Category Archives: Labor Laws/Legislation

Five Lessons from the History of Public Sector Unions

Source: Priscilla Murolo, Labor Notes, June 11, 2018

As public sector unions contemplate losing key rights under the law, it’s worth remembering that for much of their history, such unions organized with no rights at all.

It wasn’t till 1958 that New York became the first city to authorize collective bargaining for city employees. Wisconsin did the same for state employees in 1959, and federal workers got bargaining rights in 1962.

Yet as early as 1940, a book titled One Thousand Strikes of Government Employees described strikes dating back to the 1830s, when workers at U.S. Navy shipyards stopped work multiple times to press demands for better wages and conditions. ….

Supreme Court decision in Janus threatens the quality of public-sector jobs and public services: Key data on the roles these workers fill and the pay gaps they face

Source: Celine McNicholas and Heidi Shierholz, Economic Policy Institute, June 13, 2018

In the last decade, an increasingly energized campaign against workers’ rights has been waged across all levels of government—federal, state, and local. Much of the focus of this anti-worker campaign has been on public-sector workers, specifically state and local government workers. For example, several states have passed legislation restricting workers’ right to unionize and collectively bargain for better wages and benefits. Beyond these legislative attacks, public-sector workers have been targeted by repeated legal challenges to their unions’ ability to effectively represent them. The Supreme Court will soon issue a decision in the most recent of these challenges, Janus v. AFSCME Council 31. As a previous EPI report explained, the corporate interests backing the plaintiffs in Janus are seeking to weaken the bargaining power of unions by restricting the ability of public-sector unions to collect “fair share” (or “agency”) fees for the representation they provide. In this new report, we argue that the decision in Janus will have significant impacts on public-sector workers’ wages and job quality as well as on the critical public services these workers provide.

Related:
Press release

OSHA Enforcement Activity Declines Under the Trump Administration

Source: National Employment Law Project (NELP), Data Brief, June 2018

From the press release:
Crucial lifesaving worksite enforcement activity by the Occupational Safety and Health Administration is declining under the Trump administration, according to a new data brief released today by the National Employment Law Project.

Even though U.S. Labor Secretary Alex Acosta stated at a recent hearing that “laws matter . . . and they need to be enforced,” the Occupational Safety and Health Administration is cutting back on enforcement activity, with key enforcement indicators showing declining activity from FY 2016 to FY 2017.

Moreover, the latest available data reveals that this decline in enforcement activity continued at an accelerated pace in the first five months of FY 2018. Enforcement activity, as measured by OSHA in enforcement units, is down by 1,163 units in just the first five months of this fiscal year, compared to the same time period in FY 2017…..

After Janus: A new era of teachers union activism

Source: Bradley D. Marianno and Katharine Strunk, Education Next, Vol. 18 no. 4, Fall 2018

…. Speculation about what a Janus ruling in favor of the plaintiffs will mean for teachers unions has been rampant. Many, if not most, of the analysts who follow education policy and organized labor believe that the ruling will result in decreased power for teachers unions. The logic behind this assumption is simple: teachers unions will lose dues revenue because membership will decrease and former agency-fee payers will cease paying fees for union services. With fewer resources, teachers unions will have less ability to exert their influence in local, state, and federal elections and at the bargaining table. Fewer members, less money, less power. Right?

Not necessarily. Agency fees have been challenged at the state level over the past decade, and two states recently stopped allowing unions to collect them: Wisconsin and Michigan. The passage of those Right-to-Work laws may have caught state affiliates by surprise, unlike the widely anticipated Janus ruling. Even so, a close look at Wisconsin and Michigan may provide important clues about the future of teachers unions in a post-Janus world. ….

Could Originalism Save Public Sector Unions?

Source: Maddy Joseph, On Labor blog, June 7, 2018

Justice Gorsuch’s silence during the Janus oral argument generated considerable buzz. Wishful (yet tentative) commentators hoped the silence was a sign that the new Justice’s originalism would lead him to uphold Abood. To be sure, Justice Thomas, the Court’s other steadfast originalist, voted with the majority in Harris. And commentators have largely assumed that both Justices will vote with Janus here. But winning over either Justice Gorsuch or Justice Thomas could be Abood’s best hope for survival. ….

Grand Theft Paycheck: The Large Corporations Shortchanging Their Workers’ Wages

Source: Philip Mattera, Good Jobs First and Jobs With Justice Education Fund, June 2018

From the press release:
A new report finds that many large corporations operating in the United States have boosted their profits by forcing employees to work off the clock, cheating them out of required overtime pay and engaging in similar practices that together are known as wage theft.

The detailed analysis of federal and state court records shows that these corporations have paid out billions of dollars to resolve wage theft lawsuits brought by workers. Walmart, which has long been associated with such practices, has paid the most, but the list of the most-penalized employers also includes Bank of America, Wells Fargo and other large banks and insurance companies as well as major technology and healthcare corporations. Many of the large corporations are repeat offenders, and 450 firms have each paid out $1 million or more in settlements and/or judgments….

Related:
Spreadsheet version of Appendix A: Parent companies with $1 million or more in wage theft penalties
Spreadsheet version of Appendix B: 100 largest wage theft lawsuit settlements or verdicts
Spreadsheet version of Appendix C: Wage theft lawsuits with confidential settlements
Spreadsheet list of all lawsuits and enforcement actions analyzed in the report

The NFL’s “take a knee” ban is flatly illegal

Source: Benjamin Sachs, Vox, May 25, 2018

NFL team owners this week decided that players will no longer be allowed to take a knee during the playing of the national anthem. And if they do, they will be subject to punishment and their team will be subject to fines.

The owners did provide the players with an alternative, of sorts: If a player does not wish to stand and salute the flag, he can stay in the locker room and wait for the anthem to end. This new league policy is meant to enforce a particular vision of patriotism, one that involves compliance rather than freedom of expression. The policy is also illegal — for a host of reasons.

The clearest illegality derives from the fact that the league adopted its new policy without bargaining with the players union. When employees, including football players, are represented by a union, the employer — including a football league — can’t change the terms of employment without discussing the change with the union. Doing so is a flagrant violation of the employer’s duty to bargain in good faith.

If, as the NFL Players Association says, the employer implemented this change on its own, the policy is flatly illegal for that reason and should be rescinded by the league…..

Free Speech Rights: Public Employees v. Football Players

Source: Sharon Block, Maddy Joseph, On Labor blog, May 30, 2018

“[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (citation omitted).

Nearly every brief filed in Janus v. AFSCME advocating for the Supreme Court to invalidate as unconstitutional union fair share dues, including the Petitioner and Trump Administration’s briefs, centers this quotation and sentiment. These briefs argue that the essence of democracy hangs on the right and ability of citizens to freely express their own individual political beliefs in the marketplace of ideas. Their deepest concern is that required fair share dues compel public sector workers to subsidize political speech. The government’s brief deems this a “severe burden” on workers’ constitutional rights.

While we don’t share the view that the effect of fair share dues is to compel speech, we don’t disagree that free speech is essential to democracy and that employer coercion of worker speech is detrimental to democracy. (Indeed, a new book by Alexander Hertl-Fernandez of Columbia University argues that this is a growing problem in the American workplace.) That’s one reason why we’re troubled by the NFL’s new policy punishing taking a knee during the national anthem. As Ben recently argued in Vox, the NFL policy raises serious free speech concerns and should violate the First Amendment. President Trump and Vice President Pence actively encouraged adoption of the ban on anthem protests; NFL owners have even stated that the ban was “initiated” by the President’s interventions. The ban is exactly the kind of coercion and subsidization of political speech that Janus supporters should be howling about. Yet, as several OnLabor readers have pointed out (here and here), Janus supporters have been curiously silent about the free speech rights of NFL players. This silence raises the question of how strongly and under what circumstances Janus supporters believe their own argument…..

Steward’s Corner: Legal Rights in a Contract Campaign

Source: Robert M. Schwartz, Labor Notes, May 16, 2018

In today’s dysfunctional economic climate, straightforward bargaining frequently comes up empty.

Employers come to the table with lengthy lists of takeaways and refuse to compromise. Claiming impasse at the earliest opportunity, they threaten to carry out their final offer or impose a lockout. To cope with these realities many unions are turning to militant contract campaigns. Creative and aggressive tactics can demonstrate members’ solidarity, resolve, and willingness to act…..