Category Archives: Employment Practices

Reducing Risks Associated With Temporary Staffing Agencies

Source: Zoe J. Bekas, Employee Benefit Plan Review, Vol. 73, No. 1, January 2019
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Staffing agencies may provide the solution to a company’s short-term staffing needs. However, clients should not assume they can avoid liability for workplace issues by using a staffing agency; indeed, in some cases, a client is exposed to liability as a result of using a staffing agency. Engaging a staffing agency provides no protection against employment liability and, in some circumstances, the temporary worker may seek to hold the client liable as if it had hired the temporary worker directly, under a “joint employer” theory.

Understanding Trends in Alternative Work Arrangements in the United States

Source: Lawrence F. Katz, Alan B. Krueger, National Bureau of Economic Research, NBER Working Paper No. 25425, January 2019
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From the abstract:
This paper describes and tries to reconcile trends in alternative work arrangements in the United States using data from the Contingent Worker Survey supplements to the Current Population Survey (CPS) for 1995 to 2017, the 2015 RAND-Princeton Contingent Work Survey (CWS), and administrative tax data from the Internal Revenue Service for 2000 to 2016. We conclude that there likely has been a modest upward trend in the share of the U.S. workforce in alternative work arrangements during the 2000s based on the cyclically-adjusted comparisons of the CPS CWS’s, measures using self-respondents in the CPS CWS, and measures of self-employment and 1099 workers from administrative tax data. We also present evidence from Amazon Mechanical Turk that suggests that the basic monthly CPS question on multiple job holding misses many instances of multiple job holding.

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The economists who predicted a surge in gig jobs say they were wrong
Source: Steve LeVine, Axios, January 7, 2019

L&E Evolution Part II: Discrimination

Source: Lorene D. Park, Labor Law Journal, Vol. 69 no. 4, Winter 2018
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This is part two of a multi-part series on the evolution of labor and employment law in the United States.

When President Lyndon B. Johnson urged Congress, in the wake of President John F. Kennedy’s assassination, to pass the Civil Rights Act of 1964 (Title VII), he spoke of the need to eliminate “every trace of discrimination and oppression that is based upon race or color.” Here we are, more than 50 years later, and antidiscrimination laws are still a work in progress, moving in directions that earlier generations of lawmakers would likely find surprising: for example, cases involving religious accommodation of atheists, debates over whether adverse actions due to spousal jealousy are “because of ” sex, and discrimination based on perceived disabilities, to mention a few.

New laws have been enacted, including GINA and the OWBPA, and existing laws have expanded, including the ADA and its definition of disability. Court precedent has also evolved in significant ways. For example, some courts now hold that discrimination based on sexual orientation is discrimination “because of … sex” under Title VII, while other courts hold otherwise. Our political climate too has fostered rapid changes in how agencies enforce labor and employment laws, and employers are having a hard time keeping up.

All of this has been influenced, of course, by wave after wave of social movements large and small, usually with a catchphrase and now often prefaced with a hashtag (e.g., #Black Lives Matter, #MeToo). Given the ever-changing legal landscape of antidiscrimination laws, the purpose of this article is to assess what the state of the law is and to consider the directions we are going…..

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L&E Evolution: Redefining Employment Relationships
Source: Lorene D. Park, Labor Law Journal, Vol. 69 No. 1, Spring 2018
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Rapidly advancing technology, cultural changes, and a sharply divided political landscape have so changed the workplace that lawmakers are struggling to catch up and tailor labor and employment laws to reflect these changes, to establish cross-jurisdictional consistency, and to enable employers and practitioners to make decisions based on solid ground. Nowhere is this more obvious than in battles over the most basic of definitions: “employer” and “employee.” This is no simple matter of black letter law, at least not anymore. For example, the proliferation of smart phones and other technology has led to online platforms for gig workers, and a simple “click” of the mouse can create a contract on which companies may rely to require arbitration or to disclaim a traditional employment relationship…..

Unions for Workers in the Gig Economy: Time for a New Labor Movement

Source: William J. Tronsor, Labor Law Journal, Vol. 69 no. 4, Winter 2018
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From the abstract:
The gig economy has fundamentally changed the employer-employee relationship throughout America. In the past, employers relied on an industrial model for production, depending on long-term employees to ensure quality and productivity. The traditional employer-employee relationship was the norm and America’s labor laws were built around that relationship. Today, in order to hinder collective action and skirt America’s labor laws, employers are classifying their workforce as independent contractors. Whether these companies are accurately classifying their workforce as independent contractors requires an extremely fact-based legal assessment, but the ambiguity in the law has made it advantageous for employers to deliberately misclassify their workers. This has resulted in the rise of the gig economy, led by companies like Uber, TaskRabbit, and Grubhub. The gig economy has created a new class of workers, i.e., gig workers. A class of workers whose numbers are growing every year and workers who find themselves unable to avail themselves of the protections of America’s labor laws. The American workforce has evolved, and America’s labor laws need to evolve to respond to these changed circumstances. This article examines the history of organized labor, the importance of organized labor, and the circumstances that brought about the gig economy in America. The article also proposes new organizing strategies, changes that should be made to the law to ensure that all workers are able to collectively organize and avail themselves of the protections of America’s labor laws, so that the organized labor movement can be brought into the 21st century.

Independent Workers: Growth Trends, Categories, and Employee Relations Implications in the Emerging Gig Economy

Source: Teresa Shuk-Ching Poon, Employee Responsibilities and Rights Journal, Online First, June 2018
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From the abstract:
The major objectives of this paper are threefold. First, the paper captures and explains the recent growth trends of independent workers, working as freelancers for corporations, and offering on-demand services for various types of clients mediated by App-enabled platform companies. Second, the paper discusses different terminologies used to describe independent workers and highlights the emergence of a new category of independent on-demand workers, the employment status of whom is a subject of current empirical and academic debate. Finally, the paper discusses the emergence of an increasing number of collective actions recently taken by on-demand workers against platform companies over worsened level of wages, undesirable terms and conditions of work, and inadequate workers’ protection, and examines their implications for the discipline of employee relations.

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.

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