Category Archives: Labor Laws/Legislation

The Workers’ Constitution

Source: Luke Norris, Fordham Law Review, Vol. 89, 2019

From the abstract:
This Article argues that the National Labor Relations Act of 1935, Social Security Act of 1935, and Fair Labor Standards Act of 1938 should be understood as a “workers’ constitution.” The Article tells the history of how a connected wave of social movements responded to the insecurity that wage earners faced after the Industrial Revolution and Great Depression by working with government officials to bring about federal collective bargaining rights, wage and hour legislation, and social security legislation. It argues that the statutes are tied together as a set of “small c” constitutional commitments in both their histories and theory. Each statute sought to redefine economic freedom for workers around security and sought to position worker security as essential to the constitutional accommodation of corporate capitalism. The Article also explores the interpretive implications of conceiving of a “workers’ constitution” in the current context.

Future Work

Source: Jeffrey M. Hirsch – University of North Carolina School of Law, February 14, 2019

From the abstract:
The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work.

Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.

Hybrid Federalism and the Right to Disconnect

Source: Paul M. Secunda, Pepperdine Law Review, Vol. 46, No. 2, 2019

From the abstract:
The Occupational Safety and Health Administration (OSHA) administers the Occupational Safety and Health Act (OSH Act). OSHA specific workplace and health standards do expressly preempt the entire field of workplace safety and health law, but where such standards do not exist or states developed their own OSHA plans, nor does it merely set a floor either. A type of “hybrid federalism” has been established. Here, by “modified” or “hybrid” federalism, this article refers to a strong federal-based field preemption approach to labor and employment law issues, but tied to a conflict preemption approach. Applying this hybrid preemption approach to the employee right to disconnect problem provides the best opportunity to address the growing epidemic of overwork through electronic communications in the United States.

This hybrid approach has two essential characteristics under OSHA. First, as a default standard, a federal general duty clause that requires all covered employers to maintain a workplace free of hazards that may cause serious injury or death and cannot be feasibly abated. Second, OSHA also has promulgated specific workplace safety and health standard over the last five decades that set more detailed and specific requirements for numerous health or safety dangers in the workplace. The specific standards occupy the field and all contrary state or local safety and health regulations are preempted. Yet, employers can still seek a permanent variance from any OSHA standard if they can establish that they have another method to achieve the same goal as the permanent standard. Second, the OSHAct also permits states to develop their own plans and submit them for approval to OSHA. Twenty-seven states have taken advantage of this option to one degree or another and have plans approved by OSHA. While these state-approved plans must be “at least as effective” as the federal OSHAct, some states, like California and Virginia, have been more aggressive in regulation and have regulated areas that the federal OSHAct has not. This Article maintains that a combination of general duty clause federal enforcement and individual state enforcement is the most effective way of providing a broad-based right to disconnect standard until a federal permanent standard can be promulgated.

Janus for the Rails and Air?

Source: Joe DeManuelle-Hall, Labor Notes, February 15, 2019

They did it to public workers. Next they want to do it to railroad and airline workers.

A right-wing policy think tank filed a Janus-style lawsuit against the Machinists on January 8, claiming that non-members shouldn’t be required to pay fees for union representation.

The plaintiffs are customer service agents at United Airlines. They’re covered by the Railway Labor Act, which governs unionization and collective bargaining for hundreds of thousands of union members who work for railways or airlines—from flight attendants to freight train engineers.

The effect of an anti-union decision in the case of Rizzo-Rupon could mirror what last summer’s Janus case did to the public sector.

Unions would still be required to represent everyone within a unionized workplace, but members could opt out of paying dues or fees. Railroads and airlines would effectively be “right to work.”

‘Wage’, ‘Salary’ and ‘Remuneration’: A Genealogical Exploration of Juridical Terms and their Significance for the Employer’s Power to Make Deductions from Wages

Source: Zoe Adams, Industrial Law Journal, Volume 48, Issue 1, 21 February 2019
(subscription required)

From the abstract:
The Supreme Court in Hartley v King Edwards VI College (2017) has confirmed that an employee who refuses to work in accordance with his contract forfeits his right to be paid for the duration of the breach. The decision extends to professional employees paid a periodical salary the principle established in Miles v Wakefield MDC (1987). The present article sheds new light on these decisions by situating them within a broader debate concerning the function of the wage and the proper relationship between work and payment. Drawing on insights from economic theory, and engaging in a genealogical analysis of legal concepts, the article shows how this debate has, over time, conditioned the use of concepts such as the ‘wage’, ‘the salary’ and ‘remuneration’ in legislation and case law concerning deductions. It shows that the legal concept of the ‘wage’ is closely related to the economic idea of the wage as the price of a commodity, while the legal concepts of ‘salary’ and ‘remuneration’ are more closely analogous to the economic idea of the wage as the cost of subsistence. The courts’ tendency to confuse these concepts, and to analyse the employer’s power to deduct as a right to withhold wages for non-performance of the contract, tells us much about the implicit assumptions underpinning cases, such as Miles and Hartley, and how they have shaped the path of the law.

Despite legal protections, most workers who face discrimination are on their own

Source: Maryam Jameel, Joe Yerardi, Center for Public Integrity, February 28, 2019

Thousands of people report workplace discrimination to the government each year. Employers are rarely held accountable. ….

…. To understand how well the nation protects victims of employment discrimination, the Center for Public Integrity analyzed eight years of complaint data — through fiscal 2017 — from the EEOC as well as its state and local counterparts, reviewed hundreds of court cases and interviewed dozens of people who filed complaints.

What emerged is a picture of a system that routinely fails workers.

No group of employees alleging discrimination — age, gender, disability or otherwise — fares well. Race claims are among the most commonly filed and have the lowest rate of success, with just fifteen percent receiving some form of relief.

Workers file complaints with the EEOC under penalty of perjury. The agency closes most of them without concluding whether discrimination occurred. Sometimes, workers’ lawyers say, an EEOC investigation involves no more than asking the employer for a response.

A key part of the issue, according to experts and former EEOC employees, is that the agency doesn’t have the resources for its mammoth task. The EEOC has a smaller budget today than it did in 1980, adjusted for inflation, and 42 percent less staff. At the same time, the country’s labor force increased about 50 percent, to 160 million. ….

A Union Default: A Policy to Raise Union Membership, Promote the Freedom to Associate, Protect the Freedom not to Associate and Progress Union Representation

Source: Mark Harcourt, Gregor Gall, Rinu Vimal Kumar, Richard Croucher, Industrial Law Journal, Volume 48, Issue 1, 21 February 2019
(subscription required)

From the abstract:
Workers are defaulted to being non-union in employment relationships across the world. A non-union default likely has substantial negative effects, consistent with the empirical literature reviewed, on union membership levels, because of switching costs, inertia, social norms and loss aversion. A union default would likely have positive effects on union membership, and has the additional virtues of partially internalising the public goods externalities of unions, improving the freedom to associate (the right to join a union) and preserving the freedom not to associate (the right not to join a union). A union default would also strengthen the extent and effectiveness of union representation.

Corporations Have Paid Out at Least $2.7 Billion in Civil-Rights and Labor Lawsuits Since 2000

Source: Michelle Chen, The Nation, February 1, 2019

Money talks in the business world, but it also buys silence in the courtroom. In recent years—despite the rise of movements like #MeToo and Occupy Wall Street demanding more accountability from the corporate world—complex, opaque legal settlements have hushed, sealed, and silenced victims of workplace misconduct and abuse. While the details of the civil-rights and labor lawsuits have been kept from public purview, a deep dive into the Fortune 500’s legal disclosures reveals a disturbing picture of corporate America.

An analysis of hundreds of corporate legal settlements in civil-rights cases since 2000 shows that a total of $2.7 billion was paid out by many of the largest US corporations (primarily those listed on the Forbes and Fortune rankings). The report, by Good Jobs First (GJF), puts Wall Street and retail companies on top of the rankings, with $530 million in payouts each, including household names like Bank of America and Walmart. The runners-up were the food-and-beverage sector ($252 million), pharmaceuticals ($209 million), and shipping and logistics ($187 million). In addition to 235 civil lawsuits, the Equal Employment Opportunity Commission litigated 329 cases, netting some $588 million….

Related:
Big Business Bias: Employment Discrimination and Sexual Harassment at Large Corporations
Source: Philip Mattera, Good Jobs First – Corporate Research Project, January 2019

From the press release:

A new report on employment discrimination and sexual harassment cases finds that major banks rank high among those big companies that have paid the most in damages and settlements. Bank of America (including its subsidiary Merrill Lynch) has paid a total of $210 million since 2000, more than any other big company. Morgan Stanley ranks fourth at $150 million and Wells Fargo ranks ninth at $68 million. The financial services industry overall has paid a total of $530 million in penalties. The retail sector has paid the same amount, so the two industries have the dubious distinction of being tied for first place….