Category Archives: Labor Laws/Legislation

State Collective Bargaining Laws and Public-Sector Pay

Source: Eric J. Brunner, Andrew Ju, ILR Review, Vol. 72 no. 2, March 2019
(subscription required)

From the abstract:
Using the Public Use Microdata Sample from the 2005 to 2015 American Community Survey, the authors provide new evidence on how state collective bargaining laws affect public-sector wages. To isolate the causal effect of bargaining laws on public-sector pay, they examine wage differentials between otherwise similar public- and private-sector employees located in the same local labor market. They estimate difference-in-differences (DD) models that exploit two sources of plausibly exogenous variation: 1) policy discontinuities along state borders and 2) variation within states in collective bargaining laws in states where the majority of public workers are without collective bargaining rights. Findings show that mandatory collective bargaining laws increase public-sector wages by approximately 5 to 8 percentage points. Results therefore suggest that mandatory collective bargaining laws provide a formal mechanism through which public-sector workers are able to bargain for increased compensation.

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.

Is Mandatory Vacation Leave On The Horizon?

Source: Maureen Minehan, Employment Alert, Volume 36 Issue 6, March 18, 2019
(subscription required)

Could you be forced to provide employees with 10 days of paid leave every year? That’s exactly what New York City Mayor Bill de Blasio is calling for. In January, he announced his intention to introduce legislation requiring private employers with five or more employees to provide at least 10 paid personal days each year to full- and part-time workers. If the measure passes, more than 500,000 employees would gain the ability to take paid vacation, de Blasio says.

#MeToo – A Brief Review

Source: Amy J. Traub and Amanda Van Hoose Garofalo, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
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It is clear that the #MeToo movement has spurred many actions from all sides, but we likely will not know its full impact for years to come. The authors of this article review the inception of the #MeToo movement and how things have changed since the movement began.

It has been more than a year since the allegations against Harvey Weinstein broke in The New York Times, which unleashed one of the largest social media-driven movements seen to date: #MeToo. #MeToo did not confine itself to social media; instead, the individuals driving this movement screamed from their social media platforms until real change occurred – not just small changes made to appease some current fad, but truly dramatic changes that have shifted the way employers and the law handle sexual harassment claims….

Related:

California Employers Face Raft of New #MeToo Laws
Source: Benjamin M. Ebbink, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
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The author of this article provides a complete summary of all of the relevant labor and employment legislation recently signed—and vetoed—in California….

What Employers Need to Know About Delaware’s New Anti-Sexual Harassment Law
Source: Zachary R. Davis and Jennifer A. Ermilio, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
(subscription required)

A new law expands the Delaware Discrimination in Employment Act to add a section on sexual harassment. In addition, a recent federal court case makes compliance even more important for Delaware employers (as well as those in New Jersey and Pennsylvania). This article provides a brief summary of Delaware’s new anti-harassment law and the case, along with compliance tips for employers…..

Many Changes Lie Ahead for Companies in the #MeToo Era
Source: Charrise L. Alexander, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
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For a very long time, companies dealt with sexual assault and harassment allegations quietly and in backrooms. However, thanks to the turning tide, more companies are reexamining their internal policies, encouraging change in corporate culture, and addressing sexual assault, harassment, and discrimination claims more directly. The author of this article discusses the changes and recommends that a good insurance program be a part of those changes.

The Workers’ Constitution

Source: Luke Norris, Fordham Law Review, Vol. 89, 2019

From the abstract:
This Article argues that the National Labor Relations Act of 1935, Social Security Act of 1935, and Fair Labor Standards Act of 1938 should be understood as a “workers’ constitution.” The Article tells the history of how a connected wave of social movements responded to the insecurity that wage earners faced after the Industrial Revolution and Great Depression by working with government officials to bring about federal collective bargaining rights, wage and hour legislation, and social security legislation. It argues that the statutes are tied together as a set of “small c” constitutional commitments in both their histories and theory. Each statute sought to redefine economic freedom for workers around security and sought to position worker security as essential to the constitutional accommodation of corporate capitalism. The Article also explores the interpretive implications of conceiving of a “workers’ constitution” in the current context.

Future Work

Source: Jeffrey M. Hirsch – University of North Carolina School of Law, February 14, 2019

From the abstract:
The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work.

Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.

Hybrid Federalism and the Right to Disconnect

Source: Paul M. Secunda, Pepperdine Law Review, Vol. 46, No. 2, 2019

From the abstract:
The Occupational Safety and Health Administration (OSHA) administers the Occupational Safety and Health Act (OSH Act). OSHA specific workplace and health standards do expressly preempt the entire field of workplace safety and health law, but where such standards do not exist or states developed their own OSHA plans, nor does it merely set a floor either. A type of “hybrid federalism” has been established. Here, by “modified” or “hybrid” federalism, this article refers to a strong federal-based field preemption approach to labor and employment law issues, but tied to a conflict preemption approach. Applying this hybrid preemption approach to the employee right to disconnect problem provides the best opportunity to address the growing epidemic of overwork through electronic communications in the United States.

This hybrid approach has two essential characteristics under OSHA. First, as a default standard, a federal general duty clause that requires all covered employers to maintain a workplace free of hazards that may cause serious injury or death and cannot be feasibly abated. Second, OSHA also has promulgated specific workplace safety and health standard over the last five decades that set more detailed and specific requirements for numerous health or safety dangers in the workplace. The specific standards occupy the field and all contrary state or local safety and health regulations are preempted. Yet, employers can still seek a permanent variance from any OSHA standard if they can establish that they have another method to achieve the same goal as the permanent standard. Second, the OSHAct also permits states to develop their own plans and submit them for approval to OSHA. Twenty-seven states have taken advantage of this option to one degree or another and have plans approved by OSHA. While these state-approved plans must be “at least as effective” as the federal OSHAct, some states, like California and Virginia, have been more aggressive in regulation and have regulated areas that the federal OSHAct has not. This Article maintains that a combination of general duty clause federal enforcement and individual state enforcement is the most effective way of providing a broad-based right to disconnect standard until a federal permanent standard can be promulgated.