The Editors’ Page
Miriam A. Cherry, Matthew T. Bodie, and Marcia L. McCormick
We welcome you to this first issue of the ABA Journal of Labor & Employment Law that has been edited by the faculty and students of Saint Louis University School of Law. We are honored that SLU Law and the William C. Wefel Center for Employment Law will serve as the new editorial home for the Journal.
Industry Standards: How Does OSHA Use Them to Prove Its Case Under the General Duty Clause
William J. Wahoff
OSHA frequently uses consensus standards in its enforcement actions, but those are not drafted by OSHA. Instead they are drafted and published by private organizations, sometimes industry insiders. This article examines recent decisions by the federal courts of appeals, the Review Commission, and the Commission’s administrative law judges to outline how OSHA uses these standards. The article calls for additional rulemaking to explain which consensus standards apply to which industry, thus providing clarity for employers and employees alike.
Tethered Rights: Liability of American Corporations for Their Foreign Subsidiaries’ Violations of Title VII
U.S. law usually applies on within U.S. territorial boundaries. Title VII was amended to apply extraterritorially in 1991, however. As the global economy becomes more integrated, issues of extraterritorial application will only become more litigated and more common. This article summarizes the extraterritoriality of Title VII both before and after it was amended in 1991, explaining that Title VII may protect a U.S. citizen employee working for a foreign subsidiary of a U.S. parent corporation working overseas. The article ends with thoughts and practical guidance for employees, employers, and courts that are grappling with jurisdictional issues in international Title VII cases.
Transforming Veteran Hiring: The Legal Implications of the Defense Department’s “Skillbridge” Program and Hiring Active-Duty Servicemembers as Unpaid Interns
John McNichols and Youlin Yuan
Describing the Skillbridge program, this article explores possible legal liabilities, both to the Skillbridge interns and to the employers, customers, and other employees. After assessing these issues carefully, the article concludes that the benefits of the program outweigh the drawbacks, advocating for the program as a way of enhancing the possibilities for meaningful job training in the military, as well as a way that employers can try out job candidates that they might have otherwise have passed over.
E-Petitions and Protected Concerted Activity: The Millennial Response to Organized Labor?
Susan R. Fiorentino and Sandra M. Tomkowicz
E-petitions (petitions joined and shared online) are a new method for workers to engage in concerted activity that could prove extremely successful because technology has made that organizing so much easier. Some scholars have suggested that because of that ease, e-petitions will facilitate union organizing in more workplaces. In contrast, this article suggests that e-petitions may actually lessen support for formal organizing campaigns by facilitating change that does not need a union to effectuate. The article uses the example of how Starbucks employees used the website Coworker.org to change the company’s policy prohibiting tattoos as a case study in support of this conclusion.
“And Justice for All” . . . Maybe: Transgender Employee Rights in America
Jennifer Cobb and Myra McKenzie-Harris
Although the law on whether transgender workers are protected by Title VII is still in flux, transgender people are increasingly visible and accepted in society. This article summarizes the state of the law, but encourages employers to take a proactive approach to create more inclusive workplaces, in part to mitigate risk, even if they might ultimately win a lawsuit. The article outlines how employers can build inclusive anti-discrimination policies; create guidelines for workers who are transitioning; and implement effective anti-discrimination training programs.
Practical Guidance for Employers on Confidentiality Provisions that Survive NLRB Scrutiny
Erin Norris Bass
This article describes how the NLRB’s tests for whether handbook policies interfere with employee rights under the NLRA have changed over the years. While the NLRB struck down many handbook policies under the Lutheran Heritage test established in 2004, standards changed in 2017, when the newly formed Republican majority of the NLRB articulated a new standard for evaluating work rules in Boeing. Specifically focusing on confidentiality clauses, the article seeks to provide employers with guidance for their confidentiality policies around workplace investigations, proprietary information, severance and settlement agreements, and arbitration contracts.
A Fair Day’s Pay: The Fair Labor Standards Act and Unpaid Internships at Non-Profit Organizations,
Amanda M. Wilmsen
This article, written by a 2019 graduate of New York University School of Law, was the winner of the 2018 National Law Student Writing Competition of the ABA Section of Labor and Employment Law. It examines unpaid internships at non-profit organizations and shares the author’s experience at such an internship. The article analyzes the Fair Labor Standards Act and New York State law and suggests that no policy reason exists for exempting non-profit internships from the minimum wage requirements of the FLSA.