Category Archives: Employment Practices

The Apprenticeship Wage and Participation Gap

Source: Angela Hanks, Annie McGrew, and Daniella Zessoules, Center for American Progress, July 11, 2018

From the introduction:
In recent years, U.S. apprenticeship programs have become popular among politicians, workforce advocates, workers, and employers—and it’s easy to understand why. According to the U.S. Department of Labor (DOL), people who complete an apprenticeship program can expect to earn an average annual income of approximately $60,000—slightly above the 2016 U.S. national median household income.

Yet, too little is known about racial and gender representation in these programs. Apprenticeship—which combines on-the-job training with classroom instruction—tends to be dominated by the building and construction trades. This suggests that these programs, like the construction workforce more broadly, are disproportionately male. Indeed, men make up the overwhelming majority of those who participate in apprenticeship programs in the United States. According to the DOL’s own analysis, women made up less than 7 percent of all apprentices in 2013—even though they made up 47 percent of the labor force during the same year.

The analysis in this issue brief examines apprenticeship programs over the past decade—from fiscal year 2008 through 2017—to observe gaps in participation and wages among women and people of color. In general, it finds that women remain deeply underrepresented in apprenticeship programs and that wages among women and black or African American apprentices are much lower than those of other apprentices. Even though these programs are intended and have the potential to develop the U.S. workforce, increase earnings, and prepare workers for the jobs of the future, their current gender and racial compositions tell a different story; more work must be done to make it a reality.

Workers, Protections, and Benefits in the U.S. Gig Economy

Source: Seth D. Harris, Global Law Review (forthcoming Sept. 2018), Date Written: June 18, 2018

From the abstract:
Under existing American labor, employment, and tax laws, in any one work relationship, a worker is either an “employee” or an “independent contractor.” This binary classification of workers, and the high-stakes outcomes it produces, have been challenged by “gig economy,” or “online platform” companies that provide personal labor services (e.g., ride-hailing, home cleaning and handyman/woman, and food delivery services that use smart phone “apps”). Employees in the United States are entitled to a long list of legally mandated benefits and protections. Independent contractors are not. Independent contractors are presumed to have sufficient individual bargaining power to secure their own individual compacts with contracting partners, and either ward off undesirable outcomes or use their freedom in the market to evade them. This article argues that online platform companies’ relationships with their “independent workers” force these workers into a gray area between employee status and independent contractor status. It also argues that American law does not offer a clear and broadly applicable rule for resolving the resulting ambiguities and ensuring consistent and predictable decisions by adjudicators. Serious social and economic problems have resulted.

This law and policy article considers these work relationships in the online platform economy with a particular focus on independent workers’ lack of individual bargaining power. The article also extends its bargaining power analysis to workers outside the online platform economy, including those currently classified as independent contractors. Based on this analysis, and after reviewing the state of the law in the U.S. and the size and shape of the workforce in the U.S. online platform economy, the article articulates a set of principles that should guide policy makers in determining how to reform the worker classification system to address its ambiguities and the problematic social and economic outcomes it produces. Most important, the article provides a menu of policy solutions with an assessment of how well each solution serves these principles (i.e., “selection criteria”). The solution advanced in the author’s 2015 paper with Alan Krueger entitled “A Proposal for Modernizing Labor Laws for Twenty-First-Century Work: The ‘Independent Worker’” is included on this menu.

Registered Apprenticeship: Federal Role and Recent Federal Efforts

Source: Benjamin Collins, Congressional Research Service, CRS Report, R45171, April 20, 2018

Apprenticeship is a workforce development strategy that trains a worker for a specific occupation using a structured combination of paid on-the-job training and related instruction. Increased costs for higher education and possible mismatches between worker skills and employer needs have led to interest in alternative workforce development strategies such as apprenticeship. ….

…. To register an apprenticeship, a sponsor (an employer, union, industry group, or other eligible entity) submits an application to the applicable registration agency (either DOL or the appropriate SAA). The application must include a work process schedule that describes the competencies that the apprentice will learn and how on-the-job training and related instruction will teach those competencies. The application must also include a schedule of wage increases for the apprentice, a description of safety measures, and various assurances related to program administration and recordkeeping. ….

….. In recent years, the federal government has supplemented its typical registration activities with competitive grants to support the expansion of registered apprenticeship. These grants have gone predominantly to states and other intermediaries to support apprenticeship expansion through partnerships with apprenticeship sponsors.

While registered apprenticeship sponsors do not necessarily qualify for federal funding, several education and workforce programs have identified apprenticeship as an eligible use of funds. For example, some veterans may qualify to receive GI Bill benefits while participating in a registered apprenticeship and registered apprenticeships are eligible for federal workforce development funds through the Workforce Innovation and Opportunity Act (WIOA). …..

…. This report discusses federal efforts related to apprenticeship. It begins by describing the long-established federal role in certifying apprenticeships programs through the registered apprenticeship system. It then discusses more recent federal efforts to support apprenticeship expansion. The appendix of the report discusses federal funding streams that focus on other human capital development strategies but can support apprenticeship in certain circumstances. …..

Why are more people doing gig work? They like it

Source: Cheryl Carleton, The Conversation, March 29, 2018

….The share of Americans doing everything from accounting to driving as independent contractors rose from 10.7 percent in 2005 to 15.8 percent in 2015, according to a study by economists Lawrence Katz at Harvard University and Alan Krueger at Princeton University. The trend was more pronounced among women, they found, rising from 8 to 17 percent.

Based on my prior research regarding labor markets and job satisfaction, I wanted to know if this number was rising so fast partly because Americans enjoy the flexibility these jobs offer….

….The approximately 3,600 people in this nationally representative sample included workers holding down regular jobs, as well as independent contractors and self-employed workers with some degree of control over their schedules. It also included contract employees lacking autonomy and flexibility, such as those working for temp agencies or with on-call obligations.

We also contrasted job satisfaction for employees in managerial or professional roles with workers in blue-collar occupations, and checked whether there were any differences for men and women.

As you might expect, we found that people with more control over their schedules and who could choose to some extent which tasks they would take on are significantly more satisfied with their work than their peers who hold regular salaried jobs – despite losing out on benefits and security…..

The growing use of mandatory arbitration

Source: Alexander J.S. Colvin, Economic Policy Institute, April 6, 2018

Access to the courts is now barred for more than 60 million American workers.

This is an expanded version of a report originally published in September 2017. The report now includes data on mandatory arbitration by employer size, state, industry, gender, race, average employee wage, and typical employee education level.

From the summary:

In a trend driven by a series of Supreme Court decisions dating back to 1991, American employers are increasingly requiring their workers to sign mandatory arbitration agreements. Under such agreements, workers whose rights are violated—for example, through employment discrimination or sexual harassment—can’t pursue their claims in court but must submit to arbitration procedures that research shows overwhelmingly favor employers.

In reviewing the existing literature on the extent of this practice, I found that the share of workers subject to mandatory arbitration had clearly increased in the decade following the initial 1991 Court decision: by the early 2000s, the share of workers subject to mandatory arbitration had risen from just over 2 percent (in 1992) to almost a quarter of the workforce. However, more recent data were not available. In order to obtain current data for this study, I conducted a nationally representative survey of nonunion private-sector employers regarding their use of mandatory employment arbitration.

This study finds that since the early 2000s, the share of workers subject to mandatory arbitration has more than doubled and now exceeds 55 percent. This trend has weakened the position of workers whose rights are violated, barring access to the courts for all types of legal claims, including those based on Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Fair Labor Standards Act.

The Supreme Court is currently considering a case challenging the inclusion of class action waivers in arbitration agreements. Class action waivers bar employees from participating in class action lawsuits to address widespread violations of workers’ rights in a workplace. The Court will rule on whether class action waivers are a violation of the National Labor Relations Act; their decision could have wide-reaching implications for workers’ rights going forward.

Related:
Press release

Organizing On-Demand: Representation, Voice, and Collective Bargaining in the Gig Economy

Source: Hannah Johnston, Chris Land-Kazlauskas, International Labour Organization, Conditions of Work and Employment Series No. 94, 2018

…. We begin with an overview of gig and platform work and the structural and institutional challenges that gig- and platform-based workers in building collective, group agency. This is followed by a review gigworker organizing strategies based on the institutions or organizations that workers have formed or joined for the purpose of building agency. We stress the importance of workers’ organizations – broadly defined – as a site to agglomerate the economic, political, and cultural resources necessary to provoke change. The tenure of organizations allows workers to experiment with various tools and strategies to improve conditions and adopt those that are effective. The four organizational structures we explore (union renewal strategies and new organizing initiatives, worker forums, worker centres, and cooperatives) represent a comprehensive list of organizations that are actively organizing and supporting gig economy workers. Given the rapid turnover of the on-demand workforce, we view the tenacity and adaptive strategies of workers’ organizations as vital to developing a sustainable and dynamic labour movement. Each initiative examined has its own section delineated by a heading and a summary of the principle strategies used. We then turn to efforts by employers’ organizations to support their members in adapting to, and influencing these new realities.

The paper ends with a discussion of barriers that self-employed platform workers face to effectively achieve collective bargaining and efforts to achieve effective representation and collective bargaining for workers in the gig economy. In this section we discuss important steps that could be taken to ensure the right to freedom of association and the effective recognition of the right to collective bargaining among independent contractors, who often find their these rights curtailed by anti-trust legislation. This section also highlights a number of recent efforts at collective regulation undertaken by workers and platforms in the gig economy…..

How noncompete clauses clash with US labor laws

Source: Raymond Hogler, The Conversation, August 23, 2017

Most Americans with jobs work “at-will”: Employers owe their employees nothing in the relationship and vice versa. Either party may terminate the arrangement at any time for a good or bad reason or none at all.

In keeping with that no-strings-attached spirit, employees may move on as they see fit – unless they happen to be among the nearly one in five workers bound by a contract that explicitly forbids getting hired by a competitor. These “noncompete clauses” may make sense for CEOs and other top executives who possess trade secrets but seem nonsensical when they are applied to low-wage workers such as draftsmen in the construction industry.

As a scholar of employment law and policy, I have many concerns about noncompete clauses – such as how they tend to make the relationship between workers and bosses too lopsided, suppress wages and discourage labor market mobility. In addition to tracing their legal and legislative history, I have come up with a way to limit this impediment to worker mobility.

Can You Fire Someone for Attending a Rally of Racists?

Source: Jon Steingart, Daily Labor Report, August 14, 2017

A campaign to publicly identify participants in white supremacist rallies has been met with calls for employers to fire the protesters. That’s the dilemma Top Dogs in Berkeley, Calif., faced after Twitter user @YesYoureRacist shared a photo it said showed one of the hot dog restaurant’s employees at a demonstration in Charlottesville, Va., last weekend. Participants carried torches and reportedly chanted “white lives matter” and “Jews will not replace us.” The next day, participants showed up carrying Nazi swastikas, Confederate battle flags, and insignia of white supremacist groups…..

The gig economy is nothing new – it was standard practice in the 18th century

Source: Tawny Paul, The Conversation, July 18, 2017

….. While it might seem that long-established ways of working are being disrupted, history shows us that the one person, one career model is a relatively recent phenomenon. Prior to industrialisation in the 19th century, most people worked multiple jobs to piece together a living. Looking to the past uncovers some of the challenges, benefits and consequences of a gig economy. ….