The Yale Law Journal

Labor and Employment Law

Article

The Jurisprudence of Mixed Motives

Andrew Verstein

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

Jordan Laris Cohen

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

Opeyemi Akanbi

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

Marion Crain & Kenneth Matheny

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

Matthew Ginsburg

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

Kimberly M. Sánchez Ocasio & Leo Gertner

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

Sarah Golabek-Goldman

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

The Due Process Right To Pursue a Lawful Occupation: A Brighter Future Ahead?

David E. Bernstein

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…

Forum

Beating Rubber-Stamps into Gavels: A Fresh Look at Occupational Freedom

Clark Neily

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

Business Licensing and Constitutional Liberty

Amanda Shanor

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…

Article

The New Labor Law

Kate Andrias

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

Richard Michael Fischl

Introduction: Democratic Spring

 

Forum

Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment

John D. Skrentny & Micah Gell-Redman

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

Paul M. Secunda

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"

James Gray Pope

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

Eisha Jain

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

Danielle Tarantolo

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

Annie Decker

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…

Article

The Future of Disability Law

Samuel R. Bagenstos

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?

Aron Fischer

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

Ramit Mizrahi

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…

Note

A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections

Kate E. Andrias

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…

Article

The Sanitized Workplace

Vicki Schultz

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

Unions and the Duty of Good Faith in Employment Contracts

Aditi Bagchi

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

Nikhil Shanbhag

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…