Category Archives: Labor Laws/Legislation

When Union Members in a Members-Only Non-Majority Union (MONMU) Want Weingarten Rights: How High Will the Blue Eagle Fly?

Source: Christine Neylon O’Brien, University of Pennsylvania Journal of Business and Employment Law, Vol. 10 no. 3, 2008

AFL-CIO General Counsel Jon Hiatt has also noted the narrowing of the NLRA’s coverage and protections, highlighting in particular the Board’s most recent decision that employees who are not represented by a union do not have a Weingarten right to have assistance from a co-worker during an investigatory interview. … The Steelworkers, represented by Professor Morris, and six other unions with their own counsel, have now filed a petition at the NLRB seeking rulemaking on the issue of members-only minority union collective bargaining, including the letter in support. … The Right to Representation in MONMUs – The Prospect on Weingarten Rights As far as the representational rights of employees in a MONMU are concerned, the Dick’s Sporting Goods Advice Memorandum has made clear that there is presently no obligation for an employer to recognize or bargain with a union that does not represent a majority of employees in a bargaining unit. … The IBM plurality noted that the Epilepsy decision rejected the three policy concerns expressed in DuPont when it revoked Weingarten rights for nonunion employees.

DOL Issues New Final FMLA Regulations

Source: Gage Dungy, California Public Employee Relations Journal, no. 194, February 2009
(subscription required)

On November 17, 2008, the United States Department of Labor published its long-awaited final regulations interpreting the Family and Medical Leave Act. The new regulations, which took effect on January 16, 2009, address 15 years of case law, statutory revision, and literally thousands of public comments received by the DOL during the review process. Some of the most significant modifications and amendments are discussed below.

Rights Begin at Home: Defending Domestic Workers’ Rights in California

Source: National Employment Law Project, March 01, 2009

The purpose of this handbook is to help worker and women’s advocates and organizers defend domestic workers rights within the context of existing employment laws and to highlight where there is a need to change inadequate and unfair laws. Our hope is that this guide will inspire you to outreach to and educate domestic workers and to help them defend the rights they have and gain the rights they deserve. While the laws do not reflect the full extent of the rights domestic workers ought to have, they do give workers some protection, regardless of their immigration status. The information in this handbook is based on the laws that apply in California. Some of this information can be easily shared with domestic workers themselves.

Despite the limitations of the law, community organizations have used creative and innovative strategies in advocating for greater protections for domestic workers. Some of these strategies are discussed throughout the guide. Through enforcement of existing legal rights and organizing for more protections, we can improve working conditions for all domestic workers and combat the racism, sexism, and worker exploitation that create deplorable conditions.

The California Coalition for Household Worker Rights will be working to pass a domestic worker rights bill through the California legislature in 2010. Contact any of the Coalition members to get involved or lend your support. See Appendix D for a list of Coalition members.
See also:
Rights Begin at Home: Defending Domestic Workers’ Rights in Illinois

Coming soon:
Rights Begin at Home for New York, New Jersey and Connecticut

Judicial Review Standards for Interest Arbitration Awards Under the Employee Free Choice Act

Source: Andrew Lee Younkins, University of San Francisco Law Review, Vol. 43 no. 2, Fall 2008

When interest arbitration is legally mandated, one or both parties may feel aggrieved by the result, and wish to challenge the terms of the collective bargaining agreement. A provision
of the Employee Free Choice Act (“EFCA”), a proposed act of Congress, would mandate interest arbitration of initial collective bargaining agreements when the union and the employer cannot agree on a contract within a prescribed period of time. The EFCA, however, does not provide courts guidance on how to review the collective bargaining agreements it would mandate.

On its own, the EFCA is inadequate to meet the needs of employers and unions who will be affected by its compulsory arbitration provisions. The EFCA’s first-contract compulsory arbitration provisions will lead unions to become reliant on an arbitrator to resolve their contract disputes, yet the EFCA does not specify a standard or scope for judicial review of interest arbitration awards. Because federal courts have not developed a body of law to address the review of labor union contracts, the EFCA should be amended to require that (1) courts conduct arbitrations in on-the-record hearings; (2) courts vary the level of deference accorded to interest arbitration awards, based on the arbitrator’s expertise; and (3) arbitrators craft awards according to a prescribed set of substantive standards.

The Employee Free Choice Act of 2009, Labor Law Reform, and What Can Be Done About the Broken System of Labor-Management Relations Law in the United States

Source: William B. Gould IV, University of San Francisco Law Review, Vol. 43 no. 2, Fall 2008

The role of labor law, as an instrument for the promotion of freedom of association amongst workers to ban together effectively to join unions and promote the collective bargaining process, has declined as well. However, many observers assume an incorrect non sequitur, i.e., that these two developments are connected with one another and that if the law can be reformed, union decline can be halted. In my judgment, this analysis is superficial, as there are numerous factors which are responsible for the union decline phenomenon:
– globalization and foreign competition
– the composition of the work force force, particularly because of the advent of numerous undocumented workers who do not enjoy the protection of the NLRA
– union-nonunion wage differential creates a greater incentive for nonunion employers to resist unionization
– the fact that the Unites States and other industrialized countries are shifting from manufacturing to service industries

In a number of respects, however, the law has played a role in union decline. In the first place, employers, able to use the permanent replacement weapon in response to lawful strikes since 1938, have begun to use this tactic increasingly since the 1980s–perhaps in response to President Reagan’s example when he fired the unlawfully striking air controllers. Employers have been able to disappear and relieve themselves of their union and contractual obligations through creating alter egos and have escaped union relationships through the successorship doctrine devised by the United States Supreme Court. Unions have been weakened by the Court’s holding that union members have the right to resign from membership and obligations at any point, including the time of the use of the strike weapon itself, and thus escape contractual obligations entered into, notwithstanding union constitutional provisions which impose limitations on this right.

Employee Free Choice Act: Fight of a Lifetime?

Source: Jane Slaughter, Labor Notes, March 2009

Nobody wants to say it on the record, but the buzz is we won’t get the Employee Free Choice Act in its current form. It’s possible to admire labor’s efforts for two million petition signatures for EFCA and still ask, if this is the fight of a lifetime, why aren’t we acting like it? Could the energy unions channeled for Obama last fall be reawakened for creative actions in 2009?

Implications of the Family and Medical Leave Act for Local Governments: Helping Administrators Understand the Law

Source: P. Edward French, Review of Public Personnel Administration, Vol. 29 no. 1, March 2009
(subscription required)

From the abstract:
The Family and Medical Leave Act (FMLA) was enacted in 1993 to help full-time employees balance the conflicting demands of their work and personal lives. Private employers with 50 or more employees (at a single work site) and all federal, state, and local government employers are required to comply with the act. Since its inception, many local governments have been sued for violations of its guidelines. This research provides case examples from across the United States to illustrate why many local governments have faced litigation under this act. Several cases filed against cities and counties over the past 7 years are discussed. The intent of this analysis is to highlight many of the legal rights and protections that the FMLA affords to local government employees, to provide a practical understanding and guide for compliance with the requirements of this employment legislation.

The Supreme Court and the Continuing Deconstitutionalization of Public Personnel Management

Source: Robert Roberts, Review of Public Personnel Administration, Vol. 29 no. 1, March 2009
(subscription required)

From the abstract:
In Engquist v. Oregon Department of Agriculture, the Supreme Court held that public employees may not use the so-called equal protection clause of class-of-one doctrine to challenge the constitutionality of arguably arbitrary adverse personnel actions. In the 2000 case of Village of Willowbrook v. Olech, the high court had authorized citizens to bring class-of-one equal protection lawsuits to challenge arguably arbitrary discretionary decisions by government officials. The decision provides further evidence of the ongoing effort by a majority of the Roberts Court to limit the constitutional rights of public employees. The article argues that the ongoing deconstitutionalization of public personnel management has significant implications for the management of public organizations. If the trend continues, public employees, much like their private sector counterparts, will become much more dependent on statutory protections and collective bargaining agreements to protect them from arbitrary personnel decisions.

Basic Pilot / E-Verify – Why Mandatory Employer Participation Will Hurt Workers, Businesses, and the Struggling U.S. Economy

Source: National Immigration Law Project, February 2009

Basic Pilot/E-Verify is a voluntary Internet-based program whose purpose is to allow employers to electronically verify the information that workers present to prove their employment eligibility by accessing information in databases maintained by the Department of Homeland Security (DHS) and the Social Security Administration (SSA). As of January 8, 2009, approximately 100,000 employers were enrolled in Basic Pilot/EVerify — slightly more than 1 percent of the approximately 7.4 million employers in the U.S. Only half of those enrolled, however, actually use the program.

While Basic Pilot/E-Verify often is portrayed as the magic bullet that would curb the hiring of unauthorized workers, since its inception in 1997 the program has been plagued by multitude problems that adversely affect both workers and businesses. Numerous entities, including the Government Accountability Office (GAO), the Social Security Administration’s Office of the Inspector General (SSA-OIG), and a research firm under contract with DHS, have found that Basic Pilot/E-Verify has significant weaknesses, including (1) its reliance on government databases that have unacceptably high error rates and (2) employer misuse of the program to take adverse actions against workers.

Would the Employee Free Choice Act Effectively Protect the Right to Unionize?

Source: Bruce Nissen, Labor Studies Journal, Vol. 34 no. 1, March 2009
(subscription required)

From the abstract:
This article examines in detail union busting in a nursing home facility in Florida and asks whether the Employee Free Choice Act (EFCA) would have protected workers’ freedom to choose if it had been in effect at the time. It systematically applies EFCA’s provisions to the events of the case and concludes that EFCA would have been helpful to the workers. However, EFCA would not have erased all obstacles to free employee choice, especially for low-wage workers like these. It also reveals that one of the least known features of EFCA would have been most crucial in this case.