Category Archives: Labor Laws/Legislation

A Vision for a High-Wage America

Source: Michael McCormack and Jeff Madrick, The Century Foundation, October 16, 2017
From the summary:
America has deliberately chosen to be a low-wage society since the 1970s. This status was not thrust upon it inevitably by technological change or globalization, but instead was the result of deliberate policy choices made over the years. America likewise has the ability to reverse course, pursuing a policy agenda that would put it back on the path toward a high-wage economy. ….

…. This report provides an overview of the current state of the U.S. economy, characterized by a sluggish recovery, stagnant living standards, inequality, increasingly volatile and uncertain incomes, especially for low-income Americans, persistent poverty, and declining benefits. Our review below of the economic data and literature will demonstrate the persistence of reduced opportunity and a low-wage America for millions since the 1970s.

The report also explores the deliberate policy choices that led to the low-wage economy that developed in the late 1970s and was solidified by the 1980s and 1990s. There was only a brief reprieve during the full-employment economy of the late 1990s, when wage growth lifted wages for all income levels; even during this time, anti-inflationary monetary policy reduced the bargaining power of workers relative to capital.

After reviewing the political and academic influences that created a low-wage America, the report proposes alternative policy choices to build a high-wage America that extends prosperity to a broader range of workers. The three main pillars of a high-wage economy identified in this report—public investment and industrial policy, education and training, and labor standards and social supports—will guide the Rediscovering Government Initiative’s research and event agendas in the coming months, as it seeks to build an agenda that can return American workers to prosperity…..

What You Should Know

  • Between 1973 and 2015, productivity increased by 73.4 percent, but hourly compensation increased by only 11.1 percent. And that meager wage growth has happened mostly at the top of the income scale. Since the late 1970s, wage growth has stopped for the eightieth percentile of earners on down, and for much of the wage distribution, earnings have actually fallen.
  • Deliberate policy choices since the 1970s have contributed to this wage stagnation, including the attack on labor unions, cuts to social programs, tight monetary policy, tax cuts and free-market economic policies.
  • U.S. manufacturing work is particularly underpaid when compared to other nations. Manufacturing workers in the United States ranked eighteenth out of twenty-seven OECD nations with available data.
    The high-wage agenda requires new approaches to directly confront underemployment and unemployment that may include government acting as an employer of last resort and support for labor organizing, which is now actively thwarted.
  • Rebuilding the nation’s apprenticeship system that still only reaches less than half a million workers, and translating promising high school career academies into respected vocational and career education system that, among other things, can create inclusive access to well-paid skilled blue collar jobs.
  • White Lawmakers Are Using Alabama’s Racist State Constitution To Keep Black Wages Down

    Source: Bryce Covert, In These Times, November 2017

    Alabama wrote its 1901 constitution to “establish white supremacy.” Workers in a majority-black city say it’s Jim Crow all over again. ….

    Just two years ago, these Fight for $15 workers and their allies won a minimum wage increase to $10.10 in Birmingham. It was short-lived. State lawmakers intervened before the law took effect, passing a preemption bill that undid the work of the City Council and the will of its constituents. Since Alabama doesn’t even have its own minimum wage, minimum-wage workers still make the federal wage of just $7.25 an hour.

    “We want $10.10, we gonna do it again,” the crowd chanted.

    The workers are using protests to pressure corporate employers and state legislators to raise their pay. But they’re not counting on it happening voluntarily. On April 28, 2016, workers in Birmingham filed a lawsuit accusing the state of racial animus and violating the U.S. Constitution’s 14th Amendment guarantee of equal protection.

    The lawsuit offers a novel approach in a struggle taking place across the country as blue cities battle red states for self-determination. Republicans often extoll the virtue of local governmental control, but not, it seems, when it comes to progressive change…..

    Fighting Back, Fighting Forward: An Agenda for State & Local Pro-Worker Reforms

    Source: Judith M. Conti, National Employment Law Project (NELP), Legislative Brief, October 2017

    From the introduction:
    Though it is easy to look at what is happening in Congress and our federal government these days and feel despair, now is the time for advocates across the country to double-down on their efforts to fight for progressive reform at the state and local level wherever possible. In states with leadership open to progressive reforms, advocates should be looking for every opportunity to introduce and work toward passing either this year or in the near future the kinds of reforms that will help low-wage workers gain a foothold in the economy and be more economically secure.

    Even in states where the policy terrain is less favorable, finding legislators to champion progressive policies is both a messaging victory demonstrating to the electorate what is possible, but also can be an effective weapon to fight off ill-advised proposals aimed at taking power and rights away from workers and giving more to corporate employer interests.

    The fact is that our nation’s low-wage and middle class workers are more vulnerable than they have been in most of our lifetimes, and this is particularly true for immigrant workers and people of color. The tone and tenor of so much of the national dialogue these days is deeply negative and divisive. But bringing together community-based organizations, their members, advocates and legislators at the state level can help turn the tide toward the positive. We can work together to present an alternative vision of what this nation should be about and how it should value its working people.

    The legislative proposals discussed in this brief present advocates with a menu of options they can explore with state legislators and allies. Any one of them would represent a significant step forward to marginalized and low-income workers, and NELP staff are able to provide campaigns with technical assistance to help get off the ground and build for success.

    How So-Called “Right to Work” Laws Aim to Silence Working People

    Source: Amy Traub, Dēmos, 2017

    From the introduction:
    In America, working people have the freedom to band together with their co-workers to negotiate for a fair return on our work. We have the freedom to act together so can we speak with a more powerful voice. We have the freedom to join and form unions. Yet today, powerful interests want to take away that freedom. Corporate lobbyists have pushed federal and state-level policies deceptively named “Right to Work” laws that strip away the freedom to negotiate for a fair return on our work. These laws are designed to drain workers’ collective resources by requiring unions to provide representation to people who make no contribution to sustain the union. In essence, so-called “right to work” laws aim to silence working Americans, which causes their wages and working conditions to deteriorate, making it more difficult to sustain a family. Economists find that in states that have adopted these laws, the typical full-time worker is paid $1,500 a year less than their counterpart in a state that has not undermined workers’ rights.

    This Demos Explainer clarifies what misleadingly named “right to work” laws do, how they silence workers’ collective voice, and what their impact has been in states that adopt them. We also explore the roots of this anti-worker policy in efforts to cut wages and solidify racial divisions among workers in the Jim Crow South. Today, as “right to work” laws are promoted in a growing number of states and in the U.S. Congress, Demos aims to ensure that elected leaders, the media, and ordinary Americans understand the true nature of this policy.

    Agency Fees and the First Amendment

    Source: Benjamin I. Sachs, Harvard Law Review, Forthcoming, Date Written: September 22, 2017

    From the abstract:
    Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of compelled speech and association and may soon invalidate them entirely. The Court – and the scholarship on agency fees – proceeds from the assumption that such fees are employees’ money that employees’ pay to a union. This article argues, however, that this is the wrong way to understand agency fees and for two sets of reasons. One, the Court treats agency fees as employees’ money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysis. Instead, under the First Amendment, agency fees are – and must be treated as – payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated – under the Court’s own cases – as the property of the union that secured them. The article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees.

    Related:
    Janus, Agency Fees and the First Amendment
    Source: Benjamin Sachs, On Labor blog, October 5, 2017

    The growing use of mandatory arbitration: Access to the courts is now barred for more than 60 million

    Source: Alexander J.S. Colvin, Economic Policy Institute, September 27, 2017

    From the press release:
    A new EPI paper by Cornell professor Alexander J.S. Colvin shows that more than half of private sector nonunion workers—or 60 million people—are subject to mandatory arbitration in employment contracts, which takes away their access to the court system that protects their legal employment rights. Mandatory arbitration agreements are used by employers to require employees, as a condition of employment, to agree to arbitrate legal disputes rather than being able to go to court. These agreements bar access to the courts for all types of legal claims, including those based on Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. In other words, when a worker is paid less than she is owed, is fired for being pregnant, or is underpaid because of her race, she cannot have her claim heard in a court of law—instead, she is locked into a process that favors the employer. This new data collected by Colvin in 2017, show that the number of companies requiring mandatory arbitration has increased from around 2 percent of workers in 1992 to more than half of workers in 2017…..

    Related:
    Summary

    Can Labor Still Use the Wagner Act?

    Source: Joseph A. McCartin, Dissent, Fall 2017

    …. Eighty years after the Wagner Act’s validation, the triumph of collective bargaining in mass production industries seems as ancient as Exodus, and Cox’s optimism as quaint as greeting card poetry. Whereas the industrial Midwest once throbbed with demands for industrial democracy, today its depleted cities continue to bleed jobs and its hinterlands struggle with rampant opioid addiction. Flint, once home to a mobilized working class capable of taming General Motors, is today a desperately impoverished city lacking in decent jobs, whose residents continue to suffer from the aftermath of lead poisoning. Whereas sit-down strikers were protected by Governor Frank Murphy in 1937, today’s Michigan is a “right-to-work” state presided over by Governor Rick Snyder, a venture capitalist whose efforts to wrest local control away from distressed communities led directly to Flint’s poisoning. Little remains of the industrial union movement born in 1937, as private-sector union membership rates today dip toward 6 percent.

    Nor is there reason to suppose the Supreme Court will help matters as it did eighty years ago. Today’s Court instead seems bent on interring the last legal vestiges of the New Deal labor order. In the case of Janus v. AFSCME, which the Court will decide in the coming term, the right of public-sector unions to collect “agency fees” from the workers they represent is being challenged. Opponents argue that government workers’ unions are merely political vehicles, and therefore granting them the right to collect agency fees infringes on the rights of workers who might not share the politics of the union that represents them. The case threatens to overturn a forty-year-old precedent, Abood v. Detroit Board of Education (1977), which recognized the unions’ rights to collect such fees in the interest of orderly workplace governance wherever state law allowed the practice…..

    Coverage on Janus Cert. Grant

    Source: Maddy Joseph, On Labor blog, September 29, 2017

    The Supreme Court decided yesterday to hear Janus v. AFSCME. The Court seems poised to hold that agency-fee agreements for public sector workers are unconstitutional. Since the order, reports and commentaries have analyzed Janus‘s threat to public sector workers, and its stakes for U.S. organized labor.

    The Chicago Tribune explains that the case began when Illinois’ Republican Governor Bruce Rauner, a former private equity executive, attempted to stop the state from dispensing agency fees to unions, clashing with the state’s Attorney General. The Governor eventually filed the suit that would become Janus, asking a federal court to rule that his actions were valid and that fair-share agreements are unconstitutional. When Gov. Rauner was dropped from the case, Mark Janus and other state employees took over as plaintiffs. The Tribune also has an editorial that supports the union’s argument only on the “narrow” point that “[s]omeone who benefits from a union’s contract negotiations should pay for collective bargaining activities, if not for the union’s political activities.” It notes that an AFSCME loss in Janus would lead to a decline in union membership, like the decline seen “in Wisconsin, with Gov. Scott Walker leading the charge.” ….

    Related:

    Janus and the Private Sector
    Source: Benjamin Sachs, On Labor blog, September 29, 2017

    Maddy’s excellent wrap-up of yesterday’s Janus news includes a clip from Slate’s piece “Solidarity’s End.” There, Mark Joseph Stern provides a very useful synopsis of agency fees law, but he also suggests that a Janus decision finding agency fees unconstitutional could easily be exported to the private sector. Here’s how he puts it:

    One last point: Janus involves only public-sector unions, or unions composed of state employees. But there is no obvious reason why its logic should not apply to private-sector unions as well.

    But of course there is a very obvious reason why the logic of a public-sector holding would not apply to private-sector unions: that logic is the state action doctrine, which limits constitutional restrictions to state actors….

    A Primer on the Supreme Court Case That Teachers’ Unions Have Been Fearing
    Source: Liana Loewus, Ed Week blog, September 28, 2017

    Today, the U.S. Supreme Court officially agreed to review a case on public-employee union fees that could potentially deliver a harsh blow to the nation’s teachers’ unions. You may find yourself asking: Wait, haven’t we been through this? Wasn’t someone named Friedrichs involved? And why is this coming up again? All good questions. Let’s take a look at what’s at stake, and how we got here. ….

    Janus v. American Federation of State, County, and Municipal Employees, Council 31
    Source: SCOTUSblog, 2017

    Issue: Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment…..

    Judgment Day for Public Unions
    Source: Matt Ford, The Atlantic, September 28, 2017

    The U.S. Supreme Court has agreed to hear a case that could deal a serious blow to American organized labor.

    Neil Gorsuch Has Web of Ties to Secretive Billionaire
    Source: Charlie Savage, Julie Turkewitz, New York Times, March 14, 2017

    ….With the Senate Judiciary Committee set to take up Judge Gorsuch’s nomination next week, Democrats have based much of their criticism of him on the argument that his judicial and economic philosophy unduly favors corporations and the wealthy. But his relationship with Mr. Anschutz, 77, whose fortune is estimated by Forbes to be $12.6 billion, has received scant attention. The Federalist Society and the Heritage Foundation, which developed the list of potential Supreme Court nominees from which Mr. Trump selected Judge Gorsuch, receive funding from Mr. Anschutz. ….

    Bradley Foundation Bankrolls Attacks on Unions
    Source: Mary Bottari, Center for Media and Democracy, May 8, 2017

    Documents examined by the Center for Media and Democracy (CMD) expose a national effort by the Milwaukee-based Lynde and Harry Bradley Foundation to defund and dismantle unions, the most significant force for higher wages and better working conditions in America. Publicly, the Bradley Foundation spins this agenda as “employee rights.” Behind the scenes, newly disclosed Bradley documents detail an aggressive political agenda….

    Gorsuch speech at Trump hotel attracts protests
    Source: Josh Gerstein, Politico, September 28, 2017

    ….Gorsuch spoke as part of a 50th anniversary celebration for the Fund for American Studies, a charitable group that sponsors scholarships and study programs. The organization’s goal, according to its website, is “to win over each new generation to the ideas of liberty, limited government and free markets.” The fund is supported by a wide array of foundations, most of them with a conservative or libertarian bent, including the Lynde and Harry Bradley Foundation and the Charles Koch Foundation…..

    The Supreme Court’s Anti-Democratic Feedback Loop
    Source: Scott Lemieux, The Atlantic, September 29, 2017

    The GOP installs Supreme Court justices over the will of voters. The Supreme Court helps the GOP remain in power. Rinse, repeat.

    Paid Family and Medical Leave Programs: State Pathways and Design Options

    Source: Sarah Jane Glynn, Alexandra L. Bradley, and Benjamin W. Veghte, National Academy of Social Insurance (NASI), September 2017

    From the summary:
    Time off to provide care for the health and well-being of a family member or for a worker’s own illness or injury is a near-universal need of workers from all backgrounds. Paid family and medical leave offers protection against financial hardship for employees requiring such time away from work to provide or receive care. The United States is an extreme outlier in its lack of a national paid leave program. In the absence of a national program, several states have established paid leave programs for medical and family caregiving needs. States have taken different pathways to creating their paid leave programs and have pursued different design options in terms of structure, funding, and program administration.

    This brief discusses the current landscape of paid leave access, the history behind existing state-level programs, and policy considerations for states developing future paid family and medical leave programs. It begins with an overview of paid leave coverage in the United States, including a discussion of inequality in access to existing programs and benefits. This is followed by a discussion of the growing need for paid leave programs. The history of existing state-level policies is addressed through a description of the policy pathways and design choices that were made in the development and implementation of these programs. The brief then considers the benefits and challenges of various design options (i.e., program structure, funding, and administration) that states will weigh when designing new paid leave policy. Finally, the brief considers the current research on the economic and health impacts of paid leave programs, and discusses critical questions for future study.