Labor and Employment Law
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 political and social inequality.
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 from where their economic burdens should fall.
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.
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.
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.
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.
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.
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.
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.
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.
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 common use.
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 enforcement of wage laws.
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 modern workplace.
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 “doomed.” As a result of the Fight for $15’s campaign, for example, nearly seventeen million U.S. workers have earned wage increases, and 59% of those—ten million workers—will receive gradual raises to $15 an hour. In fact, between 2012 and 2016, workers earning less than $15 gained $61.5 billion in wage increases. However, the workers who lead and drive these movements are not simply agitating for a higher wage. As Jorel Ware, a McDonald’s worker from Chicago and member of the Fight for $15, states it: What’s motivating me is there’s a lot of different issues going on in the United States with living wages, with Black Lives Matter issues, immigration reform, childcare. These issues are basically the same because everybody’s going through them, black and brown people are going through this. This is how it comes together and it gives me the drive and I’m finally willing to make a change.
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 to recover from its current state representing less than eleven percent—and, in the private sector, less than seven percent—of the workforce, but also to maintain existing bargaining relationships and improve standards for workers at organized employers like General Motors, AT&T, and United Parcel Service. The labor movement’s economic and political power rests on the existing infrastructure of collective bargaining; there is no realistic path towards rebuilding labor’s voice in society that does not begin with organizing key firms in industries with significant existing union density.
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-based representation and collective bargaining, in favor of a model involving mobilizing workers across entire sectors and harnessing state power through legislation or other vehicles to strengthen workers’ economic and political clout. Pointing to the Service Employees International Union (SEIU)-backed Fight for $15, Andrias identifies what she calls a “coherent vision of unionism” that is transforming unions from representatives of particular workers to advocates for workers generally.
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 design, hair braiding, and even floristry. Today, aboutone quarter of American workers must obtain a government-issued license to dotheir job, up from less than five percent in the 1950s.
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 Circuit likewise held that a licensing scheme for funeral directors violated due process and equal protection under the Fourteenth Amendment. These cases mark a sea change in the treatment of economic liberty claims both by the courts and in U.S. legal culture.
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 implicate the Bill of Rights under a very forgiving version of the rational basis test that leaves little room for successful challenges. Despite remonstrations from libertarian enthusiasts inside and outside of the academy, there is no realistic prospect that judicial protection of liberty of contract will be reasserted anytime soon.