Author Archives: afscme

The Fair Labor Standards Act at 80: Everything Old is New Again

Source: Kati L. Griffith, Cornell Law Review, Vol. 104, No. 3, 2019

From the abstract:
On the 80th anniversary of the federal wage and hour statute, the Fair Labor Standards Act of 1938 (FLSA), critics warn that it cannot keep pace with shifting business trends. More and more individuals engage in “contract work,” some of which takes place in the much publicized “gig economy.” These work arrangements raise questions about whether these workers are “employees,” covered by U.S. labor and employment law, or “independent contractors.” Subcontracting arrangements, or what some call domestic outsourcing, are also expanding. Indeed, more and more workers in the U.S. economy engage with multiple businesses, raising questions of which of these businesses are “employers” responsible for the payment of wages. These are pressing questions for the judiciary, policymakers, scholars of work, and the U.S. Department of Labor because many of these individuals work in low-wage sectors and do not make minimum wages or overtime premiums for the hours they work. This Article uses a systematic study of thousands of pages of legislative history documents to bring a historical lens to the independent contractor and joint employer debates that are raging on Capitol Hill and in the courts. It concludes that Congress broadly and flexibly worded this New Deal legislation with foresight about the need to cover evolving business relationships regardless of business formalities. It calls for a narrow reading of the independent contractor category and a broad interpretation of employment relationships that should help the FLSA to serve its statutory purpose of ensuring “a fair day’s pay for a fair day’s work” in the twenty-first century.

Opportunity Discrimination: A Hidden Liability Employers Can Fix

Source: Elizabeth Chika Tippett, Employee Rights and Employment Policy Journal, Forthcoming, Posted: April 5, 2019

From the abstract:
This article applies a model of workplace advancement where big employment decisions — like promotions and pay raises — are influenced in part by the disparate distribution of smaller opportunities over time. These smaller opportunities generally do not qualify as “adverse employment actions” for the purpose of a discrimination claim under Title VII of the Civil Rights Act. However, their legal significance has been underestimated. The disparate denial of smaller opportunities has been successfully used as evidence of disparate treatment when plaintiffs are later denied a big opportunity.

In addition, recent legislation passed in Washington state, the Equal Pay Opportunity Act, expanded gender discrimination law to more broadly protect women’s access to opportunities for advancement. The statute will likely encourage employers to scrutinize their distribution of smaller opportunities. In the MeToo era, other states may follow suit.

This article argues that employers should identify and address disparities at the opportunity level to advance workplace equality. Drawing from social science research on discrimination in school discipline, employers could identify the particular decision points and contextual factors that drive disparities and use that information to address the problem. Such undertakings would also be compatible with existing internal employment structures.

Employee Voice in Arbitration

Source: Ann C. Hodges, Employee Rights and Employment Policy Journal, Vol. 22, No. 2, 2018, Posted: April 5, 2019

From the abstract:
The Supreme Court’s 2018 decision in Epic Systems v. Lewis allows employers to force employees to agree to individual arbitration of any claims against the employer, removing their ability to bring class and collective actions. These unilaterally imposed arbitration agreements deprive employees of any voice in this important term of employment.

If arbitration is to serve its intended function of a mutually agreeable forum to resolve disputes, Congress should require employers who desire to use arbitration to negotiate the terms of the agreement with a representative of their affected employees. Such a requirement would reduce some of the adverse effects of employment arbitration, making it more like labor arbitration, which has functioned as an effective dispute resolution mechanism under collective bargaining agreements for many years.

A negotiation requirement would insure that employees have notice of the arbitration provision and input into its terms. The National Labor Relations Board could use its existing election machinery to facilitate employee choice of representative which could be an individual, a group of employees, an attorney, a labor union, or another workers’ rights organization. In addition to providing employee voice, requiring negotiation would discourage arbitration where the employer’s only goal is to reduce employee rights and might also spur employee participation in the workplace and the community.

The Future of Unions Is White-Collar

Source: Bret Schulte, Atlantic, April 12, 2019

Blue-collar jobs are disappearing. But a powerful new wave of organized labor is taking its place. ….

…. At the University of Arkansas, where I work and serve as president of AFSCME Local 965, union membership has about doubled in recent years. Although the local was started by the university’s maintenance crew in the 1960s, nearly every new member has been a professor or professional employee. Their concerns: campus safety, a living wage for all employees, collective bargaining rights, and gaining more influence over campus policies. ….

…. One reason for the shift is the evolution of the American economy. Manufacturing jobs have disappeared as service jobs have increased. That means fewer opportunities for blue-collar workers to join unions if they wanted to. (And employers don’t want them to.)

The professional class is by no means offsetting the country’s net loss of union members, but how the newbies are behaving shows they understand exactly how collective action is supposed to work: They’re leaving their manners at home and making demands. It was kindly teachers in rural West Virginia who flexed their muscle in a strike that put the country on notice—kind of like the textile workers in 1912, but without smashing any windows. ….

Forget Your Middle-Class Dreams

Source: Alex N. Press, Jacobin, March 29, 2019

When it comes to workplace organizing, there’s no such thing as a “privileged” worker. You’re either with your coworkers or you’re against them. …..

….. Although the argument — unions are good, but they’re not for us, and, somehow, us unionizing undermines unions — is unusually explicit, it’s not an unheard-of objection in white-collar organizing drives. During such campaigns, this concern is sometimes voiced by well-meaning people — those earnestly raising it do so because they believe the conditions of life at the bottom of society are unacceptable. But unions, so the thinking goes in this country where caricatures of the working class run rampant, are for those at the lowest rungs of the socioeconomic ladder — they’re for factory workers; for manual laborers; maybe they’re for low-wage service workers. But teachers, engineers, graduate students, journalists? Those are middle-class jobs. Surely, such workers should be grateful not to be down there, in the muck of poverty. In fact, it’d be greedy to want more than they have. Who are they to claim the mantle of working class? Unfortunately, this perspective has one, and only one, practical effect: keeping people from throwing their cards in with the working class, from demanding better lives and a seat at the table. …..

#MeToo Has ‘Significant Impact’ on Harassment Filings

Source: Kathy Gurchiek, SHRM, April 12, 2019

Number of sexual harassment charges filed with the EEOC jumps 13.6%

Retaliation was again the type of discrimination charge most frequently filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2018, followed by allegations of sex, disability and race discrimination, the agency reported.

Among the 76,418 total workplace discrimination charges the agency received the last fiscal year, 39,469 were for retaliation, accounting for nearly 52 percent of all charges filed. Discrimination based on sex was the second most frequently filed charge, with 24,655 charges received…..

The Nation’s Fiscal Health: Action Is Needed to Address the Federal Government’s Fiscal Future

Source: U.S. Government Accountability Office, GAO-19-314SP, April 2019

From the summary:
This report provides an update on the nation’s fiscal health as of the end of FY 2018, and describes its likely fiscal future if policies don’t change.

Among its findings:
– The federal government’s current fiscal path is unsustainable
– The federal deficit increased to $779 billion—and will reach $1 trillion in the next few years for the first time since 2012
– Publicly held debt was 78% of GDP at the end of FY 2018 and will surpass its historical high of 106% within 13 to 20 years—sooner than projected last year
– Other agencies join GAO in saying that the longer action is delayed, the greater and more drastic the changes will have to be
– The 2018 Financial Report, the Congressional Budget Office, and GAO all project that federal debt held by the public will continue to grow unsustainably into the future.

Under Pressure: The Squeezed Middle Class

Source: Organisation for Economic Cooperation and Development (OECD), ISBN 9789264150348 (PDF),April 2019

From the abstract:
Middle-class households feel left behind and have questioned the benefits of economic globalisation. In many OECD countries, middle incomes have grown less than the average and in some they have not grown at all. Technology has automated several middle-skilled jobs that used to be carried out by middle-class workers a few decades ago. The costs of some goods and services such as housing, which are essential for a middle-class lifestyle, have risen faster than earnings and overall inflation. Faced with this, middle classes have reduced their ability to save and in some cases have fallen into debt. This report sheds light on the multiple pressures on the middle class. It analyses the trends of middle-income households through dimensions such as labour occupation, consumption, wealth and debt, as well as perceptions and social attitudes. It also discusses policy initiatives to address the concerns raised by the middle class, by protecting middle-class living standards and financial security in the face of economic challenges.

Child Care Supply by Congressional District

Source: Leila Schochet and Rasheed Malik, Center for American Progress, April 10, 2019

When families have access to high-quality, affordable child care, they thrive. Parents can work to provide for their families, knowing their children are safe; and young children can learn and explore, creating a solid foundation for future learning and development.

Yet many families struggle because they cannot afford or find child care. High-quality child care is expensive to provide, and without public investment, those costs are passed along to parents. As a result, half of Americans live in child care deserts, communities where there are not enough licensed child care providers to serve the population of young children who need child care.

Increasing access to affordable, quality child care and making sure parents have options to choose from requires both Congress and elected state officials to provide more public funding for child care. It is critical to address the nation’s child care shortage without sacrificing program quality or endangering child safety just to cut costs. Congress can act by increasing funding for the Child Care and Development Block Grant and passing comprehensive reform that address affordability, quality, and higher wages for early educators.

Find your district using the dropdowns below:….

State Options for Making Wise Investments in the Direct Care Workforce

Source: Madeline Twomey, Center for American Progress, April 10, 2019

From the introduction:
Policymakers must invest in strengthening the direct care workforce in order to improve the quality of care delivered to patients and to achieve better value for every dollar spent on long-term services and supports.

This report outlines a number of actions that lawmakers can take to support the existing direct care workforce while increasing the number of available workers. Several states have already taken innovative approaches to addressing workforce shortages, including implementing payment reform to incentivize workforce initiatives. Additionally, states have increased wages and invested in workforce development and training in order to attract and retain direct care workers. In order to meet the growing demand for LTSS, state lawmakers should prioritize policy changes addressing workforce challenges, and the federal government should make investments to support states implementing meaningful reform.