Category Archives: Labor Laws/Legislation

The growing use of mandatory arbitration: Access to the courts is now barred for more than 60 million

Source: Alexander J.S. Colvin, Economic Policy Institute, September 27, 2017

From the press release:
A new EPI paper by Cornell professor Alexander J.S. Colvin shows that more than half of private sector nonunion workers—or 60 million people—are subject to mandatory arbitration in employment contracts, which takes away their access to the court system that protects their legal employment rights. Mandatory arbitration agreements are used by employers to require employees, as a condition of employment, to agree to arbitrate legal disputes rather than being able to go to court. These agreements bar access to the courts for all types of legal claims, including those based on Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. In other words, when a worker is paid less than she is owed, is fired for being pregnant, or is underpaid because of her race, she cannot have her claim heard in a court of law—instead, she is locked into a process that favors the employer. This new data collected by Colvin in 2017, show that the number of companies requiring mandatory arbitration has increased from around 2 percent of workers in 1992 to more than half of workers in 2017…..

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Summary

Can Labor Still Use the Wagner Act?

Source: Joseph A. McCartin, Dissent, Fall 2017

…. Eighty years after the Wagner Act’s validation, the triumph of collective bargaining in mass production industries seems as ancient as Exodus, and Cox’s optimism as quaint as greeting card poetry. Whereas the industrial Midwest once throbbed with demands for industrial democracy, today its depleted cities continue to bleed jobs and its hinterlands struggle with rampant opioid addiction. Flint, once home to a mobilized working class capable of taming General Motors, is today a desperately impoverished city lacking in decent jobs, whose residents continue to suffer from the aftermath of lead poisoning. Whereas sit-down strikers were protected by Governor Frank Murphy in 1937, today’s Michigan is a “right-to-work” state presided over by Governor Rick Snyder, a venture capitalist whose efforts to wrest local control away from distressed communities led directly to Flint’s poisoning. Little remains of the industrial union movement born in 1937, as private-sector union membership rates today dip toward 6 percent.

Nor is there reason to suppose the Supreme Court will help matters as it did eighty years ago. Today’s Court instead seems bent on interring the last legal vestiges of the New Deal labor order. In the case of Janus v. AFSCME, which the Court will decide in the coming term, the right of public-sector unions to collect “agency fees” from the workers they represent is being challenged. Opponents argue that government workers’ unions are merely political vehicles, and therefore granting them the right to collect agency fees infringes on the rights of workers who might not share the politics of the union that represents them. The case threatens to overturn a forty-year-old precedent, Abood v. Detroit Board of Education (1977), which recognized the unions’ rights to collect such fees in the interest of orderly workplace governance wherever state law allowed the practice…..

Coverage on Janus Cert. Grant

Source: Maddy Joseph, On Labor blog, September 29, 2017

The Supreme Court decided yesterday to hear Janus v. AFSCME. The Court seems poised to hold that agency-fee agreements for public sector workers are unconstitutional. Since the order, reports and commentaries have analyzed Janus‘s threat to public sector workers, and its stakes for U.S. organized labor.

The Chicago Tribune explains that the case began when Illinois’ Republican Governor Bruce Rauner, a former private equity executive, attempted to stop the state from dispensing agency fees to unions, clashing with the state’s Attorney General. The Governor eventually filed the suit that would become Janus, asking a federal court to rule that his actions were valid and that fair-share agreements are unconstitutional. When Gov. Rauner was dropped from the case, Mark Janus and other state employees took over as plaintiffs. The Tribune also has an editorial that supports the union’s argument only on the “narrow” point that “[s]omeone who benefits from a union’s contract negotiations should pay for collective bargaining activities, if not for the union’s political activities.” It notes that an AFSCME loss in Janus would lead to a decline in union membership, like the decline seen “in Wisconsin, with Gov. Scott Walker leading the charge.” ….

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Janus and the Private Sector
Source: Benjamin Sachs, On Labor blog, September 29, 2017

Maddy’s excellent wrap-up of yesterday’s Janus news includes a clip from Slate’s piece “Solidarity’s End.” There, Mark Joseph Stern provides a very useful synopsis of agency fees law, but he also suggests that a Janus decision finding agency fees unconstitutional could easily be exported to the private sector. Here’s how he puts it:

One last point: Janus involves only public-sector unions, or unions composed of state employees. But there is no obvious reason why its logic should not apply to private-sector unions as well.

But of course there is a very obvious reason why the logic of a public-sector holding would not apply to private-sector unions: that logic is the state action doctrine, which limits constitutional restrictions to state actors….

A Primer on the Supreme Court Case That Teachers’ Unions Have Been Fearing
Source: Liana Loewus, Ed Week blog, September 28, 2017

Today, the U.S. Supreme Court officially agreed to review a case on public-employee union fees that could potentially deliver a harsh blow to the nation’s teachers’ unions. You may find yourself asking: Wait, haven’t we been through this? Wasn’t someone named Friedrichs involved? And why is this coming up again? All good questions. Let’s take a look at what’s at stake, and how we got here. ….

Janus v. American Federation of State, County, and Municipal Employees, Council 31
Source: SCOTUSblog, 2017

Issue: Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment…..

Judgment Day for Public Unions
Source: Matt Ford, The Atlantic, September 28, 2017

The U.S. Supreme Court has agreed to hear a case that could deal a serious blow to American organized labor.

Neil Gorsuch Has Web of Ties to Secretive Billionaire
Source: Charlie Savage, Julie Turkewitz, New York Times, March 14, 2017

….With the Senate Judiciary Committee set to take up Judge Gorsuch’s nomination next week, Democrats have based much of their criticism of him on the argument that his judicial and economic philosophy unduly favors corporations and the wealthy. But his relationship with Mr. Anschutz, 77, whose fortune is estimated by Forbes to be $12.6 billion, has received scant attention. The Federalist Society and the Heritage Foundation, which developed the list of potential Supreme Court nominees from which Mr. Trump selected Judge Gorsuch, receive funding from Mr. Anschutz. ….

Bradley Foundation Bankrolls Attacks on Unions
Source: Mary Bottari, Center for Media and Democracy, May 8, 2017

Documents examined by the Center for Media and Democracy (CMD) expose a national effort by the Milwaukee-based Lynde and Harry Bradley Foundation to defund and dismantle unions, the most significant force for higher wages and better working conditions in America. Publicly, the Bradley Foundation spins this agenda as “employee rights.” Behind the scenes, newly disclosed Bradley documents detail an aggressive political agenda….

Gorsuch speech at Trump hotel attracts protests
Source: Josh Gerstein, Politico, September 28, 2017

….Gorsuch spoke as part of a 50th anniversary celebration for the Fund for American Studies, a charitable group that sponsors scholarships and study programs. The organization’s goal, according to its website, is “to win over each new generation to the ideas of liberty, limited government and free markets.” The fund is supported by a wide array of foundations, most of them with a conservative or libertarian bent, including the Lynde and Harry Bradley Foundation and the Charles Koch Foundation…..

The Supreme Court’s Anti-Democratic Feedback Loop
Source: Scott Lemieux, The Atlantic, September 29, 2017

The GOP installs Supreme Court justices over the will of voters. The Supreme Court helps the GOP remain in power. Rinse, repeat.

Paid Family and Medical Leave Programs: State Pathways and Design Options

Source: Sarah Jane Glynn, Alexandra L. Bradley, and Benjamin W. Veghte, National Academy of Social Insurance (NASI), September 2017

From the summary:
Time off to provide care for the health and well-being of a family member or for a worker’s own illness or injury is a near-universal need of workers from all backgrounds. Paid family and medical leave offers protection against financial hardship for employees requiring such time away from work to provide or receive care. The United States is an extreme outlier in its lack of a national paid leave program. In the absence of a national program, several states have established paid leave programs for medical and family caregiving needs. States have taken different pathways to creating their paid leave programs and have pursued different design options in terms of structure, funding, and program administration.

This brief discusses the current landscape of paid leave access, the history behind existing state-level programs, and policy considerations for states developing future paid family and medical leave programs. It begins with an overview of paid leave coverage in the United States, including a discussion of inequality in access to existing programs and benefits. This is followed by a discussion of the growing need for paid leave programs. The history of existing state-level policies is addressed through a description of the policy pathways and design choices that were made in the development and implementation of these programs. The brief then considers the benefits and challenges of various design options (i.e., program structure, funding, and administration) that states will weigh when designing new paid leave policy. Finally, the brief considers the current research on the economic and health impacts of paid leave programs, and discusses critical questions for future study.

Harvard Hopes Trump Will Help It Undermine Unions

Source: John Trumpbour and Chris Tilly, Labor Notes, September 14, 2017

….Like other private universities, Harvard appears to be banking on Trump appointees to the Labor Board to help fight off graduate student unionization. But Harvard’s going the extra mile in seeking to undermine all unions’ right to an accurate list of employees during a union election campaign…..

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Opinion: Are elite universities ‘safe spaces’? Not if you’re starting a union
Source: Thomas Frank, The Guardian, September 9, 2017

For all their trigger warnings and safe spaces, places like Yale and Columbia are not very democratic when it comes to unions. ….

….Once Trump’s members are seated on the Labor Board, there is every likelihood they will revisit the matter of graduate student teachers and reverse themselves on the question, which would in turn permit university administrations to refuse to negotiate and even to blow off the results of these elections.

A radicalized university that lives to coddle young people would sit down immediately at the bargaining table and give those graduate students what they want.

A corporation that is determined to keep its employees from organizing, on the other hand, would stall and delay and refuse to recognize the union until Trump’s new, right-wing NLRB can saddle up and ride to the rescue. And guess what: that is exactly what these universities are doing – refusing to begin contract negotiations, filing challenges to the elections, appealing this and that…..

Safe Bet: Your Employer Handbook Contains Illegal Rules

Source: Robert Schwartz, Labor Notes, September 12, 2017

It sometimes looks like union and non-union employers are competing for the fattest book of employee rules. Handbooks frequently exceed 100 pages. Employees who fail to adhere to a standard—even one that is not explained—can be subject to discipline and possible discharge.

This makes it vital for unions to review National Labor Relations Board cases concerning company handbooks; the Board’s thinking on this topic is known as the Lutheran Heritage doctrine.

The Board says that broad or ambiguous employer rules, even if “facially neutral,” violate Section 8(a)(1) of the National Labor Relations Act (NLRA) if employees are likely to read them as applying during concerted activity, such as protests for improved working conditions, contract campaigns, or investigating grievances.

Many NLRB decisions are shockers, invalidating longstanding rules on disloyalty, discourtesy, confidentiality, and false statements. ….

How to Tell If a Rule Is Illegal
1. Does the rule prohibit conduct that an employee might want to engage in to advance a union goal?
2. If yes, does the rule contain an exception for concerted activity?
3. If not, does the rule give enough examples of non-union types of misconduct that a reasonable employee would understand it does not apply to union activity?
4. If not, the rule is most likely illegal. Demand that the employer remove or rewrite the rule, and threaten to file an unfair labor practice charge. ….

Unions Aren’t Obsolete, They’re Being Crushed by Right-Wing Politics

Source: Livia Gershon, Vice, September 11, 2017

….Few economic or political elites preach much about the virtues of a union. …. This year in Davos, Switzerland, at an annual gathering of CEOs, billionaires, and world leaders, the assembled glitterati fretted about inequality but blanched at talk of workers being able to bargain for benefits.

Even Democrats have largely remained silent about unions, which remain an important part of their base. The party’s “Better Deal” plan to help ordinary workers that Democrats released earlier this year talked about raising the minimum wage, growing the economy, and fighting outsourcing, but didn’t mention making sure workers had the ability to organize.

But a report released last month by the Economic Policy Institute, a think tank that focuses on the needs of low- and middle-income workers, points out just how relevant the labor movement remains. The decline of unions—which now represent just over one in ten US workers, down from one in five from 1983—has been less about their value for workers than the result of a concerted effort to destroy the labor movement…..

….The EPI report details the tactics companies use to stop unions. In many cases, they use temp agencies, franchise arrangements, or other techniques to avoid taking legal responsibility for their workers. Labor laws that date back more than a half century aren’t equipped to help workers negotiate with companies that do their employing through third parties while retaining all real, practical power over workers. Similarly, companies ranging from Uber to local construction firms and beauty parlors try to classify workers as independent contractors, avoiding the traditional responsibilities employers have for employees under labor law. Most blatantly, when faced with unionization efforts, three-quarters of private employers hire consultants to help them quash them. …. But von Wilpert said the most effective anti-union tactic may be simply firing pro-union workers. That’s illegal, but the EPI report finds that between one in five and one in seven union organizers gets the boot for their organizing activity. Even when companies get punished for breaking the law, penalties are minimal and the damage to the union is already done…..

Is it Time to End Labor Preemption?

Source: Sharon Block and Benjamin Sachs, On Labor Blog, September 11, 2017

Serious thinking about labor law reform seems to be coalescing around a few themes. One of these is the possibility of allowing state and local intervention into the rules of union organizing and collective bargaining. Pursuing that goal would mean reconsidering the preemptive effect of federal labor law.
This theme was clearly reflected in our Labor Day opinion writing wrap up. Newsweek published Sharon’s op-ed in which she argued that the debate over bold labor law reform has to include consideration of preemption rules. The New York Times ran an op-ed by Brishen Rogers and Willy Forbath in which they recommended that the NLRA be amended to allow state and local governments to legislate new models of collective bargaining above the floor of the NLRA. Moshe Marvit made the case in the American Prospect that the Supreme Court should revisit its precedent regarding NLRA preemption in order to allow more experimentation at the state and local level.

Will the Supreme Court Ignore Pleading Rules in Janus?

Source: Andrew Strom, On Labor blog, September 7, 2017

Many Court watchers think it is a foregone conclusion that the Supreme Court will grant the cert petition in Janus v. AFSCME, and then overturn the forty-year old decision in Abood v. Detroit Board of Education. While I’m not willing to bet against that, it’s worth noting that to reach that result the Court would need to ignore a series of recent cases requiring plaintiffs to plead facts rather than conclusory assertions….

….In recent years, the Supreme Court has made it easier for defendants in lawsuits to file motions to dismiss. In two cases, Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal, the Court has stated that to survive a motion to dismiss “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” The Court has further explained that “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” When workers have sued their employers, lower courts have often relied on Twombly and Iqbal to dismiss the workers’ claims without allowing any discovery….

….When public employees have sued their employers, the Supreme Court has been quick to assert that it does not want to “constitutionalize the employee grievance.” Yet this seems to be exactly what Janus is asking the Court to do. Janus complains that he does not want to fund AFSCME’s actions as the bargaining agent for him and his fellow employees. But, undoubtedly the great bulk of any agency fees he objects to are spent on those very same employee grievances that the Court has said it does not want to “constitutionalize.” At a minimum, the Court should not allow conclusory pleadings in a bare-bones complaint to form the basis for a decision overturning long-settled law…..