Category Archives: Labor Laws/Legislation

Labor Law Illiteracy: Epic Systems Corp. v. Lewis and Janus v. AFSCME

Source: Michael J. Yelnosky, Roger Williams University, Legal Studies Paper No. 184, September 4, 2018

From the abstract:
Labor law, both as an academic discipline and a subject of public consciousness, is in decline. The Supreme Court’s recent decisions in Epic Systems v. Lewis and Janus v. AFSCME reflect a notable consequence of this decline – what I am calling labor law illiteracy. The majority in Epic Systems seems to misunderstand one of the basic principles of the National Labor Relations Act, and the majority in Janus based its decision, in part, on a simplistic and one-sided view of the justifications for public sector labor law and collective bargaining.

Addressing Sexual Harassment in the Workplace

Source: Suzanne Hultin, LegisBrief, Vol . 26, No. 17, May 2018

The recent wave of sexual harassment allegations against media, sports moguls, politicians and people of power over the past year has prompted many state legislatures to address how they are protecting their state’s workers. Many state legislatures are looking to go beyond federal regulations to prevent workplace sexual harassment.

The Best States to Work Index: A Guide to Labor Policy in U.S. States

Source: Oxfam America, 2018

From the press release:
The new index, which assesses labor laws and worker protections in all states in the country, puts Washington, DC at the top and Virginia at the bottom

The District of Columbia leads the way in a new ranking of state labor laws and worker protections released by Oxfam America today, while neighboring Virginia comes in last. Washington, California, and Massachusetts also ranked at the top of the first ever Best States to Work Index; Pennsylvania, Montana and Indiana rank in the middle; while Georgia, Alabama, and Mississippi are also at the bottom.

The Best States to Work Index looks at 11 policy areas in three dimensions: wage policies to ensure workers earn as close to a living wage as possible; worker protections so workers can take time off for sickness or pregnancy and have legal protections against sexual harassment; and right to organize policies to protect the rights of workers to find a voice through organizing and sustaining a trade union if they desire.

Life After Janus

Source: Aaron Tang, Columbia Law Review, Forthcoming, Last revised: 18 Aug 2018

From the abstract:
The axe has finally fallen. In Janus v. AFSCME, Council 31, the Supreme Court struck down the major source of financial security enjoyed by public sector unions representing nearly half of the nation’s fifteen million union members. Countless press stories, law review articles, and amicus briefs have criticized and defended this outcome. This Article has a different aim. Rather than re-litigating Janus, the question I ask is instead forward-looking: What’s next? Is there life for public sector unions after Janus? And if so, what might it look like? In engaging these questions, this Article has three goals. First, I want to push back on the narrative that public unions have no choice now but to struggle on within a national right-to-work environment. That is certainly one possibility, but pro-labor states have available a range of legislative responses that may soften Janus’s blow or even negate it altogether. One response is for pro-labor states to authorize public employers to reimburse unions for their bargaining-related costs directly. The standard objection is that direct government funding will undercut unions’ ability to advocate independently for workers. My second goal is to confront this objection head-on, with an argument that draws on an unlikely source: an analogy between public unions and public defenders. As it turns out, America’s woeful experience with indigent criminal defense teaches some powerful lessons about how not to fund entities whose entire purpose is to contest the government’s narrow self-interest. But it also suggests funding approaches that would raise no independence concerns at all. That leads to my final and most significant objective: to propose model legislation for state lawmakers to implement direct reimbursement of unions. The proposal is revenue neutral for public employers and unions, and it is revenue enhancing for workers in light of nuances in the federal income tax. Readers interested in the nuts and bolts of the proposed legislation may wish to skip the first three parts of this Article (which make the case for why reimbursement is desirable) and start at Part IV on page 43. For convenience, a model bill is included in the appendix.

Compelled Subsidies and the First Amendment

Source: William Baude, Eugene Volokh, Harvard Law Review (2018 Forthcoming), Date Written: July 29, 2018

From the abstract:
Sometimes the government compels people to pay money to organizations they oppose. A lawyer may be forced to fund a bar association, a college student to fund student group activities, a public employee forced to fund a labor union. Unsurprisingly, people may bristle at such compulsion. Nobody likes having their money taken, and knowing that it will be spent on causes one opposes seems to add insult to injury. But when is it unconstitutional? For forty years, the Court has unanimously concluded that being required to pay money to a union, or to a state bar, is a serious burden on one’s First Amendment rights. This burden, the Court has held, is generally unconstitutional when the money is used for most kinds of political advocacy. In Janus v. AFSCME, a majority of the Court went further, and held that requiring public employees to pay union agency fees is categorically unconstitutional, even when the money is used for collective bargaining. Such public-sector collective bargaining, the majority held, is itself inherently political. And the government interests in mandating such payments don’t suffice to justify such requirements. There was a strong dissent by four Justices, but as we discuss in Part I, we think the majority had the better argument on both of these two points. But we think the majority — and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar — erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of — likewise with having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong. In Part III, we turn from evaluating the decision to anticipating its consequences. We doubt Janus will have significant effects on government speech rights (Part III.A), but it will likely bar the funding of other forms of private speech. Janus will likely extend to a prohibition on state bar dues, at least so long as the bar is seen as sufficiently removed from other government agencies (Part III.B). It might also include constraints on public university student governments’ use of student activity fees, though universities can create accounting workarounds that will practically allow such student activity funding to continue (Part III.C). Finally, and perhaps most consequentially, Janus may lead to massive liability for unions that have collected the agency fees that are now viewed as unconstitutional. (Part III.D). Though the fees were seen as valid when collected, the Supreme Court’s precedents say that constitutional reversals in civil cases are generally retroactive, so everyone in Janus’s shoes can get agency fee refunds just as Janus himself could (at least so long as the statute of limitations has not lapsed). Moreover, private organizations such as unions are generally not entitled to qualified immunity or similar defenses. While the unions do have some possible arguments to mitigate the damages or try to claim a special form of good faith, those defenses are speculative, and cannot be counted on.

Southern Cities Are Passing Paid Sick Leave—But Republicans Won’t Let Them Have It

Source: Bryce Covert, In These Times blog, August 24, 2018

…. It’s a growing trend in legislatures controlled by Republicans. At least 25 states have passed preemption laws that block cities from raising the minimum wage, and 20 have banned cities from instituting paid sick leave. The majority of these laws have been enacted since 2013 and advocates for higher workplace standards say the trend is only accelerating. ….

2018 Supreme Court Commentary: Employment Law

Source: Jonathan Ross Harkavy – Patterson Harkavy LLP, Date Written: July 31, 2018

From the abstract:
This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2017 Term that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2018 Term.

States Ask Supreme Court to Limit LGBT Protection

Source: Chris Opfer, Bloomberg, August, 24, 2018

– Case tests reach of ban on sex discrimination in workplace
– Trump administration agencies divided over legal question

A group of 16 states urged the U.S. Supreme Court Aug. 23 to rule that companies can fire workers based on their sexual orientation and gender identity without violating federal workplace discrimination law.

The states, led by Nebraska Attorney General David Bydalek, asked the justices to overturn an appeals court decision against a Michigan funeral home that fired a transgender worker. They said Congress didn’t intend the ban on sex discrimination in Title VII of the 1964 Civil Rights Act to cover bias against lesbian, gay, bisexual, or transgender employees….

The Spread of Anti-Union Business Coordination: Evidence from the Open-Shop Movement in the U.S. Interwar Period

Source: Alexander Kuo, Studies in American Political Development, Volume 32 Issue 1, April 2018
(subscription required)

From the abstract:
What explains the development of repressive employer coordination? Classic historical American business and labor literature focuses on institutions of labor repression and employer associations, but little systematic examination of such associations exists, particularly during the interwar period. Similarly, recent political science literature on the origins of industrial institutions underemphasizes the importance of repressive employer associations. I use new quantitative subnational evidence from the U.S. interwar period, with data from the open-shop movement in the United States at the local level after World War I. I test a variety of families of hypotheses regarding variation in repressive employer coordination, with specific data measuring the threat posed by organized labor. I find that such threats posed by unions are correlated to repressive employer associations. The results have implications for understanding local-level variation in the business repression of labor movements in the early twentieth century and contribute to our understanding of labor repressive institutions and the incentives of firms to collectively act.