Employment Law eJournal最新文献

{"title":"Louisiana: New Laborers, New Laws","authors":"R. Raasch","doi":"10.2139/SSRN.2019948","DOIUrl":"https://doi.org/10.2139/SSRN.2019948","url":null,"abstract":"Migrant labor, particularly Hispanic migrants in Louisiana, positively impact the fiscal health of the Louisiana economy. Small and large Louisiana business owners cannot maximize their economic potential without an ample supply of migrant labor. Historically, and today, the Louisiana market demands the use of cheap labor. A Louisianan ideological tenent is one of hard work and fair compensation. But our business owners and migrant workers are not able to achieve independent economic goals because of a systematic breakdown in the supply of labor. The failure of the federal H2A and H2B worker programs is contributing to the economic loss of numerous local Louisiana businesses. These businesses are not able to access enough workers in part because the federal program’s cap on the number of workers allowed in the United States to work. The numeric cap does not provide enough workers, and the federal program suffers from weak program management and implementation. Louisiana’s passage of laws that effectively prevent migrant workers from accessing and contributing to the economy is also a contributing factor. Migrant workers are not legally protected, and crimes are committed against them without recourse. Migrant labor in Louisiana should be legislatively controlled and protected. The tax base would expand and bring in more revenue for the state if wages of migrant labor were legally legitimized by Louisiana. This paper focuses on the need for a legislatively created guest-worker permit program for Louisiana.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116767187","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Generational Conflict and Labor Market Turnover: A Tale of Employment Protection and Retirement Age","authors":"Marco Magnani","doi":"10.2139/ssrn.1945166","DOIUrl":"https://doi.org/10.2139/ssrn.1945166","url":null,"abstract":"This paper considers the political economy of employment protection and retirement age and analyzes interaction between labor market and the pension system. In the present scenario, young outsiders (unemployed) are the median group in the electorate. These voters choose the degree of employment protection and the legal retirement age which define an optimal labor market turnover and realize their preferred allocation of income and unemployment risk across time and states of the world. In equilibrium this defines an inverse relationship between the equilibrium level of employment protection and the mandatory retirement age.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130538400","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Supreme Court of the United States Employment Law Commentary 2010 Term","authors":"J. Harkavy","doi":"10.2139/SSRN.1915692","DOIUrl":"https://doi.org/10.2139/SSRN.1915692","url":null,"abstract":"This paper reviews all of the employment-related decisions of the Supreme Court of the United States for the current term ending in October of 2011.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"2 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114013808","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Working the Crowd: Employment and Labor Law in the Crowdsourcing Industry","authors":"Alek Felstiner","doi":"10.15779/Z38Z92X","DOIUrl":"https://doi.org/10.15779/Z38Z92X","url":null,"abstract":"This Article confronts the thorny questions that arise in attempting to apply traditional employment and labor law to “crowdsourcing,” an emerging online labor model unlike any that has existed to this point. Crowdsourcing refers to the process of taking tasks that would normally be delegated to an employee and distributing them to a large pool of online workers, the “crowd,” in the form of an open call. The Article describes how crowdsourcing works, its advantages and risks, and why workers in particular subsections of the paid crowdsourcing industry may be denied the protection of employment laws without much recourse to vindicate their rights. Taking Amazon’s Mechanical Turk platform as a case study, the Article explores the nature of this employment relationship in order to determine the legal status of the “crowd.” The Article also details the complications that might arise in applying existing work laws to crowd labor. Finally, the Article presents a series of brief recommendations. It encourages legislatures to clarify and expand legal protections for crowdsourced employees, and suggests ways for courts and administrative agencies to pursue the same objective within our existing legal framework. It also offers voluntary “best practices” for firms and venues involved in crowdsourcing, along with examples of how crowd workers might begin to effectively organize and advocate on their own behalf.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130208653","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Deregulating Equal Employment Opportunity","authors":"J. Harkavy","doi":"10.2139/ssrn.1885186","DOIUrl":"https://doi.org/10.2139/ssrn.1885186","url":null,"abstract":"This paper briefly examines the course of employment law in the United States and concludes that the current Supreme Court’s laissez-faire approach to regulation is disabling our fair employment laws. The paper points out the consequences of such a course and concludes that the romance with deregulation on the part of a majority of Justices on the Roberts Court is endangering the moral imperative of equal opportunity in our nation’s workplaces.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117086482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mastering the Faithless Servant? Reconciling Employment Law, Contract Law, and Fiduciary Duty","authors":"C. Sullivan","doi":"10.2139/SSRN.1777082","DOIUrl":"https://doi.org/10.2139/SSRN.1777082","url":null,"abstract":"The quaintly-named “faithless servant” doctrine requires employees subject to it not merely to pay damages for their derelictions but also to disgorge the compensation paid during the period of his faithlessness and without any right to recover in quantum meruit for the value the employee may have provided during that time. The net result is that an employer can recover substantial amounts of compensation paid and otherwise due without proof that it suffered any damage whatsoever and, indeed, even if it is established that there were no such damages.Such a result is startling to those who approach the question from the perspective of contract law, which normally would limit the victim of a breach to expectation damages. While those who come to the doctrine from the perspective of an agent’s fiduciary duty will not be surprised by the remedies for breach of the “duty of loyalty,” they will be startled by how broadly the doctrine sweeps. In some jurisdictions it not only reaches all employees, but the automatic forfeiture remedy is more draconian than trust law requires of the quintessential faithless fiduciary, the faithless trustee.Further, while the doctrine has typically been invoked against higher-level employees, it has more recently been deployed defensively in response to lower-level employee suits for violations of antidiscrimination statutes and wage/hour laws. The natural consequence has been to up the ante for such plaintiffs, which seems likely to discourage their suits.The question of the appropriateness of enhanced remedies for some or all “faithless” employees takes place in an environment in which abuses by corporate executives are front and center in public policy debates. At the very least, however, one might anticipate that the reach of the “faithless servant” doctrine would be well-defined and its harsh consequences well-justified. Neither turns out to be true. Nor could a reconsideration of the question be timelier. In its current Restatement of Employment Law project, the American Law Institute will focus on whether the doctrine should be part of the employer’s arsenal of remedies for misconduct in the employment relationship. This will compel it to decide whether to accept, reject, or modify the Institute’s approval of the faithless servant rule in its earlier Restatements of Agency. Arguing that “employees” are different from other agents, this Article contends that at the least the doctrine should be inapplicable to lower-level workers and suggests reframing it even as applied to “key” employees.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127368661","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Beyond Religious Refusals: The Case for Protecting Health Care Workers’ Provision of Abortion Care","authors":"Stephanie A. Sterling, Jessica L. Waters","doi":"10.1163/2210-7975_hrd-9963-0006","DOIUrl":"https://doi.org/10.1163/2210-7975_hrd-9963-0006","url":null,"abstract":"This article seeks to explore the question of whether and to what extent conscience-based employment protections available to those medical professionals opposed to the provision of abortion care should also be available to health care professionals who seek, based on their religious or moral beliefs, to affirmatively provide abortion care at religiously affiliated medical facilities. Part I examines the prevalence of religiously affiliated medical institutions that refuse to provide abortion care and the ways in which these prohibitions violate the consciences of some health care professionals who seek, as a matter of religious or moral conviction, to provide abortion care to their patients. Part II examines whether existing employee legal protections such as Title VII of the 1964 Civil Rights Act or the Church Amendment, both of which prohibit various forms of employment \"discrimination\" based on moral, ethical, or religious beliefs, can be used to protect health care providers’ affirmative right to provide, as a matter of conscience, abortion care. While both laws have been used to protect employees’ conscience-based refusals to provide reproductive health care, Part II explores whether and to what extent these same laws could also provide meaningful remedies for medical professionals who seek to provide conscience-based abortion care. Recognizing that existing employment conscience protections for employees seeking to provide abortion care are in some ways limited, Part III briefly concludes that policymakers and courts must begin to recognize that the conscience-based provision of abortion care can be rooted in beliefs held with a strength equal to the beliefs underlying the conscience-based refusal of such care, and as such must craft and enforce existing laws to provide parallel protection for both.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"297 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131137471","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Use of the Term 'Boy' as Evidence of Race Discrimination: Apparently the 11th Circuit Didn't Get the Memo?","authors":"Dawn D. Bennett-Alexander","doi":"10.2139/SSRN.1785095","DOIUrl":"https://doi.org/10.2139/SSRN.1785095","url":null,"abstract":"In an unusual and interesting case, the 11th Circuit decision was appealed to the U.S. Supreme Court, the Supreme Court rendered a decision remanding the case with guidance, and upon remand, the 11th Circuit virtually ignored the Court's guidance and went its own way. The Supreme Court determined that the term \"boy,\" when used in referring to an adult African American male, can, under certain circumstances, be evidence of race discrimination. Despite the evidence, the 11th Circuit on remand did not find such circumstances to be present in this case. The decision is not only peculiar in its decision to give only lip service to the Supreme Court's guidance, but also in its staunch refusal to recognize the vestiges of the stark historical realities of the three southern states within the circuit.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122446682","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Supreme Court Employment Decisions 2009 Term","authors":"J. Harkavy","doi":"10.2139/SSRN.1678784","DOIUrl":"https://doi.org/10.2139/SSRN.1678784","url":null,"abstract":"This paper describes, analyzes and comments on all employment-related cases decided by the Supreme Court of the United States during the current term ending in October of 2010.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126936156","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Myth of Equality in the Employment Relation","authors":"Aditi Bagchi","doi":"10.2139/ssrn.1357448","DOIUrl":"https://doi.org/10.2139/ssrn.1357448","url":null,"abstract":"Although it is widely understood that employers and employees are not equally situated, we fail adequately to account for this inequality in the law governing their relationship. We can best understand this inequality in terms of status, which encompasses one's level of income, leisure and discretion. For a variety of misguided reasons, contract law has been historically highly resistant to the introduction of status-based principles. Courts have preferred to characterize the unfavorable circumstances that many employees face as the product of unequal bargaining power. But bargaining power disparity does not capture the moral problem raised by inequality in the employment relation, and thus, it has failed to inspire any meaningful attempt to address that inequality. By contrast, a status-based approach would motivate several common sense doctrinal changes. The persistent myth of equality is still more paradoxical in the context of labor law. Due to political constraints and several sources of uncertainty about its future, the National Labor Relations Act was limited to a bare bones framework for collective bargaining. Later amendments and judicial interpretations entrenched a strictly procedural interpretation of the Act oriented toward the goal of minimizing commercial disruption rather than disrupting status inequality. The present regime sustains a false image of unions as equal in strength to employers, in need of only an illusive \"level playing field.\" As a result, it does not effectively mitigate the negative dimensions of social status stemming from employment. A few modest changes would help re-orient or at least broaden the Act so that unions can play a meaningful role in mitigating status inequality.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123252358","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}