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Session Summary: New and Existing Voices in Labor and Employment Law

Summary provided by Bradley A. Areheart, University of Tennessee College of Law

Discussion Group: New and Existing Voices in Labor and Employment Law

The purpose of this program was to give junior and more seasoned scholars feedback on current works in progress. Each of the five papers that were selected was assigned two or three commentators who provided feedback on their paper. The following provide a sense of the broad range of the papers:

Jennifer Shinall (Vanderbilt) argued, on the basis of empirical research, that pregnant women are penalized in the labor market for weight gain in the same manner as non-pregnant women. Put differently, pregnancy does not ameliorate the wage penalty for overweight women. Shinall expressed some skepticism about the potential for the ADA or Title VII to address this penalty and proposed a few legislative solutions.

Michael Oswalt (Northern Illinois) argued in his paper that we ought to rethink what coercion means in the legal context. He claimed that the traditional view of coercion was transactional: where one person makes an offer to another that cannot be refused. Oswalt enlists labor law to argue that the fundamental content of legal coercion is fear.

Deepa Das Acevedo (Sharswood Fellow, University of Pennsylvania) sought, using an ethnographic methodology, to solve a puzzle in labor and employment law: the enduring control-based analysis in determining worker classification, despite the problems associated with this standard. She argued that this is in part due to our conceptions of what it means to be “free” at work. Das Acevedo enlists the sharing economy and platform labor to probe and consider the meaning of freedom.

Richard Carlson (South Texas) sought to connect the legal issue of worker status to the “theory of the firm.” He argued that the “make or buy” aspect of the theory of the firm should be employed to help prove up worker status and, in particular, whether one is an “employee” for the purpose of being entitled to the protections of employment laws.

Finally, Minna Kotkin (Brooklyn) canvassed many of the issues in employment discrimination litigation that are likely to arise in gig employment. She focused on discrimination cases that have been brought by gig workers and argued that there are a few different ways that such employees might find protection under select antidiscrimination statutes.

Assigned commentators then provided targeted input on the structure of papers, the substantive arguments, and raised questions for the scholars to consider in the future.

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