Category Archives: Labor Laws/Legislation

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.

Cowboy Campaigning: Patriotism, “Freedom,” and Right-to-Work in Oklahoma

Source: Judith L. King and Laurel C. Catlett-King, Labor Studies Journal, Vol.. 32 no. 1, March 2007
(subscription required)

The 2001 right-to-work referendum in Oklahoma provided unique challenges for the labor movement. This article examines the Oklahoma campaign in the context of right-to-work and other labor referendums and discusses the consequences of particular strategies used by the labor and business campaigns. The authors argue that despite a strong member mobilization campaign, the impact of September 11 and the influence of the print media may have been determining factors in the campaign.

Worker Centers: Emerging Labor Organizations – Until They Confront the National Labor Relations Act

Source: David Rosenfeld, Berkeley Journal of Employment and Labor Law, 2006, Volume 27, no. 2

… Two new books dramatically illustrate the long-term failures of workers and their traditional institutions and effectively describe the efforts of the worker center movement to fill the void in advocacy for low-income workers. … Predictably, the employer filed a charge with the NLRB asserting that CULA was acting as a “labor organization” within the meaning of the NLRA and was engaged in illegal picketing. … Moreover, it would not seem likely that a worker center could easily shed the attachment of labor organization status without taking decisive steps to eliminate activity which reflected “dealing with employers.” … Thus, the worker center would have to cease dealing with every employer to stop acting as a labor organization. … The Board in CULA flatly rejected the suggestion that representation of employees before state agencies was “dealing” with employers and related to its labor organization status. … If the NLRB, the Department of Labor, or other agencies that enforce workplace laws determine that worker centers meet the test of “labor organization,” this would create a substantial impediment, if not an insurmountable barrier, to the growth of the worker center movement. … For low-wage immigrant workers, the activity may encompass walkouts, picketing, confronting the employer, demanding higher pay, and many other activities all without the involvement of any labor organization. … Morris has no choice but to accept full labor organization status since he is arguing for NLRA sanction for bargaining. …