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
Jade Wolansky NOW WHAT? POST-JANUS PRIVACY RIGHTS FOR UNIONIZED CALIFORNIA PUBLIC EMPLOYEES IN THE DIGITAL AGE 53 University of the Pacific Law Review 677 (May, 2022) C1-2Table of Contents I. Introduction. 678 II. The Current State of Public Unions. 680 A. The National Labor Relations Act, Labor Unions and Collective Bargaining. 681 B. Union Membership, Janus v. AFSCME, and the Free Rider Problem. 682 C. The Union Difference. 683 III. Public Records Laws and Lawsuits in Washington, Oregon, and California. 684 A.... 2022
Katherine E. Miller PERMITTING AFTER-ACQUIRED EVIDENCE OF EMPLOYEE QUALIFICATIONS: PERPETUATING A MCKENNON DISTINCTION WITHOUT A DIFFERENCE 55 Suffolk University Law Review 93 (2022) Above all, the [Americans with Disabilities Act] is about one clear and forthright message: That discrimination of any kind has no place in America .. Discrimination no longer has a legal leg to stand on. Despite legislative and societal condemnation, employment discrimination has found several legal legs to stand on, both historically and in the... 2022
Konrad S. Lee , Laura Kent-Jensen POLITICS AND EMPLOYMENT DISCRIMINATION 24 Atlantic Law Journal 236 (2022) On May 25, 2020, Minneapolis police officers arrested George Floyd, a 46-year-old Black man, after a convenience store clerk claimed he used a counterfeit $20 bill to buy cigarettes. Mr. Floyd died after Derek Chauvin, one of the police officers, handcuffed him and pinned him to the ground with a knee, an episode that was captured on video and... 2022
Charles Tait Graves QUESTIONING THE EMPLOYEE NON-SOLICITATION COVENANT 55 Loyola of Los Angeles Law Review 959 (Fall, 2022) Based on an in-depth review of the dubious justifications courts have offered when enforcing co-worker non-solicitation covenants, this Article proposes that courts have too strongly favored employers against their former employees in such disputes. A co-worker non-solicitation covenant is a contract term that prohibits a departing employee, for... 2022
Jacob M. Amstutz RECLAIMING AMERICA AS THE LAND OF OPPORTUNITY: HOW INTERNATIONAL LAW CAN HELP THE UNITED STATES INCREASE EMPLOYMENT FOR PERSONS WITH INTELLECTUAL DISABILITIES 32 Indiana International & Comparative Law Review 563 (2022) In his book The Epic of America, James Truslow Adams defines the American Dream as a dream of a social order in which each man and each woman shall be able to attain to the fullest stature of which they are innately capable, and be recognized by others for what they are, regardless of the fortuitous circumstances of birth or position. This... 2022
Stewart J. Schwab REGULATING NONCOMPETES BEYOND THE COMMON LAW: THE UNIFORM RESTRICTIVE EMPLOYMENT AGREEMENT ACT 98 Indiana Law Journal 275 (Winter 2022) The common law has never treated a post-employment noncompete agreement between employer and employee like an ordinary contract. Rather, a court will enforce a noncompete only if it is reasonably tailored in time, geography, and scope of business to further a legitimate employer interest. Suppressing competition is an understandable but not... 2022
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