Category Archives: Labor Laws/Legislation

Abolish the Employer Prerogative, Unleash Work Law

Source: Gali Racabi, Berkeley Journal of Employment and Labor Law, Forthcoming, Date Written: March 9, 2021

From the abstract:
Employers are sovereigns in their workplace. Market power disparities, enforcement gaps, and the dwindling power of the beaten US labor movement seem to guarantee that. But it is law that anoints employers as kings. Work law doctrine calls it the “employer prerogative,” and it stands as the default governing rule in the workplace. This rule lays the basic legal structure of the workplace: all decisions fall within the employer’s discretion unless altered by contractual agreements or mandated differently by a statute or court doctrine. The entire array of legal interventions in the workplace, and their accompanying normative debates, flows from this legal rule.

This Article calls to abolish the employer prerogative. It is too sticky, and subsequently, it skews all of work law theory and practice toward management interests. The Article begins by describing how the cumulative effects of a judicial presumption of prerogative, labor market power disparities, the employment at-will doctrine, and enforcement gaps make modifying this default a Sisyphean task. The argument follows by describing two mechanisms that tie the employer prerogative to the uphill political struggle of redistributing power in the workplace. To preserve their control, employers can use their prerogative to evade workplace interventions or punish workers and their communities for pursuing redistributive workplace policies. At the expense of any goal work law advocates might pursue, the employer prerogative is self-entrenching.

Perhaps the most troubling aspect of this default rule is that challenging it is a taboo of a sort. Hence, the Article concludes by offering a novel framework for considering possible alternatives to it. The Article describes alternative default governance rules and presents a set of new and renewed legal institutions designed to reallocate these default authorities among multiple stakeholders. These novel interventions offer the structural analysis and remedies vitally needed to correct the workplace’s skewed status quo of power and to actualize work law’s potential – unleashing it from its employer prerogative constraints.

Promoting Good Jobs and a Stronger Economy: How Free Collective-Bargaining States Outperform “Right-to-Work” States

Source: Illinois Economic Policy Institute (ILEPI) and the Project for Middle Class Renewal (PMCR) at the University of Illinois at Urbana-Champaign, February 9, 2021

From the press release:
In an eight-year period of national economic expansion that followed the Great Recession of 2008, the 27 U.S. states that had enacted so-called “right-to-work” laws saw slower economic growth, lower wages, higher consumer debt, worse health outcomes, and lower levels of civic participation than states that had not, according to a new study by the Illinois Economic Policy Institute (ILEPI) and the Project for Middle Class Renewal (PMCR) at the University of Illinois at Urbana-Champaign.

Responsibilities and Rights of Employers and Employees During the COVID-19 Pandemic

Source: Joseph Maya, Julia Audibert, Zachary Sipala, Caroline Vandis, Calvin Carson, and Emily Prudente, Labor Law Journal, Vol. 71, Issue No. 4, Winter 2020
(subscription required)

The Occupational Safety and Health Administration (OSHA), Fair Labor and Standards Act (FLSA), Equal Employment Opportunity laws (which encompass the Americans with Disabilities Act and the Rehabilitation Act), and Title VII of the Civil Rights Act of 1964 are long-standing pillars of employment law in this country. Collectively, they aim to ensure individual privacy, safe work environments, and equal treatment free from discrimination in the workplace. Given their appealing and sensical nature, it seems axiomatic that these statutes and agencies operate in concert. However, complying with their provisions during a global pandemic requires navigating murky waters. In practice, these laws present sometimes competing demands for many employers and employees trying to understand the new reality imposed by COVID-19. Striking an effective balance between these rights and responsibilities during the upheaval caused by COVID-19 incurs a host of relatively novel challenges. In this article, the attorneys at Maya Murphy, P.C. demystify how to serve the best interests of employers and employees and offer a comprehensive analysis of legal guidelines, both old and new, to inform our readers how to best achieve that balance.

Age Discrimination in Employment: What Is Legally Permissible May Not Be Managerially Wise

Source: Dexter R. Woods, Jr., and David M. Savino, Employee Relations Law Journal, Vol. 46, No. 4, Spring 2021
(subscription required)

Determining whether or not to hire or retain older workers is a critical issue for employers and employees. In this article, the authors consider the issue from both a legal perspective and a managerial perspective.

A Manager’s Guide to Free Speech and Social Media in the Public Workplace: An Analysis of the Lower Courts’ Recent Application of Pickering

Source: Adam M. Brewer, Public Personnel Management, OnlineFirst, Published September 4, 2020
(subscription required)

From the abstract:
Public organizations are experiencing a burgeoning of workplace challenges involving employee use of social media. Comments, images, or videos ranging from racist remarks, to calls to violence, simple criticism of one’s organization, to full on whistle blowing significantly challenge public organizations’ policies for addressing speech that creates discord in the workplace. With the blurring of lines between personal and professional lives, these challenges create uncertainty for public organizations regarding how to maintain the efficient operation of the workplace, deal with the social and political fallout of such instances, and manage organizational liability. This article performs content analysis on 33 federal lower court opinions involving speech/social media workplace issues. The study analyzes the manner in which the lower courts apply free speech precedent on contemporary workplace speech cases. The findings suggest that patterns emerge from the opinions providing key insights for public managers regarding how to better manage these complex issues.

‘LGBTQIA + Discrimination’

Source: Shirley Lin, Ezra Cukor, Employment Discrimination Law & Litigation, 2020

From the abstract:
From the chapter “LGBTQIA+ Discrimination” in Employment Discrimination Law & Litigation (Thomson West 2020), available on Westlaw:

Asserting and defending the employment rights of lesbians, gay men, bisexual, and transgender, queer, intersex, and asexual people (LGBTQIA+) is a decades-long civil rights struggle. Increasing awareness and acceptance of LGBTQIA+ individuals in U.S. society does not mean that society has not always been sexually diverse, or that sex has only recently been recognized as socially, rather than “biologically,” defined.

In June 2020, The Supreme Court decided a trio of cases wherein it acknowledged for the first time that federal workplace protections reach anti-LGBTQIA+ discrimination. In the landmark decision Bostock v. Clayton County, the Court held that because under Title VII an employer cannot rely on sex as a but-for cause, even if not the sole or primary cause, to fire an employee, an employer who fires someone for being gay or transgender “defies the law.” The landmark decision is a result of generations of advocacy by LGBTQIA+ communities and their advocates inside and outside of the courtroom. Although Title VII has prohibited sex discrimination since its enactment, early decisions rejected claims by LGBTQIA+ people as outside the statute’s ambit. Even as the doctrine generally reflected a broader understanding of sex discrimination, leading up to Bostock there existed only a patchwork of lower-court and agency precedent that Title VII covered LGBTQIA+ people (see §§ 27:2, 27:3, 27:5, 27:7.25). As a result, a LGBTQIA+ employee’s ability to seek redress for discrimination against a private employer depended on her zip code, even under federal law. The Supreme Court’s forthright decision opened courthouse doors throughout the country to LGBTQIA+ workers.

The achievement of Title VII protection is a vital milestone but not the end point in addressing discrimination: LGBTQIA+ people have long faced unacceptable levels of workplace discrimination. Despite a dramatic increase in public acceptance post the Supreme Court’s decision in Obergefell, during the administration of President Trump, the hateful rhetoric, and the policy positions taken by the President and his administration concerning LGBTQIA+ people, public tolerance for accepting LGBTQIA+ individuals declined. Moreover, because LGBTQIA+ workers who are Black, Indigenous, or people of color face disproportionate employment discrimination, the ongoing struggle for racial justice is integral to achieving meaningful equality for LGBTQIA+ people. Winning a workplace discrimination case can be devilishly difficult, especially for low-income workers who often face formidable barriers even to accessing counsel. Because LGBTQIA+ people face significant hostility and misunderstanding from a variety of social forces, including some courts, lawyers litigating for equal treatment for their LGBTQIA+ clients must innovate and educate as well as advocate. Not only does discrimination in the workplace injure and deprive individual LGBTQIA+ workers of their livelihoods, it stigmatizes LGBTQIA+ people as a group.

The Landmark Bostock Decision: Sexual Orientation and Gender Identity Bias in Employment Constitute Sex Discrimination under Federal Law

Source: Susan Bisom-Rapp, Thomas Jefferson School of Law Research Paper No. 3664374, July 30, 2020

From the abstract:
On June 15, 2020, the Supreme Court of the United States (Supreme Court or SCOTUS) issued a widely anticipated decision holding that the federal statutory ban on sex discrimination in employment includes a prohibition of discrimination based on sexual orientation and gender identity. A landmark case in every sense of the term, Bostock v. Clayton County (Bostock) is important for a number of reasons. Besides being a significant victory for civil rights advocates, LGBTQIA people, and their allies, the 6-3 decision was notable for its discussion of an ascendant theory of statutory interpretation, the majority’s well-reasoned analysis of the principles of causation, and the fact that a conservative judicial appointee of President Donald Trump authored the majority opinion. The decision also underscores the value of a carefully constructed LGBTQIA rights litigation strategy that was decades in the making. Perhaps most importantly, Bostock lays the groundwork for nationwide protection of sexual minorities from discrimination in housing, education, health care, and public accommodations, among other areas.

Despite polls showing that a majority of Americans support civil rights for LGBTQIA people, reaction to the case, both for and against, has been strong. Strong partisan response is in part driven by the Trump administration’s agenda vis-à-vis the rights of sexual minorities. Indeed, one hallmark of Trumpism has been the continuous attack on civil rights advances for the LGBTQIA community, with a great deal of hostility aimed at transsexuals. Given the antipathy of the administration towards a vulnerable population, civil rights advocates see Bostock as a much needed course correction and cause for celebration. Cultural conservatives, on the other hand, argue that Bostock strikes a blow against religious freedom and constitutes usurpation by the Court of the federal legislative function. The fears of cultural conservatives, however, were likely assuaged somewhat by a pair of SCOTUS decisions, which were issued just three weeks after Bostock. While those cases may presage limitations on the reach of Bostock, and seem to prioritize religious freedom over other fundamental rights, this Dispatch cautions that the human right to be free of workplace discrimination based on sexual orientation and gender identity must be safeguarded as the rule rather than the exception.

2020 Supreme Court Commentary: Employment Law

Source: Jonathan Harkavy, Patterson Harkavy LLP, September 9, 2020

From the abstract:
This article offers a review of and commentary on every opinion of the Supreme Court of the United States in each case relating to employment and labor law during the Court’s 2019-2020 Term. The article also briefly summarizes the Court’s grants of certiorari for its 2020-2021 Term relating to employment in the American workplace. In addition to the author’s commentary on each case, the article includes a broader look at how the Court is dealing with workplace jurisprudence, including references to its “shadow docket” and the assignment of majority opinions.

Trump Labor Board Upends Special Status of Union Stewards

Source: Robert M. Schwartz, Labor Notes, September 9, 2020

And you thought it couldn’t get any worse!

On July 21 the Trump-appointed National Labor Relations Board (NLRB) eliminated the special legal protections enjoyed by union grievance handlers for the past 70 years. In the interest of promoting workplace “civility,” the Board announced that employers will no longer be restrained from disciplining or discharging stewards or officers who use profanity or engage in other “abusive” actions in violation of an employer’s enforced code of conduct, even when these actions happen in the course of heated meetings with management.

The new decision, known as General Motors, overrules scores of NLRB rulings permitting grievance representatives to engage in “zealous” advocacy.

The Landmark Bostock Decision: Sexual Orientation and Gender Identity Bias in Employment Constitute Sex Discrimination under Federal Law

Source: Susan Bisom-Rapp, Thomas Jefferson School of Law Research Paper No. 3664374, Date Written: July 30, 2020

From the abstract:
On June 15, 2020, the Supreme Court of the United States (Supreme Court or SCOTUS) issued a widely anticipated decision holding that the federal statutory ban on sex discrimination in employment includes a prohibition of discrimination based on sexual orientation and gender identity. A landmark case in every sense of the term, Bostock v. Clayton County (Bostock) is important for a number of reasons. Besides being a significant victory for civil rights advocates, LGBTQIA people, and their allies, the 6-3 decision was notable for its discussion of an ascendant theory of statutory interpretation, the majority’s well-reasoned analysis of the principles of causation, and the fact that a conservative judicial appointee of President Donald Trump authored the majority opinion. The decision also underscores the value of a carefully constructed LGBTQIA rights litigation strategy that was decades in the making. Perhaps most importantly, Bostock lays the groundwork for nationwide protection of sexual minorities from discrimination in housing, education, health care, and public accommodations, among other areas.

Despite polls showing that a majority of Americans support civil rights for LGBTQIA people, reaction to the case, both for and against, has been strong. Strong partisan response is in part driven by the Trump administration’s agenda vis-à-vis the rights of sexual minorities. Indeed, one hallmark of Trumpism has been the continuous attack on civil rights advances for the LGBTQIA community, with a great deal of hostility aimed at transsexuals. Given the antipathy of the administration towards a vulnerable population, civil rights advocates see Bostock as a much needed course correction and cause for celebration. Cultural conservatives, on the other hand, argue that Bostock strikes a blow against religious freedom and constitutes usurpation by the Court of the federal legislative function. The fears of cultural conservatives, however, were likely assuaged somewhat by a pair of SCOTUS decisions, which were issued just three weeks after Bostock. While those cases may presage limitations on the reach of Bostock, and seem to prioritize religious freedom over other fundamental rights, this Dispatch cautions that the human right to be free of workplace discrimination based on sexual orientation and gender identity must be safeguarded as the rule rather than the exception.