” business models involve deliberately violating local laws and ordinances, many of which carry criminal penalties. Under the current Model Rules of Professional Conduct, a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is …

Arbitration Agreements – What Is The Employee Actually Signing Up For?, Kennedy Poe

The Journal of Business, Entrepreneurship & the Law

This note will examine the various effects and implications the Supreme Court’s decision concerning the legality of class action waivers within employee-employer contracts will have on employers, employees, and the contracts made between them. Part I will identify class action waivers within an employment contract’s arbitration agreement and will further elaborate upon the legal implications of such waivers being present in the contract. Part II will then discuss the history of the NLRA and assess its present-day role in employee–employer contract formation, in order to provide clarity as to the dispute that has arisen between the NLRA and class action …

Bad Company? The Rise (Again) Of Association Health Plans, Brendan Williams

The Journal of Business, Entrepreneurship & the Law

This article first examines the rule adopted by the DOL and the criticism it has drawn. It then assesses the state of the small-group insurance market for small businesses, and the flawed approach that the ACA took to assisting them. Finally it takes a look at the uncertain future for small businesses and health insurance, and it suggests new approaches

Protecting The Little Guys: How To Prevent The California Supreme Court’S New “Abc” Test From Stunting Cash-Strapped Startups, Braden Seibert

The Journal of Business, Entrepreneurship & the Law

California startups and independent contractors are in desperate need of a lifeline before they are gone for good. This state has long favored the employee over the employer, but the California Supreme Court’s new “ABC” test tips the scales even further by making it practically impossible for startups to compensate their workers. As a remedy, I propose exemptions to the test for sophisticated contractors who do not need the state’s protection, certified owners who have demonstrated fair play, and small businesses which are still in the developmental stages. Though the Court based its decision largely on a policy of protecting …

A Structural-Purposive Interpretation Of “Employment” In The Platform Economy, E. Gary Spitko

Florida Law Review

The considerable growth of the platform economy has focused attention on the issue of whether a provider engaged through a transaction platform should be classified as an employee of the platform operator, and therefore within the purview of workplace protective legislation or as an independent contractor, thus outside the scope of such legislation’s protections. This Article focuses specifically on whether the operator’s reservation of the right to impose quality control standards on the provider ought to give rise to employment obligations running in favor of the provider and against the operator. This narrow issue is of great importance to the …

The Declining Fortunes Of American Workers: Six Dimensions And An Agenda For Reform, Stephen F. Befort

Florida Law Review

At the turn of the century, I undertook an assessment of the then-current state of workplace rights and obligations. I concluded that the balance of power between employers and workers was “badly skewed” in favor of employers. This Article revisits that topic for the purpose of assessing twenty-first-century trends through the lens of six workplace dimensions. They are: workforce attachment, union–management relations, employment security, income inequality, balancing work and family, and retirement security. An examination of these dimensions reveals that the status of U.S. workers has significantly declined during the first sixteen years of the twenty-first century. This Article then …

Uncertainty In Employee Status Across Federal Law, Ryan Vacca

Faculty Publications

Numerous federal statutes rely on a distinction between employees and independent contractors. Based on a series of Supreme Court decisions from 1968 through 2003, courts and administrative agencies have used a common law multifactor test to draw this distinction. In an effort to enhance predictability and certainty within and across legislation, these cases have rejected a purposive approach in applying the test. But the Supreme Court has never said which, if any, of the factors are the most important in the analysis, nor has anyone determined whether the underlying purpose-enhancing predictability and certainty-has been attained.

This empirical study uses content …