Category Archives: Labor Laws/Legislation

To the Victor Goes the Spoils: How the 2020 Presidential Election Could Reshape Labor and Employment Law

Source: Scott A. Budow, Employee Relations Law Journal, Vol. 46, No. 2, Autumn 2020
(subscription required)

From the abstract:
The 2020 presidential election has the potential to significantly upend labor and employment law. If there is a change in administration, employers should expect a sharp departure from rules issued over the past four years, particularly with respect to overtime, joint employment, and independent contractors. Employers may additionally expect renewed scrutiny of non-compete agreements. These changes may redefine the relationship between employers and workers in vast segments of the economy.

Notes On: Spotlighting Potential Coronavirus Wage-and-Hour Woes

Source: Lisa Milam, Labor Law Journal, Vol. 71, Issue No. 2, Summer 2020
(subscription required)

From the abstract:
…Employers are forced to make difficult decisions, often at warp speed, as they operate during the pandemic and resulting economic downturn. But making tough decisions without consulting legal counsel can invite costly litigation, and wage and hour suits—particularly class actions—are among the most expensive for employers.

In a recent Seyfarth Shaw LLP webinar on “Litigation Trends in the Post COVID-19 World,” Lynn A. Kappelman, a partner in the firm’s Boston office, discussed the wage-hour issues that arise as employers look to control payroll costs while maintaining operations, and also as they look ahead to reopening as the crisis abates. Kappelman followed up with Labor and Employment Law Daily about the common wage-hour traps that can befall employers during this unprecedented crisis.

Center for Progressive Reform Report: Protecting Workers In A Pandemic–What The Federal Government Should Be Doing

Source: Thomas McGarity, Michael C. Duff, Sidney A. Shapiro, Center for Progressive Reform Report, June 17, 2020

The “re-opening” of the American economy while the coronavirus that causes COVID-19 is still circulating puts workers at heightened risk of contracting the deadly virus. In some blue-collar industries, the risk is particularly acute because of the inherent nature of the work itself and of the workplaces in which it is conducted. And the risk, for a variety of reasons, falls disproportionately on people of color and low-income workers. With governors stay-at-home orders and other pandemic safety restrictions, Center for Progressive Reform Member Scholars Thomas McGarity, Michael Duff, and Sidney Shapiro examine the federal government’s many missed opportunities to stem the spread of the virus in the nation’s workplaces, and make recommendations for what needs to happen next to protect employees on the job.

New federal sick leave law – who’s eligible, who’s not and how many weeks do you get

Source: Elizabeth C. Tippett, The Conversation, March 19, 2020

On March 18, President Donald Trump signed the Families First Coronavirus Response Act into law. The legislation is an emergency intervention to provide paid leave and other support to millions of workers sidelined by school closures, quarantines and caregiving.

An obvious question you’re probably wondering is, “How will it affect me?”

The bad news is that the law does not provide blanket coverage for all workers. Instead, it’s a confusing mess – legislative Swiss cheese, full of exceptions and gradations that affect whether you are covered, for how long and how much pay you can expect to receive.

I study employment law and have combed through the bill to make sense of it. The law also provides emergency funding for unemployment insurance and subsidizes some employer health care premiums, but my focus here is on the core elements pertaining to sick and family leave.

Here’s what I learned.

The Aftermath of Janus v. AFSCME: An Ongoing Assault on Public Sector Unions

Source: Ann Hodges, American Constitution Society, ACS Issue Brief, March 2020

From the summary:
With the Supreme Court having overruled precedent and declared public sector “fair share” fees unconstitutional in Janus v. AFSCME, anti-union forces now have a new target: repayment of the fees paid to unions prior to the 2018 decision. Arguing that Janus should be retroactive, these advocates are seeking “millions of dollars from public sector unions, money collected in compliance with existing laws and already spent on representing employees.”

In a new ACS Issue Brief, Ann Hodges, Professor Emerita at the University of Richmond School of Law, explains the history of these restitution claims and why they are legally dubious. Hodges also questions whether “the employee plaintiffs in these cases [are] acting out of moral conviction and righteous motives or [if] they [are] being used by powerful interests to defeat the efforts of working people to join together collectively to combat the power of wealthy individuals and corporate actors.”

Disability revealed during termination talk—should the employee stay or go?

Source: Maureen Minehan, Employment Alert, Vol. 37 no. 3. February 5, 2020
(subscription required)


Sarah, a marketing manager, is chronically late. She also leaves early and her coworkers complain that she doesn’t respond to emails, calls, or texts even when she is in the office. You place her on a 60-day performance improvement plan and she promises to do better. Two months later, when nothing has changed, you schedule a termination meeting. When you tell her she is fired, she suddenly claims she has a disabling condition that is causing her performance problems. Do you have to rescind the termination and look for accommodations to be in compliance with the Americans with Disabilities Act (ADA)?

The Impact of Janus on Public Employee Unions So Far

Source: Irma Rodríguez Moisa, Nate J. Kowalski, Jay G. Trinnaman, and Eric T. Riss, Employee Relations Law Journal, Vol. 45, No. 3, Winter 2019
(subscription required)

The authors examine the primary effects of the U.S. Supreme Court decision in Janus , particularly for California employers under the Meyers-Milias-Brown Act.

Development on a Cracked Foundation: How the Incomplete Nature of New Deal Labor Reform Presaged its Ultimate Decline

Source: Leo E. Strine Jr., Harvard Public Law Working Paper No. 19-48, November 22, 2019

From the abstract:
Mariano-Florentino Cuéllar, Margaret Levi, and Barry R. Weingast’s excellent essay, Twentieth Century America as a Developing Country, Conflict, Institutional Change and the Evolution of Public Law, celebrates the period during which the National Labor Relations Act facilitated the peaceful resolution of labor disputes and improved the working conditions of American workers. These distinguished authors make a strong case for the essentiality of law in regulating labor relations and the importance of national culture in providing a solid context for the emergence of legal regimes facilitating economic growth and equality. This reply to their essay explores how the New Deal’s failure to eradicate ideological divisions, racial inequities, and anti-labor power structures rooted in our nation’s history compromised the ultimate success of the NLRA, the protection of labor in the international trading regime, the effectiveness and prevalence of American labor unions, and the overall leverage of American workers.

The reply then addresses two related realities: 1) the New Deal idea that all workers deserve economic security, safe working conditions, and a fair say over the terms and conditions of their employment remains sound; and 2) but that idea cannot be realized unless it is backed by legal force in the institutions of law that govern a now global economy. Put simply, the original vision of FDR calling for a global New Deal must be implemented if American workers and their international brethren are to receive fair treatment.

Clean Slate for Worker Power: Building a Just Economy and Democracy

Source: Sharon Block and Benjamin Sachs, Labor and Worklife Program, Harvard Law School, January 2020

From the summary:
Since the founding of the country, concentration of power in the hands of a small minority has been recognized as a threat to the viability of American democracy. Today, the struggle to preserve democracy in the face of extreme wealth concentration is acute because we live in a historical moment when vast disparities of economic power have been translated into equally shocking disparities in political power.

With this report, we offer an intervention that promises to help stop the self-reinforcing cycle of economic and political inequality. By proposing a fundamental redesign of labor law, our aspiration is to enable all working people – including those who have been excluded by systemic racism and sexism – to create the collective economic and political power necessary to build an equitable economy and politics.

Inclusiveness
Labor law reform should expand protections of the law to address systemic racial and gender oppression.

Universal Representation
Pathways to worker power should track corporate power and be universal, providing multiple forms of voice for all workers without employer interference.

Sectoral Bargaining
We recommend creating a system of sectoral bargaining in which agreements are binding on all firms in the sector.

The Progressive Labor Platform is Popular

Source: Kevin Reuning, C. M. Lewis, Data for Progress and Strikewave, October 3, 2019

From the summary:
Data for Progress surveyed key components of Bernie Sanders’s “Workplace Democracy Plan” and Elizabeth Warren’s “Empowering American Workers and Raising Wages” and found that the platform’s policies are broadly supported by voters. The policies tend to have broad support from Democrats, but many also have net positive support among independents and Republicans. In addition, we find that there is a potential key bloc of voters that either did not vote in 2016 or voted for Trump that support components of the platform, making them potential targets for 2020 election efforts. One caveat is important: many of these policies also showed high rates of voters having no strong opinion, meaning the numbers could change.

The highlights:
– A federal “Just Cause” law, which would radically change employee-employer relations and is included in Sanders’s plan, is somewhat or strongly supported by 56 percent of voters and opposed by 30 percent of voters. Even among Republicans, “Just Cause” is two percent underwater (42 percent support, 44 percent oppose).
– Expanding federally protected union rights to farm and domestic workers has bipartisan support and is included in both plans. Democrats support it at 66 percent to 21 percent, and Republicans support it at 41 percent to 38 percent.
– A ban on forced arbitration, which is included in Warren’s plan, is supported by 45 percent of voters and opposed by only 27 percent.