Volume I – Employment Justice
December 2011, No. 1
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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Download PDF of this article.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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Download PDF of this article.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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Download PDF of this article.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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