Labor and Employment Law
Feature
After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions
Within the post-New Deal constitutional framework, unions were categorized as engaging in commercial activity, rather than advancing inherently normative claims about justice at work. This Feature argues that this choice, what I call the law of apolitical economy, continues to shape how we understan…
Note
Between Public and Private: Care Workers, Fissuring, and Labor Law
Although states set wages and regulate working conditions, NLRA-covered care workers are often restricted to bargaining with their private employers. To address this challenge, this Note argues that states should recognize their implicit joint-employer relationship with these workers, enabling care …
Forum
Concerted Arbitration
With the emergence of mass arbitration, companies that once promoted arbitration now seek to block employees from arbitrating claims. This Essay argues that employees have a right to mass arbitrate their claims because mass arbitration is a concerted activity protected by the National Labor Relation…
Forum
The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was supposed to eliminate forced arbitration of cases involving sexual misconduct. This Essay explains why the Act fails to do so. In addition, it outlines what lawmakers and courts can do to fix this problem.
Review
Capitalist Development, Labor Law, and the New Working Class
Gabriel Winant’s The Next Shift charts the transformation of Pittsburgh’s political economy from World War II through 2008. This Review suggests that the long-term process of capitalist development—which is central to Winant’s account—also helped to reshape our labor law over the same period.
Forum
Unemployment Insurance for the Gig Economy
Historically, U.S. unemployment insurance has excluded workers lying outside the conventional employer/employee binary. That should change. This Essay argues for extending benefits to gig-economy workers, via structures fashioned after states’ existing unemployment programs. It grounds its argument …
Forum
Solidarity, Legitimacy, and the Janus Double Bind
Janus’s failure to recognize a state interest in labor organizing contained a twofold mistake. Organizing develops a culture of civic trust. In turn, civic trust is necessary for citizens to accept the sorts of accommodations raised by conscience-based exemptions claims—like Janus’s—that the state m…
Article
Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality
This Article proposes an innovative approach to addressing political inequality: using law to facilitate organizing by the poor and working class – as workers, tenants, debtors, and welfare beneficiaries. The Article offers a new direction for the literature on political inequality and critical less…
Forum
The Once and Future Countervailing Power of Labor
Drawing on the law that supported labor movement’s exercise of countervailing power against 1930s plutocracy, progressive social movements can use law to create a new political economy. But, as a condition of granting labor power, law channeled unions away from radicalism. Powerful class-based movem…
Forum
Black Progressivism and the Progressive Court
This essay discusses Black progressive texts – Thomas Fortune’s Black and White, Ida Wells’s The Reason Why, and two statements of the Niagara Movement – and explores how the themes they developed contain a critique of the underlying rationales of the Supreme Court’s jurisprudence of the same period…
Forum
“There Is No Such Thing as an Illegal Strike”: Reconceptualizing the Strike in Law and Political Economy
Workers today are rediscovering the power of the strike and upending jurisprudential categories. Strikes are not just “economic weapons”; they are political protest. And like Progressive Era strikes, the success of strikes today may be in legitimating a new vision of law and political economy.
Note
Labor’s Antitrust Problem: A Case for Worker Welfare
Labor and antitrust have historically been at odds: workers have faced antitrust liability for organizing, as the market power of employers has grown. Motivated by recent developments in the gig economy, this Note argues that antitrust law must preserve the welfare of workers, and proposes reforms t…
Note
Better Together? The Peril and Promise of Aggregate Litigation for Trafficked Workers
Procedural rules often prevent classes of trafficked workers from vindicating their rights in court. This Note examines the difficulties that face labor-trafficking class actions and proposes a new litigation strategy. That strategy urges state attorneys general to bring a more effective kind of agg…
Note
The #MeToo Movement Migrates to M&A Boilerplate
A new provision in M&A boilerplate addresses the business risk of sexual-harassment allegations in the #MeToo era. While the #MeToo clause was designed to maximize corporate profit, this Note argues for its potential to both reduce buy-side risk and to incentivize companies to maintain effective rep…
Note
Constraint Through Independence
Skepticism of the federal bureaucracy has inspired growing calls to cabin the independence of certain agency actors, including administrative law judges (ALJs). Through a holistic assessment of NLRB case law, including a novel empirical study, this Note argues that eliminating ALJ independence would…
Article
An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act
This Article recovers an institutional experiment in the early history of the Fair Labor Standards Act as an example of democratic and egalitarian administrative law. The Act’s wage boards, the Article suggests, offer an alternative, participatory vision of governance in today’s age of growing polit…
Article
What Should We Do After Work? Automation and Employment Law
The existing fortress of employment-based rights and benefits is falling apart. The dominant legal responses to fissuring fail to meet, and even exacerbate, the challenge of contemporary automation. The way forward, this Article contends, must begin by separating what workers’ entitlements should be…
Forum
Securing Public Interest Law’s Commitment to Left Politics
Through an analysis of the challenges facing the “new working class,” this Essay argues that in order to advance their clients’ interests, progressive lawyers must redefine public interest law such that it centers on a commitment to developing left political power.
Forum
Beyond the Box: Safeguarding Employment for Arrested Employees
Most criminal system reform efforts neglect the collateral consequences experienced by individuals with pending criminal cases. This Essay argues that meaningful reform requires enhanced protections for current employees and applicants with open criminal cases.
Forum
Reconceptualizing Sexual Harassment, Again
The #MeToo movement has spurred a renewed focus on sexual harassment. But often, the narratives that emerge overemphasize sexualized forms of harassment at the expense of broader structural causes. This Essay builds on Schultz’s previous work to explore those institutional drivers of harassment.
Forum
Queering Sexual Harassment Law
Franchina v. City of Providence may be the first judicial opinion of the #MeToo movement. But it also points beyond the #MeToo movement, exemplifying harassment that is motivated by desires to enforce gender roles and why sexual orientation discrimination is sex discrimination under Title VII.
Forum
Of Power and Process: Handling Harassers in an At-Will World
Pressure is mounting on companies to take swift disciplinary action regarding alleged sexual harassment. But our employment law incentivizes employers to tolerate high-ranking harassers while cracking down on inappropriate behavior by the rank-and-file. This Essay suggests a better path forward.
Forum
Sexual Harassment Law After #MeToo: Looking to California as a Model
The #MeToo movement has motivated people to speak out about sexual harassment, but many of those speaking remain vulnerable to retaliation. This Essay provides the perspective of an employment lawyer on the shortcomings of sexual harassment law and how state law can afford greater protection.
Forum
Was Sexual Harassment Law a Mistake? The Stories We Tell
Does our sexual harassment law hinder the larger project of reducing harassment? This Essay demonstrates that the law constrains stories of harassment and hamstrings our calls for reform. Ultimately, the law, not just public perception, must change if this movement is to have a lasting effect.
Forum
What About #UsToo?: The Invisibility of Race in the #MeToo Movement
The #MeToo movement has rightly been praised for breaking long-held silences about harassment. It has also rightly been critiqued for ignoring unique forms of harassment that women of color face. This Essay calls for a sexual harassment law that embraces intersectional, multidimensional identity.
Article
The Jurisprudence of Mixed Motives
How do various domains of law deal with mixed motives? Are we condemned by our darkest motive, forgiven according to our noblest, or something in between? This Article develops a precise descriptive vocabulary for how courts analyze motives, concluding that there are only four motive standards in co…
Note
Democratizing the FLSA Injunction: Toward a Systemic Remedy for Wage Theft
This Note identifies a remedial shortcoming in the Fair Labor Standards Act: the absence of private injunctive relief. It identifies this oversight as a vestige of a New Deal-era presumption of agency-centered enforcement and proposes a new way to vindicate workers’ rights through private enforcemen…
Forum
Policing Work Boundaries on the Cloud
The widespread use of SaaS applications like Slack has shifted how work is performed in the digital age, with attendant implications for labor law applicability. This Essay shows how SaaS applications deviate from the existing regime and proposes a regulatory scheme that better accords with the mode…
Forum
The ‘New’ Labor Regime
In The New Labor Law, Professor Kate Andrias describes a labor regime founded upon politicized social bargaining emerging from the wreckage of the National Labor Relations Act (NLRA). This regime rejects (for the most part) the NLRA’s employer-employee dyad model of private ordering through worksite…
Forum
Nothing New Under the Sun: “The New Labor Law” Must Still Grapple With the Traditional Challenges of Firm-Based Organizing and Building Self-Sustainable Worker Organizations
There’s no avoiding Walmart, Toyota, Amazon, T-Mobile, and Federal Express. The greatest concentration of unorganized workers in the United States is still employed at these and similar large multinational corporations. Helping these workers form unions is essential for the labor movement not only t…
Forum
Fighting for the Common Good: How Low-Wage Workers’ Identities Are Shaping Labor Law
Social movements led by workers in low-wage industries, from fast food to car washes to nursing homes, have upended the public narrative of who poor workers are and what they deserve both at work and at home. By doing so, these movements have won victories that were once considered “unrealistic” and…
Note
Ban the Address: Combating Employment Discrimination Against the Homeless
This Note presents a study of obstacles to employment faced by homeless job applicants and offers potential solutions. Homeless job applicants confront discrimination when they provide the address of a shelter or do not have an address to provide on applications. Advocates shou…
Forum
Business Licensing and Constitutional Liberty
Claims that the Constitution prohibits business licensing requirements have proliferated in recent years. The U.S. Court of Appeals for the District of Columbia Circuit recently concluded that a District requirement that tour guides obtain business licenses violated the First Amendment. The Sixth Ci…
Forum
Beating Rubber-Stamps into Gavels: A Fresh Look at Occupational Freedom
The number of Americans who must obtain government permissionto work in their chosen vocation has been steadily rising. A recent White Housereport observed that “[o]ccupational licensing has grown rapidly over the past few decades” and has come to include manyharmless vocations such as interior desi…
Forum
The Due Process Right To Pursue a Lawful Occupation: A Brighter Future Ahead?
For decades, the Supreme Court has rejected arguments that the Fourteenth Amendment’s Due Process Clause protects a general right to liberty of contract worthy of more than cursory judicial attention. Instead, the Court, along with most state courts, has reviewed economic regulations that do not imp…
Article
The New Labor Law
Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining am…
Forum
“Running the Government Like a Business”: Wisconsin and the Assault on Workplace Democracy
Introduction: Democratic Spring
Forum
Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment
In his 2008 campaign, then-Democratic presidential candidate Barack Obama promised “comprehensive immigration reform.” Two years into his Administration, and despite continued efforts to promote reform, there has not even been a vote in Congress on a comprehensive bill. President Obama’s prede…
Forum
Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment
Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known consequence of this watershed case might have a significant impact in the workplace: it may permit employers to hold political captive audience workplace meetings with their employees. Under Citizens Un…
Article
Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude"
119 Yale L.J. 1474 (2010).
The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough d…
Note
Realizing the Potential of the Joint Harassment/Retaliation Claim
117 Yale L.J. 120 (2007).
This Note assesses the relationship between hostile work environment harassment and retaliatory harassment claims by reviewing several cases in which both claims were brought. It argues that courts have unjustifiably narrowed the reach of both claims by disaggregating hara…
Note
From Employment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor Workforce
116 Yale L.J. 170 (2006)
The American workplace has undergone a fundamental transformation as businesses increasingly have replaced traditional employees with independent contractors. Yet many of these individuals fall outside federal employment law, including Title VII's antidiscrimination protectio…
Forum
Aligning Immigration and Workplace Law, One Step at a Time
Federal immigration reform has seized public attention for the first time since Congress last made major changes in immigration policy in 1996. People are taking to the streets and engaging in heady debates about what being a nation of immigrants really means. Our answer will shape the workplaces of…
Comment
Suspending Employers' Immigration-Related Duties During Labor Disputes: A Statutory Proposal
115 Yale L.J. 2193 (2006)
Article
The Future of Disability Law
114 Yale L.J. 1 (2004)
Since its enactment in 1990, the Americans with Disabilities Act (ADA) has dominated discussions of disability law in the legal academy. While the ADA's achievements must be celebrated, the statute's limitations have become increasingly apparent. In particular, the statute appe…
Comment
Is the Right To Organize Unconstitutional?
113 Yale L.J. 1999 (2004)
Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004).
Do union organizers have the right to organize on private property? As far as federal law is concerned, the answer to that question is clear. Employee organizers have broad rights under the National Labor Relations Act…
Note
"Hostility to the Presence of Women": Why Women Undermine Each Other in the Workplace and the Consequences for Title VII
113 Yale L.J. 1579 (2004)
When women undermine and undercut each other, vying for advancement, they are reacting to workplace segregation and low organizational power. Employers must work to integrate workplaces to the best of their abilities, ensuring that women are present in ample numbers at all l…
Article
The Sanitized Workplace
112 Yale L.J. 2061 (2003)
One of American society's most cherished beliefs is that the workplace is, or should be, asexual. This ethic is a legacy of our historic commitment to a conception of organizational rationality that treats sexuality as irrational and unproductive--a conception that had come …
Note
A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections
112 Yale L.J. 2415 (2003)
The First Amendment stands as a guarantor of political freedom and as the "guardian of our democracy." It seeks to expand the vitality of public discourse in order to enable Americans to become aware of the issues before them and to pursue their ends fully and freely. As t…
Note
Unions and the Duty of Good Faith in Employment Contracts
112 Yale L.J. 1881 (2003)
Some American scholars of law and economics have expressed dismay at the anticompetitive and illiberal body of legal doctrine that is labor law. Their respondents, often in other fields if not other countries, have defended unions and the laws that support them on both econ…
Comment
Responsible Direction and the Supervisory Status of Registered Nurses
112 Yale L.J. 665 (2002)
The National Labor Relations Board (NLRB or the Board) has, for many years, wrestled with the problem of whether various classes of professional employees who regularly exercise discretion and judgment in their jobs should be classified as "supervisors" and therefore denied t…