Abstracts

Volume 33, Number 2, Winter 2018

The Editors’ Page
Stephen F. Befort & Laura J. Cooper
The authors have been the Faculty Co-Editors of the ABA Journal of Labor & Employment Law since 2009 when the Journal’s editorial home moved to the University of Minnesota Law School. Starting with Volume 34, the Journal’s home moves to the St. Louis University School of Law. In this penultimate issue, the authors expressed express their deep gratitude and respect for all of the authors who have written articles for the Journal. Over the past nine years, more than 250 authors have shared their expertise, insight, and practical guidance. They have not only sacrificed precious and uncompensated time, but also generously written for the benefit of others—including others who are their adversaries and competitors.

The Term That Almost Was: A Look Back at the Supreme Court’s Work Law Docket in 2016–17
Christopher David Ruiz Cameron
The author explains how the Court, deeply divided on ideological grounds, and, waiting fourteen months for a new associate justice to fill the seat left vacant by Justice Antonin Scalia’s death, had to put aside several important and controversial labor and employment law issues. Nevertheless, as the author describes, five narrower workplace law cases were decided, and the term also brought important grants of certiorari that presented much more significant issues for resolution in the 2017–18 term.

What the Supreme Court’s Diversity Doctrine Means for Workplace Diversity Efforts
Stacy Hawkins
The author insightfully assesses the legality of workplace diversity efforts by analyzing precedents governing affirmative action in college student admissions. She explores both similarities and differences in practical and legal contexts of affirmative action programs and workplace diversity efforts while showing how, more broadly, higher education precedents can guide employers in designing lawful workplace diversity programs.

The International Labour Organization’s Innovative Approach to Ending Gender-Based Violence and Harassment: Toward a New International Framework for the World of Work
Eric Stener Carlson
Preventing and remedying workplace gender-based harassment and violence have recently received heightened interest. These concerns are not limited to the United States, however, as seen by an International Labour Organization (ILO) initiative designed to draft the first international treaty to end gender-based workplace violence and harassment. The author describes the ILO’s drafting process, its conception of the issues, and one innovative effort to prevent sexual harassment in the export-oriented garment industry by focusing on structural workplace power imbalances.

A Gender Transition Primer: The Evolution of ADA Protections and Benefits Coverage
Nonnie L. Shivers
The workplace presence of transgender persons present new uncertainties for employers about the application of laws regulating disability accommodations, employment discrimination, and employee benefits. The author brings attorneys up to date on fast-changing federal legal developments, warns of the need to determine application of state and local laws, highlights heightened responsibilities of federal contractors, and offers useful practical guidance for employers working with transitioning employees.

Big Data and Employment Law: What Employers and Legal Counsel Need to Know
Darrell S. Gay and Abigail M. Kagan
Employers today have access to vast quantities of data and increasingly sophisticated tools to analyze that information. What new opportunities for employers to improve human resources management are now possible? To what extent do these developments create new legal risks for employers? The authors explain the nature of “big data” and offer answers to these and other questions.

Issues in Internal Investigations of Executives
Jonathan Ben-Asher
The #MeToo movement continues to bring to light accusations of sexual misconduct against high-ranking corporate executives. Law enforcement efforts of state and federal agencies also often focus on behavior in executive suites. Corporations conducting internal investigations on such issues require expert legal advice. Corporate executives often hire their own attorneys when they become witnesses or targets of investigations. The author, who represents executives and professionals in such investigations, identifies the scope of relevant attorney-client privilege and work-product protections and offers guidance on tricky practice issues for both corporate attorneys and those representing executives.

Requesting Balance: Promoting Flexible Work Arrangements with Procedural Right-to-Request Statutes
Paul D. Hallgren, Jr.
One need not look far in popular media or professional journals to encounter articles about work-life balance. Employees desire more flexible work schedules. Employers acknowledge that flexible schedules may improve recruitment and retention of employees, but fear flexibility may reduce productivity and profit. The author identifies multiple ways in which both employers and employees benefit from flexibility and reviews current U.S. and foreign laws before concluding that laws that mandate procedures for employees to request schedule changes are preferable to ones granting employees substantive rights to flexible schedules. The article details a model right-to-request law designed to balance the needs of employers and employees.