Mar 16, 2026 Henry L. Chambers, Jr.
Dallan K. Flake,
Undue Hardship after Groff, available at
SSRN (Aug. 19, 2024).
In Undue Hardship after Groff, Professor Dallan K. Flake considers an issue raised in the Supreme Court’s recent revision of the meaning of undue hardship in Groff v. DeJoy, 600 U.S. 447 (2023). He proposes a corrective to the Court’s requirement that an employer who claims that an accommodation triggers an undue hardship on its business because of the accommodation’s negative effects on the non-accommodated employees must prove those effects have “a negative impact on their business.” (P 3.) Flake suggests courts take judicial notice that lowered employee morale stemming from workplace accommodations for religious practices negatively affects an employer’s business. He argues that social science studies are so clear that lower employee morale leads to negative effects on an employer’s business that the Court’s requirement should essentially be ignored.
Flake’s solution is simple and intriguing. Reading the article will encourage those who care about religious discrimination to wrestle with the changing landscape of workplace accommodation. Students learning the law, lawyers counseling clients, and courts interpreting the law must consider practical issues of proof that the Supreme Court may not have fully considered when reshaping the law. This article takes a big swing at one of the issues. Given the lack of clarity that remains around what constitutes undue hardship, many issues will need to be litigated to flesh out the contours of the new doctrine. If courts take Flake’s proposal seriously, the Supreme Court will need to revisit the relationship between employee morale and harm to an employer’s business.
The Court remade the law on reasonable accommodation in Groff by redefining the undue hardship test as interpreted in TWA v. Hardison, 432 U.S. 63 (1977). Under Title VII, employers must provide reasonable accommodation for an employee’s religion if such accommodation does not trigger undue hardship on the employer’s business. In Hardison, the Court considered whether TWA needed to accommodate an employee whose religious beliefs did not allow him to work on his Sabbath. The relevant workplace had to be staffed 24 hours a day. Accommodating the employee would have required limiting fellow coworkers’ use of their earned seniority rights or having TWA pay overtime wages or other additional costs.
The Hardison Court decided that rearranging seniority rights or requiring TWA to pay more than de minimis costs would be an undue hardship. However, in Groff, the Court explained that notwithstanding Hardison’s reference to de minimis costs, the burden necessary to trigger undue hardship must be “substantial in the overall context of an employer’s business.” (600 U.S. at 468). The Court then noted that a religious accommodation that negatively affects employee morale might trigger undue hardship but only if it would negatively affect the employer’s business.
Flake argues the link between lower employee morale and negative effects on business are so clear that proving the link is unnecessary. He considers different types of accommodations and how those accommodations can affect coworkers and their morale. Then, he considers social science research on worker morale and organizational outcomes, arguing that the research indicates worker morale affects absenteeism, burnout and turnover, organizational citizenship behavior, and task performance. All these factors drive performance and business results. Flake argues: “While the link between morale and organizational outcomes is complex and nuanced, the ultimate conclusion is straightforward and unequivocal: When worker morale decreases, employers pay a hefty price.” (P. 32.) Consequently, using judicial notice – which treats an issue that is readily apparent as if it has been proven without additional evidence – is a sensible response to the Court’s directive.
Even if courts adopt Flake’s approach, the inquiry’s focus merely shifts to why morale declined and how much it declined. The Groff Court noted that decreases in morale that are based on religious animus cannot trigger undue hardship. Rather, the decrease in morale must be linked directly to the effect the accommodation has on the coworker. This distinction can be difficult to make, especially if the decrease in morale is based on concerns about the sincerity of an employee’s religious belief. However, that is an issue that future litigation must resolve.
As important, an employer must prove that accommodating the employee would cause coworker morale to sink so low that the effect on the employer’s business would be substantial. Barring such an effect on the employer’s business, hardship may exist, but it would not be undue. Determining when and how the threshold for substantial harm is met will be difficult. However, Flake would almost certainly argue that issue is more important to the accommodation analysis than the Court’s requirement of proof that lowered morale triggers harm to the business.
The article trenches on a broader question: How burdensome must accommodating an employee’s religion be before doing so is deemed to cause undue hardship? The question matters because the Groff Court changed the answer. Flake’s article does not attempt to solve the whole issue but addresses a piece of it. He covers the piece at a nice pace and level that is accessible to those steeped in employment discrimination law and those who do not practice in the area. There is much more in the article for experts and novices alike to consider but, at forty pages, it is not exhaustively long. Given that, I recommend this article to all.
Feb 13, 2026 Joseph Slater
A key priority of the second Trump administration has been an unprecedented attack on federal employees’ workplace rights. This includes removing collective bargaining rights, dismantling federal agencies, and working to remove the civil service protections of many federal employees. Catherine Fisk’s Democracy and a Nonpartisan Civil Service focuses on the assault on civil service. The article gives a history of civil service laws and reviews the evidence on the benefits and costs of their protections. It details the assaults on these protections and provides a nuanced defense of them. Fisk convincingly addresses legal, practical, and policy concerns, describing current rules, proposed changes, , theoretical arguments, and relevant empirical data. Her article is a strong contribution to the literature.
Since the Pendleton Act of 1883, civil service rules have been a key component of employment law in federal, state, and local government. Such laws originally aimed to combat political patronage practices by providing “merit” rules for both hiring and firing. By the second half of the mid-20th century, these rules gave most lower- to mid-level public employees just cause discharge protection, at least after a probationary period. While most other industrialized democracies in that period adopted just cause rules as the default for most employees, the United States remained, except for civil service laws, committed to at-will employment.
In the early 21st Century, conservatives began attacking civil service rules. During the first G.W. Bush administration, the Heritage Foundation claimed that civil service rules protected federal employees who opposed conservative presidents’ policies – a precursor to the “deep state” language of the first Trump administration, embodied in “Schedule F,” which would have created a large new class of federal employees who were dischargeable at will. Meanwhile, several Republican-led states, e.g., Florida and Texas, amended their state civil service rules to remove or greatly weaken civil service protections
These attacks have affected, or soon will affect, basic employment rights of hundreds of thousands of workers and could significantly change how governments operate. Fisk does an admirable job of placing them in context.
She starts by noting that the justifications for Trump’s 2025 Executive Order on civil service include making federal employees “accountable to the President,” addressing the predominance of “liberals among the civil service,” and aiming to make all federal employees fireable at will. (Pp. 2-3.) Like the proposed “Schedule F,” it greatly expands the definition of “policy-making” employees exempt from just cause protections.
Fisk’s discussion of empirical evidence is interesting and balanced. For example, she cites a study finding that some job security “improves governance by recruiting and retaining motivated and skilled employees to government,” while too much of it discourages good work and makes it too hard to fire bad employees. (P. 19.) The “consensus of the literature” is that while “some reforms are desirable . . . completely abolishing legal rights to job tenure during good behavior is an extremely risky proposition. . . .” (P. 20.) Her discussions of competing theories of government are also valuable, including the “unitary executive” theory that cuts against the heretofore established premise that the U.S. Constitution authorizes Congress to grant just-cause and related civil service protections to federal employees.
Fisk puts theories in context. The justification for Trump’s E.O. is that federal employees are “disproportionately liberal.” (P. 23.) Also, it would remove protections from “anyone who even views or circulates proposed regulations or guidance.” (P. 24.) This, Fisk argues, is also part of the administration’s attack on whistleblowers and union protections. (Pp. 24-26.)
The most direct challenge to the E.O. is that it violates the Civil Service Reform Act of 1978 (CSRA), which currently sets out federal civil service rules. Here, Fisk carefully describes the CSRA’s broad statutory language and concludes (Pp. 31-32) that even if the President can reclassify these positions prospectively, civil service and constitutional due process protections should prevent current employees from being reclassified into at-will status.
Fisk also notes the established rule that, that for non-policymaking public-sector jobs, discrimination on the basis of political affiliation violates the First Amendment (Pp. 38-40, Branti v. Finkel, 445 U.S. 507 (1980)). Anticipating that challenge, the 2025 E.O. states that employees need not support the current President or administration polices but must “faithfully implement administration policies to the best of their ability.” However, reports indicate that last January, the National Security Council interrogated many civil servants and examined their social media, asking if they supported Trump. The NSC then fired a large number weeks later. (P. 26.)
Fisk reviews other legal objections to this E.O, respectfully attending to both sides of the arguments. Significantly, she notes that in 2024, the Biden administration issued a regulation concluding that Scheule F was not consistent with good administration or with the CSRA. That creates issues under the Administrative Procedure Act as to whether Trump can unilaterally change these rules via an E.O.
Speaking as one of the few academics who study federal sector employment, I doubt I will like what will happen in this area in the next few years. But I predict this article will be very valuable. It is timely (and the recent adoption of a revised Schedule F only makes it timelier), important, well-researched, balanced, and thorough. I liked it a lot.
Jan 15, 2026 Anne Marie Lofaso
As I often remind my students, labor law stands among the most demanding courses in law school—not just for its intellectual rigor, but for the layered complexity it presents. Labor law is rooted in a dense statutory framework. It requires mastery of intersecting doctrines from constitutional, administrative, and contract law, all of which are interpreted through a case-heavy lens.
At its core, labor law grapples with deeply human issues—power dynamics, structural inequities, and the lived realities of working people. Its scope is wide and constantly in flux, shaped by the shifting politics of Board leadership and the broader currents of social change. But what makes it so compelling—so urgent—is that it is never abstract. It is relentlessly real. It forces us to grapple with clashing perspectives from workers, employers, and unions, each bringing their own lived experience and competing visions of fairness, autonomy, and justice.
Stefan McDaniel understands this complexity and the problems it causes. In Rearticulating Labor Rights, Professor McDaniel offers a refreshingly strategic intervention. McDaniel begins with a striking observation: Section 7 of the National Labor Relations Act (NLRA)—the bedrock of collective workplace rights, safeguarding union and nonunion employees in their efforts to organize, bargain collectively, and engage in concerted activity for mutual aid or protection—does not fail for lack of breadth. It fails because its protections are not easily communicated, understood, or internalized by those it aims to empower. (Pp. 197–205.) McDaniel demonstrates how existing rights fail to register in workers’ minds. McDaniel thereby reframes the problem of nonunion worker disempowerment as a failure of message design, delivery, and reception. Drawing on communication theory, the article proposes a doctrinal overhaul that is both modest in scope and ambitious in effect.
One of Professor McDaniel’s most original applications of communication theory explains a problem that has perplexed labor advocates for 90 years—how Section 7 can be so broad as to encompass the concerted activity of all private-sector, common-law employees (whether union or nonunion), but is rarely used to protect the millions of private-sector employees who are nonunion yet covered by the NLRA.
McDaniel explains that both psychological and structural barriers to Section 7 awareness cause the communication breakdown. Transmission of Section 7’s complex, nuanced, and highly technical message about workers’ rights to those nonunion workers who would most benefit from Section 7 protection is deeply flawed. These nonunion workers have low legal literacy, low civic engagement, weak traditions of collective action, and exposure to strong norms of managerial control. These nonunion workers, who depend on their jobs for survival, experience high job insecurity. Without exposure to competent mediators such as unions or labor advocacy groups, these nonunion workers receive Section 7’s message through more indirect, low-conductivity channels such as social media or co-workers. Even the Board’s messaging is indirect—summary commentary on its website.
Drawing on these insights, Professor McDaniel identifies three core problems that prevent Section 7 rights from reaching and empowering nonunion workers: reception, appreciation, and action. First, under the reception problem, workers rarely encounter the Section 7 message—or fail to recognize it when they do. The message gets buried in legal jargon and fuzzy standards, making it hard for anyone—let alone a nonunion worker—to figure out what counts as protected.
Employers often function as “insulators,” whether intentionally or not, filtering or distorting the message through discipline, silence, or subtle signals that convey: “don’t push it.” Even when the Section 7 message is technically present, it competes with more vivid and immediate signs of employer control, such as retaliation, wage theft, or surveillance, which suggest to workers that protest may be risky or futile.
Second, under the appreciation problem, even when workers receive the Section 7 message, they may not grasp its relevance or believe it applies to them. For many workers, especially in low-wage or unstable jobs, labor rights do not feel like something they can reach for—labor rights feel distant, abstract, maybe even dangerous. When legal language is dense and job security is fragile, it is no wonder workers default to playing it safe. They try to be decent, cooperative, conflict-averse—doing what they think will keep them employed. And in that environment, the idea of protected protest does not just seem risky—it barely registers.
Third, under the action problem, McDaniel argues that knowing the law is not enough. Workers must feel empowered to act. The complexity and ambiguity of current doctrine discourage boldness, leaving workers unsure whether their actions will be protected or punished. Without explicit, communicable protection, they hesitate to engage in concerted activity, even when their grievances are widely shared and legitimate.
McDaniel argues that rearticulating Section 7 in terms of vivid, rule-like rights can help overcome these barriers. He offers two such innovative doctrinal revisions to Section 7—the right to challenge and the right to appeal. These rights are designed to be salient (attention-grabbing) to promote reception; accessible (easy to understand and paraphrase) to facilitate comprehension; and directive (inviting bold, legally protected action) to promote appreciation. (Pp. 214–18.) In contrast to the vague, multi-factor tests that currently govern “misconduct” and “disloyalty,” the proposed rights offer clarity and confidence to workers who are least likely to know or assert their protections.
The article’s strength lies in its layered pragmatism. It acknowledges the limitations of transmission strategies (such as the 2011 notice-posting rule), the procedural delays inherent in Board adjudication, and the political volatility associated with administrative reform. Yet it insists—persuasively—that clearer doctrine can still shift behavior, spark solidarity, and lay groundwork for broader change. Case illustrations (Trus Joist and MikLin) show how the proposed rights would simplify analysis and protect workers in real-world disputes.
This is not just a call for stronger rights. It is a call for rights that nonunion workers can hear, understand, and act on. McDaniel does not pretend this fixes everything, but he offers something rare: a doctrinal shift built with real workers in mind. If Section 7 is to mean anything to the people it was meant to protect, it must speak their language. This article shows how.
Dec 2, 2025 Deepa Das Acevedo
I’m always a little surprised by how rarely debates about academic freedom pay attention to the actual work of academia. Sure, there are anecdotes featuring syllabi wars or lectures gone wrong (or wrongly prevented from going on at all). But those vignettes —used to illustrate and persuade—are always hurried along so that the author can get to their normative argument defending academic freedom or announcing, once again, its demise. The vignettes aren’t really there to make us focus on the “what” and “how” of academic labor.
Archana Sridhar’s recent article isn’t exactly about granular academic labor practices, either. I doubt she’d consider it a “labor” piece at all. But in very refreshing way, she focuses on academic work structures and patterns in ways that generate insights about what makes academic freedom possible.
Sridhar’s central argument is that universities are, should be thought of as, and should think of themselves as analogous to platforms like Google, Facebook, and X. Faculty, meanwhile, are analogous not to the employees of those platforms—they’re not Googlers—but to user-moderators. Or, as she states in the conclusion: “universities should be considered analogous to internet platforms: more passive or neutral hosts of content created and owned by individuals and groups who moderate their own content collectively.”
Sridhar admits that “[t]he analogy is not perfect.” And indeed, there is likely no end to the number of plausible counterarguments and counter-hypotheticals we might drum up. Sridhar highlights the fact that user-moderators are often “poorly paid employees in countries around the world, whose incentives are not to prioritize facts or truth, but rather to efficiently remove content that violates certain corporate policies and to promote other content that will attract views.” We might even start a few steps earlier: Platform companies are companies—and not of the B corp variety—defined above all by the profit motive. Or we might go a few steps further down the analytic line: Those user-moderators are not lengthily and expensively trained specialists in and around the content they are charged with moderating. There are a lot of “Yes, but…” possibilities when it comes to Sridhar’s analogy.
But Sridhar’s analogy holds up better than expected. As higher ed scholars have been documenting with increasing urgency, most of the faculty doing the bulk of “content-moderation” work in American academia—the peer reviews and book reviews and committee work and such—are “poorly paid employees,” or even poorly paid independent contractors. And thanks to this precariousness, their “incentives are not [only] to prioritize facts or truth.”
Besides, the real value of Sridhar’s article is not its central analogy, but how it nudges us towards thinking about labor patterns and managerial patterns, oversight mechanisms, and other mundane, institutional, organizational dynamics. Such dynamics deserve at least as much attention as explaining why the university matters for democracy. For instance, Sridhar discusses the 2019 incident involving George Washington University (GWU) professor David Karpf and New York Times columnist Bret Stephens, whom Karpf offended via a tweet comparing Stephens to bedbugs. Stephens replied to Karpf by email, cc’ing the GWU provost.
Sridhar alludes to this episode not to make the usual point that Karpf had a right to critique Stephens or why it matters that Stephens thought GWU could and should rein in Karpf. Rather, Sridhar highlights that GWU did not exercise—and was rightly glad to not exercise—managerial oversight over Karpf’s activities. Academics are in the business of pushing boundaries, thinking critically, and generating new knowledge—and teaching others to do likewise. None of these activities are easily translated or packaged for a non-specialist audience, let alone for an audience with ruffled feathers and a national readership. It was better for GWU to be able to stay out of it.
That point, though, is grounded in the “how” of academic labor more than the “why” of academic freedom. As I’ve similarly argued, we in the academy take it to be self-evident that, despite our W2s, we are more like free agents sharing a building than like employees sharing an employer. That arrangement is both under particular (but not unprecedented) stress right now and its extraordinariness needs an explanation. Sridhar encourages us to think through such issues.
Nov 5, 2025 Charlotte S. Alexander
Michael C. Duff,
Reverberations of Magna Carta: Work Injuries, Inkblots, and Restitution, __
Ne. L. Rev. __ (2025), available at
SSRN (Sept. 17, 2024).
I really like articles that take big swings. When I read a good one, and Michael C. Duff’s Reverberations of Magna Carta falls into that category, it teaches me something, reveals assumptions that I didn’t know I held, and points the way to new ways of thinking. Reverberations takes as its starting point the fact that state workers’ compensation systems are covering a dwindling share of the costs of work-related illness and injuries. A U.S. Department of Labor study puts the percentage at only 21%, while workers themselves, their families, private insurance, and taxpayer-funded Medicare, Medicaid and Social Security programs are covering the rest. Duff casts this remedial deprivation as a constitutional problem.
Duff roots his argument in the original “Grand Bargain” that produced the workers’ compensation system, where workers give up their right to sue in tort in exchange for a workers’ compensation remedy. He contends that states’ chipping away of workers’ compensation protection through caps, time-limits, and procedural barriers effectively strips workers of the remedies they are due in exchange for the common law rights they relinquished. In Duff’s view, those common law rights are protected from state interference under the Ninth Amendment, which recognizes unenumerated rights “retained by the people,” and Section 1 of the Fourteenth Amendment, which safeguards the “privileges and immunities of citizens of the United States” against state interference.
He argues, “[A] state’s dilution of tort remedies through a slow, but deliberate, imposition of inadequate workers’ compensation benefits increases the risk of injury. Such dilution is incompatible with any role the fourteenth amendment might have played in policing encroachment on, and protecting established tort rights.” (P. 17.) If – as Duff claims – states cannot constitutionally eliminate tort law, then it follows that states cannot also eliminate, or substantially hamper, tort’s replacement. Duff is bullish about both this argument’s legal and moral weight, and urges workers to adopt it in developing “a legal theory of rights violation” and advocating for workers’ compensation reforms. (Pp. 9, 18.)
Even readers who do not sign onto Duff’s constitutional argument can find something to like in this article. He offers a host of statistics on the present state of the workers’ compensation system across states. He provides a case study of the problem of occupational diseases, especially those with long latency periods and tricky questions of causation, resulting in “the sheer horror of over 100,000 untracked occupational disease deaths per year.” (P. 36.) He walks through a catalog of examples of worker-protective approaches to this problem, including a legislatively established presumption of causation for firefighters diagnosed with certain types of cancer and similar (temporary) presumptions covering workers who contracted COVID during the pandemic.
He also carefully analyzes the interaction of federal labor law with state-level workers’ compensation laws. And, throughout, he prompts us to question the language that is commonly used to describe “accidental” harm to workers, thereby also questioning our complacency about such harm: “[A]ssuming that all work injury is ‘accidental’ puts the cart factually before the horse. Work harming workers is no accident. All industry foreseeably harms workers. The only unknown fact is which particular employer, or industry, will harm which particular employee.” (P. 4.)
In sum, Duff goes beyond the well-documented weaknesses of modern workers’ compensation. Instead, he asks a deeper question: What becomes of the original “Grand Bargain” when the substitute for tort law no longer provides adequate redress? His big swing in answering this question is to find constitutional protection for injured and ill workers in the Ninth and Fourteenth Amendments. I like that this article forces readers to confront the hollowing out of workers’ compensation, to consider the real losses to workers, and to be ambitious in the search for legal tools that might restore workers’ dignity and security.
Cite as: Charlotte S. Alexander,
A Constitutional Reckoning for Workers’ Compensation, JOTWELL
(November 5, 2025) (reviewing Michael C. Duff,
Reverberations of Magna Carta: Work Injuries, Inkblots, and Restitution, __
Ne. L. Rev. __ (2025), available at SSRN (Sept. 17, 2024)),
https://worklaw.jotwell.com/a-constitutional-reckoning-for-workers-compensation/.
Oct 3, 2025 Sachin S. Pandya
Elizabeth C. Tippett & Jamillah B. Williams,
Misjudging a Reasonable Jury: Evidence that Courts Dismiss Meritorious Harassment Claims, available at
SSRN (May 7, 2025).
How often and why do judges erroneously conclude, in Title VII harassment cases, that there isn’t enough for a reasonable jury to find that the plaintiff suffered “severe or pervasive” enough harassment for Title VII liability? These questions are not easy to answer. No one can directly observe the counterfactual, i.e., how a jury would have ruled had the case gone to trial. And if deciding what a “reasonable” jury might do requires inferring what most juries, or a jury under ideal conditions, would do, then judges could still be good forecasters even if any particular jury would have gone the other way.
Enter Tippett and Williams with a study that provides serious leverage for answering these questions. They first sampled Title VII harassment case opinions in Westlaw between 1995 – 2019 (n = 81, mostly summary judgment motions) in which the court decided whether or not there was “an issue of fact on whether the conduct qualified as ‘severe or pervasive’” enough for a Title VII violation. In 53 of the 81 cases (65%), the court found that no reasonable jury could find that the conduct was severe or pervasive enough. (P. 19.)
Next, Tippett and Williams deployed an online Qualtrics survey during 2019, 2020, and 2022, recruiting respondents from Amazon’s Mechanical Turk platform (n = 699). Their survey randomly assigned to each MTurk respondent an excerpt from the fact section from one court opinion in their sample of court cases. This excerpt (500 words or less) described only the allegations and evidence relevant to the alleged harassment, not how the court weighed them. All respondents also got a “jury instruction” on a Title VII harassment claim (adjusted for whether their case concerned harassment due to race, sex, or both). That instruction included that the conduct had to be “sufficiently severe or pervasive that a reasonable person in the plaintiff’s position would find the plaintiff’s work environment to be hostile or abusive.” Then, the survey asked each respondent to rate to indicate how severe or pervasive the conduct was (from 0 (‘not at all’) to 100 (‘extremely’)); whether that conduct was severe or pervasive enough to satisfy the jury instruction (“Yes” or “No”); and to “[p]lease explain why” via an open text box. (Pp. 21-22, 33.) In this way, Tippett and Williams got multiple MTurk respondent reactions to the same case fact pattern.
With their survey results, Tippett and Williams compared what courts had done with how their individual survey respondents reacted to the same fact pattern. Figure 1, Figure 2, and Figure 3 depict the distribution of MTurk survey respondent numerical ratings, stratified by whether or not the rated fact pattern came from a Title VII harassment case for which a court concluded that a reasonable jury could or could not find the harassing conduct to be severe or pervasive enough for Title VII liability. (The authors provided me with the underlying data.) Figure 1 also indicates by point color the survey respondent’s decision as to whether their randomly-assigned fact pattern was severe or pervasive enough for Title VII liability.
Figure 1: Boxplot of Survey Respondent Ratings.
Figure 2: Histogram of Survey Respondent Ratings.
Figure 3: Density Plot of Survey Respondent Ratings.
However you visualize it, the key takeaway is the same: Whereas most survey respondents assigned high “severe or pervasive” ratings to fact descriptions from the “reasonable jury could” cases, many survey respondents also assigned high ratings even in cases where the court had concluded that a reasonable jury could not find “severe or pervasive” enough conduct. And in those cases, when asked simply whether their randomly-assigned fact pattern was severe or pervasive enough, over sixty percent of the survey respondents said yes. If courts were good predictors of what a reasonable jury would do in those cases, we should expect to see far less spread in ratings – perhaps something more like a reverse-mirror image of the spread of ratings on the “reasonable jury could” cases (the green left-side plots in Figure 2 and Figure 3). In fact, however, the ratings in the “reasonable jury could not” cases (the red right-side plots in Figure 2 and Figure 3) exhibit a lot of spread. Assuming the survey respondents’ ratings and judgments are, in the aggregate, a valid proxy for what a “reasonable jury” would do, Tippett and Williams infer that judges are “far too aggressive in dismissing cases on the basis of the ‘severe or pervasive’ element” of the Title VII harassment claim. (P. 26.)
If so, why? To advance the ball here, Tippett and Williams compared the court opinions in their case sample with what the survey respondents wrote in the survey’s open text box (median number of words = 25) to explain why they believed the conduct they rated was or was not severe or pervasive enough to satisfy the Title VII jury instruction. In general, they found judges assigned far less weight to certain kinds of evidence on the “severe or pervasive” issue as compared to the survey respondents. Such evidence included whether other employees suffered the same harassment, the harasser’s continued harassment even after a company warning, and company complicity in not stopping the harassment. (P. 58.) This result, they conclude, is consistent with what Zimmer (2000) once called “slicing and dicing” – the theory that, in Title VII cases, judges tend to take the probative value of each item of evidence (usually offered to prove discriminatory motive) in isolation, whereas laypeople tend to weigh such evidence as a whole (as the law requires). On this account, judges slice-and-dice even though, on summary judgment motions, they are supposed to construe all available inferences from the evidence in favor of the non-moving party.
As usual, answers beget more questions. If slicing-and-dicing accurately describes how judges reason (not just how they write opinions strategically), what about Title VII harassment cases causes judges to think this way? How are those causes related to other factors, including judge/juror demographics, political attitudes, or whatever might lead judges to effectively conflate what a “reasonable” jury could find with what they think a real jury should find? And would this study’s inferences hold if we did it with actual mock juries, i.e., laypeople who could discuss the facts with each other before deciding? No one study is an island, and this study’s design – like any study – carries some limits on what we can validly infer from it. Still, if you care about Title VII harassment cases (or employment discrimination litigation generally), Tippett and Williams’ paper deserves your time and attention.
Editors note: Reviewers choose what to review without input from Section Editors. Jotwell Worklaw Section Editor Elizabeth C. Tippett had no role in the editing of this article.
Sep 5, 2025 Michael C. Duff
Alvin Velazquez,
The Death of Labor Law and the Rebirth of the Labor Movement, B.C.L. Rev. (forthcoming), available at
SSRN (Feb. 13, 2025).
In The Death of Labor Law, Professor Alvin Velazquez asks: what if the National Labor Relations Act (NLRA) dies because, as some employers want, the US Supreme Court declares – at this very late hour – that Act unconstitutional? (P. 18.). Assuming that happens, Velazquez offers “a silver lining” by showing how, by doing so, “the Court could serve as a catalyst for a series of (most likely) unfortunate events as well as fervent organizing opportunities.” (P. 7.) Thus, from death comes life. The article falls within a tradition of labor law scholarship that insists (like Oliver Wendall Holmes’ dissent in Vegelahn v. Guntner) that labor conflict is inevitable and labor law is always a provisional accommodation between labor and capital.
In particular, Velazquez considers how the NLRA might collapse (Pp. 13-25); reminds readers that labor law and labor conflict preexisted the NLRA (Pp. 49-50); takes solace in the Norris-LaGuardia Act’s bar on federal courts issuing labor injunctions in peaceful private-sector labor disputes (P. 38); and reminds readers that a defunct NLRA may mean a dissolution of unduly complex federal preemption doctrines, in turn freeing states to innovate in the area of labor relations in ways they cannot do now. (Pp. 31-38.) The article covers a great deal of ground. It will stimulate and provoke labor law readers and perhaps also general legal readers focused on major administrative law developments.
Current courts may attempt to disable the NLRA from regulating labor-management conflict in a variety of ways. One possible way is by using the recently-invented Major Questions Doctrine (MQD) – a clear statement rule of statutory interpretation that ostensibly applies when a federal administrative agency “asserts authority of ‘economic and political significance.’” (P. 14.) Once upon a time, the American legal order accepted instinctively that labor conflict itself was of “vast economic and political significance,” placing the burden on employers covered by the NLRA to justify increasing the risk of industrial strife. Courts today, however, acknowledge neither the risk of industrial strife nor that the NLRA reduces it. What if the “the Court applied the MQD to the NLRA?” (Pp. 14-15.) Disagreeing somewhat with other scholars, Velazquez concludes that “[i]t would be easy for the Court to find a lack of delegation by Congress to the Board, especially if the NLRB interprets the parts of the NLRA defining coverage to new economic industries.” (P. 16.) This insight connects dubious legal protection of the rights-stripping gig economy to MQD invocation. Velazquez concludes that the Court may have ideological reasons to supplement doctrinal reasons for expanding the black hole that is the MQD to undermine the NLRA. (Pp. 16-17.)
Velazquez also considers that the Court may cripple the NLRA by ruling that the NLRA’s removal protection for members of the Board and the ALJs violates the Constitution under the unitary executive theory under which the President may remove all administrative officials “at will” and not just “for cause.” (Pp. 18-23.) (This is the Humphrey’s Executor issue currently working its way through the circuit courts.) Velazquez wonders if the unitary executive theory will capsize the NLRB. He suggests that the Court could use such a challenge to extend its decisions in Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law and Collins v. Yellen to hold that the NLRB’s termination protections for both its members and ALJs are unconstitutional. (Pp. 20-21.) This development seems plausible.
If the NLRA falls in whole or in part on various constitutional grounds, structural questions arise. For example, could the NLRA function without its constitutionally infirm “head”, that is, without the NLRB? As Velazquez observes (P. 25), the NLRA’s “separability” provision states, “[i]f any provision of this subchapter . . .shall be held invalid, the remainder of this subchapter, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.” 29 U.S.C. § 144. Velazquez seems to prefers an actually-dead NLRA to a severed, hampered NLRB. The “merely hampered” NLRB that exists but has no powers to actually enforce labor law despite being intimately intertwined with the Act “actually suppresses the ability for states to engage in creative law making.” (P. 46.) Perhaps the NLRB could be reconstructed in some way, but Velazquez seems to doubt this possibility. (Pp. 46-47.)
Velazquez concludes his article by anticipating objections. If the NLRA completely crashes (as opposed to morphing into a statute implemented with a reconfigured NLRB), workers may be utterly unable to mount a counterinsurgency. Today is not the 1930s, when labor law (on a narrow reading) was born. (P. 60.) But he notes there have been a series of labor protests going on just under the surface of public awareness for decades. (Pp. 61-63.) Such potential worker power, if combined with increasing inequality, might fuel real countervailing worker collective action. (P. 65.) Although Congress may refuse to enact a post-NLRA labor law, even in the wake of increased state-based labor insurgency (Pp. 63-65), such inaction matters depending on how one views the federal labor law project overall. Velazquez seems genuinely worried about the loss of federal labor law, but not to the point of retreat. It may be that “blue state” labor law will provide innovations for other states. Workers in some states may be left with fewer collective bargaining rights, even in the handful of states where their state constitutions nominally protect those rights. (Pp. 31-32.) Organized labor may die “while waiting for Government Action.” (P. 67.) But unions have been resilient. With private sector union density at six percent, maintaining the status quo is difficult to justify. (Pp. 71-72.) In any event, as Professor Velazquez’s article reveals, the U.S. Supreme Court is cutting off options.
Jul 23, 2025 Matt Bodie
The Yale Law Journal Forum recently hosted a collection of essays under the rubric of “Reimagining and Empowering the Contemporary Workforce.” Two of these works deal specifically with the challenges for workers posed by the dramatically reoriented data landscape: Data Laws at Work by Veena Dubal, and AI and Captured Capital by Ifeoma Ajunwa. Both essays are essential reading for those interested in data protection and regulation within the workplace.
Professors Dubal and Ajunwa present a nice contrast in their approaches to empowering workers within the data revolution. Dubal follows a more traditional privacy-oriented approach, seeking to further restrict employer access to, and use of, employee data through narrow permissions and harsher penalties. Ajunwa, on the other hand, argues that worker data represents business capital, and she contends that employees should have long-term rights to the value generated from that data. These two avenues—inalienability restrictions and property rights—should both play bigger roles in our system of workplace data regulation, especially within the world of algorithms and artificial intelligence.
For American audiences, the European Union’s approach to data regulation may seem like an unattainable dream of privacy protection. Since 2018 the General Data Protection Regulation (GDPR) has required justification for the processing of someone’s data, and has offered a panoply of rights to data subjects, such as notice, portability, rectification, and erasure. Dubal’s theme in Data Laws at Work, however, is that even this idealized set of protections ultimately fall short in the context of the workplace.
For those looking to understand the current state of European protections, Dubal provides thoughtful reviews as to the employment data ramifications for the GDPR as well as two EU initiatives from the past year: the Artificial Intelligence Act and the Platform Work Directive. As Dubal describes, the AI Act requires that workers be directly informed about the use of AI systems and bans the production and use of AI systems that emotionally manipulate people, while he Platform Work Directive provides a set of specific rights to these workers, including and transparency obligations, the prohibition of processing certain types of data, and required impact assessments for automated decision-making systems.
These employment data regulations are clearly more robust than those in the rest of the world, including the United States. But Dubal does not believe the EU’s approach is sufficient to protect workers from the depth and breadth of Big Tech’s reach. In the clutches of new systems of massive data collection and analysis, workers lack the independence to exercise individual data rights meaningfully. Static models of scientific management have given way to dynamic models of algorithmic management that assess workers on a collective and relational basis. As a result, rights of notification or rectification do not properly empower workers, as the information is difficult to understand and must be challenged collectively.
Instead of individual causes of action, Dubal argues for stronger affirmative requirements: disclosure obligations, periodic impact assessments, and independent third-party data audits. She also makes the case that policymakers should impose outright bans, rather than just disclosure or limitations, on employer tools such as algorithmic decision-making as to wages, discipline, and termination. As Dubal concludes, “data laws focused on the workplace must affirmatively proscribe—not merely elucidate—these forms of worker control.” (Dubal, p. 447.)
In AI and Captured Capital, Ajunwa similarly sees worker vulnerability to machines of mass analysis and the companies that control them. At present, workers are feeding these particular beasts through “captured capital”—her description for the coercive collection and use of worker data that further refines and expands the algorithms that may eventually replace them. Worker data, Ajunwa argues, should be considered capital, as it is used to create value and must be considered valuable on its own, and that capital should be owned by workers, rather than the entities that employ them.
As Ajunwa describes, workers are uniquely disempowered with respect to their data under current law: default rules assign property rights to the firms; automated systems are developing at a surprising rate and may soon overtake people-based productivity in many fields; and labor rights are unenforceable in the face of boundary-less global labor markets. Her picture, like Dubal’s, is fairly grim.
Ajunwa, however, takes a different approach to fighting back. Rather than beefing up privacy protections, she advocates for the creation of ongoing property rights for workers in the value that their data generates. She proposes three different potential models: (1) worker data as “stake capital,” providing governance rights to workers similar to angel investors or venture capitalists; (2) a communal data-licensing regime similar to agreements between actors and film studios for the use of their likeness, image, or voice; and (3) an ongoing source of stable funding, similar to a universal basic income, to be administered by the International Labor Organization or other NGO. Logistical and organizational hurdles confront all of these proposals, but each takes a real-world example and applies it to ameliorate the economic and power imbalances of the data-centric economy. These efforts to redress the harms from captured capital would “ensure that workers regain some measure of control over their data and can benefit from the data they create for firms.” (Ajunwa, p. 404.)
Employee data protections have too long been mired in the paradigm of privacy protections based on liability for individual harms. A worker can sue if the employer breaks open a locker without permission or exigent circumstances, or sets up a secret camera in a private area, or intercepts a personal phone call without notice. But the ongoing campaigns of data incursions and degradation, cogently described by Dubal and Ajunwa, are largely allowed even in the most restrictive of jurisdictions.
Both authors present novel and impactful ideas for reforms: Dubal supporting prohibitions rendering certain personal data inalienable, and Ajunwa providing property interests to workers in the ongoing processing of their information. These proposals have the potential to change the data dynamics within employment relationships in meaningful ways. Kudos to these talented scholars for their insightful and important contributions on data in the employment relationship.
Jun 25, 2025 Cesar Rosado Marzán
Elizabeth Ford’s Alt-Legal Services offers a bold and refreshing take on the role of lawyers in worker movements. Can lawyers empower workers—or do they undermine organizing efforts? Ford tackles this long-standing debate head-on, arguing that the tension stems from competing ideas about what worker power really means. Her perceptive solution: a new model of “alt-legal services” that fuses legal advocacy with grassroots organizing to build worker power.
Ford argues that when people disagree about the role of legal services for worker power, they tend to misunderstand what it entails. Some believe that lawyers undermine worker power by taking control of campaigns and fragmenting workers through individual litigation. Others see litigation as essential for improving workers’ material conditions and securing remedies for workplace harms, such as wage theft. Ford argues that this conflict arises because both sides differ in what they assume worker power is. To resolve this conflict, she introduces an analytical framework that she develops from Galvin that distinguishes between “power over” and “power with.”
“Power over,” recognized as “countervailing power” by the traditional labor movement, refers to the capacity of some individuals to exert their will on others. Unions obtain power over employers via membership organizations that have both economic and legal power (via labor law) to compel employers to bargain collectively with workers and reach legally binding agreements. Worker centers, not being unions, cannot develop “power over” in the same manner, but have other options. Ford identifies three key sources of “power over” for worker centers:
- Authority through enforcement—Collaborating with government agencies to enforce labor and employment laws. Here, Ford highlights the importance of the so-called “co-enforcement” literature.
- Normative power through storytelling—Using workers’ stories to spotlight their moral and dignitary rights, build public pressure, and challenge the status quo. Here, Ford highlights scholarship on the normative dimension of power.
- Resource aggregation—Leveraging fee-shifting provisions that hit scofflaw employers’ bottom lines, while also funding the work of their lawyers.
“Power with” refers to the power rooted in solidarity and relationships—what I have called elsewhere the “social capital” of worker centers. “Power with” is the typical way community-based groups build power.
Armed with these conceptions of power, Ford shows what they imply for alt-legal services. For example, Ford argues that alt-legal services should not be used for base building—that is, attracting new members to worker centers. Using legal services to recruit not only conflicts with what clients expect but also may be unethical. Besides, traditional organizers are simply better at base building. Legal work is slow. It often requires confidentiality, which can strain relationships between organizers seeking access to workers and lawyers bound by attorney-client privilege.
At the same, alt-legal services lawyers do not live by a stylized attorney-client relationship. Alt-legal services lawyers understand their client relationships through a flatter, Freirean popular education model that transforms client intakes into learning processes. The model empowers workers as teachers.
For example, consider wage theft. Ford argues that alt-legal services lawyers must learn the workers’ stories behind wage theft. Workers teach lawyers and become part of their own solution. These stories also become powerful resources for the low-wage worker movement. As both workers and lawyers get to understand the structural causes of wage theft, alt-legal services lawyers can shape more effective legal reforms and litigation strategies to address those root causes.
Ford outlines four core strategies for alt-legal services: supporting and holding government enforcement accountable, engaging with large numbers of workers, litigating individual wage theft cases, and building a bank of worker stories. These activities, she argues, are essential for building both “power over” and “power with” within the worker center framework. Ford also emphasizes sustainable funding by way of fee-shifting provisions, partnerships with government agencies, and limited charitable support. Reliable funding is critical, given the persistent financial challenges facing the alt-labor movement.
Ford’s article speaks directly to alt-labor organizing and its campaigns, but we can extend its lessons to labor unions. Union lawyers could think more about how to contribute to “power with.” By limiting secondary boycotts and related activity, the Taft-Hartley Act severely undercut union capacities to build “power with.” Yet, by protecting employees’ “concerted activities for … mutual aid or protection,” section 7 of the National Labor Relations Act (as interpreted in Eastex, Inc. v. NLRB, 437 U.S. 556 (1978)) helps employees mobilize for legislation that impacts all employees and can thus support worker coalitions beyond a single union in one workplace. Union lawyers might find similar ways to build “power with” via other federal and public sector labor law.
Ford’s article is valuable for those who view lawyers as integral parts of social movements. Like Cummings, Ford shows how legal advocacy and organizing are not inherently at odds. Legal strategies can strengthen community ties and give meaning to campaign messages. Building those bonds and spreading workers’ moral fights doesn’t have to be the job of traditional organizers alone. Alt-legal services lawyers can help too.
Ford’s article also aligns with my research on alt-labor, which shows that social capital, symbolic capital, and framing strategies are central to the success of alt-labor organizations. The “power with” idea underscores how alt-labor uses social and symbolic capital to mobilize workers and shape policy. But Ford goes further. She explains how story banks—a collection of client stories that lawyers gather with workers’ permission—could help worker centers frame their campaigns more effectively. This is a new idea. Worker stories don’t have to stay buried in law office files or the occasional newspaper article. Instead, these stories could drive public education and policy campaigns to fix the deeper problems low-wage workers face.
In short, Ford delivers a creative blueprint for lawyers, law students, other legal workers, and organizers urgently trying to find ways to work together to build worker power in perilous times. By showing us the distinct value of “power over” and “power with” for alt-legal services, Ford fuses legal strategy with grassroots organizing, popular education, and strategic storytelling. In a time when oligarchs dominate, democracy rots, and the rule of law decays, Ford’s article is simply essential reading.
May 27, 2025 Joseph Seiner
In More Accommodation, Less Technicality for Workplace Whistleblowers, Professor Craig Senn performs an excellent analysis of the vast array of federal whistleblower and retaliation laws. He engages in a much-needed deep dive into the distinctions between these laws and proposes a new standard for worker protections. Professor Senn appropriately critiques the coverage employees receive when blowing the whistle under these laws and proposes a well-considered alternative and unified approach to protect workers.
The law in this field is confusing, at best. The various federal whistleblower statutes are articulated differently and have been applied in many ways. Without sufficient protection for those who appropriately complain, the statutes can lose all meaning and impact. Indeed, workers will be chilled from blowing the whistle if their careers and employment hang in the balance. Over the years, many courts have applied rigid standards for gaining protection, often holding employees to overly high standards and expectations in their knowledge and understanding of the law and statutes.
Professor Senn’s groundbreaking paper encapsulates the problem and expertly proposes a novel solution. He outlines six different federal laws and discusses the retaliation component of each. These include the Family and Medical Leave Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and the Sarbanes-Oxley Act. In outlining the whistleblower and/or retaliation provisions of each statute, Professor Senn further explains the various “technical provisions” that exist and explores the “precedent in which federal courts apply a hypertechnical approach . . . ultimately leading to dismissal of retaliation claims.” (P. 1909.)
This exploration and comparison of the various federal statutes is extraordinarily helpful. It provides the decisive overview of the many different laws in this area, and this detail and analysis were badly needed in this muddled field. Professor Senn’s further examination of the numerous federal court approaches to these statutes is equally important and helps summarize the varied ways that courts have declined to extend protections under the many workplace laws. This summary of both the law and federal court analysis will thus appropriately provide an important resource for those researching in this area.
Beyond this survey of the statutes and court-interpretations, however, Professor Senn engages in an expert analysis on how the law can be reformed in this area. In particular, Professor Senn argues that the law is far too complex in this field for the average worker to understand. He suggests moving away from this technical type of consideration to a more reasoned approach to whistleblower claims, emphasizing that the analysis will inherently be case specific and that the facts of each situation will have to be looked at individually.
In this way, Professor Senn argues for what he coins a Layperson Accommodation Approach for workers considering bringing a claim in this area. Pursuant to this approach, he recommends eliminating any hyper-technicalities associated with these coverage issues to better consider whether the legal provisions should protect workers in their specific situation. In this way, Professor Senn notes that his approach would provide a number of different parameters for a court to consider. This would include a recommendation that a court weigh, “(1) the amount of experience and legal sophistication of a reasonable layperson, (2) the formality or density of the sources evidencing the legal technicalities, (3) the complexity of the legal technicality itself, and (4) an understanding and availability of relevant facts needed to apply that technicality.” (Pp. 1909-10.)
In advocating for this more relaxed standard and broad-based approach to be applied by the courts to whistleblowers, Professor Senn notes that this philosophy has previously been applied by the legislature. He specifically highlights the Older Workers Benefit Protection Act of 1990 which allows for this “layperson-protective” standard, and further notes that in other contexts the courts have looked to the “totality of circumstances” analysis in considering the waiver of workplace claims. Just as Congress and the courts have been cautious in allowing workers to waive their own protections, a sensible workplace standard would protect those employees that blow the whistle on improper workplace conduct.
Workplace whistleblowing and retaliation are notoriously under-researched and misunderstood areas of the law. Professor Senn’s piece provides important research for those considering writing or litigating in this area. More importantly, however, this Article does a beautiful job of advocating for the next step and explaining why the law often requires too much of the average layperson. Professor Senn’s approach is straightforward and easy to apply and provides just the right mixture of considerations for both advocates and the courts. There is little doubt that this article will quickly become the seminal piece in this field, and that it will be well-relied upon by both academics and litigants alike.
As Professor Senn correctly notes, there is a widely held view that the provisions discussed throughout the paper must “encourage workplace whistleblowing and ferret out employers with retaliatory intent.” (P. 1910.) His well-balanced approach and provided guideposts to clarifying this area will serve as a template for others to follow. The wealth of research provided in this Article make it a must-read for all employment law scholars. The new approach identified by Professor Senn make it one of the most important pieces ever written on whistleblowing clams. If followed, the sensible, well-balanced approach identified by Professor Senn will undoubtedly help “ferret” out the type of misconduct with which we should all be concerned.
