Category Archives: Labor Laws/Legislation

Corporations Have Paid Out at Least $2.7 Billion in Civil-Rights and Labor Lawsuits Since 2000

Source: Michelle Chen, The Nation, February 1, 2019

Money talks in the business world, but it also buys silence in the courtroom. In recent years—despite the rise of movements like #MeToo and Occupy Wall Street demanding more accountability from the corporate world—complex, opaque legal settlements have hushed, sealed, and silenced victims of workplace misconduct and abuse. While the details of the civil-rights and labor lawsuits have been kept from public purview, a deep dive into the Fortune 500’s legal disclosures reveals a disturbing picture of corporate America.

An analysis of hundreds of corporate legal settlements in civil-rights cases since 2000 shows that a total of $2.7 billion was paid out by many of the largest US corporations (primarily those listed on the Forbes and Fortune rankings). The report, by Good Jobs First (GJF), puts Wall Street and retail companies on top of the rankings, with $530 million in payouts each, including household names like Bank of America and Walmart. The runners-up were the food-and-beverage sector ($252 million), pharmaceuticals ($209 million), and shipping and logistics ($187 million). In addition to 235 civil lawsuits, the Equal Employment Opportunity Commission litigated 329 cases, netting some $588 million….

Related:
Big Business Bias: Employment Discrimination and Sexual Harassment at Large Corporations
Source: Philip Mattera, Good Jobs First – Corporate Research Project, January 2019

From the press release:

A new report on employment discrimination and sexual harassment cases finds that major banks rank high among those big companies that have paid the most in damages and settlements. Bank of America (including its subsidiary Merrill Lynch) has paid a total of $210 million since 2000, more than any other big company. Morgan Stanley ranks fourth at $150 million and Wells Fargo ranks ninth at $68 million. The financial services industry overall has paid a total of $530 million in penalties. The retail sector has paid the same amount, so the two industries have the dubious distinction of being tied for first place….

An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act

Source: Kate Andrias, Yale Law Journal, Vol. 128 no. 3, January 2019

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, the system successfully raised wages for hundreds of thousands of Americans, while helping facilitate unionization and a more egalitarian form of administration. And it succeeded within the basic framework of contemporary constitutional doctrine and statutory law.

By telling the story of FLSA’s industry committees, this Article shows that collective labor law and individual employment law were not, and need not be, understood as discrete regimes—one a labor-driven vision of collective rights and the other built around individual rights subject to litigation and waiver. It also demonstrates that, for longer than is typically recognized, the nation experimented with a form of administration that linked the substantive ends of empowering particular social and economic groups to procedural means that solicited and enabled those same groups’ participation in governance (to the exclusion of other groups). Ultimately, recovering this history provides inspiration for imagining alternatives to the current approach to worker participation in the American political economy and to administrative governance more broadly.

Are federal workers being forced into involuntary servitude?

Source: Michael H. LeRoy, The Conversation, January 25, 2019

Many federal employees are being ordered by the federal government to work without pay until a spending bill is enacted.

Some workers object, arguing that they are being pressured to show up for work with no clear prospect of a payday. Some individuals have sued claiming that this violates the 13th Amendment, which abolished involuntary servitude.

Will they win?

For now, the answer is likely no. In my law review article, “Compulsory Labor in a National Emergency,” I found that legal protections against forced labor often fail to help workers…..

ALEC’s New Union-Busting Toolkit Illustrates the Goal Is to Bankrupt Unions Not Protect Workers

Source: Mary Bottari, PR Watch, January 22, 2019

It’s becoming an annual ritual. The Koch-funded cluster of groups, which has long abused their 501(c)3 IRS “charitable” designation by working to destroy political enemies, has concocted another “union busting” toolkit, giving ammunition and guidance to Republican politicians on how to attack and dismantle a major funder of the Democratic Party.

The toolkit appears to have been prepared by American Legislative Exchange Council (ALEC) staff shortly after the Supreme Court’s June 2018 Janus vs. AFSCME decision, which held that unions could no longer require individuals in a bargaining unit who did not want to be members of a union to pay agency or “fair share” fees. Fair share fees compensate union staff who are required by law to represent all workers in a bargaining unit in their quest for better wages and working conditions.

ALEC is a collection of state politicians and corporate lobbyists from many of the largest corporations in the country. The Janus case was spearheaded by ALEC’s sister group, the $80 million State Policy Network (SPN), made up of 66 right-wing think tanks and other Koch-funded institutions. ….

…. The toolkit touts ALEC’s 18 anti-union bills, including the misnamed “right to work” bill, and highlights a new post-Janus bill, the “Public Employee Rights and Authorization Act,” which states: “Any authorization of payments to a labor organization provided before June 27, 2018 [the day of the Janus ruling], is insufficient to constitute affirmative consent or a waiver of an employee’s rights under Janus v. AFSCME.” ….

Working Children: Federal Injury Data and Compliance Strategies Could Be Strengthened

Source: United States Government Accountability Office, GAO-19-26: Published: November 2, 2018, Publicly Released: December 3, 2018

From the summary:
Many children aged 17 and under work to develop independence or meet financial needs. However, working can sometimes interfere with education, or in some industries, be physically dangerous.

We found that the majority of work-related fatalities occur among children working in agriculture—but data on children’s work-related injuries in general is incomplete.

The Department of Labor is conducting a study to enhance its work-related injury data, but the study doesn’t include children. We recommended including them to improve the data—which could also improve enforcement of child labor standards….

What labor market changes have generated inequality and wage suppression?

Source: Josh Bivens and Heidi Shierholz, Economic Policy Institute, December 12, 2018

Employer power is significant but largely constant, whereas workers’ power has been eroded by policy actions.

What this report finds: Labor markets in capitalist economies are fundamentally tilted against individual workers’ ability to bargain effectively with employers. Policy does not have to be rigged for employers to give them particular clout in labor markets; instead, the very nature of these labor markets gives them clout. In the past, when economic growth was broadly shared across the population, it was because policymakers understood this basic asymmetry and used policy levers to bolster the leverage and bargaining power of workers. Conversely, recent decades’ rise of inequality and anemic wage growth has resulted from a stripping away of these policy bulwarks to workers’ labor market power.

Why it matters: Recent research on “monopsony power”—the leverage enjoyed by employers to set their workers’ pay—is a valuable contribution to our understanding of the asymmetry inherent in labor markets. However, “monopsony power” is often a confusing term to even the most savvy economic writers and researchers, and too often it is used only to describe markets that are concentrated (i.e., where there are relatively few employers). Market concentration can indeed suppress workers’ wages, but employer power exists even in markets with lots of employers. If only the narrow conception of “monopsony power” is recognized and policymakers focus only on interventions that target the effect of market concentration (antitrust, for example), then other measures that could more effectively restore the balance of power in labor markets might not get the consideration they should.

What can be done about it: There is no one panacea for restoring workers’ leverage and bargaining power in labor markets. Policymakers must be committed to working on every available margin, including restoring genuine full employment as a macroeconomic policy priority; reforming labor law so that workers who want to form a union to collectively bargain to improve their wages and working conditions are able to do so; raising the minimum wage; and strengthening enforcement of labor standards and workplace civil rights laws.

L&E Evolution Part II: Discrimination

Source: Lorene D. Park, Labor Law Journal, Vol. 69 no. 4, Winter 2018
(subscription required)

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…..

Related:
L&E Evolution: Redefining Employment Relationships
Source: Lorene D. Park, Labor Law Journal, Vol. 69 No. 1, Spring 2018
(subscription required)

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
(subscription required)

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.

After Janus

Source: Martin H. Malin, Catherine Fisk, California Law Review, Forthcoming, Date Written: September 6, 2018

From the abstract:
The Supreme Court in Janus v. American Federation of State, County, and Municipal Employees Council 31 upended public sector labor law by finding a novel First Amendment right of public employees to refuse to pay union fees and declaring unconstitutional scores of laws and thousands of labor contracts. This Article assesses the constraints on public sector labor law post-Janus, examines the variety of legislative responses, and proposes a path forward.

Janus makes it difficult to address the collective action problem facing all large groups. Although it is in the interest of every member of a group to engage in collective action to provide common goods, it is also in the each individual’s interest to let others incur the costs of doing so. The Janus Court misstated the nature of the collective action problem when it said the problem was free-riding on union-negotiated benefits. The problem is that, without some way to require all who benefit to share the costs, unions will not negotiate effectively for the benefits in the first place, so there will be no common goods to free ride on.

This Article explains public sector unions’ apparently surprising reluctance to respond to the collective action problem exacerbated by Janus in the way that some scholars and a number of legislatures have proposed. Most proposals and enacted legislation continue union financial solvency in the short-term but sacrifice the fundamental nature of unions as membership organizations governed by and for workers. Some adopt some form of members-only representation, thus abandoning the principles of majority and exclusive representation.