Volume I – Employment Justice

December 2011, No. 2

Featured Forum Post – Mad Women: The Case for Ending Sex-Based Discrimination on American Soil by Foreign Subsidiaries

Congress and the Supreme Court should seek to rectify harmful double standards by preventing foreign corporations with American-based subsidiaries from discriminating on American soil.

 

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Ending the Sweat Shops of the Soil: Eliminating the Agricultural Worker Exception From Federal Labor Laws

In Ending the Sweat Shops of the Soil: Eliminating the Agricultural Worker Exception From Federal Labor Laws, Tamara Lam-Plattes examines the unjust reasoning for excluding agricultural workers from the legal protections afforded to different labor industries by the federal government and analyzes the detrimental conditions that result from such marginalization. In her analysis, Lam-Plattes provides the historical context for the current legal framework beginning with the formation of the National Labor Relations Act and the Fair Labor Standards Act. Lam-Plattes explains the flawed rationale for omitting agricultural workers from federal labor protections, including the racial biases that led to the decision. After an analysis on the effect of the exclusion on agricultural workers today as well as the possible positive impact of potential inclusion into the NLRA and the FLSA, Lam-Plattes makes the argument that the current laws fail constitutional muster and that the judiciary should, under both a strict scrutiny and a rationality review, take action to force the federal government to include agricultural workers in federal labor protection laws.

 

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Franklin to Franken: The Unfulfilled Frontier of Protecting the American Worker

Through an analysis of the Fair Labor Standards Act of 1938 (FLSA) and the Employee Misclassification Prevention Act of 2010 (EMPA) the author tackles the lingering problem of misclassification of workers as independent contractors. Misclassification not only undermines the intent of the FLSA to prevent exploitation and afford basic protections to American workers; it also allows unscrupulous employers to gain a competitive advantage over businesses that play by the rules. The practice of misclassification strips workers of protections that they are entitled to under the FLSA and most aren’t aware they are not protected until it is too late. The author examines the EMPA’s effort to address the problem of misclassification. He identifies the shortcomings of the act and makes recommendations on how to strengthen legislation like the EMPA in order to guarantee misclassification is curtailed in the future.

 

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The Face of Discrimination: Employment Verification and the Purpose and Effect of National Origin Discrimination

With the American economy currently in recession, some Americans have come to perceive undocumented immigrants as a threat to job security and unfair competition in the face of high unemployment rates. To ease these concerns, the Obama administration has expanded an employer sanction program facilitated by a web-based system that performs the citizenship status check for employers by matching names to centralized government databases. However, the problem with this system, known as E-Verify, is that it produces discriminatory results, primarily affecting foreign-born, work-authorized Mexican aliens.

This article argues that employer sanction tools, specifically the system known as E-Verify, as implemented by the Obama administration, violates Title VII of the Civil Rights Act of 1954 because the employer sanctions law explicitly allows employers to discriminate on the basis of citizenship. The Obama administration’s version of employer sanctions thus serves as the driving force for employers’ national origin discrimination. Accordingly, employer sanctions must be repealed and replaced with a nondiscriminatory solution to the problem of undocumented immigrants entering the United States.

 

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Volume II – Fall 2012 – Spring 2014

February 2011, No. 1

Improving the Enforcement and Effectiveness of Argentina’s Antitrust Law

Argentina’s current federal antitrust legislation, Law No. 25.156, was enacted in 1999. While the content of the law is sound, its enforcement record is poor. Among other provisions, the law called for the creation of a National Tribunal for the Defense of Competition (the “Tribunal”). The Tribunal was envisioned by the legislature to be the ultimate antitrust enforcement agency in Argentina. Fifteen years later, however, the Tribunal has yet to be created. As a result, thousands of cases, including cases of cartel investigations, merger controls, and anticompetitive conduct, have all been processed without effective judicial review. In its absence, the Argentinean Supreme Court left the “National Commission for the Defense of Competition,” (the “Commission”) in charge of antitrust enforcement. Unfortunately, the Commission lacks the strong judicial authority that the proposed Tribunal was granted under the legislation. The Commission has struggled with budget constraints, a lack of resources, and time limitations to manage a growing caseload.

When antitrust law is unenforced, unchecked mergers and “price fixing” limit open competition, defraud individuals of their legal rights, and give a select group of individuals and companies unfair advantages in the market. Unenforced antitrust law amounts to corruption.

The purpose of this article is to investigate the history of Argentinean antitrust law, with a particular focus on the inherent flaws in the execution of Law 25.156 and its impact on the welfare of Argentinean society today. The article highlights the consequences of not implementing the Tribunal as an authority of judicial review, proposes solutions to improve administrative enforcement of the antitrust law, and concludes by emphasizing the importance of an effective rule of law for the advancement of a stable democracy within Argentina.

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Standards Of Torture: Customized for Nation-States or One Size Fits All?

Torture is a concept that has been internationally reviled for centuries, if not in actuality, at least in name. Starting as far back as 1215, the Magna Carta outlawed a person being “imprisoned, or in any other way ruined.” However, it was not until 1640 that England banned judicial torture, or torture sanctioned by the State.  Even then, England allowed torture-like activities like burning at the stake or branding of prisoners to continue well into the 18th and 19th centuries.  Other countries soon followed suit, banning torture officially while maintaining it in practice.  Scotland banned the practice in 1708, Prussia (modern-day Germany) in 1740, Russia in 1801 and Spain in 1812.  Even the Bill of Rights for the US Constitution adopted in 1789 had amendments barring the use of  “cruel and unusual punishment” as well as disallowing loss of liberty or life without due process of the law.  However countries soon encountered the dilemma that would bedevil the fight against torture well into the modern era.  It is well and good to abolish torture, but if everyone has a differing standard of what, where and when torture is banned, then one country’s torture may be another country’s “enhanced interrogation” standard.

Today, the standards are delineated not by country but by treaty.  The major treaties pertaining to torture are as follows: The United Nations Convention Against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Geneva Conventions and their Protocols and the International Criminal Court derived from the Rome Statute of 1998.  Each one defines torture differently, placing emphasis on the act, the circumstances or the person to be tortured.  This paper seeks to compare the standards and contrast it with the view America takes.  As an international player that bills its president as the “leader of the free world,” America’s stance is especially troubling in that it goes against some of the standards touted by internationally accepted treaties such as CAT and the Geneva Conventions.

In order to seek diplomatic harmony with the international community and eradicate torture effectively, America should adopt a global standard instead of remaining apart.  The final part of this paper will explore what that global standard should be and why adopting one uniform standard instead of several standards is a better approach to ending a practice that is increasingly becoming an international problem.

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