Work Hierarchies and the Social Control of Workers

Creighton Law Review Symposium on Professor Teri A. McMurtry-Chubb’s book, Race Unequals: Overseer Contracts, White Masculinities, and the Formation of Managerial Identity in the Plantation Economy

Experiential Learning in the First Year Curriculum: The Public Interest Partnership

The newest learning initiatives in legal education focus much attention on the necessity for teachers to support students\u27 development of professional identity, including civic professionalism, which link[s] the interests of educators with the needs of practitioners and with the public the profession is pledged to serve. See William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (2007). With that movement in mind, for the past five years in my legal research and writing (LRW) class, my students have partnered with non-profit organizations to provide them with legal research and advocacy documents to further the organization\u27s public interest goals. In the article, I propose that bringing public interest partners as clients into the first year classroom accomplishes the main objectives of the recent law school learning initiatives by encouraging professional development at the point of best entry: first year students. The article acknowledges the recent scholarship on experiential learning, and summarizes the movement by LRW professors of putting lawyering skills in the context of legal practice. I present the model I integrated in my LRW classroom of partnering with non-profit organizations and argue that this model both meets the pedagogical goals I have set for first year lawyering skills students and helps them develop their professional identities. The partnership also benefits non-profit organizations by providing free legal research and analysis on issues important to their mission.I conclude that implementing this model has developed my own professional identity as a scholar, teacher, and lawyer

Accommodating Respectful Religious Expression in the Workplace

This Article makes the case for judicial recognition of respectful religious expression in the workplace as more consistent with the Court\u27s Establishment Clause jurisprudence and also more true to the legislative intent of the religious accommodation provisions of Title VII. Respectful religious pluralism in the workplace should become the norm through judicial requirements of best practices in the workplace. Such a view should be wholly supported by the majority of the Justices because it is consistent with their expressed views, in the Establishment Clause case law, that religion fosters moral good and that in a pluralistic society religious expression cannot automatically be deemed threatening to those with different views. This Article examines in Part II how religious observance is an intrinsic and undeniable part of many people\u27s identities, and it argues that refusing to acknowledge observers as religious people and refusing to allow them to express themselves as such is similar to keeping gays and lesbians in the closet. From that viewpoint, allowing religious expression is not an adventurous accommodation asking for different or special rights. Next, in Part III, an examination of the Supreme Court\u27s jurisprudence on the public sphere and religion cases showcases the judicial trend of not only allowing, but also promoting certain religious expression in our society. Part IV details the refusal of courts to protect workers who express themselves religiously in the workplace, even though such protection is mandated by Title VII and consistent with the Court\u27s public sphere Establishment Clause doctrine. Lastly, Part V attempts to solve this inconsistency by creating a path for the Supreme Court to follow: interpret Title VII\u27s religious accommodation mandates in alignment with its Establishment Clause jurisprudence and with express congressional intent, an intent that is echoed in pending legislation that would expand protections for workers who express themselves in religious ways. Specifically, I propose three paths of judicial enforcement of respectful pluralism, which protect both religious expression and secularist workers from disrespectful expression

Same Law, Different Day: The Last Thirty Years of Wage Litigation and its Impact on Low-Wage Workers

There can be little doubt that actions to recover lost wages from employers have increased dramatically in the last thirty years. Since the 1970’s, American workers have become subject to a “24/7 marketplace workweek.” Off-the-clock work, misclassification, contingent jobs, and wage theft have become far more prevalent in the last three decades. A few snapshots in time reflect this trend. In 1997, some 1,600 wage suits were filed in federal court. In 2007, just ten years later, the number of wage suits jumped to 7,310. In just one year, 2006-2007, the number of filed wage cases increased by 73 percent. Strangely, this increase was not brought about by an expansion of wage rights, either statutorily or judicially. Wage and hour protections have remained mostly unchanged since the Fair Labor Standards Act’s enactment in 1938. Instead, this increase suggests that protecting low-wage workers has taken on a new urgency. This Article surveys the major trends in wage litigation over the last thirty years. Common threads of vulnerability, scarce resources, insecure jobs, and economic disadvantage run throughout the three decades. In honor of the low-wage workers who are most affected by these hallmarks of American wage and hour jurisprudence, this Article aims to survey these themes to showcase the deep schism that continues to divide the economically secure and insecure of our workers. Part I describes the changing American workplace and phenomena that allow wage violations to go unredressed, including contingent workers, the misclassification and exemption of workers from wage protection, persistent unpaid work, and the under-enforcement by the government agencies tasked with upholding our wage laws. Part II focuses on immigrant labor and the challenges these workers face in our workforce, including the lasting effects of attempted immigration reform, the explosion of the day labor phenomenon, and the continued isolation of migrant farm workers. Part III turns to the need for collective action to remedy wage abuses, and outlines the newest jurisprudence in collective wage litigation, including hybrid federal and state wage and hour class actions, the importance of the certification and notice process to vindication of FLSA rights, and the need for representational evidence and statistical sampling. Part IV turns to the next 30 years: what is on the horizon for workers hoping to vindicate their wage rights? This section highlights four potential trends, including the impact of mandatory arbitration and class action waivers on wage claims, the growing trend of unpaid internships, the increased use of labor laws for non-union workers, and the role of non-lawyer advocacy for wage rights vindicatio

What\u27s Left to Remedy Wage Theft? How Arbitration Mandates that Bar Class Actions Impact Low-Wage Workers

For low-wage workers who suffer “wage theft” – employers illegally withholding portions of their wages – the dollars missing from their paychecks violate existing law and significantly impact the well-being of individuals, families, and communities. Despite this dire societal problem, the Supreme Court continues “closing the courtroom doors” in two ways: allowing employers to force workers out of court and into private arbitration; and prohibiting aggregate claims. Such trends, in combination, silence wage theft, leaving many claims unheard while unscrupulous employers gain direct advantage. This Article explains how various procedural rulings have combined to prevent meaningful redress for wage theft. Because of high transaction costs and relatively low potential damages, low-wage workers are likely to recover their lost wages only if they band together with similarly-situated workers in an aggregate lawsuit. However, collective action is under attack: AT&T Mobility v. Concepcion, the latest Supreme Court case to approve of mandatory arbitration clauses, allowed a corporation to impose “agreements” mandating individual arbitration and barring class actions. This Article brings new insights into the widening blind spot the Supreme Court has for the impact procedural rules have on the substantive rights of low-wage workers. Moreover, it touches upon a greater trend in American jurisprudence of courts shutting out plaintiffs, especially those unlikely to afford legal representation. By drawing attention to the unjust effects of facially neutral rules on low-wage workers, this Article contributes to the national conversation on how Supreme Court precedent limiting judicial access affects society’s most vulnerable

Bringing Sense to Incentives: An Examination of Incentive Payments to Named Plaintiffs in Employment Discrimination Class Actions

Employment discrimination class actions (EDCA) are complex creatures for many reasons. One complexity involves the resolution of EDCAs, which typically includes a provision for an incentive award or bonus for named plaintiffs. This Article describes five models under which courts struggle with awarding incentive awards to named plaintiffs in EDCAs. It examines how (under which model) and why (upon what justification) courts award or refuse to award incentive payments. This examination illustrates that courts have failed to differentiate between incentive payments that further Title VII\u27s statutory goal of workplace fairness and other litigation matters, such as securities litigation or consumer credit actions. In short, courts too often restrict incentives in EDCAs based on rationales better suited to less public-minded consumer or other class actions. By conflating the different models, instead of recognizing the difference between distinct and varied areas of substantive law, courts have severely limited the incentive for plaintiffs to bring meritorious and worthwhile discrimination claims on a class basis. This article aims to refocus the inquiry of Title VII incentive payments back on the statutory goals of the civil rights initiative and argues that courts must stop applying rationales from other class claims to EDCAs

Corporate Masters & Low-Wage Servants: The Social Control of Workers in Poverty

The Article describes and analyzes how the state’s control over low-wage workers has been relegated to private employers. While the state has historically controlled and limited the lives of poor people, today, people in poverty are subjugated through the privatizing of poverty governance by corporate masters who control the lives and shape the behaviors of their low-wage worker servants. The policies of these employers ensures that low-wage work is precarious, unpredictable, and insufficient. This Article starts an important conversation about how today’s low-wage employers are corporate masters that control their servants through poverty-level pay and precarious positions. Work is scheduled in a way to make advancement, and the promotional opportunities that go along with it, impossible. Resources, such as leave benefits and support services that would make advancement from hourly entry-level work possible, are lacking. Low-wage employers, like the state in its poverty governance, ensure that their servants are controlled and kept exactly where they want them to be: servicing their masters