Category Archives: Labor Laws/Legislation

Labor’s Bill of Rights

Source: Shaun Richman, The Century Foundation, July 18, 2017

….What You Should Know
• Less than 10 percent of Americans currently hold union membership (compared to over one-third of the workforce in the 1950s).
• Lack of worker representation has resulted in today’s stunning income inequality, wage stagnation, continued wage discrimination against women, tens of millions of Americans working for sub-poverty-level wages, and widespread gaps in basic health, retirement, and family leave benefits.
• Pro-union labor law reform has been largely unachievable since the 1935 passage of the National Labor Relations Act (NLRA)—which Congress has instead twice amended to severely restrict workers’ rights, such as their ability to engage in solidarity activism.
• Currently, labor rights are technically rooted in Congress’ authority to regulate interstate commerce. In reality, labor law regulates fundamental constitutional rights. By considering impact on commerce before fundamental civil rights, labor law frequently violates workers’ constitutional rights.

Simply put, unions are hampered by rules that would never be applied to corporations, or to any other form of political activism…..

….This report will outline the below ten rights which, together, constitute Labor’s Bill of Rights:
• The Right to Free Speech
• The Right to Self Defense and Mutual Aid
• The Right to Strike
• The Right to Organize Free from Unreasonable Search and Seizure
• The Freedom From Taking Away Union Fees
• The Right to Not Be Locked Out for Exercising Labor Rights
• The Right to a Job
• Freedom from Cruel and Unusual Regulation
• The Right to Make Demands and Bargain Freely
• Powers Not Exercised by Unions Are Reserved to Workers Who Act in Concert….

Improving Work Law Enforcement in States: California’s Private Attorneys General Act

Source: Charlotte Garden, OnLabor blog, July 19, 2017

To the extent there was ever doubt on this point, it is now clear that the Trump Administration will not prioritize robust enforcement of employment law mandates. One key example: the Department of Justice’s decision not to support the NLRB’s individual arbitration rule before the Supreme Court. (The NLRB will represent itself before the Supreme Court, and DOJ will likely participate as amicus in support of the employer.) This rule – which OnLabor has covered extensively – protects employees’ ability to aggregate claims, including claims that would be too small to pursue on an individual basis. But given the uncertain fate of the NLRB’s individual arbitration rule, is there anything that states can do to improve enforcement of workers’ rights? This post explores one state innovation: California’s Private Attorneys General Act (PAGA)….

Missouri Amends and Preempts its Employment Law

Source: Sachin Pandya, Workplace Prof Blog, July 12, 2017

A few weeks ago, Missouri’s governor signed SB43. That law amends the State’s employment law, including the Missouri Human Rights Act (MHRA), its anti-discrimination statute—mostly in employer-friendly ways. (For media reports on the legislative politics, see, e.g., here, here, and here.) Among the many changes, I’ll highlight (1) MHRA’s new causation requirement and (2) a remarkably broad preemption provision…..

Anti-Democratic Attacks on Unions Hurt Working Americans

Source: David Madland, Alex Rowell, and Gordon Lafer, Center for American Progress, June 22, 2017

From the summary:
It is highly likely that unions will soon be under attack at the federal level. The exact nature of the attack is still in question, but based on recent state actions—including the passage of new right-to-work laws and attacks on public sector workers’ bargaining rights—and bills that have been introduced in both this and recent sessions of Congress, it is clear the attacks will come.

This issue brief delves into these recent threats to unions, specifically exploring a category of attacks on worker power that would make it harder for workers to organize by undermining the union formation process. Previous and forthcoming reports from CAP Action highlight other likely attacks on unions, such as so-called right-to-work and paycheck protection legislation…..

The new American way—how changes in labour law are increasing inequality

Source: Mark Stelzner, Industrial Relations Journal, Early View, First published: 27 June 2017
(subscription required)

From the abstract:
How have changes in labour law affected income inequality in the United States over the last half century? Curiously, even though employers have increased the degree to which they break labour law, workers have decreased their utilisation of the National Labor Relations Board (NLRB) and the strike. How do we understand the unwillingness of labour to utilise the NLRB and the strike when under increasing attack? To answer these interrelated questions, I analyse three central changes in federal labour law and norms from the middle of the 20th century to present: the usage of permanent replacement workers, adjudication of the main federal labour law—the National Labor Relations Act—and change in administration of the NLRB—the body charged with overseeing the National Labor Relations Act.

Seattle’s Minimum Wage Experience 2015-16

Source: Michael Reich, Sylvia Allegretto, and Anna Godoey, University of California – Berkeley, Institute for Research on Labor and Employment, Center on Wage and Employment Dynamics (CWED), June 2017

From the abstract:
This brief on Seattle’s minimum wage experience represents the first in a series that CWED will be issuing on the effects of the current wave of minimum wage policies—those that range from $12 to $15. Upcoming CWED reports will present similar studies of Chicago, Oakland, San Francisco, San Jose and New York City, among others. The timing of these reports will depend in part upon when quality data become available. We focus here on Seattle because it was one of the early movers. …. Our results show that wages in food services did increase—indicating the policy achieved its goal—and our estimates of the wage increases are in line with the lion’s share of results in previous credible minimum wage studies. Wages increased much less among full-service restaurants, indicating that employers made use of the tip credit component of the law. Employment in food service, however, was not affected, even among the limited-service restaurants, many of them franchisees, for whom the policy was most binding. These findings extend our knowledge of minimum wage effects to policies as high as $13. …

Related:
Press Release

Minimum Wage Increases, Wages, and Low-Wage Employment: Evidence from Seattle
Source: Ekaterina Jardim, Mark C. Long, Robert Plotnick, Emma van Inwegen, Jacob Vigdor, Hilary WethingNBER Working Paper No. 23532, June 2017
(subscription required)

From the abstract:
This paper evaluates the wage, employment, and hours effects of the first and second phase-in of the Seattle Minimum Wage Ordinance, which raised the minimum wage from $9.47 to $11 per hour in 2015 and to $13 per hour in 2016. Using a variety of methods to analyze employment in all sectors paying below a specified real hourly rate, we conclude that the second wage increase to $13 reduced hours worked in low-wage jobs by around 9 percent, while hourly wages in such jobs increased by around 3 percent. Consequently, total payroll fell for such jobs, implying that the minimum wage ordinance lowered low-wage employees’ earnings by an average of $125 per month in 2016. Evidence attributes more modest effects to the first wage increase. We estimate an effect of zero when analyzing employment in the restaurant industry at all wage levels, comparable to many prior studies.

Five Flaws in a New Analysis of Seattle’s Minimum Wage
Source: Rachel West, Center for American Progress, June 28, 2017

A team of faculty and students at the University of Washington was tasked with assessing how Seattle’s 2014 minimum wage ordinance, which is gradually raising the city’s minimum wage to $15 per hour, is affecting low-wage workers. This week, the group released a working paper—without peer review—that looks at the ordinance’s first two phases, under which the minimum wage for most workers increased from $9.47 to $11 per hour in 2015 and then to $13 per hour in 2016.

Methodological flaws plague the group’s approach, causing them to draw conclusions wildly out of step with dozens of studies of similarly sized wage increases cited by both critics and proponents of higher minimum wages. The vast majority of rigorous, credible studies conclude that higher minimum wages have appreciably boosted workers’ earnings with little or no effects on employment. By contrast, the University of Washington researchers conclude that higher minimum wages not only reduced employment and hours worked in Seattle, but that the costs of the wage hike outweigh the benefits for the average low-wage worker—a finding at odds with the conclusions of even the most skeptical mainstream researchers. At the same time, the study’s results suggest—implausibly and largely inexplicably—that the wage hike to $13 per hour caused substantial growth in jobs paying more than $19 per hour in the restaurant industry. That’s just one of several questionable results that should give readers serious pause…..

Seat­tle and the (Method­ol­ogy of the) Eco­nom­ics of Min­i­mum Wage
Source: Ben­jamin Sachs, OnLabor blog, June 26, 2017

….Noam Scheiber also has a good story on the UW pa­per which lays out a cri­tique worth men­tion­ing here. In sum, the em­ploy­ment ef­fects iden­ti­fied by the UW study might be due, not to Seat­tle’s min­i­mum wage in­crease, but to a boom­ing job mar­ket in which high-wage jobs are re­plac­ing low-wage jobs. On this the­ory, the em­ploy­ment “losses” in the low-wage sec­tor that the UW study re­ports would ac­tu­ally just be peo­ple mov­ing from low- to high-wage em­ploy­ment. …

How a Rising Minimum Wage Affects Jobs in Seattle
Source: Norm Scheiber, New York Times, June 26, 2017

Seat­tle and the Eco­nom­ics of Min­i­mum Wage
Source: Ben­jamin Sachs, OnLabor blog, June 26, 2017

….There are, as al­ways, caveats. First, the Wash­ing­ton pa­per has yet to be sub­ject to peer re­view – it was re­leased on­line as an NBER work­ing pa­per. Sec­ond, an­other re­cent study – this one from Berke­ley – found that the Seat­tle or­di­nance “raises pay with­out cost­ing jobs.” As FiveThir­tyEight also re­ports, the Berke­ley study fo­cused ex­clu­sively on the fast food in­dus­try, and the Wash­ing­ton study it­self found no em­ploy­ment ef­fects of the min­i­mum wage hike on the restau­rant in­dus­try. One pos­si­bil­ity, then, is that the Wash­ing­ton study’s broader fo­cus is pick­ing up ef­fects that are missed by the (more tra­di­tional) fo­cus on the restau­rant in­dus­try. Many econ­o­mists, in­clud­ing Jared Bern­stein, how­ever, de­fend the method­olog­i­cal de­ci­sion to fo­cus a min­i­mum wage study on restau­rants. There are also, as al­ways, ad­di­tional method­olog­i­cal crit­i­cisms of the Wash­ing­ton study. (EPI has a press re­lease and pa­per that iden­ti­fies a num­ber of these con­cerns.)

Then there is an im­por­tant caveat in the other di­rec­tion: Seat­tle might be a city in the best po­si­tion to ab­sorb min­i­mum wage in­creases, which means – if the Wash­ing­ton study is right – that the em­ploy­ment ef­fects could be even stronger else­where. ….

The “high road” Seattle labor market and the effects of the minimum wage increase – Data limitations and methodological problems bias new analysis of Seattle’s minimum wage increase
Source: Ben Zipperer and John Schmitt, Economic Policy Institute, June 26, 2017

From the summary:
A team of researchers at the University of Washington has released an analysis of the economic impacts of the 2015 and 2016 increases in the Seattle minimum wage. The study, Jardim et al. (2017), looks at the first two stages of a phased-in set of increases that will eventually take the minimum wage in the city to $15.00 per hour. The authors of the study argue that they find large job losses associated with these first two rounds of increases, in which the minimum wage for most workers rose from $9.47 per hour to $11.00 per hour in April 2015 and then to $13.00 per hour in January 2016.

The authors’ analysis, however, suffers from a number of data and methodological problems that bias the study in the direction of finding job loss, even where there may have been no job loss at all. One initial indicator of these problems is that the estimated employment losses in the Seattle study lie far outside even those generally suggested by mainstream critics of the minimum wage (see, for example, Neumark and Wascher [2008])—as the authors themselves acknowledge.

In this report, we describe the most important shortcomings in the new analysis and make suggestions for how the researchers can attempt to correct for these problems in future iterations of their long-term study of the Seattle minimum wage.
See also: press release

The Strong Do as They Can: How Employment Group-Action Waivers Alienate Employees

Source: Matthew B. Seipe, Labor & Employment Law Forum, Volume 7 Issue 1, Article 4, May 2017

If an employer steals a group of employees’ wages, those employees are free to file a group-action lawsuit at the local courthouse to recover those wages. However, by contractual agreement, some employers require their employees to individually arbitrate their employment claims. These agreements, what this article refers to as compulsory group-action waivers, support the view that “the strong do as they can, while the weak suffer what they must.” Here, the “strong” employer requires the employee to sign away her right to join co-workers and publicly sue the employer. The waiver makes the employee “weak” through alienation –a concept refined and examined by sociologists, psychologists, theologians, and philosophers –by decreasing the employee’s power, meaning, community, and self-actualization in the workplace and society.

ITUC Global Rights Index 2017

Source: International Trade Union Confederation (ITUC), June 2017

The number of countries experiencing physical violence and threats against workers has risen by 10 percent in just one year, according to the annual ITUC Global Rights Index. Attacks on union members have been documented in fifty-nine countries, fuelling growing anxiety about jobs and wages. ….

….The ITUC Global Rights Index 2017 ranks 139 countries against 97 internationally recognised indicators to assess where workers’ rights are best protected in law and in practice.

The report’s key findings include:
– Eighty-four countries exclude groups of workers from labour law.
– Over three quarters of countries deny some or all workers their right to strike.
– Over three quarters of countries deny some or all workers collective bargaining.
– Out of 139 countries surveyed, 50 deny or constrain free speech and freedom of assembly.
– The number of countries in which workers are exposed to physical violence and threats increased by 10 per cent (from 52 to 59 countries) and include Colombia, Egypt, Guatemala, Indonesia and Ukraine.
– Unionists were murdered in 11 countries, including Bangladesh, Brazil, Colombia, Guatemala, Honduras, Italy, Mauritania, Mexico, Peru, the Philippines and Venezuela…..

….UNITED STATES
No tripartite consultative body to address labour law and policy
The U.S. government does not maintain a formal tripartite consultative body to address labour law and policy. There are some opportunities for consultation, as with the Labour Advisory Committee within the Office of the U.S. Trade Representative. Some government agencies seek input from interested parties by conducting notice-and-comment rulemaking prior to formulating new regulations or policies. Unions may also file amicus curiae briefs in court and agency adjudications to provide their views on disputed matters that will affect labour law or policy.

Far from consulting with unions regarding labour law and policy, some states and U.S. politicians have taken deliberate steps to roll back workers’ collective bargaining rights.

Restrictions with respect to type of strike action
The National Labour Relations Act (NLRA) and judicial decisions interpreting the law prohibit workers from engaging in sitdown strikes, partial strikes and secondary boycotts, and impose other restrictions on organisational or recognitional strikes. Workers at certain health care institutions must provide 10 days’ advance notice before engaging in a strike or picketing, such as intermittent strikes, secondary boycotts and other forms of mutual aid and protection…..

Pointing Out: How Walmart Unlawfully Punishes Workers for Medical Absences

Source: A Better Balance, June 2017

From the summary:
Walmart is proud of its heritage as a family-founded company. Ironically, while the Walton family touts its family values, Walmart’s absence control program punishes workers who need to be there for their own families. Walmart disciplines workers for occasional absences due to caring for sick or disabled family members and for needing to take time off for their own illnesses or disabilities. Although this system is supposed to be “neutral,” and punish all absences equally, along the lines of a “three strikes and you’re out” policy, in reality such a system is brutally unfair. It punishes workers for things they cannot control and disproportionately harms the most vulnerable workers.

Punishing workers for absences related to illness or disability is not only unfair, it’s often against the law. Based on our conversations with Walmart employees as well as survey results of over 1,000 current and former Walmart workers who have struggled due to Walmart’s absence control program, Walmart may regularly be violating the federal Family and Medical Leave Act (FMLA) by failing to give adequate notice to its employees about when absences might be protected by the FMLA and by giving its employees disciplinary points for taking time to care for themselves, their children, their spouses or their parents even though that time is covered by the FMLA.

Similarly, we allege that Walmart’s policies and practices of refusing to consider doctors’ notes and giving disciplinary points for disability-related absences is a violation of the Americans with Disabilities Act (ADA). The ADA protects workers with disabilities from being disciplined or fired because of their disabilities. It also requires employers to engage in a good faith interactive process to determine an appropriate accommodation for workers with disabilities. Unfortunately, as detailed in this report, this is too often not Walmart’s practice. Other federal, state and local laws such as pregnancy accommodation protections, and sick time laws, could also be at play. Walmart’s policies and practices are not in compliance with many of these laws.

Simply put: Giving a worker a disciplinary “point” for being absent due to a disability or for taking care of themselves or a loved one with a serious medical condition is not only unfair, in many instances, it runs afoul of federal, state and local law.
Related:
Press release