Inequality, Opportunity, and the Law of the Workplace

Source: Stetson Law Review, Volume 45, Issue 1, 2015

On March 6, 2015, the Stetson Law Review hosted a symposium titled “Inequality, Opportunity, and the Law of the Workplace.” The symposium brought together legal academics, economists, attorneys, journalists, and students to explore the relationship between rising economic inequality in the United States and the complex web of federal, state, and local laws that constitute the field of labor and employment law. Following the live symposium, works by many of the panelists and speakers were published in the Stetson Law Review, Volume 45, Issue 1.

Symposium Introduction and Dedication
Jason R. Bent

“Regilding the Gilded Age”: The Labor Question Reemerges
Wilma B. Liebman

….This year, as we celebrate the eightieth anniversary of the passage of the Wagner Act—our nation’s basic law that guarantees workers the right to organize and bargain collectively with their employers-organized labor is, as a percentage of the private sector workforce, at a historic low, steady decline since the 1950s. Workers’ bargaining power is, as a consequence, sharply reduced, and income inequality is at levels not seen since the Gilded Age. I leave it to other speakers on this program to document the nature and extent of present-day wealth and income disparity. I will confine my remarks to outlining the relevance of labor law to this serious challenge, the limits of existing law, and what the future might hold for restoring the promise of labor law……

Can Dystopia be Avoided? Increasing Economic Inequality Can Lead to Disaster
Michael J. Zimmer

….So what can be done to turn back the long-term trend of ever increasing economic inequality? First, it is necessary to realize that “[t]he evolution of inequality is not a natural process.” That the level of economic inequality is a question of politics becomes clear by looking at the United States experience in the period starting with World War II and ending in the early 1980s. While economic inequality was being reduced until the late 1970s, the Reagan Revolution that radically reduced taxes at the high end of the income pyramid also resulted in the reversal of the trend toward less inequality and replaced it with the ever increasing inequality seen since then. No matter how impossible it seems at the moment, new politics could reverse the present trends. That the problem is political does not, of course, make it simple to solve.

Added to the political challenges within any particular country that is active in the globalized economy is the fact that the problem of economic inequality is essentially a worldwide problem, requiring at least a coordinated, if not uniform, response by the major countries….. Finally and perhaps most significantly, the best way to turn around the ever increasing economic inequality would be to turn around the virtually worldwide decline in the union movement or to create a new transnational social movement aimed at using the collective strength of workers to protect and enhance their employment opportunities…..

Florida Workers’ Compensation Act: The Unconstitutional Erosion of the Quid Pro Quo
Viktoryia Johnson

In 1935, Florida passed workers’ compensation legislation that made the quid pro quo justification its central theme. At first, the scheme worked efficiently and furnished injured workers with the benefits it had been designed to deliver. As time passed, however, the workers’ compensation legislation failed to keep up with legal developments and eventually lost its backbone. This Article is designed to expose deficiencies in the Florida workers’ compensation scheme—as they relate to the Florida Workers’ Compensation Act’s “Exclusiveness of Liability” provision—and propose solutions to address them.

Part I of this Article will describe workers’ compensation’s path to recognition in the United States, while Part II will review its adoption in Florida. Part III will overview the 1970 legislative changes that permanently altered the character of the Florida Workers’ Compensation Act (FWCA or the Act) by barring injured workers from recovery in tort and making the Act an exclusive remedy. Part IV will explain how these legislative amendments fail to support the archaic rationale behind the workers’ compensation scheme in light of the recent Florida tort law developments. Part V will review the constitutionality of the FWCA—with a concentration on the right of court access—under the Kluger paradigm. And finally, Part VI of this Article will propose solutions to mend the exposed statutory deficiencies….

How to Raise Wages: Policies that Work and Policies that Don’t
Lawrence Mishel and Ross Eisenbrey

…As this Article explains, wage stagnation is not inevitable. It is the direct result of public policy choices on behalf of those with the most power and wealth that have suppressed wage growth for the vast majority in recent decades. Thus, because wage stagnation was caused by policy, it can be alleviated by policy. In particular, policymakers must address two distinct sets of policies….. One set of policies that has stifled wage growth includes aggregate factors, which have led to excessive unemployment over uch of the last mfour decades, as well as others that have driven the financialization of the economy and excessive executive pay growth. …. Another set of policies concerns the business practices, eroded labor standards, and weakened labor market institutions that have reduced workers’ individual and collective power to bargain for higher wages. ….

Indirect Threats to the Wages of Low-Income Workers: Garnishment and Payday Loans
Steven L. Willborn

……First, let me set the framework. When one talks about “inequality,” one can focus on some workers being paid too little, or others being paid too much. Working on either dimension could reduce inequality. I will focus on the workers-being-paid-too-little side of that equation. When we think of workers being paid “too little,” the discussion normally begins, and sometimes ends, with discussions of how to increase the income that low-income workers earn from their employers. Increases in the minimum wage would be the prime example: if we increase it, low-income workers might receive more income from their employers. When discussing topics such as garnishment and payday loans, the narrative becomes complicated in two main ways. First, we are not talking about the total amount those workers are owed—for example, the number of hours they work times the minimum wage. Rather, we are talking about the amount they actually receive at the end of the day. We are talking about a different kind of threat to the earnings of low-wage workers—not only the direct threat of simply being paid too little, but also the indirect threat of not getting all of those meager wages. To state it somewhat differently, if a worker needs $X/month to survive, she might fail to get there because the minimum wage is too low, or she might fail to get there because—even though the minimum wage is sufficient—the amounts taken out of her check through garnishment will cause her to fall below that amount. The two scenarios are equally problematic for the worker, but the second tends to be less on the radar screen than the first……

The Employment Non-Discrimination Act After Hobby Lobby: Striving for Progress–Not Perfection
Giovanni P. Giarratana

Despite the pervasiveness of discrimination based on sexual orientation and gender identity, federal legislation that explicitly prohibits it does not exist. To combat sexual orientation and gender identity discrimination, the Employment Non-Discrimination Act (ENDA) has been proposed. ENDA, if enacted, would explicitly prohibit discrimination based on “actual or perceived sexual orientation or gender identity.” ….. Some legal scholars assert that ENDA, as it is currently written, includes concerning language that may have the effect of decreasing protection rather than increasing it. One of the more concerning provisions is the religious exemption section, especially in the wake of the Supreme Court’s Hobby Lobby decision in June 2014. ….. As a consequence, many major gay activist groups pulled their support for ENDA because of the religious exemption that is included, asserting that the decision in Hobby Lobby is just “a hop, skip and jump” from allowing employers to discriminate against LGBT individuals because of religious beliefs. …..

Income Inequality and Corporate Structure
Matthew T. Bodie

Efforts to address income inequality generally focus on wealth redistribution through taxation and government benefits. But these efforts do not attack the core problem — the unfair distribution of wealth at the firm level. This essay, a contribution to the “Inequality, Opportunity, and the Law of the Workplace” symposium, argues that workers need power within their firms to stake their claims to larger slices of the corporate pie. Even though the current law of the workplace does provide regulatory support for workers, it fails to change internal firm governance. Policymakers who want to take on income inequality as a structural matter should turn to corporate law and provide workers with a way of playing a role in the ongoing governance of the business.