Category Archives: Labor Laws/Legislation

Union Certification: A Critical Analysis and Proposed Alternative

Source: Mark Harcourt and Helen Larri, WorkingUSA, Vol. 10 no. 3, September 2007
(subscription required)

The North American union certification system has not met the representation needs of most workers. In this essay, certification’s effectiveness is critically examined. The exclusive representation and winner-take-all approach satisfies only two out of seven categories of union and nonunion workers with different representational preferences. The “winners” are those who successfully exercise their choice to be either unrepresented or represented by their most preferred union. All others are “losers.” A compulsory proportional representation alternative is proposed which allows for both union and nonunion forms of representation, representative election based on proportional votes, and mandatory workplace representation. The merits of this alternative in balancing the needs of both voting majorities and minorities and protecting worker rights from management encroachment are discussed. Some preliminary suggestions on its implementation are offered.

Neither Free Nor Fair: The Subversion of Democracy Under National Labor Relations Board Elections

Source: Gordon Lafer, American Rights at Work Report, July 2007

From press release:
American Rights at Work today releases “Neither Free Nor Fair: The Subversion of Democracy Under National Labor Relations Board Elections.” The report by University of Oregon political scientist Gordon Lafer, Ph.D., lays bare the realities of how unscrupulous employers undermine workers’ rights to freedom of association during government-administered union representation elections. “Anti-union employers are making a mockery of the principles governing American elections,” says Lafer. “Weak labor laws allow anti-union employers to manipulate the outcome of union elections in a manner that is inherently unfair and undemocratic.”

“Neither Free Nor Fair” details the strategies – both legal and illegal – that typically comprise employers’ efforts to deny their workers’ rights to form unions and collectively bargain. Says Lafer, “Unionbusting activity in the weeks leading up to the union election resembles practices that our government routinely denounces when performed by rogue regimes abroad.”

+ Executive Summary
+ Fact Sheet
+ Full Report

The FLSA Minefields Await the Unwary LTC Employer

Source: John E Lyncheski, Nursing Homes: Long Term Care Management, Vol. 56 no. 7, July 2007

Misunderstood or misapplied provisions of the Department of Labor’s regulations can have explosive consequences. The Department of Labor has long-term care in its sights for nonexempt employee overtime infractions.

Working of Faith: A Labor Law Enforcement Report

Source: Ted Smukler, Interfaith Worker Justice

The Department of Labor and State Departments of Labor are important allies for working people. The Department of Labor and State Departments are responsible for enforcing the nation’s labor laws, and educating both workers and employers about the nation’s labor laws.

In the past few years, the Interfaith Worker Justice and local interfaith committees have been building partnerships with local, state, and national Department of Labor (DOL) staff. These partnerships have sought to:

• Inform workers, especially low-wage and immigrant workers, of their rights in the workplace. At the national level, bulletin inserts were jointly created in nine languages that have been and continue to be distributed to workers through congregations. In local communities, DOL staff have provided educational workshops to workers.

• Train advocates to better support workers in seeking justice in the workplace. Because many worker advocates—pastors, social workers, immigrant advocates, and community organizers— are unfamiliar with the basic labor laws, they often don’t recognize basic law law violations that workers experience. Local DOL staff have partnered with local interfaith groups to train advocates about labor laws, so they can be more effective advocates.

• Create safe spaces and ways for workers to file complaints with DOL offices. Many workers, especially immigrant workers, are fearful of government agencies. And no one would suggest that the DOL procedures are particularly user-friendly. Thus, many concerned DOL staff and religious advocates have partnered to find new ways to support workers in filing complaints. Some groups are testing new simplified complaint forms. Other groups are forming workers’ centers, where workers can drop in for help. Others are looking to revive parish-based labor schools that create a safe space for workers to both file complaints and learn to organize.

Labor Union Recognition Procedures: Use of Secret Ballots and Card Checks

Source: Gerald Mayer, Congressional Research Service, Order Code RL32930, April 02, 2007

The National Labor Relations Act of 1935 (NLRA) gives private sector workers the right to join or form a labor union and to bargain collectively over wages, hours, and other working conditions. An issue before Congress is whether to change the procedures under which workers choose to join, or not to join, a union.

Under current law, the National Labor Relations Board (NLRB) conducts a secret ballot election when a petition is filed requesting one. A petition can be filed by any union, worker, or employer. Workers or a union may request an election if at least 30% of workers have signed a petition or authorization cards (i.e., cards authorizing a union to represent them). The NLRA does not require secret ballot elections. An employer may voluntarily recognize a union if a majority of workers have signed authorization cards.

Legislation introduced in the 110th Congress would, if enacted, change current union recognition procedures.

State Labor Legislation Enacted in 2006

Source: John J. Fitzpatrick, Jr., Monthly Labor Review, Vol. 130 no. 1, January 2007

Minimum wages, workplace security, prevailing wages, equal employment opportunity, wages paid, time off, drug and alcohol testing, child labor, human trafficking, and immigrant protections were among the most active areas in which legislation was enacted or revised during the year.

Rethinking the Tripartite Division of American Work Law

Source: Richard Michael Fischl, Berkeley Journal of Employment and Labor Law, Vol. 28 no. 1, 2007

In this article, Professor Fischl argues that the boundaries separating the constituent subjects of American work law—employment discrimination, labor law, and employment law—are becoming increasingly porous. He contends the continued embrace of the conventional subject-matter division reflects and reinforces an increasingly false opposition between the struggle for workplace democracy and the struggle for racial, gender, and other forms of workplace justice.

Commentary: Supervisors Of The World Unite! The NLRB Tells Nurses And Professional Workers Which Side They Are On

Source: Harris Freeman, WorkingUSA: The Journal of Labor and Society, Vol. 10 no. 1, March 2007
(subscription required)

The National Labor Relations Board (NLRB) has finally issued the long-awaited Oakwood Healthcare, Inc. decision, holding that registered nurses who nominally coordinate and guide the work of other nurses or health care workers are supervisory personnel who fall outside the coverage of the National Labor Relations Act. Oakwood Healthcare is a seminal NLRB decision, articulating a remarkably expansive rule for determining whether or not an employee is a supervisor. By radically redefining who is a worker and who is a boss, Oakwood Healthcare has the potential to do what no other single case in the history of the NLRB has ever done—deprive more than eight million professionals and skilled workers of their right to join a labor union. If Oakwood Healthcare is not reversed by the federal courts or undermined by statutory labor law reform, as many as eight million professional employees and skilled workers will join the 32 million members of the U.S. workforce—one out of four workers—who, according to the General Accounting Office, do not have the legal right to join unions. As dissenting Board member Wilma Liebman ominously noted, Oakwood Healthcare creates a class of workers existing in a legal limbo “hav[ing] neither the genuine prerogatives of management, nor the statutory rights of ordinary employees.”

Washington State Bill Addresses Safety Concerns of Mental Health Workers

Source: Mental Health Weekly, Vol. 17 no. 17, April 30, 2007
(subscription required)

Legislation, which includes violence protection training, soon to become law.

House bill 1456, also known as the Marty Smith bill would provide backup for mental health professionals during home visits. The bill is names in honor of Smith, a County Designated Mental Health Professional (CDMHP) at Kitsap Mental Health, a private not-for-profit community mental health center in Bremerton, Wash., who was killed on Nov. 4, 2005 when he went to provide care for a client during a home visit.

San Francisco’s Paid Sick Leave Law: A Canary in the Coal Mine?

Source: Maureen Minehan, Employment Alert, Vol. 24 no. 5, March 1, 2007
(subscription required)

In November, voters in San Francisco approved proposition F, a bill that requires employers within San Francisco’s city and county limits to provide an hour of sick leave to full-time, part-time, and temporary employees for every 30 hours worked. While it may be tempting to dismiss the law as something only a liberal city such as San Francisco would pass, doing so would be a mistake. Similar laws have been introduced in state legislatures and a federal paid sick leave bill is pending before Congress.