LEL News-Jun09

The full text of many cases is now available free on-line. Where that is the case, links are provided.

Courts have been divided as to whether discrimination against a transsexual is illegal sex discrimination. Last year the federal district court for the District of Columbia answered that question in the affirmative. The case involved a man who was transitioning to a woman at the time he was hired by the Library of Congress. The plaintiff’s offer of employment was rescinded when it was learned that the plaintiff would be presenting as a woman when she began work. More recently, the judge decided the issue of the appropriate remedies. This opinion provides a concise and clear overview of issues the court considered in deciding the remedies of compensation for back pay and lost employment-related benefits, nonpecuniary losses, and past pecuniary losses. Schroer v. Billington, Case No.05-1090 (JR) (D.D.C. Apr. 28, 2009).

Since 1991, when the Supreme Court handed down the Gilmer decision, individual employment arbitration has exploded. A recent New York case examines whether a court should enforce an arbitration contract provision that requires the employee to bear half the costs of arbitration. On the one hand, people should be responsible for what they sign, so enforcing the contract is simply respecting the sanctity of contracts and enforcing terms the parties have agreed to. If contracts are not enforced, the overall value of contracts will be diminished.

However, the American Arbitration Association, the California Supreme Court, and other bodies have taken the position that an employer alone should bear the costs of mandatory individual employment arbitration. There are a number of reasons given for this position. First, in Gilmer the Supreme Court said that arbitration is merely a different forum, not a change in rights and law. However, employees would not have to pay these costs if the case was heard in court, and having to bear these costs may mean the employee is unable to pursue even serious violations of their rights. In this case, the up-front costs were over $42,000. Second, since it is employers – not employees – that want pre-dispute arbitration agreements, employers should pay for them. Third, it is argued that pre-dispute arbitration agreements are essentially contracts of adhesion. They are imposed by employers on employees, often as a condition of being hired or retained. Therefore, as a matter of public policy, they should not be enforced. In this case, the employee was required to sign a new employee manual long after she was hired, and that manual included an agreement to arbitrate if she wanted to keep her job.

In this case, a split court majority held that the principles of the 2000 U.S. Supreme Court case, Green Tree Financial Corporation meant that the cost-splitting term should be severed from the contract and not enforced. Green Tree held that if arbitration costs were so great they prevented a party from being able to pursue legal rights, the presumption in favor of pre-dispute arbitration agreements would be overcome. The majority here found that to be the case and that if the employee had to bear those costs she would lose her legal rights. These results would violate public policy. The dissent objected that the employee had not presented sufficient evidence to prove that she was unable to pay the costs of arbitration and that she would lose her legal rights.

Brady v. Williams Capital Group, Case No.114198/06 ( N.Y. Sup. Ct. App. Div. Apr. 30, 2009).

Shareholder Bill of Rights “Say on Pay” (Giving shareholders an advisory vote on executive compensation) Text of Bill

RECENT LABOR AND EMPLOYMENT LAW ARTICLES

Michele Alexandre, Providing Protection Against Sexual Profiling in the Public Workplace, 15 Wm. & Mary J. Women & L. 377 (2009)

Michael Allen, et alia, Employment Discrimination Remedies: The Shape of Lawsuits, the Shape of Law: Proceedings of the 2008 Annual Meeting Association of American Law Schools Section on Employment Discrimination Law and Section on Remedies, 12 Employee Rts. & Emp. Pol'y J. 297 (2008)

Patricia Alten, Note: Gina: A Genetic Information Nondiscrimination Solution in Search of a Problem, 61 Fla. L. Rev. 379 (2009)

Rakesh Anand, The Role of the Lawyer in the American Democracy, 77 Fordham L. Rev. 1611 (2009)

Kelly Anders, "I" Before "E", Except in Mediation: Training Introverts to Use Extroverted Techniques to Become Stronger Mediators, 33 Okla. City U. L. Rev. 573 (2008)

Barbara Atkin, Elaine Kaplan & Gregory O'duden, Wedging Open the Courthouse Doors: Federal Employee Access to Judicial Review of Constitutional and Statutory Claims, 12 Employee Rts. & Emp. Pol'y J. 233 (2008)

Mark Bandsuch, Dressing up Title VII's Analysis of Workplace Appearance Policies, 40 Colum. Hum. Rts. L. Rev. 287 (2009)

Lisa Blomgren Bingham, Designing Justice: Legal Institutions and Other Systems for Managing Conflict, 24 Ohio St. J. on Disp. Resol. 1 (2008)

Purnima Bose, From Agitation to Institutionalization: The Student Anti-Sweatshop Movement in the New Millennium, 15 Ind. J. Global Legal Stud. 213 (2008)

Darshan Brach, Logic for the Magic of Mindful Negotiation, 24 Negotiation J. 25 (2008)

Stephen Bright, The Failure to Achieve Fairness: Race and Poverty Continue to Influence Who Dies, 11 U. Pa. J. Const. L. 23 (2008)

Stephen Broome, An Unconscionable Application of the Unconscionability Doctrine: How the California Courts Are Circumventing the Federal Arbitration Act, 3 Hastings Bus. L.J. 39 (2006)

Debra Burke, ADEA Disparate Impact Discrimination: A Pyrrhic Victory? 9 UC Davis Bus. L.J. 47 (2008)

Emily Camastra, Note: Hazardous Child Labor as a Crime Against Humanity: An Investigation into the Potential Role of the International Criminal Court in Prosecuting Hazardous Child Labor as Slavery, 15 Geo. J. on Poverty L. & Pol'y 335 (2008)

Thomas Carbonneau, "Arbitracide": The Story of Anti-Arbitration Sentiment in the U.S. Congress, 18 Am. Rev. Int'l Arb. 233 (2007)

David Caroline, Comment: Employer Health-Care Mandates: The Wrong Answer to the Wrong Question, 11 U. Pa. J. Bus. L. 427 (2009)

Lorig Charkoudian, et alia, Mediation by Any Other Name Would Smell as Sweet – or Would It? The Struggle to Define Mediation and its Various Approaches, 26 Conflict Resol. Q. 293 (2009)

Gordon Clark & Eric Knight, Implications of the Uk Companies Act 2006 for Institutional Investors and the Market for Corporate Social Responsibility, 11 U. Pa. J. Bus. L. 259 (2009)

Christopher Cognato, Casebrief: "Placing a Round Peg into a Square Hole": The Third Circuit Applies ERISA to Hybrid Pension Plans, 53 Vill. L. Rev. 639 (2008)

Matthew Dahl, Note: Soldiers of Fortune – Holding Private Security Contractors Accountable: The Alien Tort Claims Act and its Potential Application to Abtan, et al. v. Blackwater Lodge and Training Center, Inc., et al., 37 Denv. J. Intl'l L. & Pol'y 119 (2008)

Kenneth Dau-Schmidt, et al. Economic Analysis of Labor and Employment Law in the New Economy: Proceedings of the 2008 Annual Meeting, Association of American Law Schools Section on Law and Economics, 12 Employee Rts. & Emp. Pol'y J. 327 (2008)

Guillermo Dekat, Comment; John Jay, Discrimination, and Tenure, 11 Scholar 237 (2009)

Jennifer Dillard, Note: A Slaughterhouse Nightmare: Psychological Harm Suffered by Slaughterhouse Employees and the Possibility of Redress Through Legal Reform, 15 Geo. J. on Poverty L. & Pol'y 391 (2008)

Christopher Drahozal & Quentin Wittrock, Is There a Flight from Arbitration? 37 Hofstra L. Rev. 71 (2008)

Rene Duncan, Note: The "Direct Threat" Defense under the ADA: Posing a Threat to the Protection of Disabled Employees, 73 Mo. L. Rev. 1303 (2008)

Jeffrey Dunoff, Linking International Markets and Global Justice, a review of Christopher McCrudden, Buying Social Justice: Equality, Government Procurement, and Legal Change, 107 Mich. L. Rev. 1039 (2009)

Marc Edelman, Moving past Collusion in Major League Baseball: Healing Old Wounds, and Preventing New Ones, 54 Wayne L. Rev. 601 (2008)

Theodore Eisenberg & Charlotte Lanvers, What Is the Settlement Rate and Why Should We Care? 6 J. Empirical Legal Stud. 111 (2009)

Ian Eliasoph, Know Your (Lack Of) Rights: Reexamining the Causes and Effects of Phantom Employment Rights, 12 Employee Rts. & Emp. Pol'y J. 197 (2008)

Teressa Elliott, District Court Subject-Matter Jurisdiction in Suits to Compel Arbitration under the Federal Arbitration Act, 33 Okla. City U. L. Rev. 749 (2008)

Christian Elloie, Are Pre-Dispute Jury Trial Waivers a Bargain for Employers over Arbitration? It Depends on the Employee, 36 S.U. L. Rev. 121 (2008)

Marie Failinger, A Truly Good Work: Turning to Restorative Justice for Answers to the Welfare-to-Work Dilemma, 15 Geo. J. on Poverty L. & Pol'y 209 (2008)

Sean Farhang, Congressional Mobilization of Private Litigants: Evidence from the Civil Rights Act of 1991, 6 J. Empirical Legal Stud. 1 (2009)

Yuval Feldman, The Expressive Function of Trade Secret Law: Legality, Cost, Intrinsic Motivation, and Consensus, 6 J. Empirical Legal Stud. 177 (2009)

Matthew Finkin & Kenneth G. Dau-Schmidt, Solving the Employee Reference Problem: Lessons from the German Experience, 57 Am. J. Comp. L. 387 (2009)

Marka Fleming, et alia, Morals Clauses for Educators in Secondary and Postsecondary Schools: Legal Applications and Constitutional Concerns, 2009 BYU Educ. & L.J. 67

James Freund, Three's a Crowd – How to Resolve a Knotty Multi-party Dispute Through Mediation, 64 Bus. Law. 359 (2009)

Daniel Gitterman, et alia, Expanding the EITC for Single Workers and Couples Without Children: Tax Relief for All Low-wage Workers, 15 Geo. J. on Poverty L. & Pol'y 245 (2008)

Preston Green, et alia, No Child Left Behind: Racial Equal Educational Opportunity Through School Finance Litigation, 12 J. Gender Race & Just. 285 (2009)

David Gregory, Unsafe Workplaces, Injured Employees, and the Bizarre Bifurcation of Section 7 of the National Labor Relations Act, 111 W. Va. L. Rev. 395 (2009)

Tyler Grimm, Note: Using Employer Sanctions to Open the Border and End Undocumented Immigration, 12 J. Gender Race & Just. 415 (2009)

Leonard Gross & Howard Wieder, Should Parties' Disclosure Requirements for Arbitrators Be Honored by Courts: Positive Software Solutions, Inc. v. New Century Mortgage Corporation, 33 S. Ill. U. L.J. 71 (2008)

Alexandra Harrington, Peer Pressure: Correlations Between Membership in Regional and Regional Economic Organizations in the Context of WTO Dispute Resolution Claims, 5 S.C. J. Int'l L. & Bus. 35 (2008)

Philip Harvey, Is There a Progressive Alternative to Conservative Welfare Reform? 15 Geo. J. on Poverty L. & Pol'y 157 (2008)

Joan Heminway, Female Investors and Securities Fraud: Is the Reasonable Investor a Woman? 15 Wm. & Mary J. Women & L. 291 (2009)

Dale Hetzler & Ashley Nicole Speth, Future Dispute System Design: Ethical Imperatives, Millennial and Beyond, 24 Ohio St. J. on Disp. Resol. 131 (2008)

Anthony Heyes & Sandeep Kapur, An Economic Model of the Whistle-blower Policy, 25 J.L. Econ. & Org. 157 (2009)

Robert Hockett, Human Persons, Human Rights, and the Distributive Structure of Global Justice, 40 Colum. Hum. Rts. L. Rev. 343 (2009)

Elizabeth Hoffman, Note: A Wolf in Sheep's Clothing: Discrimination Against the Majority Undermines Equality, While Continuing to Benefit a Few under the Guise of Black Economic Empowerment, 36 Syracuse J. Int'l L. & Com. 87 (2008)

Liz Hollingworth, Unintended Educational and Social Consequences of the No Child Left Behind Act, 12 J. Gender Race & Just. 311 (2009)

Maria Hylton, Together We Can: Imagining the Future of Employee Pensions, 12 Employee Rts. & Emp. Pol'y J. 383 (2008)

Egle Iturbe De Blanco,. Women: Power and Development in Latin America, 5 U. St. Thomas L.J. 675 (2008)

Li Jing, Comment: China's New Labor Contract Law and Protection of Workers, 32 Fordham Int'l L.J. 1083 (2009)

Hinckley Jones-Sanpei, Public School Segregation and Social Capital, 12 J. Gender Race & Just. 329 (2009)

Craig Jordan, Note: Who Will Guard the Guards? The Accountability of Private Military Contractors in Areas of Armed Conflict, 35 New Eng. J. on Crim. & Civ. Confinement 309 (2009)

Gina Kong, Comment: Are Women-Only Trade Unions Necessary in South Korea? A Study of Women Workers' Struggles in Korea's Labor Market, 29 Nw. J. Int'l L. & Bus. 217 (2009)

Amy Kwiatkowski, Note: Ledbetter v. Goodyear: The Ball Is in Congress' Court, 54 Wayne L. Rev. 913 (2008)

John Lande, The Movement Toward Early Case Handling in Courts and Private Dispute Resolution, 24 Ohio St. J. on Disp. Resol. 81 (2008)

Katerina Lewinbuk, Russia's Labor Pains: The Slow Creation of a Culture of Enforcement, 32 Fordham Int'l L.J. 846 (2009)

David Lipsky & Ariel Avgar, Toward a Strategic Thoery of Workplace Conflict Management, 24 Ohio St. J. on Disp. Resol. 143 (2008)

Christopher Lubienski & Peter Weitzel, Choice, Integration, and Educational Opportunity: Evidence on Competitive Incentives for Student Sorting in Charter Schools, 12 J. Gender Race & Just. 351 (2009)

Claire-Therese Luceno, Note: Maternal Wall Discrimination: Evidence Required for Litigation and Cost-Effective Solutions for a Flexible Workplace, 3 Hastings Bus. L.J. 157 (2006)

Francis McGovern, Second-Generation Dispute System Design Issues in Managing Settlements, 24 Ohio St. J. on Disp. Resol. 53 (2008)

Scott McKinley, Comment: The Need for Legislative or Judicial Clarity on the Four-Fifths Rule and How Employers in the Sixth Circuit Can Survive the Ambiguity, 37 Cap. U. L. Rev. 171 (2008)

Laura Massie, Note: Workers of the World, Unite?: Politics of Guestworker Protection and U.S. Worker Protection in the Current U.S. Guestworker Debate, 15 Geo. J. on Poverty L. & Pol'y 315 (2008)

Nicole Merritt, Comment: The Conflicting Interests of Labor Demands and Employer Based Immigration Laws: Old Problems Require New Solutions, 11 Scholar 281 (2009)

Bruce Miller & Ada Verloren, Workers' Free Choice – An Unrealized Promise, 54 Wayne L. Rev. 869 (2008)

Shannon Mink, Comment: If I Sign this Release, I Can Still Sue You Later, Right? The Current (And Future) Status FMLA Waivers, 37 Cap. U. L. Rev. 137 (2008)

Alison Morantz, Has Devolution Injured American Workers? State and Federal Enforcement of Construction Safety, 25 J.L. Econ. & Org. 183 (2009)

Dana Nicholas, China's Labor Enforcement Crisis: International Intervention and Corporate Social Responsibility, 11 Scholar 155 (2009)

Ranee Panjabi, Born Free Yet Everywhere in Chains: Global Slavery in the Twenty-First Century, 37 Denv. J. Intl'l L. & Pol'y 1 (2008)

John Pearce & Dennis Kuhn, Managers' Obligations to Employees with Eldercare Responsibilities, 43 U. Rich. L. Rev. 1319 (2009)

Deana Peterson, Leaving No Child Behind: Why Were Charter Schools Formed and What Makes Them Successful? 12 J. Gender Race & Just. 377 (2009)

Carla Pratt, Way to Represent: The Role of Black Lawyers in Contemporary American Democracy, 77 Fordham L. Rev. 1409 (2009)

Abbas Ravjani, The Court of Arbitration for Sport: A Subtle Form of International Delegation, 2 J. Int'l Media & Ent. L. 241 (2009)

Melissa Rassas, Comment: Explaining the Outlier: Oregon's New Non-Compete Agreement Law & the Broadcasting Industry, 11 U. Pa. J. Bus. L. 447 (2009)

Ruthann Robson, A Servant of One's Own: The Continuing Class Struggle in Feminist Legal Theories and Practices, a review of Alison Light, Mrs. Woolf and the Servants: An Intimate History of Domestic Life in Bloomsbury, 23 Berkeley J. Gender L. & Just. 392 (2008)

Andrea Schmidt, Note: A New Trade Policy for America: Do Labor and Environmental Provisions in Trade Agreements Serve Social Interests or Special Interests? 19 Ind. Int'l & Comp. L. Rev. 167 (2009)

Annette Schmit, Note: The Hague Convention: The Problems with Accession and Implementation, 15 Ind. J. Global Legal Stud. 375 (2008)

David Schwartz, Mandatory Arbitration and Fairness, 84 Notre Dame L. Rev. 1247 (2009)

Marianella Sclavi, The Role of Play and Humor in Creative Conflict Management, 24 Negotiation J. 157 (2008)

Michael Selmi, The 2007-2008 Term: The Government Changes its Tune and the Supreme Court Takes a Pragmatic Turn, 12 Employee Rts. & Emp. Pol'y J. 161 (2008)

Mark Sidel, New Directions in the Struggle Against Human Trafficking, 17 J. Transnat'l L. & Pol'y 187 (2008)

Gregory Sisk, Returning to the Pruneyard: The Unconstitutionality of State-Sanctioned Trespass in the Name of Speech, 32 Harv. J.l. & Pub. Pol'y 389 (2009)

Aaron Stack, Arbitration, Agency Authority & the Effect on Nursing Homes: A Survey of a Recent Kentucky Court of Appeals Decision, 35 N. Ky. L. Rev. 239 (2008)

Norman Stein, Slouching Toward a Consumption Tax and the End of Retirement Income Security, 9 Fla. Tax Rev. 119 (2008)

Amanda Stogsdill, Note: Does it Make a Difference? Granting Public Employees the Right to Collectively Bargain, 73 Mo. L. Rev. 1349 (2008)

Paul Stylianou, Note: Online Dispute Resolution: The Case for a Treaty Between the United States and the European Union in Resolving Cross-border E-commerce Disputes, 36 Syracuse J. Int'l L. & Com. 117 (2008)

Symposium: Doping in Sports: Legal and Ethical Issues, 19 Marq. Sports L. Rev. 1 (2008)

Symposium: Wealth Inequality and the Eroding Middle Class, 15 Geo. J. on Poverty L. & Pol'y 409 (2008)

Symposium: Latin America: Economic Development and Social Justice, 5 U. St. Thomas L.J. 617 (2008)

Symposium: The Lawyer's Role in a Contemporary Democratic Democracy, 77 Fordham L. Rev. 1229 (2009)

Symposium: No School Left Behind: Providing Equal Educational Opportunities, 12 J. Gender Race & Just. 285 (2009)

Symposium: Not That Kind of Girl: The Legal Treatment of Women Defying Traditional Gender Roles, 15 Wm. & Mary J. Women & L. 227 (2009)

Amie Thompson, Comment: Courts May Vacate Grievance Arbitration Awards When Contrary to Public Policy, 11 Duq. Bus. L.J. 109 (2008)

Stephanie Wagner, Note: Big Box Living Wage Ordinances: Upholding Our Constitutive Commitment to a Remunerative Job, 15 Geo. J. on Poverty L. & Pol'y 359 (2008)

Vanessa Waldref, Note: Reagan's National Labor Relations Board: An Incomplete Revolution, 15 Geo. J. on Poverty L. & Pol'y 285 (2008)

James Wall & Suzanne Chan-Serafin. Processes in Civil Case Mediations, 26 Conflict Resol. Q. 261 (2009)

Darnell Weeden, The Black Eye of Hurricane Katrina's Post Jim Crow Syndrome Is a Basic Human Dignity Challenge for America., 37 Cap. U. L. Rev. 93 (2008)

Gerald Williams, New Technology Meets an Old Teaching Challenge: Using Digital Video Recordings, Annotation Software, and Deliberate Practice Techniques to Improve Student Negotiation Skills, 24 Negotiation J. 71 (2008)

Robert Wood, Independent Contractor vs. Employee and Blackwater, 70 Mont. L. Rev. 93 (2009)

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June 2009 Labor and Employment Law News

RECENT LABOR AND EMPLOYMENT LAW ARTICLES

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June 2009
Labor and Employment Law News