Category Archives: Labor Laws/Legislation

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….

An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act

Source: Kate Andrias, Yale Law Journal, Vol. 128 no. 3, January 2019

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, the system successfully raised wages for hundreds of thousands of Americans, while helping facilitate unionization and a more egalitarian form of administration. And it succeeded within the basic framework of contemporary constitutional doctrine and statutory law.

By telling the story of FLSA’s industry committees, this Article shows that collective labor law and individual employment law were not, and need not be, understood as discrete regimes—one a labor-driven vision of collective rights and the other built around individual rights subject to litigation and waiver. It also demonstrates that, for longer than is typically recognized, the nation experimented with a form of administration that linked the substantive ends of empowering particular social and economic groups to procedural means that solicited and enabled those same groups’ participation in governance (to the exclusion of other groups). Ultimately, recovering this history provides inspiration for imagining alternatives to the current approach to worker participation in the American political economy and to administrative governance more broadly.

Are federal workers being forced into involuntary servitude?

Source: Michael H. LeRoy, The Conversation, January 25, 2019

Many federal employees are being ordered by the federal government to work without pay until a spending bill is enacted.

Some workers object, arguing that they are being pressured to show up for work with no clear prospect of a payday. Some individuals have sued claiming that this violates the 13th Amendment, which abolished involuntary servitude.

Will they win?

For now, the answer is likely no. In my law review article, “Compulsory Labor in a National Emergency,” I found that legal protections against forced labor often fail to help workers…..

ALEC’s New Union-Busting Toolkit Illustrates the Goal Is to Bankrupt Unions Not Protect Workers

Source: Mary Bottari, PR Watch, January 22, 2019

It’s becoming an annual ritual. The Koch-funded cluster of groups, which has long abused their 501(c)3 IRS “charitable” designation by working to destroy political enemies, has concocted another “union busting” toolkit, giving ammunition and guidance to Republican politicians on how to attack and dismantle a major funder of the Democratic Party.

The toolkit appears to have been prepared by American Legislative Exchange Council (ALEC) staff shortly after the Supreme Court’s June 2018 Janus vs. AFSCME decision, which held that unions could no longer require individuals in a bargaining unit who did not want to be members of a union to pay agency or “fair share” fees. Fair share fees compensate union staff who are required by law to represent all workers in a bargaining unit in their quest for better wages and working conditions.

ALEC is a collection of state politicians and corporate lobbyists from many of the largest corporations in the country. The Janus case was spearheaded by ALEC’s sister group, the $80 million State Policy Network (SPN), made up of 66 right-wing think tanks and other Koch-funded institutions. ….

…. The toolkit touts ALEC’s 18 anti-union bills, including the misnamed “right to work” bill, and highlights a new post-Janus bill, the “Public Employee Rights and Authorization Act,” which states: “Any authorization of payments to a labor organization provided before June 27, 2018 [the day of the Janus ruling], is insufficient to constitute affirmative consent or a waiver of an employee’s rights under Janus v. AFSCME.” ….

Working Children: Federal Injury Data and Compliance Strategies Could Be Strengthened

Source: United States Government Accountability Office, GAO-19-26: Published: November 2, 2018, Publicly Released: December 3, 2018

From the summary:
Many children aged 17 and under work to develop independence or meet financial needs. However, working can sometimes interfere with education, or in some industries, be physically dangerous.

We found that the majority of work-related fatalities occur among children working in agriculture—but data on children’s work-related injuries in general is incomplete.

The Department of Labor is conducting a study to enhance its work-related injury data, but the study doesn’t include children. We recommended including them to improve the data—which could also improve enforcement of child labor standards….

What labor market changes have generated inequality and wage suppression?

Source: Josh Bivens and Heidi Shierholz, Economic Policy Institute, December 12, 2018

Employer power is significant but largely constant, whereas workers’ power has been eroded by policy actions.

What this report finds: Labor markets in capitalist economies are fundamentally tilted against individual workers’ ability to bargain effectively with employers. Policy does not have to be rigged for employers to give them particular clout in labor markets; instead, the very nature of these labor markets gives them clout. In the past, when economic growth was broadly shared across the population, it was because policymakers understood this basic asymmetry and used policy levers to bolster the leverage and bargaining power of workers. Conversely, recent decades’ rise of inequality and anemic wage growth has resulted from a stripping away of these policy bulwarks to workers’ labor market power.

Why it matters: Recent research on “monopsony power”—the leverage enjoyed by employers to set their workers’ pay—is a valuable contribution to our understanding of the asymmetry inherent in labor markets. However, “monopsony power” is often a confusing term to even the most savvy economic writers and researchers, and too often it is used only to describe markets that are concentrated (i.e., where there are relatively few employers). Market concentration can indeed suppress workers’ wages, but employer power exists even in markets with lots of employers. If only the narrow conception of “monopsony power” is recognized and policymakers focus only on interventions that target the effect of market concentration (antitrust, for example), then other measures that could more effectively restore the balance of power in labor markets might not get the consideration they should.

What can be done about it: There is no one panacea for restoring workers’ leverage and bargaining power in labor markets. Policymakers must be committed to working on every available margin, including restoring genuine full employment as a macroeconomic policy priority; reforming labor law so that workers who want to form a union to collectively bargain to improve their wages and working conditions are able to do so; raising the minimum wage; and strengthening enforcement of labor standards and workplace civil rights laws.