Category Archives: Labor Laws/Legislation

Donning and Doffing: The New Wave of FLSA Litigation

Source: Brian Walter and Cepideh Roufougar, IPMA-HR News, December, 2007
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Throughout the state of California and the United States, police officers are demanding compensation for time spent putting on and taking off their police uniforms. This rash of “donning and doffing” cases is based on a decision by the U.S. Supreme Court involving employees working in a meat processing plant. Courts all over the country are now facing the question: “What do police officers have in common with meat processing plant workers?” Public employers are anxiously awaiting an answer to this question, as the answer could cost employers and the public tens of millions of dollars.

The Union Authorization Card Majority Debate

Source: Henry H. Drummonds, Labor Law Journal, Vol. 58 no. 4, Winter, 2007

This article sketches developments in the card majority debate and several related issues reflected in developing case law concerning the use of “salts,” “neutrality” agreements, and accretion clauses in union attempts to expand representation rights. It also briefly mentions other significant recent decisions that make it more difficult for unions to win, and keep, representation rights. … A major public policy issue faces the Congress, state legislatures, and federal and state labor boards. How is the ideal of employee free choice best actualized? The law is changing. From the union side one sees legislative attempts to win card majority recognition/certification rights and to avoid elections in which employers are free to campaign against unionization at all costs. And from the perspective of the NLRB’s General Counsel and the NLRB’s current majority, concerns for employee free choice create persistent questioning of long-assumed principles of card check recognition. For the private sector unions, especially, this issue may decide their ultimate fate as the percentage of represented employees shrinks toward the vanishing point.

Child Labor

Source: Megha Bahree, Forbes, Vol. 181 no. 4, February 25, 2008

That garden stone, handmade carpet or embroidered T-shirt you just bought was probably made by child labor.

Every time you buy an imported handmade carpet, an embroidered pair of jeans, a beaded purse, a decorated box or a soccer ball there’s a good chance you’re acquiring something fashioned by a child. Such goods are available in places like GapKids, Macy’s, ABC Carpet & Home, Ikea, Lowe’s, and Home Depot. These retailers say they are aware of child-labor problems, have strict policies against selling products made by underage kids and abide by the laws of the countries from which they import. But there are many links in a supply chain, and even a well-intentioned importer can’t police them all.

“There are many, many household items that are produced with forced labor and not just child labor,” says Bama Athreya, executive director of the International Labor Rights Forum in Washington, D.C. It’s a fact of a global economy, and will continue to be, as long as Americans (and Europeans) demand cheap goods–and incomes in emerging economies remain low. If a child is enslaved, it’s because his parents are desperately poor.

Labor Hits Jackpot

Source: Melinda Tuhus, In These Times, February 5, 2008

Foxwoods Resort Casino rises from the hills of rural southeastern Connecticut like a gambler’s Oz.

It is one of the country’s biggest Indian casinos and it is the largest employer in the state, with 10,000 workers. Of those employees, about 2,600 are dealers of games such as poker and blackjack. And on Nov. 24, 2007, many of these dealers placed a bet on a better life with the United Auto Workers (UAW). ….

It’s the first election at an Indian casino to be overseen by the National Labor Relations Board (NLRB), which made a groundbreaking ruling last year that allowed Indian casinos to be unionized. But casino management has appealed the vote, claiming it violates tribal sovereignty.

Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board

Source: Wilma B. Liebman, Berkeley Journal of Employment and Labor Law, Volume 28, no. 2, 2007

In this essay, the senior member of the National Labor Relations Board reflects on the aging of American labor law and the agency that administers it. In her view, the National Labor Relations Act, which has not been updated in 60 years, is now out of sync with a transformed economy. Meanwhile, the Board, even accounting for the statutory, judicial and political constraints under which it operates, has failed in its duty to apply the statute dynamically. The author suggests, however, that the stakes are too high to abandon hope for a revitalization of labor law and policy.

Administrative Criminal Law & Procedure in the Teamsters Union: What Has Been Achieved After (Nearly) Twenty Years

Source: James B. Jacobs and Dimitri D. Portnoi, Berkeley Journal of Employment and Labor Law, Volume 28, no. 2, 2007

This article is a comprehensive case study of the most important civil RICO labor racketeering case in American history, U.S. v. IBT. It provides the first empirical study of the effort by DOJ and the federal courts to purge organized crime from the IBT and to reform the union so that it will be resistant to future corruption and racketeering. Drawing on 18 years of litigation generated by the effort of court-supervised monitors to enforce the 1988 settlement, it utilizes a database of all disciplinary charges brought by and the sanctions imposed by the court-supervised monitors. This article traces the remedial phase which has generated an immense amount of litigation right up to the present and focuses on the disciplinary (as opposed to the election) part of the remedial effort. The magnitude of this effort can hardly be exaggerated. The two remedial entities that the settlement established to enforce the consent order have expelled more than 600 officers and members from the IBT and placed some 40 IBT locals and joint councils under the international union’s trusteeship. This work has been accomplished via the creation of an IBT-specific criminal justice system that has evolved into an elaborate system of procedural and substantive disciplinary law. U.S. v. IBT is an experiment in institution building. It may allow us to determine, or at least to knowledgeably assess, the potential and limits of civil RICO as a methodology for attacking deeply entrenched systemic criminality in powerful formal organizations.

Mine Fines Routinely Ignored: MSHA Leaders Promise Reforms

Source: Ken Ward Jr., Charleston Gazette, January 27, 2008

Federal regulators have allowed mine operators to avoid fines for thousands of health and safety citations, despite a federal law that requires monetary penalties for such violations, government officials have confirmed.

Over the last six years, the Department of Labor’s Mine Safety and Health Administration did not assess civil penalties for about 4,000 violations, according to preliminary MSHA data.

The Clinton Administration and Labor Law: Was Comprehensive Reform Ever a Realistic Possibility?

Source: John Logan
Journal of Labor Research
Fall 2007

This article analyzes the critical obstacles in the path of labor law reform during the 1990s. It stresses the importance of the lukewarm support of the Clinton Administration for labor law reform, organized labor’s failure to frame the debate on labor law reform to its advantage and its inability to convince key Senators to support its reform agenda, and, especially, the determined opposition to reform of employer groups and their allies in Congress. The article concludes with a brief discussion of the lessons of the legislative defeats of the 1990s for the AFL-CIO’s current campaign to revise the National Labor Relations Act.

The Ossification of American Labor Law and the Decline of Self-governance in the Workplace

Source: Cynthia Estlund
Journal of Labor Research
Fall 2007

This article argues that the ineffectuality of American labor law and the shrinking scope of collective representation and collective bargaining are partly traceable to the law’s “ossification”–to its having been essentially sealed off for several decades from democratic revision and renewal and from local experimentation and innovation. The elements of this process of ossification, once assembled, make up an imposing set of barriers to innovation. The basic law has been cut off from legislative revision at the national level by Congress; from “market”-driven competition by employers; from the entrepreneurial and creative energies of private litigation; from variation at the state or local level by representative or judicial bodies; from changing constitutional doctrine; and from emerging transnational legal norms. Moreover, the National Labor Relations Board–the designated institutional vehicle for adjusting the labor laws to modern conditions–is increasingly hemmed in by the age of the text and the large body of judicial interpretations that has grown up over the years. The resulting statutory scheme is drastically out of date and out of sync with the needs of 21st century workers and labor markets.