Editor's Corner: Frontiers in Employment Law

• Date: 01 September 2016
• Author: Robert Sprague
• Published date: 01 September 2016
• DOI: http://doi.org/10.1111/ablj.12081

Editor’s Corner: Frontiers in Employment Law

This issue of the American Business Law Journal (ABLJ) presents three

articles addressing needed updates to U.S. employment law. One can

view these issues as reaching a critical need for updating based on three

different temporal continuums—pregnancy discrimination over the past

fifty years, workplace free speech rights during the past few years, and

employee rights to work-related social media accounts that are only just

beginning to be potentially recognized.

In “Cloaking: Public Policy and Pregnancy,” Professor Julie Man-

ning Magid reviews the historical development of policies impacting

women participating in the economy while pregnant and as a parent to a

young child, beginning with passage of the Civil Rights Act in 1964. Pro-

fessor Magid points out that U.S. antidiscrimination laws have focused on

gender equality—or “sameness.” She makes clear that there are unique

attributes to pregnancy that are not addressed in this “sameness”

approach. Professor Magid recommends changes to the Family and Medi-

cal Leave Act (FMLA) to address these shortcomings. In particular, she

notes that the FMLA’s requirement of twelve months’ work prior to cover-

age limits women’s options and mobility—this can cause female employees

to delay pregnancy until coverage commences, or limit their ability to

move to a new and better job if they are pregnant or believe they may

become pregnant in the next twelve months. Professor Magid’s main the-

sis is that without changes to workplace laws, women’s job-to-job mobility

will continue to be stymied.

Professor Charlotte Alexander’s article, “Workplace Information-

Forcing: Constitutionality and Effectiveness,” addresses the problem that

workers lack accurate information about their rights on the job. Professor

Alexander argues that legal ignorance about workplace rights can cause

workers to strike bad employment deals where they accept sublegal wages

or tolerate unlawful working conditions. Workers’ lack of legal knowledge

435

American Business Law Journal

Volume 53, Issue 3, 435–437, Fall 2016

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