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Now We Have Reason to Fire You: What Should States Do About the Employer “After-Acquired” Employee Wrongdoing Defense?
Get PDFWrongful employer conduct, particularly discrimination and harassment, is leading to efforts to provide more protection to employees, and compensate them for wrongdoing already done to them. As shown by the Michigan Supreme Court’s July 2021 Lichon v. Morse decision that adopted a new and more pro-employee standard for when employers can compel employees to arbitrate instead of sue over claims of sexual harassment, much of the protection of employees may occur at the state level. Which makes it unfortunate that little attention is being paid to how states treat the employer after-acquired evidence defense that can undermine new and existing employee protections. Under that affirmative defense, if after the employee’s termination, or an employee’s claim against the employer, the employer discovers a “misrepresentation” or mistake that employee made in the application process, or any misconduct the employee committed while working for the employer, that employer can rely on that evidence to bar the employee’s claim or eliminate most of employee’s remedies. This article proposes that this 30+-year-old defense should be revisited given all the 21st century changes in hiring and employment relationships, including the ban-the-box movement and laws regarding criminal records and the #MeToo movement aimed at ending harassment and gender discrimination
The “Liberty of Silence” Challenging State Legislation that Strips Municipalities of Authority to Remove Confederate Monuments
Get PDFThere are roughly 700 Confederate monuments still standing in courthouse lawns, parks, and downtown squares in virtually every city, town, and village throughout the “Old South.” Most of these Confederate monuments are located in states that have enacted legislation that bans the removal of Confederate monuments. Such legislative bans are in effect in Alabama, Georgia, Kentucky Mississippi, North Carolina, South Carolina, and Tennessee. Legislation that bans removal of Confederate monuments from public spaces poses a racial justice issue for millions of residents in these states because it forces political majorities in Southern communities (many constituting majority-minority communities) to host a Confederate monument that local residents view as racist. Cities that would remove their local Confederate monument, but are precluded from doing so by state legislation banning such removal, have failed in their efforts to develop a successful litigation strategy to challenge the constitutionality of state monument removal bans. Such litigation efforts fail because lower courts interpret United States Supreme Court precedent to hold that a city does not possess any constitutional rights that it can enforce against its own state government. Unable to assert any constitutional right of its own, cities have been unable to gain standing to challenge the constitutionality of state legislation that bans the removal of a city’s Confederate monument. See, e.g., State of Alabama v. City of Birmingham, 299 So.3d. 220 (Ala, S. Ct. 2019). This article develops a constitutional theory that overcomes the main hurdle that has prevented local jurisdictions from successfully challenging state monument removal bans. The argument in this article is structured on the Constitution’s coerced speech doctrine. The hurdles to effectively challenging state monument removal bans can be surmounted when cities combine with residents to jointly assert in litigation the residents’ First Amendment right not to be coerced by state government into an unwanted association with a Confederate monument’s objectionable pro-Confederate racist messaging. Through such litigation, a city’s residents, with the assistance of their local government, are able to assert their “Liberty of Silence.
The effect of changing the military’s sexual assault laws on law enforcement investigative findings in the U.S. Army
No full textObjective: In 2007, Congress changed the military’s sexual assault laws as part of an effort to improve sexual assault case processing. This study looked at the U.S. Army law enforcement investigative finding for every sexual assault reported to the Army from 2004 through June 2012, along with every nonsexual assault. Our objective was to measure whether the legal intervention affected the investigative findings made by Army law enforcement officers in sexual assault cases (penetrative, nonpenetrative, and combined) as compared to assault cases (aggravated, simple, and combined). Hypotheses: We hypothesized that we would not find evidence that the legal intervention affected the rate of sexual assault cases labeled as “founded” by Army law enforcement, such that for the best-fitting time-series models, any difference in the residuals of the means before and after the intervention would not be statistically significant. Method: We received data from the U.S. Army on all sexual assaults and nonsexual assaults from 2004 through June 2012. The data comprised 47,058 observations. We used time-series analysis with autoregressive integrated moving average modeling. The variable tracked over time was the ratio of the proportion of founded sexual assault cases to the proportion of founded nonsexual assault cases. We then conducted t tests of the means of the residuals before and after the legal intervention. Results: The difference in the means of the residuals before and after the intervention was not statistically significant for combined sexual assaults versus combined assaults, penetrative sexual assaults versus aggravated assaults, or nonpenetrative sexual assaults versus simple assaults. Conclusions: This reform to sexual assault laws does not appear to have affected sexual assault case processing by U.S. Army law enforcement
Attorney-fee Shifting Is the Solution to SLAPPing Meritless Claims out of Federal Court
Get PDFStrategic Lawsuits Against Public Participation (“SLAPPs”) are meritless claims brought against individuals or corporations to silence them for exercising protected speech under the First Amendment. In response to the chilling effects of these SLAPPsuits, State legislatures have enacted anti-SLAPP statutes to quickly dismiss these meritless claims and protect the targets of these suits. These anti-SLAPP statutes have two prominent components: a special motion to dismiss and an attorney fee-shifting provision that is dependent on prevailing on the special motion set forth in the statute. Federal courts sitting in diversity are divided over whether the special motion standards set forth in the statute can apply in federal court because the special motion standard answers the same question as Federal Rules of Civil Procedure 12 and 56. Under Erie, a federal court must apply the state substantive law, but if the state law conflicts with the federal rules, the latter will apply as long as it is valid under the Rules Enabling Act. Florida’s anti-SLAPP statute is unique in that it does not limit the recovery of attorney’s fees to prevailing on the special motion standards set forth in the statute. Thus, under Florida’s anti-SLAPP statute a SLAPP target can use the Federal Rules of Civil Procedure to quickly dismiss a meritless claim and use a relatively unguided Erieanalysis to get an award of attorney’s fees pursuant to the anti-SLAPP statute. Strong use of Twomblyand Iqbal, coupled with the award of attorney’s fees provided in Florida’s statute, can achieve the same effect that anti-SLAPP laws have in state court—but in federal court and without running afoul of the Eriedoctrine
(In)dependent Contractors: Combatting Employee Misclassification in Title 26
Get PDFThis comment addresses the use of 26 U.S.C. § 7434 as an alternative remedy for individuals who are misclassified by their employers as independent contractors for federal tax purposes. Historically, misclassified employees have used more well-known employment laws such as the Fair Labor Standards Act to sue employers who engage in employee misclassification. 26 U.S.C. § 7434 provides an underutilized, alternative means for misclassified employees to recover damages for wrongful misclassification. Originally enacted in 1996 as part of the Taxpayer Bill of Rights, 26 U.S.C. § 7434 is a tax fraud statute that allows a taxpayer to seek civil damages when another person files a fraudulent information return with respect to payments purported to be made to the taxpayer. However, there is disagreement among federal courts as to whether the statute allows employees who have been misclassified as independent contractors to recover damages from their employer. This comment discusses the practical implications and drawbacks of using the statute as a remedy for misclassified employees. Further, this comment argues that the discord among federal courts should be resolved in favor of employees by allowing individuals who are misclassified to recover under the statute
Experimental Philosophy and New Technologies: The Social, Ethical, and Normative Consequences of Robotics and Human Enhancement Technologies
No full textProfessor\u27s Aguilera research project is “Experimental Philosophy and New Technologies: The Social, Ethical, and Normative Consequences of Robotics and Human Enhancement Technologies.”https://ecollections.law.fiu.edu/visiting-researcher-profiles/1038/thumbnail.jp
The Role of Independent Bodies to Help Corporations Successfully Structure Integrity Cultures
No full textAdriana Dantas is a Professor at Insper Institute for Education and Research, São Paulo- SP, and lectures in courses offered in the area of Compliance, Crisis Management, Investigations and Cooperation. Also, she is professor at Direito GV, São Paulo- SP, where she lectures on courses offered in the area of Compliance and Global Law. We will be hosting Adriana during the month of July 2022 so she can conduct research for her project “The role of independent bodies to help corporations successfully structure integrity cultures”.https://ecollections.law.fiu.edu/visiting-researcher-profiles/1037/thumbnail.jp
Climate Justice from an International Justice System
No full textAndrea Spada Jiménez has been appointed as a Courtesy Research Associate to conduct research on Climate Justice from an International Justice System .https://ecollections.law.fiu.edu/visiting-researcher-profiles/1036/thumbnail.jp
Law and Literature in the Work of Robert Cover
No full textThis Article argues that although Robert Cover seems to discount the role and the practical efficacy of literary texts within the context of legal interpretation, Cover’s work nevertheless discloses an extensive exploration of literature and of literary interpretation to frame his own legal interpretive practices. This is particularly the case regarding the development of his theory of law’s violence. The Article attempts to show that a close reading of Cover’s interpretation of literary texts in the service of his legal analyses discloses a buried theme pursuant to the violence of law: the threshold concept, between law and not-law, of the state of exception. The Article suggests that this concept is key to understanding Cover’s theory of law’s violence
