Category Archives: Labor Laws/Legislation

Is It Time for the Courts to End Labor Lockouts?

Source: Moshe Marvit, The Century Foundation, June 30, 2016

From the summary:
The labor lockout—an action by the management of a company to deny workers access to their place of employment—was once a rare phenomenon compared to the strike, and there was a time when one could be fairly certain that any work stoppage was a strike. But in recent years, the federal courts and the National Labor Relations Board (NLRB) have expanded the permissible use of lockouts by management to the point that they now represent a significant portion of work stoppages. At a time when the most well-known tools of labor organizing have already been undermined by aggressive (and too frequently unlawful) anti-union tactics by employers, this enhancement of management power is designed to weaken the bargaining power of unions, and lead to a further decline in the earnings and benefits available to hard-working families. The previous rationale for widely authorizing the use of employer lockouts is outdated in today’s economy. In order to properly balance the interest of employers and workers, and preserve workers’ rights to organize, bargain, and strike, the courts should reconsider their precedents and take decisive action to curtail lockouts.

This report will examine the current state of lockouts, how they have increased in relation to strikes, how the law has permitted this expansion, and what must be done to restore workers’ rights to stop work….

What You Should Know
– A “labor lockout” describes when the management of a company denies its workers physical access to their place of employment and hires replacement workers in their absence.
– Lockouts, as opposed to strikes, are considered a tactic to weaken bargaining power of unions, causing workplace power to be increasingly skewed in favor of employers.
– The vast majority of recent lockouts occur in three industries: manufacturing; arts, entertainment, and recreation; and utilities.
– After several court cases, the NLRB has decided that lockouts largely hurt hard-working families and pose a looming threat to workers who wish to engage in meaningful collective bargaining.

Work-related deaths among youth: Understanding the contribution of US child labor violations

Source: Kimberly J. Rauscher, Douglas J. Myers, and Mary E. Miller, American Journal of Industrial Medicine, Early View, Version of Record online: June 27, 2016
(subscription required)

From the abstract:
Background: Evidence shows that violations of the United States (US) child labor regulations are common. The main purpose of this study was to investigate the magnitude and nature of work-related deaths among youth involving violations of US child labor regulations.

Methods: We analyzed Census of Fatal Occupational Injury data from 2001 to 2012 using descriptive statistics and Chi-square tests.

Results: Between 2001 and 2012, 406 workers under age 18 were recorded in the CFOI as having suffered a fatal work-related injury. Among these cases, 233 were covered by the US child labor regulations. Forty-three percent of these cases involved at least one violation. The majority of cases that were not covered by the regulations involved decedents working on their family’s farms.

Conclusions: Violations of federal child labor regulations are a significant contributor to work-related deaths among youth in the United States. Increased investment in enforcement is needed to prevent further young worker deaths involving child labor violations.

Friedrichs Rehearing Petition Denied

Source: Juhyung Harold Lee, OnLabor blog, June 28, 2016

Months after reaching a 4-4 tie in Friedrichs v. California Teachers Association, the Supreme Court has denied the petitioners’ request for a rehearing. The Court waited until its final conference of the Term to vote on the petition, after postponing its decision eight times since April. No opinion was included with the Court’s denial…..
Court to hear major new controversies — next Term
Source: Lyle Denniston, SCOTUS blog, June 28th, 2016

Amid prospects that the Supreme Court will still be operating with one fewer Justice well into its next Term, the Justices on Tuesday added eight new cases for hearing and decision after the summer recess, with major controversies among the cases.  The Court also put off, probably for many months, a chance to settle the heated controversy over union fees assessed on public employees who do not belong to a union, denying rehearing of a case that had ended with a four-to-four split on that question (Friedrichs v. California Teachers Association).  That issue will have to be confronted anew, first by lower courts..

Few Rewards: An Agenda to Give America’s Working Poor a Raise

Source: Oxfam America and the Economic Policy Institute (EPI), 2016

A new project from Oxfam America and the Economic Policy Institute (EPI) reveals shocking numbers of workers stuck in low-wage jobs with scant benefits.

Hard work should pay off. But for millions of workers, it hardly pays the bills. Over the past 40 years, the reality of low-wage work in America has shifted dramatically. Today, more people than ever are working in jobs that pay too little and offer too few benefits. In fact, our research reveals that nearly half the workforce is stuck in jobs that pay under $15 an hour; one in four low-wage workers has not a single day of earned sick time.

Once, people knew that hard work could pay off: they could support a family, save for retirement, educate their children, or even own a home. That is no longer true.

People doing low-wage jobs do vital work that keeps the economy humming: they care for the young and elderly, prepare food, clean offices, and help customers. These jobs are essential, but the economy has stopped adequately compensating the workers who do them.. Wages are stagnating and demands on workers are increasing. And this trend is only growing worse, as the jobs of the future are concentrated in sectors with low wages and threadbare benefits.

This situation is not right—nor is it inevitable. It is the consequence of our policy choices over many years. Oxfam and EPI are proposing a set of policy changes which will ensure that hard work is rewarded, and that the economy functions for everyone. Together, we have created an interactive web site with a series of maps of that illustrate concentrations of working poor in the states; and a new report that explores four essential policy shifts:
– Raise the federal minimum wage.
– Provide access to earned sick leave.
– Protect overtime pay for millions of workers.
– Expand the Earned Income Tax Credit (EITC).
Explore the map

Symposium: The National Labor Relations Board After Eighty Years

Source: Emory Law Journal, Vol. 64, Special Issue, 2015

Articles include:
Panel I: Assessing the NLRB’s Impact and Political Effectiveness
Toward Politically Stable NLRB Lawmaking: Rulemaking vs. Adjudication
Charlotte Garden

For the last several decades, there have been two constants with respect to the National Labor Relations Board. First, the modern Board has been notoriously reluctant to use its rulemaking authority; until recently, it had made only one significant substantive rule via the notice-and-comment process. Second, commentators—academics, lawyers, judges, and politicians—have issued a steady stream of calls for the Board to make law via rulemaking rather than through adjudications, arguing for the rulemaking process on both pragmatic and normative grounds. In recent years, however, the first of these has changed: the Board has engaged in two significant rulemaking processes. Each of these processes was both time intensive and politically and judicially fraught, calling into question whether the Board can achieve the process benefits of rulemaking in the current contentious political environment. This Symposium Essay explores the extent to which the Obama Board has been able to achieve the purported benefits of rulemaking, and therefore whether the benefits of making labor law through the rulemaking process exceed the costs, especially where the Board could alternatively make law via adjudication.

The NLRB: What Went Wrong and Should We Try to Fix It?
Julius G. Getman

For eighty years, national labor policy as set forth in the National Labor Relations Act has been committed to overcoming the “inequality of bargaining power between employees . . . and employers” by “encouraging the practice and procedure of collective bargaining” and by “protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives.” The basic tenants of national policy may be restated in terms of a series of commands directed at the National Labor Relations Board and the courts. These may be stated as follows: (1) Promote and protect the right of workers to organize for the purposes of collective bargaining. (2) Prevent employers from using their economic power to inhibit free choice by workers. (3) Leave the parties free to negotiate their own agreements. (4) Recognize and protect the right to strike. The key to turning these commands into a living reality was the establishment of the NLRB, an expert agency that was to use its understanding of labor relations reality to establish national labor policy by defining more precisely the general terms of the NLRA subject to minor and supportive review by the courts. When the law was first enacted, its drafters probably assumed that the Court would be instructed in the realities of labor relations by the newly established NLRB and its presumed expertise. That has failed to happen, in part because the expertise of the Board is largely fictional and because the Court regularly ignores and overrides even sensible Board opinions.

Politics and the Effect on the National Labor Relations Board’s Adjudicative and Rulemaking Processes
William B. Gould IV

The National Labor Relations Act has never explicitly required political balance in the National Labor Relations Board’s (NLRB or Board) appointment process. But the Eisenhower administration demonstrated that policy shifts could be initiated through changes in NLRB composition. The Kennedy Board shifted gears again, prompting critics to say that the Board was on a “seesaw.” More pronounced polarization began to emerge in the 1980s as political party divisiveness and union decline created more adversarial relationships. In the 1990s, divided government produced a “batching” of appointees (in contrast to annual Senate confirmation votes on each appointment as their term expired), horse trading of “interchangeable elites engaged in an insider’s game” as Professor Calvin McKenzie said. Ultimately, the consequences of impasse through this process twice resulted in Supreme Court decisions interpreting the Act and the Constitution so as to alter the relationship between the President and the Senate. But the Senate, under Senator Reid, was to trump the practical effect of these holdings by eliminating the filibuster, which frequently stalled or stopped NLRB appointments. Paradoxically, however, through both oversight hearings and the Congressional Review Act of 1996, legislative interference with the work of the NLRB has never been more extensive.

The NLRB, the Courts, the Administrative Procedure Act, and Chevron: Now and Then
Theodore J. St. Antoine

Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency’s statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of Congress, but if a statute is silent or ambiguous on the precise issue, then the court will defer to an agency’s determination that is a permissible construction of the statute. More recently there has been a revival of interest in the earlier, more flexible Skidmore approach. That would call for considering a variety of factors, including whether the issue was one of “pure law” or the application of law to facts and the formality or informality of the agency’s decisional process. It has even been suggested that these deference tests could be reduced to a single inquiry: was the agency’s decision “reasonable”? Empirical studies have indicated not only that the political backgrounds of NLRB members substantially affect its decisions but also that the political backgrounds of judges substantially affect the decisions of reviewing courts.

Panel II: A Conversation with Members of the National Labor Relations Board and the General Counsel
A Conversation with Members of the National Labor Relations Board and the General Counsel
Mark Gaston Pearce, Richard F. Griffin, Jr., Kent Y. Hirozawa, Harry I. Johnson, III, Lauren McFerran, Philip A. Miscimarra, Charles A. Shanor

A conversation with the NLRB Members and General Counsel. Beginning with remarks from the General Counsel of the Board, reviewing issues related to wage stagnation, inequality in the workplace, and the role of the Labor Board and the General Counsel. Second, Chair Pearce and Member Miscimarra review the new representation rule. Third, Member McFerran discusses the relationship between Congress and the Board. Fourth, Member Hirozawa provides an overview of recent NLRB decisions of substantial importance in the workplace. Fifth, Member Johnson reviews some pending issues before the Board. Finally, the Board and General Counsel address questions from the audience.

Panel III: Opportunities for Improvement in Changing Times
Labor Law 2.0: The Impact of New Information Technology on the Employment Relationship and the Relevance of the NLRA
Kenneth G. Dau-Schmidt

The NLRA system of collective bargaining was born during the industrial age of the early twentieth century. As a result, key terms in the statute such as “employee,” “employer,” and “appropriate bargaining unit” were first interpreted in the context of long-term employment and large vertically integrated firms that dominated this era. Beginning in the late 1970s, the new information technology wrought a revolution in the organization of production increasing short-term contingent employment and the organization of firms horizontally in trading and subcontracting relationships across the globe. To maintain the relevance of collective bargaining to the modern workplace, the interpretation of the key terms of the NLRA must be updated to recognize the changed circumstances of production and interpret union access and employee mutual support in light of the new technology. However, new information technology promises further changes in the workplace with the accelerating mechanization of many jobs and perhaps a fundamental change in the relationship between labor and capital with the development of artificial intelligence. In this Essay, I explore the implications of new information technology for the workplace, the interpretation of the NLRA, and the continuing evolution of American labor policy.

‘Depoliticizing’ the National Labor Relations Board: Administrative Steps
Samuel Estreicher

Complaints about the political forces arrayed against the basic labor laws and about the increasing “politicization” of the National Labor Relations Board are hardy perennials. The charge remains a constant, only those who level it differ depending on which party is in the White House. On the assumption that legislative change is not in the offing, what can the Board on its own do to improve its reputation in Congress and in the courts and, at the same time, enhance its effectiveness as the essential government agency to protect workers in dealings with their employers?

The NLRB as an Überagency for the Evolving Workplace
Michael Z. Green

As a result of having this full complement of NLRB members, this Essay asserts that the NLRB has become the premier administrative agency for addressing workplace matters across a broad spectrum of employee–employer concerns. In this respect, the NLRB represents a super—or über—agency that points a spotlight on important workplace issues that no other administrative agency could or should address. With the five appointed members’ outstanding expertise in labor law, as well as in broader workplace concerns under employment discrimination and employment law, these NLRB decisionmakers offer an unusual level of knowledge to operate on the front line in adjudicating perplexing issues that continue to evolve in the workplace.

NLRB Elections: Ambush or Anticlimax?
Jeffrey M. Hirsch

The National Labor Relations Board’s (NLRB) new election procedures represent a comprehensive reform of its representation process. As is the case for many broad reforms, the new rules have prompted significant criticisms and accolades. Many employers have decried the new rules as implementing an unfair “ambush” election process that will deprive employees of needed information and employers of their right to express their views about unionization. In contrast, unions have largely applauded the new rules as an improvement on an election system that they view as stacked against them. The truth appears far less monumental. Although the NLRB’s new rules provide a much-needed update to election procedures and aim to decrease many sources of unwarranted delay, they seem incapable of causing a significant impact on employees, employers, or unions. The new rules should result in a quicker election process, but not so quick that they can be fairly described as “ambush” or a deprivation of employers’ ability to communicate with employees. Moreover, the modestly shorter time periods for elections are unlikely to improve unions’ election win rates or increase union density in a significant way. In short, the NLRB has implemented a modest set of improvements to its representation process, and critics and proponents should not exaggerate the limited impact of those reforms.

Pay Equity: Legislative and Legal Developments

Source: Jody Feder, Benjamin Collins, Congressional Research Service, CRS Report for Congress, RL31867, May 20, 2016

…..This report begins by presenting data on earnings for male and female workers and by discussing explanations that have been offered for the differences in earnings. It next discusses the major laws directed at eliminating sex-based wage discrimination as well as relevant federal court cases. The report closes with a description of pay equity legislation that has been considered or enacted by Congress in recent years……

Toward a 21st-Century Labor Movement

Source: David Rolf, American Prospect, April 18, 2016

The old model of collective bargaining can’t be resurrected. Herewith, some new models of how workers can win and wield power. ….

…..Borrowing from labor law in other countries, from U.S. history, and from promising experiments happening in the United States today, there are several potential overlapping strategies for how future forms of worker power might operate and that suggest what U.S. labor policy might eventually look like. • Geographic and/or sectoral bargaining. …..
• Worker ownership. …..
• Control of work-distribution platforms. …..
• Labor standards enforcement. …..
• Certification and labeling. …..
• Benefits administration. …..

Who’s responsible for child slavery?

Source: Al Jazeera, Inside Story, June 12, 2016

Almost one in 10 children wakes up each morning and goes to work. These children slave away in factories and fields, and as maids and sex workers. United Nations declarations specifically guarantee the rights of a child to be protected from economic exploitation. But vague laws, or sometimes a complete lack of legislation, mean that millions of children find themselves at work when they should be at school – often in hazardous conditions. At least 168 million children around the world work, with more than half of them in dangerous conditions, according to the International Labour Organization. Almost 80 million children are working in the Asia-Pacific region. That’s equivalent to the entire population of Turkey. And one in five children in Sub-Saharan Africa has a job. That’s almost 60 million children. The agriculture business is the biggest employer. Sixty percent of child labourers – nearly 100 million children – tend to farms and animals. But a lot of children, around 66 million, are also working in the service and industry sectors. What does it take to end child slavery?

The War on Workers’ Comp

Source: Stephen Franklin, In These Times, Working in These Times blog, June 13, 2016

For nearly a century, millions of workers have endured punishing jobs in construction, mining and factory work—jobs with high levels of work-related disability and injury. As a tradeoff for the dangers, they’ve had the assurance of workers’ compensation if injured permanently on the job. Employers accepted this deal, albeit sometimes grudgingly, because it  removed the possibility of being sued over work-related injuries. 

But as labor has weakened and Republicans have won control of more and more statehouses, states have slowly chipped away at workers’ compensation benefits.

Since just 2003, more than 30 states have passed laws that have “reduced benefits for injured workers, created hurdles for medical care or made it more difficult for workers to qualify,” according to a recent investigative series by ProPublica and NPR. Some of the harshest cuts came in California, Arizona, Florida, Oklahoma, North Dakota, Kansas, Indiana and Tennessee. Today, according to the federal Occupational Safety and Health Administration (OSHA), many injured and disabled workers “never enter the workers’ compensation system.” OSHA also estimates that workers’ compensation covers only about 21 percent of the lost wages and medical bills encountered by injured workers and their families…..

Public Sector Unions, the First Amendment, and the Costs of Collective Bargaining

Source: Aaron Tang, New York University Law Review, Volume 91 Number 1, April 2016

From the abstract:
Labor laws in twenty-two states permit government employers to compel all employees to pay “fair share fees” to support a union’s collective bargaining activities, even if the union advocates policies to which some workers are ideologically opposed. Thousands of collective bargaining agreements include provisions to this effect, and hundreds of thousands of objecting workers are forced to pay such fees each year.

At its core, this practice implicates a significant tension between two important principles: the First Amendment’s objective of protecting individuals from compelled support of unwanted messages, and labor law’s concern with fostering the collective benefits of worker representation. When confronted with a challenge to fair share fees nearly forty years ago in Abood v. Detroit Board of Education, the Supreme Court held that labor law takes precedence, such that the First Amendment intrusions produced by fair share fees are constitutionally justified. Twice in the past four years, however, the Supreme Court has indicated that it is poised to reverse course and strike down fair share fee clauses under the First Amendment, overruling Abood in the process. And on the last day of the 2014 Term, the Court granted certiorari in a case presenting just that opportunity.

In this Article, I challenge the conventional wisdom that public sector union financing implicates an inevitable trade-off between First Amendment principles and labor law’s core objectives. There is a simple alternative to the fair share fee union financing model that would permit public employers to pursue their broad interests in effective workplace representation without sacrificing the individual expressive interests of objecting employees: In lieu of fair share fee clauses, government employers can negotiate provisions under which they reimburse a union for its collective bargaining costs directly. Such an approach would free objecting workers of the compulsion to support an objectionable message and ensure that unions have the financial security they need to zealously represent worker interests. Moreover, the government can implement this alternative in a cost-neutral fashion, reducing future wage raises or gratuitous benefits to offset the added costs of union reimbursement.

But this government-payer alternative is not just a theoretical solution to what has been widely understood as an intractable debate—it has doctrinal significance, too. For once identified, the government-payer workaround becomes part of the constitutional analysis itself. That is to say, under First Amendment doctrine, the government’s ability to reimburse a union for its bargaining costs directly is a less restrictive alternative that renders fair share fees unconstitutional by comparison.
This Article explores the theoretical and doctrinal consequences of the government-payer alternative to fair share fees. In doing so, it proposes an answer to a longstanding puzzle in the Court’s First Amendment jurisprudence regarding the proper standard of scrutiny for compelled fees—a puzzle that the Supreme Court has explicitly recognized yet left unresolved. The Article concludes by offering a few observations concerning the impact of the government-payer alternative for the future of public sector labor unions and the First Amendment more broadly.