Category Archives: Labor Laws/Legislation

The human cost of wage theft in Massachusetts

Source: Brian Sparks, Muck Rock, May 23, 2016

Imagine standing in line at a coffee shop. It’s a hot, humid Boston day and you would like nothing more than a refreshing iced mocha. But there’s been a mistake, and the barista hands you not an iced mocha but a hot, hazelnut, half-caff, sugar-free latte with sprinkles.

It’s even got your name written on the cup.

How did they get hot, hazelnut, half-caff, sugar-free latte with sprinkles from your order of iced mocha? No matter. You inform the barista of the mistake, the proper iced mocha is made, and off you go to enjoy the sunshine.

What you might not know is that the manager has observed this, and has told the barista that the retail cost of the mistaken coffee order must come from the tip jar.

Called “paying for mistakes,” this is one of many ways employers wrongfully steal from their workers in Boston. While infuriating, it’s hardly the most costly form of wage theft – much more damaging to this barista’s income, and more common in the food service industry, are unpaid training shifts, unpaid overtime, and denial of meal breaks.

Over the last several years, nearly one in five wage theft complaints from Boston workers to the Attorney General’s Office involved restaurants, recently released documents indicate. The documents cover complaints made after 2012, when the US Department of Labor found that dozens of Boston-area restaurants practiced wage owed their workers nearly $1.3 million, or roughly $2,600 to each worker…..

The View at the Top or Signing at the Bottom? Workplace Diversity Responsibility and Women’s Representation in Management

Source: Mary E. Graham, Maura A. Belliveau, and Julie L. Hotchkiss, ILR Review, OnlineFirst, Published online before print September 8, 2016
(subscription required)

From the abstract:
Women lag men in their representation in management jobs, which negatively affects women’s careers and company performance. Using data from 81 publicly traded firms with more than 2,000 establishments, the authors examine the impact of two management structures that may influence gender diversity in management positions. The authors find no association between the presence of an HR executive on the top management team—a structure envisioned in practice as enhancing diversity but which could, instead, operate merely symbolically—and the proportion of women in management. By contrast, the authors show a strong, positive association between a previously unexamined measure of commitment to diversity—the hierarchical rank of the individual certifying the company’s required, confidential federal EEO-1 report—and women’s representation in management. These findings counter the common perception that the Equal Employment Opportunity Commission (EEOC) regulations are too weak to affect gender diversity. The authors discuss the implications for diversity scholarship, as well as for management practice and public policy.

An Application of Difference-in-Difference-Difference Model: Effects of Prevailing Wage Legislation in Mountain States of the United States

Source: Thomas Russell Harris, Sankar Mukhopadhyay, Nathan Wiseman, Public Works Management Policy, OnlineFirst, Published online before print September 6, 2016
(subscription required)

From the abstract:
Institutional laws and arrangements such as prevailing wage laws influence the employment levels and wage rates of the local labor supply. Conflicting research, however, has shown that prevailing wage laws lead to higher construction costs, while others show little to no relationship. Most of these studies are completed at the national level whose results at the regional level may not be applicable. This article examines the impact of prevailing wage laws on construction wages in the Mountain States of the nation. Difference-in-difference-difference models were used, and results indicate that for the Mountain States, removal of prevailing wage laws decreased wages by 4.4% after 10 years of the repeal. However, because of the available data used in this analysis, the impacts of repealing the prevailing wage laws on benefits could not be determined, which from previous research could be significant.

It’s time we reinvented labor for the 21st century

Source: Thomas Kochan, The Conversation, September 2, 2016

The link between labor’s decline and stagnating worker pay has convinced some politicians that we need to rebuild unions. What we need are new labor policies for tomorrow’s workforce….
Have we forgotten the true meaning of Labor Day?
Source: Jay L. Zagorsky, The Conversation, September 2, 2016
The holiday began as a strike against excessive workweeks but now bears little resemblance to its worker-centric origins, even as the founders’ gains are slowly lost.

Labor Day 2016: Six essential reads
Source: Bryan Keogh, The Conversation, September 3, 2016

…. Last year, we published a series of articles on unions – their decline and why they still matter. To celebrate Labor Day, here are highlights from that series as well as from our more recent coverage….

2016 Supreme Court Commentary: Employment Law

Source: Jonathan Ross Harkavy, Patterson Harkavy LLP, August 24, 2016

From the abstract:
This article, the author’s longstanding annual review of the Supreme Court’s work in the employment area, examines in detail every decision of the 2015-2016 term relating to employment and labor law, with commentary on each case and additional observations about the Court’s work in this term and the upcoming one. In particular, the author uses the latest term’s decisions as a lens for examining broader aspects of the Court’s jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself.

Blue Cities, Red States

Source: Abby Rapoport, American Prospect, August 22, 2016

As cities have moved left and states have moved right, the conflicts between them have escalated. ….

…..“PREEMPTION” LAWS ARE not new, nor are they necessarily about undoing local legislation. But with some notable exceptions, past preemption laws have generally enforced what can be called “minimum preemption”: They force localities to do something where they might otherwise have done little or nothing. As it’s often said, they set a “floor” for regulation. For instance, the federal government has been setting minimum standards of environmental protection for years, preempting the states from allowing lower environmental standards. Similarly, states often set a floor for various local regulations, whether regarding pollution, trade licensing, gun ownership, or other matters.

Most current preemption laws, by contrast, are what one might call “maximum preemption.” These laws aren’t about setting minimums; instead, they prohibit local regulation. States have prevented localities from creating paid sick leave requirements for businesses, or raising the minimum wage. Many who oppose these measures blame their proliferation on the conservative American Legislative Exchange Council, known as ALEC, which has drafted “model” preemption bills for state lawmakers to use. “Pretty much anything you can think of that matters to the American family is under assault by local preemption,” says Mark Pertschuk, the director of Grassroots Change, which fights preemption laws around the country……

Ban the Box and Perverse Consequences, Part III

Source: Noah Zatz, OnLabor blog, August 4, 2016

This is the final post in a three-part series.

This is the last in a series of three posts on the prominent perverse consequences argument against “Banning the Box.” The argument is that efforts to curtail employer exclusion of people with criminal records inadvertently exacerbate the racial inequality they purport to redress. The first post argued that Ban the Box should not be blamed for an effect rooted in employers’ racial stereotyping; the second criticized the perverse consequences argument for using the wrong conception of racial equality. This one criticizes it for ignoring cumulative effects when identifying and comparing racial harm.

Rank and File

Source: Jacobin, Issue 22, Summer 2016

How Labor Lost

The Forgotten Militants
Charlie Post
Weak working class resistance is rooted in the loss of radical trade unionists.

From Class to Special Interest
Barry Eidlin
Why are US unions less powerful than their Canadian counterparts?

The Long Road to Crisis
Nicole Aschoff
The dismantling of autoworker gains was a class project, not the inevitable result of globalization.

Workers of the World
Beverly J. Silver
The potential for workers to resist capital is as strong as ever.

How Labor Can Win

Everything Old Is New Again
Jane McAlevey
Rebuilding the labor movement will take organizing, not just mobilizing.

After the Friedrichs Scare
Joseph A. McCartin
US public sector unions have gotten a reprieve. Will they use it to rebuild, or squander the opportunity?

Beyond Social Movement Unionism
Sam Gindin
Bringing together weak unions and weak social movements isn’t enough. We need a new kind of socialist party.

The Legal and Social Movement Against Unpaid Internships

Source: David C. Yamada, Northeastern University Law Journal, Vol. 8 No. 2, 2016

From the abstract:
Until very recently, the legal implications of unpaid internships provided by American employers have been something of a sleeping giant, especially on the question of whether interns fall under wage and hour protections of the federal Fair Labor Standards Act and state equivalents. This began to change in 2013, when, in Glatt v. Fox Searchlight Pictures, Inc., a U.S. federal district court held that two unpaid interns who worked on the production of the movies “Black Swan” and “500 Days of Summer” were owed back pay under federal and state wage and hour laws. Although the decision would be vacated and remanded by the U.S. Court of Appeals for the Second Circuit in 2015, the door to challenging unpaid internships remains open, thanks in part to this litigation.

This Article examines and analyzes the latest legal developments concerning internships and the growth of the intern rights movement. It serves as an update to a 2002 article I wrote on the employment rights of interns, David C. Yamada, The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002). Now that the legal implications of unpaid internships have transcended mostly academic commentary, the underlying legal and policy issues are sharpening at the point of application. Accordingly, Part I will examine the recent legal developments concerning internships, consider the evolving policy issues, and suggest solutions where applicable.

In addition, the intern rights movement has emerged to challenge the widespread practice of unpaid internships and the overall status of interns in today’s labor market. Thus, Part II will examine the emergence of a movement that has both fueled legal challenges to unpaid internships and engaged in organizing activities and social media outreach surrounding internship practices and the intern economy.
This article grew out of my presentation at the March 2013 Northeastern University Law Journal symposium on employee misclassification. By mutual agreement with the journal editors, we postponed publication of the article to allow for further resolution of the Glatt litigation.

Gender-Based Discrimination in the Workplace: Why Courts Tell Employers That Breastfeeding Discrimination Is Legal

Source: Ashley M. Alteri, Review of Public Personnel Administration, Vol. 36 no. 3, September 2016
(subscription required)

From the abstract:
In March 2010, the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act were signed into law. These Acts include a provision governing “reasonable break time for nursing mothers” for those employers and employees covered under the Fair Labor Standards Act. However, neither these Acts, nor the Pregnancy Discrimination Act, nor Title VII, nor the Americans with Disabilities Act expressly protect women from discrimination resulting from her choice to lactate at work (to include either feeding a child directly from the breast or by expressing milk to be used at a later time). Accordingly, this article examines how federal courts have treated claims of breastfeeding discrimination at work. Although courts have generally been unsympathetic to these claims, employers should consider proactive accommodation measures because recent cases indicate that courts may be willing to entertain these claims.