Category Archives: Labor Laws/Legislation

Harvard Hopes Trump Will Help It Undermine Unions

Source: John Trumpbour and Chris Tilly, Labor Notes, September 14, 2017

….Like other private universities, Harvard appears to be banking on Trump appointees to the Labor Board to help fight off graduate student unionization. But Harvard’s going the extra mile in seeking to undermine all unions’ right to an accurate list of employees during a union election campaign…..

Related:
Opinion: Are elite universities ‘safe spaces’? Not if you’re starting a union
Source: Thomas Frank, The Guardian, September 9, 2017

For all their trigger warnings and safe spaces, places like Yale and Columbia are not very democratic when it comes to unions. ….

….Once Trump’s members are seated on the Labor Board, there is every likelihood they will revisit the matter of graduate student teachers and reverse themselves on the question, which would in turn permit university administrations to refuse to negotiate and even to blow off the results of these elections.

A radicalized university that lives to coddle young people would sit down immediately at the bargaining table and give those graduate students what they want.

A corporation that is determined to keep its employees from organizing, on the other hand, would stall and delay and refuse to recognize the union until Trump’s new, right-wing NLRB can saddle up and ride to the rescue. And guess what: that is exactly what these universities are doing – refusing to begin contract negotiations, filing challenges to the elections, appealing this and that…..

Safe Bet: Your Employer Handbook Contains Illegal Rules

Source: Robert Schwartz, Labor Notes, September 12, 2017

It sometimes looks like union and non-union employers are competing for the fattest book of employee rules. Handbooks frequently exceed 100 pages. Employees who fail to adhere to a standard—even one that is not explained—can be subject to discipline and possible discharge.

This makes it vital for unions to review National Labor Relations Board cases concerning company handbooks; the Board’s thinking on this topic is known as the Lutheran Heritage doctrine.

The Board says that broad or ambiguous employer rules, even if “facially neutral,” violate Section 8(a)(1) of the National Labor Relations Act (NLRA) if employees are likely to read them as applying during concerted activity, such as protests for improved working conditions, contract campaigns, or investigating grievances.

Many NLRB decisions are shockers, invalidating longstanding rules on disloyalty, discourtesy, confidentiality, and false statements. ….

How to Tell If a Rule Is Illegal
1. Does the rule prohibit conduct that an employee might want to engage in to advance a union goal?
2. If yes, does the rule contain an exception for concerted activity?
3. If not, does the rule give enough examples of non-union types of misconduct that a reasonable employee would understand it does not apply to union activity?
4. If not, the rule is most likely illegal. Demand that the employer remove or rewrite the rule, and threaten to file an unfair labor practice charge. ….

Unions Aren’t Obsolete, They’re Being Crushed by Right-Wing Politics

Source: Livia Gershon, Vice, September 11, 2017

….Few economic or political elites preach much about the virtues of a union. …. This year in Davos, Switzerland, at an annual gathering of CEOs, billionaires, and world leaders, the assembled glitterati fretted about inequality but blanched at talk of workers being able to bargain for benefits.

Even Democrats have largely remained silent about unions, which remain an important part of their base. The party’s “Better Deal” plan to help ordinary workers that Democrats released earlier this year talked about raising the minimum wage, growing the economy, and fighting outsourcing, but didn’t mention making sure workers had the ability to organize.

But a report released last month by the Economic Policy Institute, a think tank that focuses on the needs of low- and middle-income workers, points out just how relevant the labor movement remains. The decline of unions—which now represent just over one in ten US workers, down from one in five from 1983—has been less about their value for workers than the result of a concerted effort to destroy the labor movement…..

….The EPI report details the tactics companies use to stop unions. In many cases, they use temp agencies, franchise arrangements, or other techniques to avoid taking legal responsibility for their workers. Labor laws that date back more than a half century aren’t equipped to help workers negotiate with companies that do their employing through third parties while retaining all real, practical power over workers. Similarly, companies ranging from Uber to local construction firms and beauty parlors try to classify workers as independent contractors, avoiding the traditional responsibilities employers have for employees under labor law. Most blatantly, when faced with unionization efforts, three-quarters of private employers hire consultants to help them quash them. …. But von Wilpert said the most effective anti-union tactic may be simply firing pro-union workers. That’s illegal, but the EPI report finds that between one in five and one in seven union organizers gets the boot for their organizing activity. Even when companies get punished for breaking the law, penalties are minimal and the damage to the union is already done…..

Is it Time to End Labor Preemption?

Source: Sharon Block and Benjamin Sachs, On Labor Blog, September 11, 2017

Serious thinking about labor law reform seems to be coalescing around a few themes. One of these is the possibility of allowing state and local intervention into the rules of union organizing and collective bargaining. Pursuing that goal would mean reconsidering the preemptive effect of federal labor law.
This theme was clearly reflected in our Labor Day opinion writing wrap up. Newsweek published Sharon’s op-ed in which she argued that the debate over bold labor law reform has to include consideration of preemption rules. The New York Times ran an op-ed by Brishen Rogers and Willy Forbath in which they recommended that the NLRA be amended to allow state and local governments to legislate new models of collective bargaining above the floor of the NLRA. Moshe Marvit made the case in the American Prospect that the Supreme Court should revisit its precedent regarding NLRA preemption in order to allow more experimentation at the state and local level.

Will the Supreme Court Ignore Pleading Rules in Janus?

Source: Andrew Strom, On Labor blog, September 7, 2017

Many Court watchers think it is a foregone conclusion that the Supreme Court will grant the cert petition in Janus v. AFSCME, and then overturn the forty-year old decision in Abood v. Detroit Board of Education. While I’m not willing to bet against that, it’s worth noting that to reach that result the Court would need to ignore a series of recent cases requiring plaintiffs to plead facts rather than conclusory assertions….

….In recent years, the Supreme Court has made it easier for defendants in lawsuits to file motions to dismiss. In two cases, Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal, the Court has stated that to survive a motion to dismiss “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” The Court has further explained that “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” When workers have sued their employers, lower courts have often relied on Twombly and Iqbal to dismiss the workers’ claims without allowing any discovery….

….When public employees have sued their employers, the Supreme Court has been quick to assert that it does not want to “constitutionalize the employee grievance.” Yet this seems to be exactly what Janus is asking the Court to do. Janus complains that he does not want to fund AFSCME’s actions as the bargaining agent for him and his fellow employees. But, undoubtedly the great bulk of any agency fees he objects to are spent on those very same employee grievances that the Court has said it does not want to “constitutionalize.” At a minimum, the Court should not allow conclusory pleadings in a bare-bones complaint to form the basis for a decision overturning long-settled law…..

2017 Supreme Court Commentary: Employment Law

Source: Jonathan Ross Harkavy, Patterson Harkavy LLP, August 15, 2017

From the abstract:
This article, the author’s longstanding annual review of the Supreme Court’s work in the employment area, examines in detail every decision of the 2016-2017 term relating to employment and labor law, with commentary on each case and additional observations about the Court’s work in this term and the upcoming one. In particular, the author uses the latest term’s decisions as a lens for examining broader aspects of the Court’s jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself

Newly available wage theft data shows nearly 130 Colorado employers with violations

Source: Adrian D. Garcia, Denverite, August 24, 2017

The state of Colorado is starting to name companies that steal wages from their employees, ending decades of businesses being able to shield their identities under claims of trade secret protections.

Nearly 130 employers have been ordered to pay employees $547,780.90 in back pay and penalties since April 13. The companies were also ordered to pay the state another $170,750 in fines in connection with wage-law violations, according to the data shared Monday by the Colorado Department of Labor and Employment.

City governments are raising standards for working people—and state legislators are lowering them back down

Source: Marni von Wilpert, Economic Policy Institute, August 26, 2017

From the press release:
Progressive cities are raising their labor standards, but conservative state legislatures are preempting them

A new report by EPI Associate Labor Counsel Marni von Wilpert analyzes the recent wave of preemption laws that have swept across the country in the last decade. State governments use preemption laws to supersede city or county laws, or prevent local governments from legislating in certain areas at all—including blocking local governments’ efforts to raise labor standards. The paper explores the rise of preemption in five key areas of labor and employment: minimum wage, paid leave, fair work schedules, prevailing wages, and project labor agreements.
Related:
Summary