Category Archives: Labor Laws/Legislation

Something to Talk About: Information Exchange Under Employment Law

Source: Joni Hersch, Jennifer Bennett Shinall, Vanderbilt Public Law Research Paper No. 16-27, April 14, 2016

From the abstract:
To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, both Equal Employment Opportunity Commission (EEOC) guidance and a common misunderstanding of the law have resulted in little or no information about family status being provided in pre-employment interviews. To investigate whether concealing family information actually improves women’s employment prospects, we conduct an original experimental study fielded on more than 3,000 subjects. Our study provides the first ever evidence that concealing personal information lowers female applicants’ hiring prospects. Subjects overwhelmingly preferred to hire candidates who provided information, regardless of content. Any explanation improved employment prospects relative to no explanation for an otherwise identical job candidate. Our results are consistent with the behavioral economics theory of ambiguity aversion, which finds that individuals prefer known risks over unknown risks. These findings have broader implications regarding permissible pre-employment questions, as they suggest that restrictions on questions about matters such as criminal history and credit history, both of which are currently targeted by legislatures and by the EEOC for prohibition, may likewise have adverse effects on the classes of workers such restrictions are intended to protect. Finally, our findings suggest that the interactive process model of reasonable accommodation, embodied in the enforcement guidance for the Americans with Disabilities Act, may provide a better model for accommodation of work-family balance.
Related:
Press release

Women should own up about gaps on resume
Source: Amy Wolf, Futurity, May 20, 2016

Paid Family and Medical Leave: A Cornerstone of Equity and Opportunity for Workers and Families

Source: Marilyn Watkins, Economic Opportunity Institute, Issue Brief, May 2016

From the summary:
Establishing universal paid family and medical leave in the United States is critical to restoring economic security for working families and overcoming the entrenched inequities of race, gender, and class that undermine our economy and squash opportunity for far too many.

Scientific evidence overwhelmingly confirms the importance of paid parental leave to the health and well-being of young children. With our population aging, more workers have responsibilities for caring for older family members and are themselves more at risk of serious illness or injury that may also require a lengthy time away from work.

Currently in the United States, the highest income employees often have generous employer-provided paid leave benefits that allow them to nurture a new child, care for a parent with a health crisis, and fully recover from their own serious health conditions. Middle and lower income workers, on the other hand, have limited or no access to paid leave, forcing them to choose between their family’s health or economic security.

As of 2014, the United States and Papua New Guinea were the only two out of 185 countries and territories in the world that did not guarantee paid maternity leave. Most developed economies also provide paid paternity leave along with guaranteed paid sick leave and vacation time.

Fortunately, programs in California, New Jersey, New York, and Rhode Island provide highly successful models of family and disability leave programs that other states can replicate. Washington and other states can learn from the experience in these states to craft their own programs in ways that assure that all workers have access, regardless of income or occupation, and that businesses of all sizes can support their workers and communities and continue to thrive.

Adopting statewide paid family and medical leave programs to assure all workers access to paid leave is a crucial step toward overcoming health disparities and inequality in the U.S., and the key to eventual Congressional action to make universal and portable family and medical leave accessible to all U.S. workers….

Right to Work (For Less): By the Numbers

Source: Colin Gordon, Dissent blog, May 10, 2016

….This cascade of disadvantage for workers in RTW states, from lower unionization rates to lesser bargaining power to lower wages, is illustrated in the two graphs below. In these visualizations of the data, the states are strung like pearls along each annual measure. The RTW states are red, the others blue. The “box-and-whisker” for each year traces the variability across the states: the centerpoint of each box is the median state on that measure; the top and bottom of the box mark off the seventy-fifth and twenty-fifth percentiles (the “interquartile range”); the top and bottom whiskers reach out to values that are no more than 1.5 times the interquartile range; outliers in the data fall beyond the whiskers… In the graph of union density, unsurprisingly, RTW states cluster below the median. …. On wages, we see much the same pattern: a wide variation across states, the RTW states dripping off the bottom of the scale. The distinction between RTW states and the rest is perhaps most pronounced for men and women at the median, sixtieth and seventieth wage percentiles (a wage range, in 2015 dollars, that runs from about $15/hour to $30/hour). I make no claim here that RTW alone is dampening wages (this is a crude measure that does not control for other economic and policy differences across states). But it is clear, I think, that RTW is a potent marker of the broader climate that workers face in a state. Anti-labor legislation, in most of these settings, is accompanied by regressive and austere fiscal regimes, by woeful underinvestment in education, and by social policies that combine meager cash assistance with generous subsidies or incentives for participation in the low-wage labor market. This, in the end, is not about “rights” at all; it’s about power—the diminished power of unions to represent their members and bargain for living wages, and the naked power of business interests to turn states into laboratories of austerity and neoliberalism. ….

The Minimum Wage on the Ballot in 2016

Source: Jennifer Burnett, Council of State Governments, Knowledge Center blog, April 19, 2016

Ballots that address the minimum wage have been certified for 2016 to appear in three states with certification pending in another eight states. All of the initiatives seek to raise the minimum wage, except one – in South Dakota, the Decreased Youth Minimum Wage Referendum is a veto referendum that would overturn Senate Bill 177, which decreased the minimum wage for workers under age 18 from $8.50 to $7.50 and provide that the youth minimum wage is not pegged to inflation….

A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications

Source: Leo E. Strine Jr., Journal of Corporation Law, Vol. 41, 2015

From the abstract:
This article connects the Supreme Court’s decision in Burwell v. Hobby Lobby to the history of “corporate paternalism.” It details the history of employer efforts to restrict the freedom of employees, and legislative attempts to ensure worker freedom. It also highlights the role of employment in healthcare coverage, and situates the Affordable Care Act’s “minimum essential guarantees” in a historical and global context. The article also discusses how Hobby Lobby combines with the Supreme Court’s earlier decisions in Citizens United and National Federation of Independent Business v. Sebelius to constrain the government’s ability to extend the social safety net, and shows how those decisions put pressure on corporate law itself.

Imagining U.S. Labor Relations without Union Security

Source: Ann C. Hodges, Employee Responsibilities and Rights Journal, First online: 05 April 2016
(subscription required)

From the abstract:
Attacks on union finances are intensifying. These assaults, which come in various forms, have the potential to jeopardize the current systems of labor relations in the United States in both private and public sectors. This essay analyzes what might happen if the challenges are successful. Unions may shrink further in size or power, or alternatively, respond to new conditions in ways that strengthen them. Removal of union security might prompt legal change such as elimination of the duty of fair representation, elimination of the system of exclusive representation, or permitting the union to charge nonmembers for actual representation. These changes, if they occur, will be disruptive although they might result in a system more suited to today’s workplace. Regardless of the immediate outcome, it seems certain that labor-management conflict will not be eliminated, though it may be diverted for a time or changed in form.

What’s Going on with LGBT Discrimination in the Workplace?

Source: Lauren Godles, OnLabor blog, April 6, 2016

Three years ago, a HuffPost/YouGov poll found that 69% of Americans (incorrectly) believed that firing an employee for being gay was already illegal. Now, in a post-Obergefell legal regime, those Americans would likely find it even more incredible that the federal government and most states still have not passed anti-discrimination laws, nor has the Supreme Court ruled such discrimination to be illegal. Unlike the right to interracial marriage, which the Supreme Court upheld after Congress banned race discrimination, gay marriage came with no such analog. The EEOC has interpreted Title VII to prohibit sexual orientation or transgender (gender identity) discrimination, but EEOC protection alone is inadequate. This post examines what protections currently exist for LGBT workers and some possible paths forward for more comprehensive anti-discrimination protections.

Who’s Afraid of Collective Action?

Source: Kelsey Bleiweiss, OnLabor blog, April 1, 2016

The law of the workplace is in the midst of a critical debate about collectivity.

In case after case courts and the National Labor Relations Board have fought over the availability of collective action in two areas relevant to workers: class actions and class arbitration. (Union rights and collective bargaining represent a third area, but the debate over this kind of collective action is beyond the scope of this post.) These forms of collective legal action have been considered legitimate legal tools at one point, so why has recent law undercut workers who band together to use those tools?

Beyond North Carolina’s LGBT Battle: States’ War on Cities

Source: Alan Greenblatt, Governing, March 25, 2016

North Carolina’s fight over LGBT protections is part of a larger recent shift in political dynamics: States are thwarting local laws any chance they get — while simultaneously complaining about federal intrusion on their own. ….

….If a state official doesn’t like a city’s policy, there’s little penalty involved in trying to block it. A tax on earnings may be an essential source of revenue for St. Louis, but voting to kill it allows a legislator from outstate to take an anti-tax stand essentially for free. It won’t in any way affect revenues or programs back home. The same pattern of state legislative indifference to urban desires holds true for spending decisions. Consider infrastructure. The percentage of urban roads that have “poor pavement quality” has increased more than 50 percent over the past decade, according to the Congressional Budget Office. When it comes to public transit — and light rail in particular — state officials have been abandoning projects pretty decisively in recent months…..
Related:
Growing Southern cities are increasingly targets of state pre-emption
Source: Institute for Southern Studies, April 1, 2016

Paying minimum wage and overtime to home care workers: A guide for consumers and their families to the Fair Labor Standards Act

Source: U.S. Department of Labor, Wage and Hour Division, March 2016

Explains to home care consumers and their families the circumstances in which home care workers must now be paid the minimum wage and receive overtime pay. The fact sheet also provides advice for keeping track of workers’ hours, and it details the consequences for failure to comply with the new federal rule.