Category Archives: Labor Laws/Legislation

Arizona Has a Plan to Get Revenge on Its Pro-Worker Cities

Source: Josh Eidelson, Bloomberg Businessweek, March 15, 2016

Inspired by decisions in cities like Tacoma, Wash., and Elizabethtown, N.J., to require companies to offer paid sick leave, Lauren Kuby, a City Council member in Tempe, Ariz., began pushing a year ago for her city to do the same. …. Then Kuby and her colleagues heard that Arizona’s Republican-controlled state legislature was considering punishing cities that tried to set their own codes for worker benefits. Arizona’s House passed a bill on March 1 specifying that cities aren’t allowed to require private employers to provide paid sick leave or vacation. The state Senate has passed companion legislation that would cut state funds, used to pay for services like police and firefighting, for cities that try to supersede state laws. …. Arizona is one of several states where legislators have moved to stop local officials from trying to pass minimum wage increases or paid leave policies that have no chance in the statehouse. In Alabama, state lawmakers invalidated a Birmingham minimum wage increase to $10.10, from $7.25, in February by passing a law denying cities such authority. Idaho’s legislature passed a similar law in March. …. The current fracas is the latest round in a two-decade tug of war between Arizona’s cities and its legislature over labor rules. Legislators first banned cities from passing their own minimum wage increases in 1997. Voters overrode that law with a 2006 referendum authorizing cities to pass minimum wage and benefits laws of their own. Legislators passed another law in 2013 banning cities from regulating wages and employee benefits, which activists successfully challenged in court, citing the 2006 referendum. If legislators’ latest proposals become law, Democrats including Phoenix Mayor Greg Stanton are already promising more lawsuits…..
Minimum wage ban headed to governor’s desk
Source: Associated Press March 11, 2016

Idaho’s local governments would be banned from increasing the minimum wage under legislation headed to the governor’s desk. The Idaho Senate voted 27-8 on Thursday to prohibit cities and counties from instituting ordinances to raise the minimum wage, while also banning similar ballot initiatives.

An Update on Paid Sick Leave and Family Leave in 2016

Source: Abbey Q. Keister, OnLabor blog, March 11, 2016

In recent years, we’ve seen progress in the battle for paid leave. However, such progress has occurred almost exclusively at the state and local government levels, and almost all of the advances have been on the sick leave front. The family leave front, by contrast, lags significantly behind. OnLabor examined the state of sick leave (here) and family leave (here) in 2014. This post will serve as an update, examining where we are now, how that compares to other developed countries, and why it matters.

Truth and Lies in the Workplace: Employer Speech and the First Amendment

Source: Helen L. Norton, Minnesota Law Review, Forthcoming, February 26, 2016

From the abstract:
Employers’ lies, misrepresentations, and nondisclosures about workers’ legal rights and other working conditions can skew and sometimes even coerce workers’ important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers’ rights or other working conditions as well as by requiring employers to disclose truthful information about these matters.

These governmental efforts, however, are now increasingly vulnerable to constitutional attack in light of the recent antiregulatory turn in First Amendment law, in which corporate and other commercial entities seek — with growing success — to insulate their speech from regulation in various settings. This Article examines this trend’s significant but underexplored implications for the workplace, exploring how First Amendment law now may be changing in ways that undercut the government’s efforts to inform and empower workers by casting doubt on its ability to require truth or prohibit lies in certain contexts. It then considers the circumstances under which we should instead understand the First Amendment to permit the government to require employers to tell the truth about workers’ legal rights and other working conditions.

To this end, this Article draws from First Amendment theory and doctrine in other settings in which listeners have less information or power than speakers, and thus where governmental efforts to inform and empower listeners by prohibiting lies and requiring truthful disclosures can improve the communicative discourse. The Article then explains how employer speech similarly occurs within a communicative relationship riddled by information and power asymmetries: employers not only control workers’ economic livelihood but they also know more than workers about the terms and conditions of employment, about industry and economic projections, and — as repeat players with greater resources — about available legal protections.

The Article thus urges a First Amendment theory of employer speech that addresses these dynamics by treating workers’ interests as listeners as paramount. Because these interests are frustrated by employers’ lies and nondisclosures, it concludes that the First Amendment should be understood to permit government to require employers to disclose objectively verifiable information about workers’ rights and other working conditions as well as to prohibit employer lies or misrepresentations about these matters that threaten to coerce or manipulate workers’ choices.

Uber and Lyft Drivers Work Dangerous Jobs—But They’re on Their Own

Source: Molly McHugh, Wired, March 10, 2016

….Just how great a risk drivers face is difficult to quantify. Because the ridesharing industry is so new, and laws regulating it so patchwork, official figures are tough to come by, and the big companies don’t share specifics about incidents their drivers report. Still, online forums for drivers brim with descriptions of attacks on drivers by passengers, both verbal and physical, such as a driver posted a video of being spit on and punched. You might think ridesharing companies would be doing everything they can to ensure driver safety. But it turns out what they can do is limited by the kind of businesses they are. Because drivers operate as independent contractors instead of employees, the companies can’t offer true safety training. Under federal law, training is a signifier that someone is an employee, and both Uber and Lyft have fought bitterly against re-classifying drivers as employees. By the very nature of how on-demand businesses operate today, drivers in many ways have to go it alone…..

NLRB v. Noel Canning Exposes Judicial Incapacity: ‘Junior Varsity Politicians’ Foul the President’s Textual Appointment Discretion

Source: Victor Williams, Catholic University of America (CUA) – Columbus School of Law, CUA Columbus School of Law Legal Studies Research Paper No. 2730712, Rutgers Law Record, Vol. 43, 2016, February 10, 2016

From the abstract:
This Article is offered in tribute to, and provides summary biographies of, civil rights legends Leon Higginbotham, Spottswood Robinson, and David Rabinovitz whose judicial recess appointments were invalidated by National Labor Relations Board v. Noel Canning. It also honors President Lyndon Johnson, who made the bold decision within just six weeks of inheriting the Oval Office, to force racial and religious integration of the federal judiciary by signing the recess commissions.

Justice Breyer’s majority opinion furtively invalidated the judicial recess appointments of the lost-passed Higginbotham, Robinson and Rabinovitz. The judicial appointments, made by President Johnson during an 8-day Senate recess in January 1964, were effectively “rendered illegitimate.” The majority opinion marginalized the civil rights legends’ appointments as mere “historic anomalies” not worthy of recognition much less discussion.

This article asks how Breyer came to establish the strange duration of the Noel Canning “presumptive 10-day” recess rule. The article suggests that the 10-day recess period may have been crafted to protect the legitimacy of a sitting federal judge who George W. Bush recess commissioned to the Eleventh Circuit during a 10-day intra-session recess in 2004.

Breyer’s 10-day rule was exactly what was needed to protect Eleventh Circuit Judge William Pryor’s past judicial legacy and insulate his continued service on both the federal appellate bench and the U.S. Sentencing Commission (the controversial inter-branch agency was a Breyer brainchild) from related controversy.

The article is unique in attempting analysis of Justice Breyer’s “presumptive 10 day” recess rule in context of its vague “unusual occurrence” allowance. Breyer envisions future courts ex post reviewing future recess appointments made by Presidents during 4-9 “emergency exception” windows:

We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word “presumptively” to leave open the possibility that some very unusual circumstance – a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response – could demand the exercise of the recess-appointment power during a shorter break.

It was telling that Justice Breyer was moved to add “presumptive” modifier to his made-up ten-day rule together with the “unusual occurrence” four- to nine-day window for national emergencies. Perhaps this was a subconscious manifestation of a latent nonjusticiability, political-question instinct in Breyer.
Such a nonjusticiability instinct was well described by Alexander Bickel as “the anxiety, not so much that the judicial judgment will be ignored but that it should but will not be.”

As the third article in this author’s Noel Canning trilogy, coming after publications with online journals of Cardozo and Houston, this work further explains why Noel Canning presented the Supreme Court with a conflict of interest and a nonjusticiable political question that should not have been reviewed by any level of the judiciary.

The conclusion of Justice Antonin Scalia’s four-justice concurrence directly advanced a non-justiciability, political-question determination – albeit only as an alternative to his robust, and wrongheaded, defense of the D.C. Circuit’s uber-textualist interpretation.

Justice Scalia explained that there is “‘no judicially discoverable and manageable standard for resolving’ whether a particular break was long enough to trigger the recess-appointment power, making that a nonjusticiable political question.”

And even Breyer’s majority opinion was forced to make a fallback nonjusticiability determination when attempting to justify its rejection of the Solicitor General’s request for a “realistic” factual appraisal of the House and Senate’s pro forma session shenanigans.

Breyer’s unworkable recess rule insures that future Supreme Court majorities will have opportunity to revisit Noel Canning. This Article concludes with the suggestion of a litmus test for the 45th President’s federal judicial selection process: Does the potential judicial nominee respect Alexander Bickel’s wise nonjusticiability, political-question counsel for judges to stay out of such political branch struggles?

Enforcement Matters: The Effective Regulation of Labor

Source: Ravi Kanbur, Lucas Ronconi, Centre for Economic Policy Research (CEPR), CEPR Discussion Paper No. DP11098, February 2016
(subscription required)

From the abstract:
This paper provides, to our knowledge for the first time, cross-country measures of enforcement of labor law across almost every country in the world. The distinction between de jure and de facto regulation is well understood in theory, but almost never implemented in cross-country empirical work because of lack of data. As a result, influential papers like the one by Botero et. al. (2004) published in the Quarterly Journal of Economics, which have shaped the policy debate by finding strong negative consequences of labor regulation on labor market outcomes, are based entirely on measures of de jure stringency of regulations. We show that this neglect of regulation enforcement matters. There is, on average, a negative correlation between the stringency of labor regulation and the intensity of its enforcement. The strong results of Botero et. al. (2004) on the consequences of labor regulation, and the hypotheses of La Porta et. al (2008) on the legal origin theory of regulation stringency, no longer hold for effective labor regulation.

Ban the Box: A Fair Chance at Employment or an Exacerbation of Racial Inequality?

Source: Aabid Allibhai, OnLabor blog, February 22, 2016

Employers tend to dismiss job applications where the “box”—indicating that an applicant has a criminal history—is checked, making it incredibly difficult for ex-offenders to obtain employment. Ban the Box legislation aims to give ex-offenders a fair chance at employment by allowing them to be evaluated on their merits; employers are more likely to hire ex-offenders after personal contact with them. However, recent milestones in Ban the Box legislation have raised questions about its efficacy. Do Ban the Box policies improve employment outcomes of ex-offenders? Do they exacerbate racial employment disparities?

This Is What Paid Leave Looks Like In Every U.S. State

Source: Fast Company, February 23, 2016

An anomaly in the industrialized world, the U.S. has a patchwork of paid leave policies that leaves many out….. So far only California, New Jersey, and Rhode Island offer statewide paid family leave for private-sector workers, all with different provisions. In 2007, Washington state passed a law that included a paid leave insurance program but legislators left it unfunded, and 14 other states and Washington, D.C. have passed measures that expand upon the FMLA in at least one way, short of offering paid leave. ….. Paid leave programs now also exist in Kansas City, Austin, San Francisco, Boston, and New York City, offering combinations of paid sick leave for individual workers and paid family leave to care for their children, parents, and spouses, generally for up to six weeks every year…..

State Minimum Wages: An Overview

Source: David H. Bradley, Congressional Research Service, CRS Report for Congress, R43792, February 3, 2016

The Fair Labor Standards Act (FLSA), enacted in 1938, is the federal legislation that establishes tthe general minimum wage that must be paid to all covered workers. While the FLSA mandates broad minimum wage coverage, states have the option of establishing minimum wage rates that are different from those set in it. Under the provisions of the FLSA, an individual is generally covered by the higher of the state or federal minimum wage. As of 2016, 29 states and the District of Columbia have minimum wage rates above the federal rate of $7.25 per hour, with rates ranging from $0.25 to $4.25 above the federal rate. Two states have minimum wage rates below the federal rate and five states have no state minimum wage requirement. The remaining 14 states have minimum wage rates equal to the federal rate….. This report begins with a brief discussion of FLSA minimum wage coverage. It then provides a summary of state minimum wage laws, followed by an examination of rates and mechanisms of adjustments in states with minimum wage levels above the FLSA rate (Table 1 provides summary data). Next, the report discusses the interaction of federal and state minimum wages over time, and finally, the Appendix provides detailed information on the major components of minimum wage policies in all 50 states and DC….

Report Your Bad Employer With This App

Source: Caroline O’Donovan, BuzzFeed, February 4, 2016

The Workers Lab is working on an app that helps workers quickly and easily report OSHA and similar violations. …. The app doesn’t have a name yet, but it’s being built by SeeClickFix, a civic tech company based in New Haven, Connecticut that made a name for itself by helping city dwellers report things like graffiti and potholes to local authorities. So far, SeeClickFix has had just shy of 2.5 million complaints filed. …. When the new app, which is still in the planning phases, is built, it will work like this: Say you’re working at a restaurant that is withholding wages from its staff. Instead of asking your brother’s girlfriend’s lawyer neighbor about it, you download the app. Based on your location, it will suggest different agencies that deal with your brand of complaint. You’ll answer questions about the nature of the problem, and those answers will then be sent on to a worker center or other agency. ….