Employment Law

8 posts

#TimesUp On Individual Litigation Reform: Combatting Sexual Harassment Through Employee-Driven Action and Private Regulation

Issues Volume 53, Issue 2

By Natalie Dugan

In 2017, the New York Times published a story that exposed severe sexual misconduct on the part of Harvey Weinstein, an American film producer. The revelation of Weinstein’s conduct proved to be a watershed moment for the public’s comprehension of sexual harassment and violence in the workplace. Movements like the #MeToo and TimesUp initiatives quickly gained substantial momentum, reflecting a newfound and widespread commitment to combatting this form of misconduct.

This Note, however, aims to illuminate the barriers to progress those movements, and others, will face in their attempts to eradicate sexual harassment and violence in the broader workplace context, beyond the scope of Hollywood. The narrow focus on overt sexual misconduct, along with a general failure to circumvent the pre-existing shortcomings of the U.S. court system in addition to the various disadvantages of pursuing individual litigation, have the potential to prevent such movements from achieving lasting change. As such, this Note offers an alternative framework for combatting sexual misconduct in the workplace, through the implementation of employee-driven groups modeled after The Fair Food Program. Moreover, this Note offers possible means through which government intervention might facilitate cooperation between corporations and said employee-driven groups.

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Algorithmic Harms to Workers in the Platform Economy: The Case of Uber

Issues Volume 53, Issue 2

By Zane Muller

Technological change has given rise to the much-discussed “gig” or “platform economy,” but labor law has yet to catch up. Platform firms, most prominently Uber, use machine learning algorithms processing torrents of data to power smartphone apps that promise efficiency, flexibility, and autonomy to users who both deliver and consume services. These tools give firms unprecedented information and power over their services, yet they are little-examined in legal scholarship, and case law has yet to meaningfully address them. The potential for exploitation of workers is immense, however the remedies available to workers who are harmed by algorithm design choices are as yet undeveloped.

This Note analyzes a set of economic harms to workers uniquely enabled by algorithmic work platforms and explores common law torts as a remedy, using Uber and its driver-partners as a case study. Part II places the emerging “platform economy” in the context of existing labor law. Part III analyzes the design and function of machine learning algorithms, highlighting the Uber application. This Part of the Note also examines divergent incentives between Uber and its users alongside available algorithm design choices, identifying potential economic harms to workers that would be extremely difficult for workers to detect. Part IV surveys existing proposals to protect platform workers and offers common law causes of action sounding in tort and contract as recourse for workers harmed by exploitative algorithm design.

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Beyond Discriminatory Intent: Agriculture, Labor Rights, and the Shortcomings of Equal Protection Doctrine

Issues Volume 55, Issue 2

By Mary Otoo

The National Labor Relations Act provides labor protections for millions of workers. The existing exemption for agricultural workers, however, leaves a crucial category of workers vulnerable because they lack federal protection to form unions and collectively bargain with their employers. Implemented in 1935, the exemption created a severe disparate impact for farm workers, most of whom are Latinx. This lack of labor rights robs agricultural workers of important tools to increase wages and improve working conditions and benefits.

In the past, plaintiffs have attempted to challenge the exemption on equal protection grounds, but these challenges have failed—in large part because there is no direct evidence of Congress’ intent to discriminate against Latinx workers, despite the exemption’s disproportionate harm. This Note presents a theoretical framework for assessing equal protection claims challenging laws that have a prolonged and severe disparate impact, a framework which, unlike current equal protection doctrine, does not require plaintiffs prove discriminatory intent. The intention in creating this new framework is to make it easier for plaintiffs to challenge longstanding laws that continue to have a harmful disparate impact on minorities, even in cases where it is difficult or impossible to prove that Congress harbored discriminatory intent when it passed the law. This Note explains the elements of the theoretical framework and applies it to the NLRA agricultural exemption.

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Expanding Employee Ownership in America: A Proposal for a National Equity Compensation Mandate

Issues Volume 55, Issue 2

By Tyler Ross

Individual and household wealth is most often derived from three sources: real property, human capital, and productive capital. The modern economy has developed financial tools, such as mortgages and student loans, to help individuals accrue real property and human capital, but there is no meaningful way for the working class to accrue ownership of productive capital. And, so long as the growth rate of capital exceeds the growth rate of wages, wealth inequality in the United States and elsewhere will continue to grow. This Note explores existing methods to extend capital ownership to the working class, such as Employee Stock Ownership Plans, and proposes a federal, national, mandatory equity minimum wage as an effective solution to three problems in our modern economy. Specifically, (i) employees do not benefit when the companies for which they work are tremendously profitable and provide outsized returns to investors; (ii) wealth inequality is worsening and will continue to do so; and (iii) there is a savings deficit among nearly one-half of American households. This Note explains how a mandatory equity minimum wage will help ameliorate these three problems by meaningfully extending ownership of productive capital to the working class.

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Blacklisting Allowed? Whether the False Claims Act Protects Former Employees from Retaliation

Issues Volume 56, Issue 1

By Hunter Baehren

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 Co., the Supreme Court interpreted the term “employee” in the antiretaliation provision of Title VII of the Civil Rights Act to include former employees.  Courts disagree, however, on Robinson’s relevance in interpreting the term “employee” in the antiretaliation provisions of other federal whistleblower statutes.  A circuit split has emerged exemplifying this tension: the Sixth Circuit recently found that the term “employee” in the False Claims Act’s antiretaliation provision includes former employees.  The Tenth Circuit previously ruled otherwise.  This Note offers the following contributions: (1) this circuit split reflects a broader disagreement on the role of Robinson in interpreting antiretaliation provisions, and (2) the in pari materia rule can resolve the split, as well as provide courts a clear path to applying Robinson to antiretaliation provisions in other federal statutes.

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Leashed: How Veterinarian Noncompetes Accelerated Industry Consolidation

Issues Volume 56, Issue 3

By Logan Wilke

The veterinary services industry, once characterized by locally-owned general care providers, has been rapidly consolidating into one dominated by multinational conglomerates. These corporate consolidators leverage their size and capital both to fund acquisitions and to attract debt-laden veterinary school graduates with above-market starting salaries. Whether they join a corporate practice through entry-level hiring or an acquisition, veterinarians typically become bound by employment contracts containing restrictive noncompete provisions. Regardless of their specific terms, legal enforceability, or actual enforcement, these noncompetes appear to keep young associates from leaving to competitors until later than they otherwise would have. These provisions serve to withhold scarce labor from competitors, which has increased pressure on independent veterinarians to sell their practices and accelerated consolidation.

In detailing the effects of veterinary consolidators’ use of noncompetes, this Note lends support to a broad federal rule prohibiting these provisions without an exception based on income or job function. A rule eliminating all veterinarian noncompetes except those covering practice owners or those used in the sale of a practice can best foster more equitable and sustainably competitive growth in the veterinary services industry.

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If at First You Don’t Succeed, Try, Try Again: Why College Athletes Should Keep Fighting for “Employee” Status

Issues Volume 56, Issue 3

By Jennifer A. Shults

Beginning in the 1980s, innovations in television turned college sports from a modest, regional industry into a sprawling, billion-dollar enterprise. The various stakeholders in college sports did not benefit equally from these advancements, however. While those in charge of college sports rode the train of technological progress to extreme profits, the athletes under their care got left behind. Today, the college sports world is once again undergoing a period of transition and transformation—except this time, college athletes are the ones leading college sports into a new era.

In recent years, athlete activists and their allies have secured a series of major legal victories. Key victories have included the removal of the ban on college athletes profiting from their fame and the Supreme Court’s watershed decision in the antitrust case NCAA v. Alston. This Note focuses on college athletes’ recent efforts to improve their financial circumstances and to dismantle a system that deprives them of the basic right to fair compensation. This Note argues that Division I athletes’ best shot at getting fair compensation is to continue fighting for employee rights—specifically, the right to collectively bargain and the right to a minimum wage.

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Just Cause We Can: Ending At-Will Employment and Avoiding Preemption

Issues Volume 56, Issue 4

By Nathaniel Kazlow

Unlike most European countries, the United States does not generally provide “just-cause” protections for its employees, meaning most workers are employed “at will” and may be terminated for any reason whatsoever. Although federal and state laws shield many workers from discriminatory and retaliatory firings, these protections are not enough. States and municipalities can and should legislate additional safeguards, especially in low-wage industries most affected by employee turnover.

This Note argues that federal labor law does not preempt state laws and city ordinances that provide just-cause protections to workers. The Note begins by reviewing at-will employment in the United States and Machinists preemption, a doctrine that precludes state and local regulation of those aspects of labor-management relations that Congress intended to be regulated by market forces. After analyzing the circuits’ differing applications of the Machinists preemption doctrine, this Note argues that just-cause laws are best understood as setting permissible, minimum labor standards rather than as impermissibly interfering in the collective-bargaining process. Under such an interpretation, it follows then, that state and local just-cause laws should not be preempted by the federal National Labor Relations Act. The Note concludes by providing recommendations to states and municipalities on how best to structure their just-cause legislation, leveraging lessons learned from recent and decades-old statutes and case law.

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