Category Archives: Labor Laws/Legislation

What Employers Should Know about the DOL’s New Joint Employment Standards

Source: Charles H. Wilson, Employee Relations Law Journal, Vol. 42 no. 1, Summer 2016
(subscription required)

The Department of Labor’s Wage and Hour Division recently issued an Administrator’s interpretation that provides broader “joint employment” liability for employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act. The author of this article discusses the new standard and what employers should do going forward.

“Round Up the Usual Suspects” and Violate the NLRA? The Implications of Extending Weingarten Rights to Nonunionized Workplaces

Source: Kevin C. Donovan, Employee Relations Law Journal, Vol. 42 no. 1, Summer 2016
(subscription required)

In a unionized workforce an employer generally may not proceed with an investigatory interview if the employee under investigation demands representation by a union official. This so-called Weingarten right does not apply to a nonunionized workforce. That may change. In this article, the author discusses the Weingarten right and the implications of Weingarten rights to nonunionized workforces.

Ban the Box: Protecting Employer Rights While Improving Opportunities for Ex-offender Job Seekers

Source: C. W. Von Bergen and Martin S. Bressler, Employee Relations Law Journal, Vol. 42 no. 1, Summer 2016
(subscription required)

A number of state and local jurisdictions, and more recently federal officials, have initiated statutes aimed at minimizing the obstacles encountered by ex-offenders in securing employment. Such policies, often referred to as “Ban the Box” legislation, attempt to ameliorate the deleterious effect that criminal history screening often has on such individuals’ ability to secure employment. The “box” in Ban the Box refers to the question on many employment applications asking if the job applicant has a criminal conviction. Such ordinances are focused at the point of the application process, only allowing potential employers to query individuals seeking employment about their convictions when they obtain an offer of conditional employment or when they reach the ranks of final consideration. Even then, it is a typical requirement that potential employers link necessity of a criminal screening with the nature of the job. This article discusses Ban the Box, its history, the risks these laws pose to employers, and strategies for firm compliance.

When the Hell Did the NLRB Become More Activist Than Labor?

Source: Shaun Richman, In These Times, Working In These Times blog, July 12, 2016

….I have advocated that unions should pursue an agenda of judicial activism. These recent NLRB actions prove that the time is ripe to challenge the rules of the system that keep unions shackled. I’ve spent most of my career complaining about how slow and ineffective the NLRB is, as have most union organizers. That bias should not blind us to the opportunity of the moment…..

An Empirical Assessment of the Contract Based Exception to the Employment-At-Will Rule

Source: Rafael Gely, Robin Cheramie, Timothy Chandler, University of Missouri School of Law Legal Studies Research Paper No. 2016-13, 2016

From the abstract:
While extensive, the existing literature on the employment-at-will doctrine and its various exceptions has been remarkably uniform. By relying on a discussion of selected court opinions on specific aspects of the doctrine, scholars have focused primarily on normative issues such as what the courts should do when deciding job security disputes, or what plaintiffs/employees and defendants/employers should argue when litigating employment disputes. Our approach and focus are different. Instead of relying on a discussion of selected cases, we rely on a more comprehensive sample of cases. Instead of focusing on normative issues, our goal is to provide a more complete picture of the state of the at-will doctrine as reflected in those cases. Our data should be of interest to legal scholars interested in understanding the characteristics and outcomes of litigated employment-at-will cases. Our data should also be relevant to the current debate among management scholars regarding conflicts that might arise due to aggressive recruitment practices which highlight long term employment opportunities and the realities associated with at-will employment.

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.