Sarah A. Schade "THE STAKES OF EMPLOYMENT:" THE IMPORTANCE OF AMENDING THE ELLIOTT-LARSEN CIVIL RIGHTS ACT TO INCLUDE INDEPENDENT CONTRACTORS 67 Wayne Law Review 601 (Spring, 2022) I. Introduction. 602 II. Background. 605 A. Classification of Workers as Employees or Independent Contractors. 605 1. Classification Tests. 606 a. Common Law Control Test. 606 b. Economic Realities Test. 607 c. Hybrid Test. 608 d. ABC Test. 608 2. The Problem of Misclassification. 609 3. Difficulties in Classification in the Gig Economy. 610 B.... 2022
Sebastian O. Ross A "HISTORIC WESTSIDE" STORY: LAS VEGAS BLACK HISTORY, GAMING POLICY EFFECTS ON BLACK EMPLOYMENT, AND GAMING COMPANIES LEAVING MONEY ON THE TABLE 12 UNLV Gaming Law Journal 287 (Spring, 2022) Imagine yourself as a pop-cultural music icon, with generational talent propelling you into a social class in which many others from your background could not imagine themselves in. Your talent commands societal influence over entertainment, politics, and culture. Ultimately, your intangibles and hard work land you a contract performing on the Las... 2022
Gali Racabi ABOLISH THE EMPLOYER PREROGATIVE, UNLEASH WORK LAW 43 Berkeley Journal of Employment and Labor Law 79 (2022) Employers are sovereigns in their workplace. While market power disparities, enforcement gaps, and the dwindling influence of the U.S. labor movement seem to guarantee that, it is the law that anoints employers as kings. Indeed, the employer prerogative stands as the default governing rule in the workplace: all workplace decisions fall within the... 2022
Christian Webber AIDING EMPLOYMENT AND THE ENVIRONMENT ON TRIBAL LANDS: AN ANALYSIS OF HIRING PREFERENCES AND THEIR USE IN THE MINING INDUSTRY 12 Arizona Journal of Environmental Law & Policy 298 (Summer, 2022) This Note analyzes hiring preferences on tribal lands in the mining industry within the United States and particularly in the State of Arizona, which has a relatively high number of both mines and federally recognized tribes. Arizona has its own robust history and case law on hiring preferences in the mining industry for tribal members. This Note... 2022
Anne Marie Lofaso , Ashley M. Stephens ALTERNATIVES TO MAINSTREAM ALTERNATIVE DISPUTE RESOLUTION: ELIMINATING FORCED ARBITRATION AGREEMENTS AS A CONDITION OF EMPLOYMENT 2022 Utah Law Review 1015 (2022) Today, many employers require their employees, as a condition of employment, to agree to arbitrate employment-related legal claims rather than pursue them in court. While arbitration can be mutually beneficial, allowing parties to avoid the cost, time, publicity, and unpredictability associated with traditional litigation, mandatory arbitration... 2022
James W. Moeller ARE EXPERIENCE RANGES IN JOB ADVERTISEMENTS UNLAWFUL UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT? 27 Texas Journal on Civil Liberties & Civil Rights 217 (Spring, 2022) HELP WANTED. Litigation attorney. 3-6 years experience. Apply within. Introduction. 218 I. Age Discrimination In Employment Act. 219 A. Statute. 219 B. ADEA And Title VII. 226 C. ADEA Regulations. 229 II. Employment Discrimination Litigation. 231 A. Workplace Discrimination Under Title VII. 231 B. Workplace Discrimination Under The ADEA. 236 C.... 2022
Hunter Baehren BLACKLISTING ALLOWED? WHETHER THE FALSE CLAIMS ACT PROTECTS FORMER EMPLOYEES FROM RETALIATION 56 Columbia Journal of Law and Social Problems 91 (Fall, 2022) Employers commonly blacklist whistleblowers. Despite its frequency, blacklisting remains unaddressed in many federal whistleblower statutes. These statutes typically contain antiretaliation provisions protecting employees, but since victims of blacklisting are former employees, protection under federal law is uncertain. In Robinson v. Shell Oil... 2022
Michael Conklin , Jennifer Barger-Johnson , Marty Ludlum BRIAN FLORES'S EMPLOYMENT DISCRIMINATION LAWSUIT AGAINST THE NFL: A GAME CHANGER OR BUSINESS AS USUAL? 29 Jeffrey S. Moorad Sports Law Journal 299 (2022) If you can change America's game, you can change America. And the most visible job in America in terms of hiring is the head coaches of the National Football League. -Cyrus Mehri On February 1, 2022, Brian Flores filed an employment discrimination lawsuit against the Miami Dolphins (Dolphins), New York Giants (Giants), and National Football... 2022
Charles L. Baum II, Ph.D. CALCULATING ECONOMIC LOSSES FROM LOST EARNINGS IN EMPLOYMENT TERMINATION CASES IN THE NINTH CIRCUIT 65-JUL Advocate 32 (June/July, 2022) The United States Supreme Court during its 2019-2020 term reviewed several employment termination cases to determine whether the Civil Rights Act protects workers based on sexual orientation and gender identity. The Supreme Court determined (in Bostock v. Clayton Cty., Ga., No. 17-1618 (June 16, 2020)) that protections extend to these workers. This... 2022
Henry Voysey CAN POLITICAL ACTIVISM AND "AT-WILL" EMPLOYMENT COEXIST?: AN EXAMINATION OF POLITICAL RIGHTS IN THE PRIVATE SECTOR OF THE WORKFORCE 90 UMKC Law Review 965 (Summer, 2022) Put yourself in the position of professional sportswriter Bart Hubboch. In the winter of 2017, Hubboch shared his belief that the election of Donald Trump would be catastrophic to America with millions of other people via social media. By all accounts, Hubboch was genuinely fearful; so much so that when Trump was elected, he lost sleep and later... 2022
Ross D. Vickers CLASS EXPANSION DEMANDS EMPLOYER ACTION: REDUCING LIABILITY FOR SEXUAL ORIENTATION AND GENDER IDENTITY DISCRIMINATION 41 No. 1 Trial Advocate (FDLA) 33 (February, 2022) EDITOR'S NOTE: Workplace protection against discrimination based on sex has been interpreted to include discrimination based on sexual orientation as well as gender identity. This article provides a concise overview of the state of the law and some specific suggestions for employers and their counsel. Recent jurisprudence has expanded the class of... 2022
Kevin Rudolph COMPARATIVE DISABILITY POLICY IN EMPLOYMENT 36 Emory International Law Review 833 (2022) For individuals living with disabilities, the ability to obtain employment can be challenging. But often it is not the disability itself that causes the challenge, but employers and society's prejudices. While national legislation both in the United States and abroad have attempted to dispel this prejudice through anti-discrimination programs,... 2022
William R. Corbett CROSS-STATUTE EMPLOYMENT DISCRIMINATION CLAIMS AND THE NEED FOR A "SUPER STATUTE" 99 Washington University Law Review 1773 (2022) C1-2Table of Contents Introduction. 1774 I. Asymmetry Six Decades in the Making. 1778 A. Asymmetry Regarding Remedies. 1780 B. Asymmetry Regarding Causation Standards. 1783 C. Should Asymmetry Be a Cause for Concern?. 1785 II. Problems in Cross-Statute Claims Created by Asymmetrical Employment Discrimination law. 1786 A. Comcast and Title... 2022
Kevin Brown, Lalit Khandare, Annapurna Waughray, Kenneth Dau-Schmidt, Theodore M. Shaw DOES U.S. FEDERAL EMPLOYMENT LAW NOW COVER CASTE DISCRIMINATION BASED ON UNTOUCHABILITY?: IF ALL ELSE FAILS THERE IS THE POSSIBLE APPLICATION OF BOSTOCK v. CLAYTON COUNTY 46 New York University Review of Law and Social Change 117 (2022) This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The... 2022
Jessica Block EMPLOYMENT LAW: ARE THERE STILL LOSERS' RULES? 103 Massachusetts Law Review 78 (August, 2022) In 2012, after 17 years as a federal district court judge, Hon. Nancy Gertner (ret.) wrote an article titled, Losers' Rules. In the article, she lamented asymmetric decisionmaking in the area of employment discrimination law. In her view, judges are encouraged to write detailed decisions when granting summary judgment and not to write when... 2022
Christina Redmann EMPLOYMENT LAW--ANTIDISCRIMINATION--FALLING INTO THE LEGAL VOID: HOW ARKANSAS CAN PROTECT UNPAID INTERNS FROM DISCRIMINATION AND HARASSMENT 44 University of Arkansas at Little Rock Law Review 531 (Spring, 2022) Annie is a junior at a university in Arkansas. During the summer, Annie takes an internship with a private company. Unfortunately for Annie, the internship is unpaid, but it will look good on her resume once she finishes college. A few weeks after starting her internship, one of the employees at the company begins making crude sexual comments to... 2022
Margaret R. Austen EMPLOYMENT LAW--INTERSECTING IDENTITIES & IDEOLOGIES, NONDISCRIMINATION, AND THE FIRST AMENDMENT MINISTERIAL EXCEPTION DEFENSE-- DEWEESE-BOYD v. GORDON COLLEGE, 163 N.E.3D 1000 (MASS. 2021) 27 Suffolk Journal of Trial and Appellate Advocacy 181 (2021-2022) When fundamental legal principles such as religious freedom and discrimination intersect, a great tension emerges. The ministerial exemption--an affirmative defense under the First Amendment--sits at this intersection, barring employment discrimination claims against religious institutions by their ministerial employees. In DeWeese-Boyd v. Gordon... 2022
Joshua R. Woodard , Jennifer R. Yee FEDERAL EQUAL EMPLOYMENT OPPORTUNITY LAW 58-JAN Arizona Attorney 50 (January, 2022) Despite being the second full year of the pandemic, 2021 brought several federal court decisions that were instructive to employment law practitioners. Some decisions were victories for employers, and others were victories for employees. Regardless of the outcome, all the opinions continue to shape the landscape of federal EEO jurisprudence. Below... 2022
Logan B. Fontenot FEDERATIE NEDERLANDSE VAKBEWEGING v. UBER B.V.; THE COURT OF AMSTERDAM INTRODUCES THE "MODERN EMPLOYMENT RELATIONSHIP" 30 Tulane Journal of International and Comparative Law 433 (Summer, 2022) I. Overview. 433 II. Background. 435 III. The Court's Decision. 441 IV. Analysis. 444 V. Conclusion. 447 2022
Brett H. McDonnell , Matthew T. Bodie FROM MANDATES TO GOVERNANCE: RESTRUCTURING THE EMPLOYMENT RELATIONSHIP 81 Maryland Law Review 887 (2022) The law imposes a dizzying array of responsibilities on employers with respect to their employees. Meant to advance a wide array of workplace policies, these demands have saddled employment with the burden of numerous social goals. The employment ecosystem has increasingly come under strain as companies seek to shed employment relationships and... 2022
Patrice Ruane FROM PIN MONEY WORKERS TO ESSENTIAL WORKERS: LESSONS ABOUT WOMEN'S EMPLOYMENT AND THE COVID-19 PANDEMIC FROM THE GREAT DEPRESSION AND THE GREAT RECESSION 29 UCLA Journal of Gender & Law 335 (Summer, 2022) C1-2Table of Contents Introduction. 336 I. The Great Depression. 342 A. Characteristics of the Women's Workforce Before the Great Depression. 343 1. The Image of Working Women. 344 2. Wage and Hour Legislation for Women Before the Great Depression. 348 B. The Employment Landscape During the Great Depression. 354 C. Federal Policy Responses. 357 1.... 2022
Max Londberg HIRING CRITERIA AND TITLE VII: HOW ONE MANIFESTATION OF EMPLOYER BIAS EVADES JUDICIAL SCRUTINY 91 University of Cincinnati Law Review 516 (2022) Writing in 1988, feminist and critical race scholar Kimberlé Williams Crenshaw described the Civil Rights Act of 1964 (commonly known as Title VII) as contributing to the removal of most formal barriers and symbolic manifestations of subordination. But the Act and other reforms ultimately fell short, for a challenge to the legitimacy of... 2022
Taylor Arluck HOW THE NATIONAL LABOR RELATIONS BOARD IS STILL FAILING MARGINALIZED EMPLOYEES 87 Brooklyn Law Review 1007 (Spring, 2022) While the [National Labor Relations Act] properly understands that rough words and strong feelings can arise in the tense and acrimonious world of workplace strikes, targeting others for sexual or racial degradation is categorically different. Conduct that is designed to humiliate and intimidate another individual because of and in terms of that... 2022
Mikaela A. Phillips JUST CAUSE, NOT JUST BECAUSE: A PRO-WORKER REFORM FOR THE EMPLOYMENT LANDSCAPE 170 University of Pennsylvania Law Review Online 90 (2022) The at-will doctrine permits employers to terminate employees at any time for any reason--or no reason at all--so long as it is not an illegal one. This creates a significant power imbalance between employers and employees, chills employee speech regarding unsafe or unlawful workplace conduct, and leaves employees vulnerable to arbitrary and unjust... 2022
Joseph Hayes Rochman KENTUCKY FEDERAL COURT DISMISSES RELIGIOUS DISCRIMINATION CLAIMS BY FIRED ALLSTATE EMPLOYEE WHO POSTED HETEROSEXIST COMMENTS ON COMPANY BLOG 2022 LGBT Law Notes 16 (March, 2022) On February 1, 2022, U.S. District Judge Karen K. Caldwell dismissed a lawsuit for failure to state a claim by an Allstate salesperson who posted homophobic and heterosexist remarks on an internal company blog, Allconnect, and was later fired for failure to meet performance metrics. Wehrly v. Allstate Ins. Co., No. 5:21-135-KKC, 2022 U.S. Dist.... 2022
Christopher R. Deubert LABOR & EMPLOYMENT LAW GUIDANCE FOR PROFESSIONAL SPORTS TEAMS 32 Marquette Sports Law Review 359 (Spring, 2022) This Article is intended to be a resource for counsel providing advice to professional sports teams, either in-house or at a law firm. Counsel for professional sports handle a wide range of legal issues. Nevertheless, labor and employment is typically one of the most important and consistent areas of practice. Moreover, the handling of labor and... 2022
W. Jonathan Martin II , Patricia-Anne Brownback LABOR AND EMPLOYMENT 73 Mercer Law Review 1305 (Summer, 2022) This Article focuses on recent cases concerning federal labor and employment laws. The following is a discussion of those opinions. Title VII of the Civil Rights Act (Title VII) does not allow employers to discriminate based on the protected classes of: race, color, religion, sex, or national origin. This includes limiting, segregating, or... 2022
Sheya Rivard LEAVING "SEX" OUT OF IT: AMENDING THE FEDERAL ARBITRATION ACT TO ENSURE BOSTOCK'S VICTORY FOR LGBTQ EMPLOYEE RIGHTS 27 Roger Williams University Law Review 159 (Winter, 2022) After reading the news that the Supreme Court had ruled in his favor, Gerald Bostock screamed and hugged his partner Andy: The long, seven-year journey I've had, it's well worth every ache and pain. I didn't ask for this, but it needed to be done. Like Gerald Bostock, other LGBTQ employees from across the nation described being overcome with... 2022
Andrew S. Boutros , John R. Schleppenbach , Dechert LLP, Chicago, Illinois and Washington, D.C., 312-646-5803, Email, Website, Twitter @dechertllp, Dechert LLP, Chicago, Illinois, 312-646-5806, Email jay.schleppe MORE BITE THAN JUST BARK: USING MODEL RULE 4.2'S NO-CONTACT RULE TO LIMIT THE GOVERNMENT'S CONTACT WITH EMPLOYEES OF A REPRESENTED COMPANY 46-FEB Champion 16 (January/February, 2022) When companies retain white collar counsel to investigate and respond to potential internal wrongdoing, they hope that being represented will help them to gather relevant facts quickly and effectively and apply those facts to the law, all while presenting a united front to the government. But these hopes can be dampened if the government... 2022
Michael J. Hayes NOW WE HAVE REASON TO FIRE YOU: WHAT SHOULD STATES DO ABOUT THE EMPLOYER "AFTER-ACQUIRED" EMPLOYEE WRONGDOING DEFENSE? 16 FIU Law Review 621 (Spring, 2022) Wrongful employer conduct, particularly discrimination and harassment, is leading to efforts to provide more protection to employees, and compensate them for wrongdoing already done to them. As shown by the Michigan Supreme Court's July 2021 Lichon v. Morse decision that adopted a new and more pro-employee standard for when employers can compel... 2022
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