Volume 32, Number 2, Winter 2017

The editors note that speculation abounds as to future law and policy changes after the November election. Some executive actions have already been implemented, and some regulatory changes are likely. The contours of other regulatory actions and specific legislative changes remain murky. But one thing is certain. The ABA Journal of Labor & Employment Law is at the ready to chronicle any significant new developments.

The most anticipated decision of the 2015 Term, Friedrichs v. California Teachers Ass’n, which could have undermined the viability of public sector unions, turned out to be uneventful with a four-four tie after Justice Scalia’s death. A similar situation occurred in a major dispute over the Affordable Care Act’s contraception mandate. The author summarizes several other labor and employment decisions from the Court’s most recent Term and analyzes how they will impact practitioners. He also predicts how the newly fully staffed Court will analyze cases upcoming in the 2016–2017 Term.

Both labor and management are increasingly utilizing a hybrid dispute resolution system, mediation-arbitration (med-arb), for both collective bargaining and contract grievance disputes as a quicker, less costly resolution strategy than traditional stand-alone dispute resolution mechanisms. Relying on his experience as a mediator-arbitrator, the author highlights which industries would benefit most from its use and offers practical pointers to parties seeking to reinvigorate their own collective bargaining processes.

The Department of Labor’s Office of Federal Contract Compliance (OFCCP) measures federal contractors’ compliance with affirmative action hiring requirements by determining whether qualified candidates were hired at rates consistent with what would be expected in a neutral selection process. Arguing that this method forces contractors to meet specific hiring quotas and fails to identify and eliminate workplace discrimination, the authors provide strategic and practical guidance on how to implement and maintain hiring procedures to avoid liability under federal antidiscrimination laws.

The author draws on her experience as a plaintiffs’ attorney to discuss under what circumstances a coach-employee facing workplace discrimination should proceed under Title VII, Title IX, or both. She highlights the advantages and disadvantages of proceeding under each statute and explains how the plaintiff’s goals, exhaustion requirements, statute of limitations, and preemption issues will impact a coach’s decision to proceed under one or both statutes.

The author, a third-year law student at the University of Minnesota Law School and the Journal’s Editor-in-Chief, discusses the three most commonly used doctrines courts rely on to determine whether an injury “arises out of” employment. She contends the actual-risk doctrine and increased-risk doctrine are inconsistent with the purpose of workers’ compensation and argues that states should instead adopt the positional-risk doctrine because it provides fair outcomes for employees and is consistent with the system’s goal of providing an easily administered remedy.

The author, this year’s winner of the ABA Section of Labor and Employment Law and The College of Labor and Employment Lawyers national law student writing competition, discusses how egg-freezing furthers workplace gender equity by giving women more control over career and family decisions. But employers offering egg-freezing benefits could unintentionally face liability under antidiscrimination and job-protected leave laws and such benefits could detrimentally impact workplace culture.