Caitlin Taub Gaines KEEPING FAIR CHANCE LAWS FAIR: IMPLICATIONS FOR EMPLOYERS AND EMPLOYEES GIVEN THE EXPANSION AND VARIETY OF FAIR CHANCE LAWS IN THE UNITED STATES 72 Catholic University Law Review 535 (Fall, 2023) Jurisdictions around the United States have adopted, and are considering adopting, fair chance laws, also known as ban the box laws, to improve access to employment opportunities for those with criminal histories. For years, individuals with criminal records--approximately one in four U.S. adults--have been disadvantaged when employers heavily... 2023
W. Jonathan Martin II , Patricia-Anne Brownback LABOR AND EMPLOYMENT 74 Mercer Law Review 1479 (Summer, 2023) This Article focuses on recent cases concerning federal labor and employment laws. The following is a discussion of those opinions. The Supreme Court of the United States issued one decision directly affecting labor and employment laws in 2022. The Supreme Court garnered the nation's attention with its decision in National Federation of Independent... 2023
Amiel J. Provosty, Secretary-Treasurer, LSBA Labor and Employment Law Section, The Kullman Firm, Ste. 1600, 1100 Poydras St., New Orleans, LA 70163-1600 LABOR AND EMPLOYMENT LAW 70 Louisiana Bar Journal 395 (February/March, 2023) In Tesla Inc., 371 NLRB No. 131 (Aug. 29, 2022), available at, the National Labor Relations Board (NLRB) spelled out a burden-shifting analysis for whether uniform policies violate on their face Section 8(a)(1) of the National Labor Relations Act. The NLRB held that any work rule that requires employees to wear... 2023
Kaitlyn Myles MANAGERS ARE PEOPLE, TOO! THE ELEVENTH CIRCUIT'S REJECTION OF THE "MANAGER EXCEPTION" ALLOWS HUMAN RESOURCE AND MANAGERIAL EMPLOYEES TO BRING TITLE VII RETALIATION CLAIMS 74 Mercer Law Review 1665 (Summer, 2023) Human resource (HR) managers undertake important tasks at companies. For example, a company may employ a human resource manager to manage internal issues, such as those affecting lower-level employees. That HR manager may come to the conclusion that a lower-level employee, having faced some discrimination from the company, had their rights... 2023
Laura T. Kessler MISCARRIAGE OF JUSTICE: EARLY PREGNANCY LOSS AND THE LIMITS OF U.S. EMPLOYMENT LAW 108 Cornell Law Review 543 (March, 2023) This Article explores judicial responses to miscarriage under federal employment law in the United States. Miscarriage is a common experience. Of confirmed pregnancies, about 15% will end in miscarriage; almost half of all women who have given birth have suffered a miscarriage. Yet, this experience slips through the cracks of every major federal... 2023
Shayak Sarkar NEED-BASED EMPLOYMENT 64 Boston College Law Review 119 (January, 2023) Introduction. 120 I. Productivity and Beyond. 127 II. Need-Based Employment in Practice. 131 A. Historical Precedent: Need Through the New Deal's Work Programs. 131 1. Need-Based Employment Before the New Deal. 131 2. Need and the New Deal's Pre-WPA Work Programs. 133 3. Need and the WPA. 135 B. Contemporary Need-Based Employment. 138 1. Federal... 2023
Logan C. Hibbs NOT SO CLEAR AND PLAIN: EXPLORING THE CIRCUIT SPLIT ON THE APPLICABILITY OF FEDERAL LABOR & EMPLOYMENT LAWS TO TRIBES 75 Oklahoma Law Review 905 (Summer, 2023) As tribes have increased their economic independence over the last few decades, tribal governments have started to hire more employees than ever before. In Oklahoma alone, tribes employed over 54,000 Indian-and non-Indian workers, and paid out 5.4 billion in wages and benefits to those employees in 2019 And, in Washington, Minnesota, and Idaho,... 2023
Hannah E. Wissler OVERLOOKED AND UNDERVALUED: EX-OFFENDERS IN THE EMPLOYMENT MARKET 37 ABA Journal of Labor & Employment Law 93 (2023) Let's think about a hypothetical for a moment: Joe is a thirty-five-year-old man with a finance degree looking for work. Unfortunately, Joe is having trouble finding employment because he has a felony conviction. When Joe was twenty-eight, he accidentally hit and killed a small child after the child ran out from behind a truck and into the street.... 2023
Meghan Golden PIERCING THE MINISTERIAL EXCEPTION: AN ENDEAVOR TO HOLD RELIGIOUS EMPLOYERS ACCOUNTABLE FOR HARASSING BEHAVIOR 56 UIC Law Review 73 (Spring, 2023) I. Introduction. 74 II. Background. 77 A. Religious Liberty at the Federal Level. 78 B. Religious Liberty in the Employment Context. 81 C. Judicial Creation and Development of the Ministerial Exception. 84 D. Supreme Court Endorsement of the Ministerial Exception. 86 E. Ministerial Exception & Hostile Work Environment Claims. 89 F. The Adjudication... 2023
Weyman Johnson, Kailyn G. Coots, Alexander Edmonds PRIVATIZATION OF EMPLOYMENT CLAIMS: PERHAPS A HYBRID APPROACH WILL FREE AMERICAN SOCIETY FROM THE EPIC TRAP THE SUPREME COURT HAS SPRUNG WITHOUT FORFEITING ALL ADVANTAGES OF ARBITRATION 14 William & Mary Business Law Review 353 (February, 2023) Mandatory individual arbitration, as a condition of employment, binds many U.S. employees after the Supreme Court's 2018 decision in Epic Systems Corp. v. Lewis. In effect, fundamental employment protections--such as relief under current anti-discrimination statutes--are privatized. Now, only a legislative fix will break those bonds. Congress and... 2023
Michael E. Rosman PUBLIC EMPLOYEE SPEECH AND THE HECKLER'S VETO: IS THERE A WAY AROUND IT? 50 Rutgers Law Record 278 (2023) The law that governs public employee speech has engendered some serious criticism. Public employers can impose adverse employment actions (suspensions, firings, denying raises or promotions) for much speech that would be protected by the First Amendment from any action the government might take as a sovereign (fines, jail, etc.). Most... 2023
Kate Bally, Adam D. Fuller, Daniel Furshpan, Roscoe Mutz RECENT DEVELOPMENTS IN EMPLOYMENT AND LABOR LAW 58 Tort Trial & Insurance Practice Law Journal 283 (Summer, 2023) I. Introduction. 284 II. Show Me the Money: The Rise of Pay Disclosure Laws. 284 A. Gender and Racial Pay Gaps. 285 B. Initiatives to Date. 286 C. Pay Disclosure Laws. 286 1. State Law. 287 2. Local Law. 287 D. Conclusion. 288 III. The Crown Act: A Potential Solution to a Hairy Discrimination Issue. 289 A. History of the CROWN Act. 289 B. Current... 2023
Evan Dandrea RECLAIMING RIGHTS: COMBATTING EMPLOYEE-SIDED LABOR & EMPLOYMENT LEGAL ACCESSIBILITY ISSUES FOR THE NEW WORKING CLASS THROUGH UNIONIZATION 28 Roger Williams University Law Review 229 (Spring, 2023) A source of pride for the United States lies in the notion of maintaining equitable access to its justice system, regardless of a litigant's social or economic status: From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before... 2023
Bill Ong Hing RESISTING EMPLOYER SANCTIONS: A STRATEGY FOR CIVIL DISOBEDIENCE 33 Berkeley La Raza Law Journal 37 (2023) The Deferred Action for Childhood Arrivals (DACA) program is on a death march in the federal courts. Ending DACA would mean that 600,000 individuals would lose their work permits. That means that about 22,000 DACA recipients would lose employment authorization every month for two years, roughly 1,000 per business day. The Development, Relief, and... 2023
Andrew Thompson SHORTENED LIMITATION PERIODS IN EMPLOYMENT CONTRACTS: A "REASONABLE" SUGGESTION 73 Case Western Reserve Law Review 951 (Spring, 2023) C1-2Contents Introduction. 951 I. The Judicial Approach to Contractual Limitation Periods. 956 A. Reasonableness. 956 1. General and Specific Reasonableness. 956 2. Reasonableness as Balancing Interests. 960 B. Other Approaches. 964 II. Alternative Approaches to Enforcement of Provisions in Employment Contracts. 966 A. Covenants Not to Compete. 966... 2023
Anne E. Collier , Mary E. Vandenack THE ACTUALIZED WORKPLACE 493 Law No. Practice 32 (May/June, 2023) Much is written about the need for effective leadership and management. Overwhelmingly, people focus on the importance of leaders establishing culture. Without the tactical work of managers, however, the envisioned culture as a truly lived experience is missing. This article explores effective management skills for a positive, healthy, actualized... 2023
Ofer Raban THE FREE SPEECH OF PUBLIC EMPLOYEES AT A TIME OF POLITICAL POLARIZATION: CLARIFYING THE PICKERING BALANCING TEST 60 Houston Law Review 653 (Winter, 2023) The First Amendment restricts the ability of government employers to punish public employees for their speech. The governing constitutional standard, known as the Pickering test, is a flexible balancing inquiry pitting the interests of the government as an employer against the free speech interests of their employees. But this seemingly simple... 2023
Kathryn M. Capizzi THE HAZY EMPLOYMENT PROTECTIONS FOR MEDICAL MARIJUANA USERS IN THE PENNSYLVANIA MEDICAL MARIJUANA ACT 26 University of Pennsylvania Journal of Law and Social Change 425 (2023) INTRODUCTION. 426 I. ROLLING IT OUT: CONTEMPORARY FEDERAL AND STATE LEGISLATION OF MEDICAL MARIJUANA. 428 A. Federal Legislative History Regulating Marijuana Use. 429 1. The Controlled Substances Act (CSA). 429 2. Food, Drug, and Cosmetics Act (FDCA). 431 3. Americans with Disabilities Act (ADA). 431 4. Supreme Court Precedent: Gonzales v.... 2023
Robert S. Mantell THE MISUSE OF THE BUSINESS JUDGMENT RULE IN EMPLOYMENT DISCRIMINATION CASES 37 ABA Journal of Labor & Employment Law 53 (2023) Employees alleging discrimination sometimes argue that an employer's justification for an adverse action is so irrational that a jury could find such explanation to be pretext. In response to such arguments, the courts respond in a varying and highly contradictory fashion. On the one hand, some courts assert that a factfinder is free to infer that... 2023
Nicholas J. Grandpre THE PRIMACY OF FREE EXERCISE IN PUBLIC-EMPLOYEE RELIGIOUS SPEECH 98 Notre Dame Law Review 1767 (May, 2023) Last Term, the Court decided Kennedy v. Bremerton School District. The decision, in which the Court finally overruled Lemon v. Kurtzman, elicited significant commentary. Critics chastised the Court for playing fast and loose with the facts and inviting the reintroduction of prayer in public schools--thus further eroding the separation of church and... 2023
Anshul Prakash , Deeksha Malik , Sana Sarosh , Partner, Khaitan & Co, Senior Associate, Khaitan & Co, Associate, Khaitan & Co TOP 10 STRATEGIES FOR EMPLOYERS IN INDIA TO MITIGATE THE RISK OF DISCRIMINATION CLAIMS 2/14/2023 ACC Docket 1 (2/14/2023) Banner artwork by Hyejin Kang / Indian laws have set protections for certain categories of employees against discrimination in the workplace. Employers should have or put in place redressal mechanisms to address discrimination claims and train their personnel. Employers should also ensure they have a defensible process for... 2023
Megan E. Bowling TURN UP THE VOLUME: THE CONNICK PICKERING TEST AS A REMEDY FOR QUIET QUITTING AND THE COVID-19 PANDEMIC'S IMPACT ON CRITICAL PRIVATE EMPLOYMENT ISSUES 92 University of Cincinnati Law Review 172 (10/20/2023) In the twentieth century, a shift in American jurisprudence led to the formation of regulations and structures that benefit and protect the American workforce. For those working in the public sector, a line of Supreme Court cases laid a foundation defining their speech protections. Though these cases impacted private sector speech protections, they... 2023
Chacity C. Simmons WHY HE DIDN'T GET THE JOB: THE EVOLUTION OF EMPLOYMENT POLICY ISSUES AFFECTING INDIVIDUALS WITH CRIMINAL RECORDS 50 Southern University Law Review 85 (Spring, 2023) This article will address developments--some recent and some not so recent-- which have helped protect African Americans in connection with their efforts to obtain employment. Specifically, this article will include a focus on some of those developments related to individuals seeking employment who have had interactions with a criminal justice... 2023
Alicia Jessop, Esq. WINNING INCENTIVES: PROPOSED AMENDMENTS TO TITLE VII OF THE CIVIL RIGHTS ACT AND EQUAL EMPLOYMENT OPPORTUNITY ACT TO FOSTER DIVERSE WORKPLACE HIRING AND PROMOTION 91 UMKC Law Review 775 (Summer, 2023) When it comes to workplace discrimination, the American sport industry presents a unique dichotomy. The racial and gender imbalances found in the make-up of professional teams' rosters versus their C-suites depict the hiring and promotion disparities persistent in the American workplace. Yet, because of its widespread visibility and rare ability to... 2023
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
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