Volume 2017, No. 4

 Table of Contents

Articles

Business, Corruption, and Human Rights: Towards a New Responsibility for Corporations to Combat Corruption
David Hess

There is a significant disconnect between multinational corporations’ (MNCs) recent efforts to respect human rights throughout their operations, and what we know about the link between corruption and human rights violations. Although efforts to respect human rights and combat corruption have expanded significantly in the past few years, these efforts have mostly developed in parallel and have not meaningfully intersected. With respect to human rights, due significantly to the 2011 adoption of the United Nations Guiding Principles on Business and Human Rights, MNCs are adopting practices to help ensure that they are not having an adverse impact on human rights. At the same time, due to the recently increased focus on combating corruption throughout the world, MNCs are expending significant resources to implement compliance programs to prevent their employees and agents from paying bribes.

The Tragedy of the Elephants
Branden D. Jung

According to popular legend, mass elephant burial sites riddle Africa. As the myth goes, dying elephants instinctively gravitate to elephant graveyards to die. Unfortunately, the romanticized legend has become a dark, anthropogenic reality. Each year poachers litter the plains of sub-Saharan Africa with thousands of bloody elephant carcasses. Entire herds of elephants are routinely and wantonly slaughtered. The genocide is a tragedy: a tragedy of the commons.

Winning the Battle, Losing the War?: Assessing the Impact of Misclassification Litigation on Workers in the Gig Economy
V.B. Dubal

As on-demand labor platforms proliferate the independent contractor business model, plaintiffs’ attorneys in the United States have filed dozens of misclassification lawsuits to secure rights and protections for workers. The conventional wisdom is that if these lawsuits are won, then they will reverse the growth of insecure work. This Article challenges this widely- held assumption. Using empirical research, I examine the trajectories and legacies of three celebrated misclassification lawsuits from earlier moments of transportation “gig work” in California: Tracy v. Yellow Cab Cooperative, Friendly Cab v. NLRB, and Alexander v. FedEx. Against many odds, plaintiff workers secured judicial recognition of employee status in each of these cases.

The untold, post-litigation stories, however, were surprisingly grim: workers’ economic lives were no more secure—and in some cases more precarious—then before the lawsuits. While I maintain that such litigation plays an important deterrence role, this Article highlights the significant limitations of misclassification litigation victories in effecting and enforcing the rights of gig workers. Based on this data, I critique the (over) reliance on the private enforcement of employee-status to fight precarity in the on-demand gig economy and suggest lessons for future advocacy.


Note

Lewis v. Epic: An Employee Arbitration Odessey
Andrew J. Fabianczyk

Mandatory arbitration agreements cover a substantial portion of the nonunion workforce. Increasingly, employers force employees into bilateral arbitration by inserting a collective action waiver into arbitration agreements. Lower courts have extended the Supreme Court’s recent interpretations of the Federal Arbitration Act (FAA) to enforce such waivers, notwithstanding the fact that enforcement deprives employees of their substantive rights under the National Labor Relations Act (NLRA).

In Lewis v. Epic, the Seventh Circuit bucked the trend among the lower courts and found a collective action waiver illegal under the NLRA and thus unenforceable under the FAA. The decision adopts the National Labor Relations Board’s position that the Supreme Court’s FAA decisions do not compel enforcement of arbitration clauses that are otherwise illegal. Whereas other circuit courts to consider the issue quickly found a conflict between the NLRA and FAA—and determined that the FAA trumped the NRLA—the Seventh Circuit harmonized the statutes.

Nevertheless, the Seventh Circuit could have theorized its position more fully and put pro-arbitration arguments to rest. This Note seeks to fill in the gaps left by the Seventh Circuit’s decision and expose the flaws in the competing view. The Note also tests the validity of the Supreme Court’s FAA precedents as applied to the labor and employment context. It explains that the Court’s FAA precedents do not support the dismantling of federal labor law under the guise of arbitration enforcement. Finally, the Note argues that the Lewis case provides a perfect opportunity for the Supreme Court to sheathe the arbitral sword and restore the prospect and promise of collective action under the NLRA.