New Article: Candace Kovacic-Fleischer, Food Stamps, Unjust Enrichment and Minimum Wage, Law and Inequality: A Journal of Theory and Practice, Vol. 35 (forthcoming). Abstract below:
A number of large retail chains with monopsony power, such as Walmart, pay their low level employees so little that these employees are eligible for food stamps and other governmental benefits. In addition to paying low wages, these chains often have hourly restrictions so that their employees are not eligible for overtime pay. At times the chains violate the wage and hour provisions of the Fair Labor Standards Act (FLSA) by making hourly employees work “off the clock,” a practice known as wage theft.
One of the reasons these low wage retailers can pay so little is because their employees can supplement their income with food stamps. Another reason is the minimum wage of $7.25 per hour has not been raised since 2009. Paying anything more seems generous.
Whether to raise the minimum wage is fiercely disputed. This paper suggests the debate focus not only on the effect of the minimum wage on jobs, but also on the unjust enrichment of monopsonistic employers. By applying the law of unjust enrichment (also referred to as restitution), the government should be able to recover from these employers the amount of food stamps their low paid employees receive at taxpayers’ expense. A lawsuit in unjust enrichment should make the public aware that with food stamp payments and other benefits, the government is subsidizing monopsonistic employers.
New Article: Noah Zatz, Does Work Law Have a Future if the Labor Market Does Not?, 91 Chi. Kent L. Rev. (forthcoming 2016). Abstract below:
This Essay is based on the 37th Annual Kenneth M. Piper Lecture. It offers a new perspective on the much-discussed “future of work.” That discussion typically highlights changes within the labor market that undermine the employment relationship’s role as the bedrock for work regulation. But might something even deeper be afoot, namely the disintegration of “the labor market” itself? Several recent developments challenge the legal construction of employment as occurring wholly inside a distinctive, and distinctively economic, market sphere. The Essay considers Uber and the relationship between work and “sharing,” Hobby Lobby and the relationship between work and religion, the unrest in Ferguson and the relationship between work and criminal justice, and Friedrichs and the relationship between work and politics. Each presents a conservative challenge to labor and employment law by blurring the boundaries between the labor market and other spheres, not by purging the labor market of noneconomic intrusions in the manner of laissez faire. This development presents a conundrum for traditional labor and employment law, which simultaneously defines its object in market terms while aspiring to reshape it by incorporating certain nonmarket values.
New Article: “The Case For A New WPA” – The Atlantic
News Coverage: Jenny Jarvie, What life is like on $7.25 per hour, L.A. Times, Apr. 6, 2016.
New Report: Noah Zatz, Tia Koonse, Theresa Zhen, Lucero Herrera, Han Lu, Steven Shafer, and Blake Valenta, Get To Work or Go To Jail: Workplace Rights Under Threat (2016).
New Article: Jayesh Rathod, Danger and Dignity: Immigrant Day Laborers and Occupational Risk, 46 Seton Hall L. Rev. 813 (2016). Abstract below:
The plight of immigrant workers in the United States has captured significant scholarly attention in recent years. Despite the prevalence of discourses regarding this population, one set of issues has received relatively little attention: immigrant workers’ exposure to unhealthy and unsafe working conditions, and their corresponding susceptibility to workplace injuries and illnesses. Researchers have consistently found that immigrant workers suffer disproportionately from occupational injuries and fatalities, even when controlling for industry and occupation. Why, then, are foreign-born workers at greater risk for workplace injuries and fatalities, when compared with their native-born counterparts? This Article seeks to develop answers to that question with the aid of empirical research and to build upon a growing interdisciplinary literature.
This Article presents findings from a qualitative research study designed to explore the factors that shape occupational risks for immigrants. The study, conducted over several months in 2014, centered on in-depth interviews of eighty-four immigrant day laborers seeking employment in different parts of Northern Virginia. The workers’ responses present a complex picture of the immigrant worker experience, reflecting persistent dangers alongside powerful expressions of worker dignity: while the Virginia day laborers continue to encounter significant occupational risks, many comfortably asserted their rights, complicating standard narratives of immigrant worker subordination and vulnerability.
The results of the study also point to ongoing economic insecurities, and regulatory failures relating to the provision of training, use of protective equipment, and oversight of smaller worksites. The findings also signal the need for a more holistic approach to workplace regulation that concomitantly examines a range of workplace concerns, including wage violations, hostile work environments, and health and safety risks. Finally, the day laborers’ experiences reveal that worker centers are well positioned to insulate immigrant workers from workplace risks, by promoting transparency and accountability in the employer-employee relationship.
New Article: “After Incarceration, What Next?” – The American Prospect