Category Archives: Labor Laws/Legislation

How to Undo Janus: A User-Friendly Guide

Source: Aaron Tang, University of California, Davis – School of Law, Date Written: June 27, 2018

From the abstract:
This short white paper explains how progressive states can undo the disruptive effect of the Supreme Court’s decision invalidating public union fair share fees in Janus v. AFSCME, Council 31.

Put succinctly, lawmakers can amend state law to permit government employers to reimburse unions for their bargaining-related expenses directly. Such an amendment would be revenue neutral for government employers and unions, and it would result in a net increase in take home pay for public sector workers (on the order of $200 per year for an unmarried worker making $50,000).

The paper describes how this approach would work, considers major objections, and proposes model legislation for lawmakers to consider. A more detailed discussion of all of the issues implicated by this proposal can be found in a full-length companion article entitled, Life After Janus.

Viewpoint: How to Talk with Nonunion Workers about ‘Right to Work’

Source: Shannon Duffy, Labor Notes, August 7, 2018

Two questions, three doors: thoughts in the closing days of the campaign to defeat “right to work.”

There’s been a lot of talk about the value of unions online and on doors this election season, and I’d like to address two questions that continue to be voiced.

The first question is why nonunion workers should vote to defeat right to work. Whenever it is raised, I often hear what is called the fair share argument. That’s the explanation where union defenders say, “What if you joined a country club or a homeowners association and you refused to pay their dues? How successful do you think you’d be trying to pull something like that? And can you honestly state that someone should have the right to do that?”

Let’s forget for a moment that it’s not a good idea to equate being in a union to being in a country club (it doesn’t exactly push back against that elitist tag that they always try to pin on us) or that substituting “homeowners association” for “country club” when talking to people on the lower end of the socioeconomic ladder isn’t really any better. No matter how you slice it, it’s still those of us who have lecturing those who don’t have about why the system shouldn’t be changed, and that’s not exactly a winning strategy.

Now, I sure don’t want to knock anyone’s hard work—and if that argument is working for you on the doors, then God bless you, and keep doing what’s working. But it seems to me that we often miss opportunities to discuss how we can challenge existing power structures and create meaningful change. So indulge me for a moment….

Related:

Missouri Voters Overwhelmingly Reject ‘Right to Work’
Source: Chris Brooks, Alexandra Bradbury, Labor Notes, August 8, 2018

Unions in Missouri are declaring victory after voters shot down a Republican-backed “right-to-work” law by a hefty 2 to 1.

The final vote count was 937,241 against the legislation to 452,075 in favor. Missouri became the 28th state with a right-to-work law on the books in February 2017, when Republican Governor Eric Greitens signed the law at a ceremony in an abandoned factory.

In response, thousands of union members hit the streets to gather enough signatures to trigger a referendum vote that could repeal the law. Over the course of six months, activists gathered 310,567 signatures—more than three times the number needed. Right to work was put on hold until voters could decide….

A Roadmap to Rebuilding Worker Power

Source: David Rolf, The Century Foundation, August 8, 2018

What You Should Know:
– Organized labor is in decline. Today, only 6 percent of private-sector workers are represented by a union, compared to 33 percent in the 1950s.

– Yet, despite this trend, and recent setbacks in rulings by the U.S. Supreme Court and the National Labor Review Board, polls show that public support for unions is at its highest level in many years—around 60 percent.

– Young people are especially enthusiastic about the need for unions. Among adults under age 30, unions’ approval rating is an eye-popping 76 percent.

– With automation, robotics, and artificial intelligence shaping the future of work—and an increasing number of occupations becoming unmoored from the confines of current labor laws—there are growing calls to rewrite those laws for the twenty-first century.

– A strong and future-focused labor movement has the opportunity to reshape structural power dynamics for working Americans in a way not seen since the 1935 passage of the National Labor Relations Act (NLRA).

Pay Equity: What You Don’t Do Can Hurt You

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 16, August 6, 2018
(subscription required)

$2.66 million. That’s the amount of money the University of Denver has agreed to pay to settle claims it paid full female professors in its law school less than their male counterparts.

Despite warnings that pay equity was high on the Equal Opportunity Commission (EEOC)’s priority list, the institution of higher education allegedly paid female full professors in its Sturm College of Law an average of $20,000 less per year than male full professors for substantially equal work under similar working conditions. The salary disparity wasn’t confined to just a portion of the female full professors. According to the EEOC’s lawsuit, the salaries of all seven female full professors in the school were below the average salary paid to men.

How To Fire An Employee Returning From Leave

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 15, July 24, 2018
(subscription required)

An employee has major surgery and uses six weeks of Family and Medical Leave Act (FMLA) leave during recovery. While he’s absent, another employee takes on his duties and finds a major mistake had been made in a calculation on an important project and a number of assigned tasks were incomplete or poorly done. Normally, this level of performance would result in termination, but you can’t fire someone just returning from leave, can you? Isn’t that just asking for a lawsuit?

Terminating an employee who is returning from any type of protected leave can be tricky, but it’s doable if you have the right evidence and documentation. Courts will look closely to be sure the termination isn’t a pretext for illegal discrimination, but if the business justification is clear, they are apt to side with the employer.

Three Key Takeaways From Supreme Court Union Ruling

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 15, July 24, 2018
(subscription required)

Whether you’re a public employer with a union or a private employer with no union fears, there’s much to consider in the U.S. Supreme Court’s ruling in Janus v. AFSCME, Council 31. The 5-4 decision, issued on June 27, 2018, the final day of the 2017-2018 Supreme Court term, could change the influence unions have in elections and in policymaking.

The case centered on the legality of “fair share” fees that must be paid to unions by non-union members. The fees, also known as “agency fees,” are typically a percentage of the full dues paid by union members and represent the costs of union activities thought to directly benefit all employees, such as collective bargaining, grievance resolution and general representation. The goal is to prevent employees from becoming “free riders,” or individuals who benefit from union services without paying for them.

Navigating the Maze of State and Local Employment Laws Concerning Sick Time and Family Leave, Criminal and Salary History Checks, Pregnancy and Lactation Accommodation, and Anti-Discrimination Protection for Medical Marijuana Users

Source: Alan D. Berkowitz, J. Ian Downes, and Jane E. Patullo, Employee Relations Law Journal, Vol. 43, No. 4, Spring 2018
(subscription required)

This article provides a brief overview of some of the major trends in employment law regulation at the state and local level.

State and local laws have long been an integral part of the web of laws that regulate the workplace. Among other things, such laws have for many years expanded the scope and reach of anti-discrimination laws, and imposed complex requirements concerning the payment of wages and other compensation issues. In recent years, however, state and local legislators seem to have widened their gaze to expand regulation into numerous new areas, including family and sick leave laws, prohibitions on consideration of criminal histories and prior salary information, and protection of the rights of pregnant and breastfeeding employees. Additionally, the dramatic proliferation of medical marijuana laws in many states has brought with it numerous challenges and issues in the employment area. This article provides a brief overview of some of the major trends in employment law regulation at the state and local level.

Second Circuit Decision in Sexual Harassment Case Shows Heightened Risk for Health Care Employers

Source: Frank C. Morris, Jr., Jonathan K. Hoerner, and Katherine Smith, Employee Relations Law Journal, Vol. 44, No. 1, Summer 2018
(subscription required)

Health care employers should be aware that a recent holding from the U.S. Court of Appeals for the Second Circuit may indicate that courts and juries are beginning to weigh in on the dramatic sexual harassment developments, such as the #MeToo and #Time’sUp movements addressing workplace harassment, by holding employers to heightened standards, including as to “last chance” agreements. In MacCluskey v. University of Connecticut Health Center ( MacCluskey), the Second Circuit upheld a jury verdict awarding plaintiff Mindy MacCluskey $125,000 in damages after finding that she was subject to a hostile work environment where she was repeatedly sexually harassed by a coworker, dentist Michael Young, who was subject to a last-chance agreement from 10 years earlier. The bottom line in the MacCluskey holding is that it is not enough for employers to merely maintain a policy prohibiting sexual harassment, they must also take reasonable care to enforce the policy.