chevron-down Created with Sketch Beta.

    Volume 35, Number 1

     

    Labor & Employment

    The Editors’ Page

    Over most of 2020, the SARS-CoV-2, COVID-19, or novel coronavirus pandemic fundamentally disrupted the country and the world. By the time this issue went to press, more than seventeen million people in the United States had been infected, and over 300,000 had died. The economy was fundamentally disrupted as cities and states ordered people to stay home and ordered businesses to prohibit or severely limit indoor capacity. Work, as both material support and as disease vector, took center stage.

    Articles

    Labor & Employment

    Gig Workers as Essential Workers: How to Correct the Gig Economy Beyond the COVID-19 Pandemic

    During the early stages of the COVID-19 pandemic in 2020, estimates suggest that approximately forty percent of U.S. workers shifted to working remotely from home.1 But for many gig workers,2 who performed grocery shopping for Instacart, delivered food and restaurant meals for DoorDash, or who picked up and delivered packages for Shipt, they were working in person and busier than ever. In fact, many of these gig jobs were considered “essential work,” and the rules of state lockdowns across the country classified gig workers as “essential workers.”

    Labor & Employment

    Can Workers’ Compensation “Work” in a Mega-Risk World?: The COVID-19 Experiment

    To understand why workers’ compensation has been difficult to apply during the Covid-19 period, some historical background is useful. Europe implemented workers’ compensation beginning during the last quarter of the nineteenth century because the tort system of that time proved inadequate to remedy workers’ injuries in the course of an injury onslaught occasioned by intensifying industrialism.

    Labor & Employment

    Shelter from the Storm

    For many lawyers, law professors, and students, the COVID-19 outbreak means working from home—many of us have been “sheltering in place” since mid-March. That phrase, borrowed from natural disaster response, suggests that we should stay where we are, leaving only if absolutely necessary. This article considers whether we could apply an analogous lens to work, asking how we would regulate work if our goal was to allow people to stay safe in their jobs, at least until the pandemic is over.

    Labor & Employment

    Crisis Standards of Care and Employer Duty to Supply PPE During COVID-19

    In times of crisis, demand frequently exceeds supply and employers must quickly make difficult decisions to triage rapidly depleting resources—often with incomplete data. COVID-19 has caused rolling shortages of essential personal protective equipment (PPE) forcing employers to reduce, replace, or reuse PPE for frontline essential workers. Crisis standards of care1 permit flexibility and liability protection for some, but not all, creative alternatives to PPE.2 These deviations from conventional standards of care must be navigated carefully by employers to avoid liability for breach of one, or more, duty of care.

    Labor & Employment

    What’s on the Secret Title VII Menu?: Proving “Motivating Factor” and “Same Action” Under the 1991 Civil Rights Act

    In the wake of the unanimous 2003 Supreme Court decision in Desert Palace, Inc. v. Costa,1 which held that direct evidence was not required to prove a discriminatory “motivating factor” under Title VII,2 there was widespread anticipation that courts would abandon the familiar McDonnell Douglas3 proof framework and that all Title VII discrimination cases would collapse into motivating-factor cases.

    Labor & Employment

    Updating Legal Norms for a Precarious Workforce

    Jobs that provide a decent wage, adequate benefits, and some semblance of stability have been the bedrock of American-household economic security since the mid-twentieth century.1 But for millions of U.S. workers in the twenty-first century, jobs do not pay enough, provide few—if any—benefits, and lack opportunities for advancement or career growth.2 In real dollar terms, median income in 2017 was not much more than in 1979.

    Labor & Employment

    Does the Burden of Proof in ERISA Section 510 and ADEA Cases Need Recalibration?

    Assume that Magnificent Self-Driving Co., (MSDC),1 a private company that successfully manufactures and launches the long-awaited self-driving cars, employs thousands of unionized employees at various plants nationwide. Assume that, after becoming the most profitable car manufacturer worldwide, MSDC ironically begins to face economic challenges, which it can resolve by reducing its current spending.

    Labor & Employment

    Poach-No-More: Antitrust Considerations of Intra-franchise No-Poach Agreements

    Labor market power has become a major topic of public discourse.1 Many economists are puzzled by the fact that the United States economy has experienced steady private-sector job growth, yet wages have hardly increased.2 Some economists, such as Professor Alan Krueger, have attributed the stagnating wage growth to labor-market monopsony power,3 defined as “the ability for an employer to suppress wages below the efficient or perfectly competitive level of compensation.

    Labor & Employment

    Marijuana Legalization and Employee-Employer Rights: An All-Time High for Non-Uniformity

    The legalization of medicinal and recreational marijuana in the United States has been a highly debated social topic for the past several decades. Endorsement of medical marijuana through state legislation first began in California with the Compassionate Use Act of 1996, which legalized medical marijuana for treatment of chronic illnesses.2 Following in California’s footsteps, a general trend began to emerge as other states embraced the use of marijuana for medicinal or recreational purposes.