Category Archives: Labor Laws/Legislation

Human Dignity and American Employment Law

Source: David C. Yamada, University of Richmond Law Review, Vol. 43, 2009

From the abstract:
For decades, American employment law has been framed by the ideas of the unfettered free market and unilateral management control. This “markets and management” framework has helped to deliver growing levels of income inequality, job insecurity, and stress at work. This essay argues that human dignity should be our framing perspective for examining and shaping American employment law, building its case around sources ranging from Enlightenment philosopher John Locke and America’s Founding Fathers, to newer fields such as therapeutic jurisprudence and the works of relational psychology theorists Carol Gilligan and Jean Baker Miller. The essay discusses several important employment law issues against the backdrop of this new “dignitarian” framework and closes with ideas about advancing this agenda in the public arena.

Stacking the Deck: Privileging ‘Employer Free Choice’ over Industrial Democracy in the Card Check Debate

Source: Raja Raghunath, University Denver Legal Studies Research Paper No. 08-10, Nebraska Law Review, Vol. 87, 2008

From the abstract:
“Card check” organizing is the most controversial issue in labor law today, and this article is the first to analyze Dana Corp., the landmark decision on card check that was issued by the National Labor Relations Board in September 2007. The Dana Corp. decision represents a fundamental shift in American labor relations, away from safeguarding the rights of employees to collectively bargain, and towards safeguarding employer choice as to whether to engage in collective bargaining at all. The purpose of this article is to call attention to this shift, and to refocus the card-check debate on the fundamental principle of asymmetrical employer power in the workplace. The importance of this principle in understanding the arguments surrounding card check is heightened by the shift in labor relations signaled by the Dana Corp. decision, as well as two significant recent developments in the California and Illinois public sector that also have gone unanalyzed.

Who’s the Boss? Supervisors, Professional, Independent Judgement, and the NLRA: A Post-Oxwood Healthcare Review

Source: Breet Huckell, Labor Law Journal, Fall 2008

…..For labor organizations and professionals, Oakwood calls upon the need for creativity and strategy. One burgeoning tactic, for example, involves permissive bargaining over the status of the supposed supervisors to ensure their entitlement to “employee” rank.

Human Dignity and American Employment Law

Source: David Yamada, University of Richmond Law Review, Vol. 43, 2009, Suffolk University Law School Research Paper No. 08-36

From the abstract:
For decades, American employment law has been framed by the ideas of the unfettered free market and unilateral management control. This “markets and management” framework has helped to deliver growing levels of income inequality, job insecurity, and stress at work. This essay argues that human dignity should be our framing perspective for examining and shaping American employment law, building its case around sources ranging from Enlightenment philosopher John Locke and America’s Founding Fathers, to newer fields such as therapeutic jurisprudence and the works of relational psychology theorists Carol Gilligan and Jean Baker Miller. The essay discusses several important employment law issues against the backdrop of this new “dignitarian” framework and closes with ideas about advancing this agenda in the public arena.

Skepticism Greets Non-Union Fees Case

Source: Tony Mauro, First Amendment Center, 10.07.08

WASHINGTON — The Supreme Court seemed skeptical yesterday of the argument that the First Amendment rights of non-union members should include refusing to pay fees that support certain kinds of national union litigation.

The justices, on the opening day of the fall term, were hearing arguments in Locke v. Karass, the latest in a series of cases supported by the National Right to Work Foundation. The group opposes union dominance of workplaces by espousing the First Amendment rights of non-union members to refuse to fund union activities with which they might disagree.
See also:
Transcript of oral arguments
Source: US Supreme Court
Brief summary
Source: Law Professor Blogs LLC, October 2008
Oral Argument in Locke
Source: Law Professor Blogs LLC, October 6, 2008

Toward the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States

Source: Paul M. Secunda, Comparative Labor Law & Policy Journal, Vol. 29, No. 2, pp. 209-246, 2008

From the abstract:
The U.S. Supreme Court has long interpreted the National Labor Relations Act as permitting employers to hold workplace captive audience meetings with their employees on labor-oriented issues. Employees must attend these meetings at pain of discharge and may not be able to leave these meetings, ask questions, or espouse pro-union views.

Under Worker Freedom Act legislation percolating presently in a number of state legislatures, employers would not only be prohibited from holding mandatory sessions during work to express opinions on labor-related, political, and religious issues, but would be liable for retaliating against workers who reported the holding of such sessions.

The focus of this essay is whether Worker Freedom Act legislation would be preempted by federal labor law. This essay answers this question in two ways. First, under current labor preemption doctrine and Supreme Court precedent interpreting rights of states to continue to regulate property and contract rights in the labor relations context, courts should find that such state laws are not preempted by the NLRA. Second, this essay renews the call for a reconceptualization of labor preemption doctrine by the Supreme Court to place such legislation on a more sound doctrinal foundation. Under this new conception, once federal labor law is satisfied by permitting the free exchange of ideas on unionization between employers and their employees, state should then be able to go beyond that floor and provide additional protections to employees to be free from mandatory indoctrination sessions by their employers at work.

Who Mops The Floors At The Fortune 500? Corporate Self-Regulation and The Low-Wage Workplace

Source: Cynthia Estlund, Lewis and Clark Law Review, Vol. 12 no. 3, August 2008

Rising inequality in the U.S. is reflected and largely created in the labor market, and in the huge and growing disparity in wages and working conditions between the top and the bottom. In particular, the meager and often illegal wages and working conditions in the low-wage labor market pose a threat not only to the well-being of the working poor but to the health of our democratic society. So what is to be done? Both labor law reform that enables workers to form unions and stronger public enforcement of labor standards are essential, but are unlikely to fill the enforcement gap. This Essay finds a partial solution to the problem of underenforcement in the fact that many low-wage workers supply labor–sometimes directly but often through one or more layers of contract–to large firms with prodigious internal regulatory resources and a large stake in their reputations as responsible corporate citizens. The law has already moved, and could productively be pushed further, in the direction of encouraging, shaping, and relying upon compliance structures within regulated entities themselves. Both law and society have also taken steps toward holding large firms responsible for the illegal conditions that prevail at the bottom of their supply chains. But more can and should be done to encourage the large and rich firms that are reaping the greatest profits from globalization to take responsibility for securing decent minimum wages and working conditions for the workers who supply them with essential labor inputs.
See also:
Jeffrey D. Jones, The Unaffordable Nation: Searching For A Decent Life in America, 2007

Just Cause in Montana: Did the Big Sky Fall?

Source: Barry D. Roseman, American Constitution Society, September 2008

For more than 130 years, the default rule in employment in the United States has been the rule of employment at will. Persons who are employed at will can be fired for a good reason, a bad reason or no reason at all – even a totally arbitrary or irrational reason – as long as that decision is not unlawful as a result of a specific law, such as the National Labor Relations Act or federal, state or local antidiscrimination statutes and ordinances. In contrast, most unionized employees in the United States can be fired only if the employer has a good reason, or just cause, for that decision.

This issue brief summarizes the common-law doctrine of employment at will in the
United States and its impact, including the unfair results it has produced for many employees. It then examines the experience of Montana, the only one of the 50 states that has adopted an alternative approach – one requiring that private-sector employers have just cause to dismiss employees even if they do not have contractual just-cause protections.

One of the arguments for employment at will is an economic one, that just cause for termination of employment leads to higher unemployment rates and lower job growth rates. As this paper shows, in Montana this is not true. Montana now has one of the lowest unemployment rates in the United States. Its economy over the last three decades has been driven by factors that have nothing to do with the fact that it has abolished employment at will.