Category Archives: Labor Laws/Legislation

The Employee Free Choice Act: No Choice for Employer or Employee

Source: Douglas P. Seaton and Emily L. Ruhsam, Employee Relations Law Journal, Vol. 34 no. 4, Spring 2009

The Employee Free Choice Act (EFCA) was one of the most highly publicized issues during the 2008 presidential election. Despite its name, the EFCA would eliminate the secret ballot election and force arbitrator-created union contracts on employers after 120 days of failed bargaining. Employers are well advised to keep a pulse on EFCA as it is one of the most radical changes ever proposed to the National Labor relations Act and passage would have significant effects on unionization levels in the private sector.

Congress Enacts Robust Whistleblower Protections to Prevent Fraud in Stimulus Spending

Source: Employment Law Group, Whistleblower Law Blog, February 15th, 2009

The economic stimulus bill passed by Congress on February 12, 2009 includes robust whistleblower protections to ensure that employees of private contractors and state and local governments can disclose waste, fraud, gross mismanagement or a violation of law related to stimulus funds. This article summarizes the key provisions of Senator McCaskill’s (D-Mo.) whistleblower protection amendment to the stimulus bill (“McCaskill Amendment“).

Covered Employers:
The McCaskill Amendment applies to private contractors, state and local governments, and other non-Federal employers that receive a contract, grant or other payment appropriated or made available by the stimulus bill.

Can Labor Revive the American Dream?

Source: Esther Kaplan, Nation, Vol. 288 no. 3, January 26, 2009

The financial markets are in tatters, consumer spending is anemic and the recession continues to deepen, but corporate America is keeping its eyes on the prize: crushing organized labor. The Center for Union Facts, a business front group, has taken out full-page ads in newspapers linking SEIU president Andy Stern to the Rod Blagojevich scandal. The Chamber of Commerce is capitalizing on the debate over the Big Three bailout to claim that “unions drove the auto companies off the cliff,” while minority leader Mitch McConnell and other Republican senators insist on steep wage cuts. A December 10 Republican strategy memo revealed their central obsession: “Republicans should stand firm and take their first shot against organized labor,” the memo read. “This is a precursor to card check”–a clear reference to the Employee Free Choice Act.

This simple amendment to federal labor law, which would, among other things, allow workers to unionize when a majority sign cards rather than requiring a bruising election, has galvanized the business community in a way even the $700 billion bailout couldn’t. “I get the sense that this is more important to them than even taxes or regulation,” says the AFL-CIO’s director of government affairs, Bill Samuels. “This is about power. And the business community is not going to give up power willingly.” Wal-Mart CEO Lee Scott said as much to a meeting with analysts in October. “We like driving the car,” he told them, “and we’re not going to give the steering wheel to anybody but us.”

At first glance, Employee Free Choice looks like little more than a technical fix. In addition to allowing unionizing through majority sign-up, it stiffens penalties for intimidating or firing union supporters and imposes arbitration when a company refuses to bargain a first contract. But as the leading corporate lobbies recognize, the bill could have far-reaching effects. By reviving unions, it could push up wages, realigning the broken economy so that company profits are spread beyond CEOs. It could help rein in corporate power and, perhaps most threatening to a business community that has enjoyed decades of deregulation, sustain a progressive majority in Washington in the years to come. If progressives aren’t doing the math, conservatives are. “Unions don’t spend money to elect Republicans,” Senator John Ensign told a group of executives this past fall. “They spend money to elect Democrats. From our perspective, this would have devastating consequences.”

Blogging While (Publicly) Employed: Some First Amendment Implications

Source: Paul Secunda, University of Louisville Law Review, Vol. 47, No. 4, 2009

From the abstract:


While private-sector employees do not have First Amendment free speech protection for their blogging activities relating to the workplace, public employees may enjoy some measure of protection depending on the nature of their blogging activity. The essential difference between these types of employment stems from the presence of state action in the public employment context. Although a government employee does not have the same protection from governmental speech infringement as citizens do under the First Amendment, a long line of cases under Pickering v. Bd. of Education have established a modicum of protection, especially when the public employee blogging is off-duty and the blog post does not concern work-related matters.

Describing the legal protection for such public employee bloggers is an important project as many employers recently have ratcheted up their efforts to limit or ban employee blogging activities while blogging by employees simultaneously continues to expand. It should therefore not be surprising that the act of being fired for blogging about one’s employer has even led to a term being coined: “dooced.” So the specific question that this essay addresses is: do dooced employees have any First Amendment protection in the workplace? But the larger issue examined by implication, and the one addressed by this Symposium, is the continuing impact of technology on First Amendment free speech rights at the beginning of the 21st Century.

This contribution to the Symposium proceeds in three parts. It first examines the predicament of private-sector employees who choose to blog about their workplaces. The second section then lays out the potential First Amendment free speech implications for public employees who engage in the same types of activities. Finally, the third section briefly considers a potential future trend in this context from Kentucky involving government employers banning employee access to all blogs while at work.

Putting a Big Chill on a “Big Hurt:” Genuine Interest in Employment of Salts in Assessing Protection Under the National Labor Relations Act

Source: Jeffrey A. Mello, Employee Responsibilities and Rights Journal, Published online: 25 July 2008


(subscription required)

From the abstract:


As union membership has continued to decline steadily in the US, union organizers have become more creative and vigilant with their organizing strategies. Chief among these strategies has been “salting,” a process by which unions attempt to organize employees from the inside rather than the outside. The Supreme Court has ruled that, under the National Labor Relations Act, “salts” cannot be discriminated against solely on the basis of their status as salts. This paper examines employer responses to resist salting efforts, including a recent decision by the National Labor Relations Board, which redefines the landscape under which salting activities can be conducted and considered protected activity.

Trans Fat

Source: Elizabeth M. Glazer and Zachary A. Kramer, Social Science Electronic Publishing, February 3, 2009

From the abstract:


In her book, Fat Rights: Dilemmas of Difference and Personhood, Professor Anna Kirkland uses fat discrimination as a case study to examine the ways in which we talk about difference in antidiscrimination law. She argues that the proper way to frame questions of difference in antidiscrimination is not in terms of protected traits or categories, but rather in terms of what she calls “logics of personhood.” The logics of personhood are narratives that enable us to talk about which differences matter in a given discrimination case. In other words, they are ways of talking about what happens when people do or do not have rights, as well as whether certain people should be protected by antidiscrimination law. After applying the logics to the case of fat discrimination, Kirkland joins a growing community of scholars seeking to transcend antidiscrimination law’s categories. By identifying in the logics of personhood the presumptions that lay beneath the surface of antidiscrimination law, Kirkland creates an entirely new way to talk about differences among people.

In this Book Review, we extend Professor Kirkland’s discussion of fat plaintiffs to a discussion of transgender plaintiffs. Much like fat plaintiffs, transgender plaintiffs’ only hope of articulating actionable discrimination claims is to map their claims onto existing antidiscrimination norms. As Kirkland demonstrates in Fat Rights, fat plaintiffs must cast themselves as disabled in order to state an actionable discrimination claims. And as we demonstrate in this Book Review, transgender plaintiffs must cast themselves as gender-nonconformists in order to state actionable claims. While both fat and transgender employees may be willing to negotiate their identities to win lawsuits against their discriminatory employers, the purpose of this Book Review is to ask whether they should have to. We use Kirkland’s logics of personhood to demonstrate that fat plaintiffs and transgender plaintiffs share a common frustration with respect to antidiscrimination law’s protected categories, namely, that antidiscrimination law sees both fat people and transgender people differently from how they see themselves. And we argue further that this is a significant harm to a plaintiff’s dignity and that antidiscrimination law should take into consideration such dignitary harms.

Questions, answers on the Employee Free Choice Act

Source: Ross Eisenbrey and David Kusnet, Economic Policy Institute, Issue Brief #249, January 29, 2009

The nation’s labor laws are broken and need to be fixed. The basic labor law–the National Labor Relations  Act (NLRA)–was intended to protect workers’ rights to organize and join unions and bargain with their employers for better pay, benefits, and working conditions. But it has been distorted by decades of hostile amendments, lax enforcement, and corporate tactics that bend or break the law.

Originally, the NLRA encouraged workers to form unions freely without interference by the employers who control their livelihoods. But now, elections administered by the National Labor Relations Board (NLRB) offer overwhelming advantages to anti-union employers. These companies can campaign on their premises, while workers who support the union cannot campaign on the worksites.

During these anti-union campaigns, employers routinely intimidate, harass, coerce, and even fire employees who support unions-and a weakened NLRB and watered-down labor laws can do little or nothing to stop them. In the event that workers succeed in voting to be represented by a union, companies can delay negotiations for the first union contract by challenging the results and then refusing to bargain in good faith, and existing labor laws are powerless to stop these stalling tactics.

A bill to be introduced in Congress with broad Democratic support, called the Employee Free Choice Act, would help restore balance to the labor market by making it easier for workers to form a union, and harder for employers to use illegal tactics to fight such an effort. EPI has prepared 15 questions and answers to help explain the need for the new law, and how it would work.

NLRB Elections vs. Card Check Campaigns: Results of a Worker Survey

Source: Adrienne E. Eaton and Jill Kriesky, Industrial and Labor Relations Review, Vol. 62 No. 2, January 2009
(subscription required)

From the abstract:
The authors evaluate policy arguments for and against the use of card check as a method to determine union recognition. The results of an analysis of data from telephone surveys of 430 workers who had been through the NLRB election or card check campaigns of six unions in 2003 indicate that there was little undue union pressure to support unionization in card check campaigns, and that management pressure on workers to oppose unionization was considerably greater than pressure from co-workers or organizers to support the union in both card checks and elections. The authors also find that although workers in card checks do appear to have had somewhat less information about unions and about the recognition process than workers in elections, workers who felt they had insufficient information to make a decision about unionization tended not to sign cards.

A Lawyer’s Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged because the Nurses Resigned En Mass

Source: Mitchell H. Rubinstein, Northwestern Law Review Colloquy, Vol. 103, 2009

From the abstract:
Imagine that a group of foreign registered nurses approach their lawyer because they feel abused and want to quit their jobs. They signed an employment contract agreeing to remain employed for three years and are unsure of their rights. The contract that they signed also contains a $25,000 liquidated damage provision. The lawyer advised his clients that they have to right to quit, and after they quit, the lawyer and his clients find themselves at the center of a massive criminal and civil controversy. Both the lawyer and his clients are criminally charged with endangering the welfare of critically ill pediatric patients and related crimes because the nurses resigned en masse without notice. You might think that such a case could not arise in Twenty-First Century America, but in 2007 that is exactly what occurred in Suffolk County New York and resulted in a New York appellate court having to prohibit the criminal prosecution of both the nurses and their attorney. Matter of Vinluan v. Doyle, ___A.D.3d___, 2009 WL 93065 (2d. Dep’t. Jan. 13, 2009).

This Essay examines this troubling case, where the court held that such a prosecution offended the Thirteenth Amendment and the attorneys First Amendment right to provide legal advice to his clients. This Essay explores the public policy issues raised by this case, whether nurses have the same right to withhold their labor as other employees, as well as certain issues which the court did not reach such as whether criminal prosecution of the nurses is preempted by the National Labor Relations Act. Additionally, this Essay explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given which the court ultimately found to be “profoundly disturbing.” The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, another issue not reached by the court, that criminal prosecution of both the nurses and their attorney was unwarranted and that the Appellate Division decision was correctly decided.

The Little Unions That Couldn’t

Source: T. A. Frank, Washington Monthly, Vol. 41 no. 1, January/February 2009

Card check is worth fighting for–except for the “card check” part.

In Washington, the rhetoric over EFCA has centered on one specific element of the legislation called “card check.” Under the proposed new law, if a majority of employees fill out cards authorizing a union to represent them, the union is automatically certified. Currently, employers can demand a secret-ballot election among employees to reaffirm the results. EFCA would eliminate this option. Republicans have called this a threat to liberty and democratic values. Democrats counter that it’s essential to protecting workers against employer coercion. But this squabble is a distraction. In reality, card check is the least important part of a very important bill. The following story should help explain why.