Category Archives: Labor Laws/Legislation

Employment as a Legal Concept

Source: Brishen Rogers, Temple University, James E. Beasley School of Law, August 8, 2015

From the abstract:
The employment status of workers for “sharing economy” firms such as Uber, Lyft, TaskRabbit and Handy is becoming a major legal and political issue. This essay takes up that question, building on the ongoing cases against Uber and Lyft. Against most commentators, it first argues that the ambiguous legal status of Uber and Lyft drivers is not a symptom of outdated legal tests. Rather, that ambiguity reflects a deeper conceptual problem: that our laws lack a satisfactory definition of employment in the first place. The solution to that problem, the essay argues, lies in recognizing employment as a legal concept through and through, and thus recognizing that questions of employment status inevitably involve contestable value judgments. The Uber and Lyft cases, for example, present a conflict between two important sets of social goods: on the one hand, distributive justice and a more egalitarian political economy; on the other hand, the substantial welfare benefits promised by the companies’ innovations. While reasonable people will disagree, the essay argues that imposing employment duties would strike an appropriate balance between these goals — ensuring that the benefits of disruptive technologies are fairly shared with those whose labor makes those technologies profitable.

Out of Sync: How Unemployment Insurance Rules Fail Workers with Volatile Job Schedules

Source: Rick McHugh, Claire McKenna Liz Ben-Ishai, National Employment Law Project (NELP) and Center for Law and Social Policy (CLASP), August 2015

From the summary:
Millions of Americans are employed in jobs with volatile schedules that fluctuate weekly, both in terms of total hours and shift times; these workers receive little advance notice of their shifts and are frequently required to work “on call.” One consequence of job-schedule volatility is job loss: for some workers, the mismatch between job schedules and the rest of their responsibilities become untenable, either forcing them to quit or leading them to be fired from their jobs. In these cases, workers and their families need a safety net to help them while they seek new, hopefully more stable, employment. For many jobless workers, public cash assistance is not available, often leaving unemployment insurance (UI) as the only safety net. This paper explores the extent to which UI responds to the needs of workers who are jobless due to volatile work schedules.

Our analysis of access to UI for workers with volatile schedules is based upon legal research and interviews with agency staff or advocates in 10 states. We find that, with some exceptions, UI rules fail to address the needs of such workers. Not just formal UI rules, but state unemployment agency practices negatively affect workers with volatile schedules. Often, when workers who have lost their jobs as a result of scheduling challenges seek UI, state agencies simply apply existing UI rules to these cases—regardless of their fairness or reasonableness in such cases. To better address the needs of workers with volatile job schedules who are seeking UI benefits, states may need to establish new rules, revise existing ones, or rethink how they are applying existing rules.

Does Protecting Older Workers from Discrimination Make it Harder to Get Hired? Evidence from Disability Discrimination Laws

Source: David Neumark, Joanne Song, Patrick Button, National Bureau of Economic Research (NBER), NBER Working Paper No. w21379, July 2015
(subscription required)

From the abstract:
We explore the effects of disability discrimination laws on hiring of older workers. A concern with anti-discrimination laws is that they may reduce hiring by raising the cost of terminations and – in the specific case of disability discrimination laws – raising the cost of employment because of the need to accommodate disabled workers. Moreover, disability discrimination laws can affect non-disabled older workers because they are fairly likely to develop work-related disabilities, yet are not protected by these laws. Using state variation in disability discrimination protections, we find little or no evidence that stronger disability discrimination laws lower the hiring of non-disabled older workers. We similarly find no evidence of adverse effects of disability discrimination laws on hiring of disabled older worker

Disqualifiying Universality Under the Americans with Disabilities Act Amendments Act

Source: Michelle A. Travis, University of San Francisco – School of Law, Research Paper No. 2015-17 May 14, 2015

From the abstract:
This Article reveals a new resistance strategy to disability rights in the workplace. The initial backlash against the Americans with Disabilities Act of 1990 (ADA) targeted protected class status by characterizing the ADA’s accommodation mandate as special treatment that benefitted the disabled at the expense of the nondisabled workforce. As a result, federal courts treated the ADA as a welfare statute rather than a civil rights law, which resulted in the Supreme Court dramatically narrowing the definition of disability. Congress responded with sweeping amendments in 2008 to expand the class of individuals with disabilities who are entitled to accommodations and to align the ADA with Title VII of the Civil Rights Act of 1964 by establishing nearly universal impairment-based antidiscrimination protection. While these amendments have largely dismantled the disability status barrier, employers and their attorneys are working to erect a new barrier with the ADA’s “otherwise qualified” provision, which requires plaintiffs to prove the ability to perform all of the “essential functions of the job” as part of a prima facie disability discrimination case. This Article shows how federal courts are using the concept of “essential job functions” to entrench able-bodied norms into seemingly neutral job descriptions and workplace designs to again restrict access to accommodations and undermine the ADA as a universal civil rights law. By replacing “non-disabled” with “non-qualified” as the ADA’s new gatekeeper, this strategy effectively shifts disability stereotypes away from individuals with disabilities and onto the definition of work itself, which may render those stereotypes even more difficult to recognize and disrupt.

After Tackett: Incomplete Contracts for Post-Employment Healthcare

Source: Maria O’Brien Hylton, Boston University School of Law, Public Law Research Paper No. 15-30, August 4, 2015

From the abstract:
This paper examines the recent U.S. Supreme Court retiree health care decision in Tackett v. M & G Polymers and focuses, in particular, on the ostensibly odd silence with respect to a critical contract term — whether the parties in fact agreed that these benefits were vested. Although the union in Tackett insisted these welfare benefits were clearly intended to vest and the employer now asserts they can be modified at any time, the collective bargaining agreement and supporting documents are ambiguous on this question. This paper examines how and why this “silence” persisted for so many decades and concludes that, at least for a while, conscious ambiguity was maintained because it was in the best interests of both parties. Only when the cost of providing the benefits became unbearable did the employer finally take advantage of the long standing silence and assert its right to modify the retiree health plan. Tackett sidelines the Sixth Circuit’s well known decision in Yard-Man as the Court insists upon the importance of applying traditional contract principles in these cases. This paper concludes that even without the favorable inference Yard-Man supplied, it is still possible (although not guaranteed) that the plaintiffs will meet their burden of proof on remand and hold onto their health benefits in retirement.

How the New Overtime Rule Will Help Women & Families

Source: Heidi Hartmann, Kristin Rowe-Finkbeiner, Hero Ashman, Jeff Hayes, Hailey Nguyen, Institute for Women’s Policy Research and MomsRising, August 2015

From the abstract:
This report, a collaboration between the Institute for Women’s Policy Research (IWPR) and MomsRising, is an analysis of the U.S. Department of Labor’s proposed change to the overtime threshold and how this change will affect working women. The report focuses on the 5.9 million workers who would be “newly covered” by the proposed increase and explores the differences in the impacts of the higher earnings threshold by sex, and among women by race/ethnicity, household type, and occupation.

Massachusetts’ Earned Sick Time Law

Source: George K. Atanasov and Julie Cox, Employee Relations Law Journal, Vol. 41 no. 2, Autumn 2015
(subscription required)

Massachusetts’ Earned Sick Time Law, which voters passed by ballot initiative last November, is now in effect. Prior to its July 1 effective date, Massachusetts Attorney General Maura Healy’s office released proposed regulations to clarify how the ballot law will be implemented.

NLRB Report Concludes That Many Common Handbook Policies Violate the NLRA

Source: Michael Droke, David Murphy, Sarah Andrews Herman, Rebecca J. Bernhard, and JoLynn M. Markison, Employee Relations Law Journal, Vol. 41 no. 2, Autumn 2015
(subscription required)

The authors of this article summarize a National Labor Relations Board (NLRB) Report addressing the unlawful nature of certain handbook policies under the National Labor Relations Act. Given the NLRB’s increased focus on handbook policies and this Report’s conclusions regarding a number of frequently used policies, the authors suggest that employers carefully review their handbooks to avoid NLRB scrutiny.