Work Law: Cases and Materials, Third Edition, 2015

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The law of work has evolved as a patchwork of legal interventions in the labor market, sometimes by statute, and sometimes through the common law of judicial decisions. Most law school curricula divide the law of work into three topical areas--Labor Law, Employment Law, and Employment Discrimination--and offer separate courses in each area. Labor law in the United States is understood to encompass the study of the National Labor Relations Act, the law governing union organizing and collective bargaining. It is the law of collective rights at work. Employment law refers to the statutes and common law governing individual rights at work. It ranges from minimum standards legislation to judicially created doctrines based in tort and contract law. Employment discrimination law deals with the statutes and interpretative case law advancing the antidiscrimination norm in the workplace. These statutes address the problem of status discrimination at work (e.g., discrimination on the basis of race, sex, national origin, ethnicity, religion, disability, or sexual orientation).

A comprehensive study of the law of work also provides an opportunity to assess critically what form enforcement of rights should take. Should conflicts between employers and employees be channeled into private resolution systems such as collective bargaining or contractual arbitration, or is the public interest sufficient to justify committing administrative, judicial and legislative resources to it? What is the significance of casting employee rights as collective--and therefore entrusting their enforcement to an employee representative such as a union--versus conceptualizing them as individual? Must such a collective representative be independent of the employer, or do employer-initiated employee committees further worker voice just as effectively? Doesn't history also warn of the risks of subordinating individual interests to those of the collective, particularly in the context of a diverse workforce with minority groups characterized by race, ethnicity or gender?

Accordingly, the casebook is called “Work Law” and it endeavors to present basic materials on each system of labor market regulation. The book identies core themes of conflict and concern in the workplace, canvass the governing law, and offer a vantage point for assessment. Several themes furnish the organizing structure for the book. The book asks how law should mediate the perennial conflict between employer and employee rights; what difference it makes whether employee rights are conceptualized individually or collectively; what significance the increasing racial, ethnic, and gender diversity of the workforce should have for legal policy; whether dispute resolution systems should be privatized (via collective bargaining or individual contract) or remain in the public fora (courts and legislatures); and whether law is the most effective way to address interests of employers and employees (as contrasted, for example, with human resource practices, employer initiatives, or employee self-help measures).

The book will be most useful in Employment Law courses that address the significance of conceptualizing rights at work individually as opposed to collectively. Its strength is its refusal to categorize the law of the workplace in doctrinal boxes that may be out-of-date by the time the book reaches maturity. The book adverts to Labor Law principles at a number of points throughout the book, but at a policy level rather than a doctrinal level, as a way of introducing and evaluating an alternative model of employee representation; the book does not assume any knowledge of Labor Law on the part of teacher or student and makes no effort to provide a satisfactory substitute for a Labor Law text. The book offers some detail in the law of Employment Discrimination but does so primarily with an eye toward surveying the field and assessing antidiscrimination regulation as a response to an increasingly diverse workforce, rather than providing an in-depth study of Employment Discrimination principles.

The text surveys the existing legal landscape, but it does not stop there. Work Law is an exciting and intellectually stimulating practice area because it is of necessity in a constant state of flux, responding to labor market innovations. Flexibility in thinking is vital to this area of practice.

The third edition of WORK LAW: CASES AND MATERIALS incorporates new developments in a variety of areas.
•  New materials on defining the boundaries of the employment relationship, including O ’ Connor v. Davison interns as employees, and problems designed to encourage students to work through issues on what should count as work and who should be treated as workers for work law purposes (e.g., interns, prisoners, scholar-athletes, and cheerleaders for professional sports teams).
•  Coverage of cases addressing the status of interns as employees covered by the Fair Labor Standards Act, including Glatt v. Fox Searchlight and Wang v. Hearst Corporation
•  Expanded materials on the Dodd-Frank Act and Sarbanes-Oxley whistleblower legislation and doctrinal developments, including Lawson v. FMR
•  New materials on employee privacy, including Stengart v. Loving Care Agency and City of Ontario v. Quon and expanded materials on the Stored Communications Act
•  Expanded coverage of legal issues surrounding employee voice, including the NLRB�s social media cases (Hispanics United and Karl Knauz Motors)
•  Coverage of the Supreme Court ’s “cat’s paw ” case, Straub v. Proctor Hospital
•  The new pattern or practice case on discrimination from the Supreme Court,Wal-Mart Stores v. Dukes
•  Expanded coverage of the Amendments to the ADA, including Weaving v. City of Hillsboro
•  Updated and expanded materials on overtime pay eligibility under the Fair Labor Standards Act, including Christopher v. SmithKline Beecham Corporation
•  Updated materials on occupational safety and health, including SeaWorld v. Perez
•  Updated materials on arbitration of employment disputes, including cases applying the Court�s treatment of pre-dispute waivers of class claim

Professors and adjunct professors may request complimentary examination copies of LexisNexis law school publications to consider for class adoption or recommendation. Please identify the book(s) you wish to receive, provide your institutional contact information, and submit your request here.

This book also is available in a heavily discounted, three-hole punched, alternative loose-leaf version printed on 8 ½ x 11 inch paper with wider margins and with the same pagination as the hardbound book.

Authors / Contributors

Table of Contents

Part One Introduction: Regulating Work

Chapter 1 Origins

Chapter 2 The Contemporary Era —Shifts in The Demographics and Structure of Work


Part Two Balancing Employer And Employee Interests: Individual Versus Collective Responses

Chapter 3 Contracting for Individual Job Security

Chapter 4 Public Policy Protections for Individual Job Security

Chapter 5 Collective Job Security

Chapter 6 Employee Mobility

Chapter 7 Dignitary Interests

Chapter 8 Employee Voice


Part Three Freedom from Discrimination Versus Flexibility

Chapter 9 Employment Discrimination Law

Chapter 10 Challenges to Equality in a Diversifying Workplace


Part Four Government Intervention for the Public Good: Legislating a Safety Net

Chapter 11 The Regulation of Wages and Hours

Chapter 12 Health and Pension Plans —ERISA Regulation

Chapter 13 Health and Safety


Part Five Systems of Justice: Public Versus Private, Collective Versus Individual

Chapter 14 Arbitration of Workplace Disputes

Chapter 15 Self-Regulation


Table of Cases



Index