Category Archives: Labor Laws/Legislation

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.

Get to Work or Go To Jail: Workplace Rights Under Threat

Source: Noah Zatz, Tia Koonse, Theresa Zhen, Lucero Herrera, Han Lu, Steven Shafer, and Blake Valenta, UCLA Institute for Research on Labor and Employment and a A New Way of Life Reentry Project, Research Brief, March 2016

From the summary:
When many people consider work and the criminal justice system, they commonly consider how difficult it is for people coming out of jail to find work. Yet, a recent UCLA Labor Center report, Get to Work or Go To Jail: Workplace Rights Under Threat, goes further by exploring the ways in which the criminal justice system can also lock workers on probation, parole, facing court-ordered debt, or child support debt into bad jobs. Because these workers face the threat of incarceration for unemployment, the report finds that they cannot afford to refuse a job, quit a job, or to challenge their employers.

Among other findings, the report concludes:
– Nearly 5 million Americans and 400,000 Californians are under probation or parole
– Many of these workers may be stripped of standard labor protections such such as minimum wage and workers compensation
– On any given day, about 9,000 nationwide are in prison or jail for violating the probation or parole requirement to hold a job.
– Every year in Los Angeles, 50,000-100,000 people must perform unpaid, court-order community service. Some debtors perform many hundreds of hours of unpaid labor, the equivalent to several months of full-time work.
– African Americans or Latinos account for 2/3 of those incarcerated for violating parole or probation conditions related to work or debt.
– The majority of fathers who were incarcerated for failing to pay child support worked during the previous year, in fact 95% of fathers reported having been employed prior to incarceration. Of these fathers, 85% of these fathers lived in or near poverty.

This report was written in collaboration with the UCLA Institute for Research on Labor and Employment and a A New Way of Life Reentry Project.

Opinion analysis: Result but no guidance on public unions’ fees

Source: Lyle Denniston, SCOTUSblog, March 29, 2016

The most important labor union controversy to reach the Supreme Court in years sputtered to an end on Tuesday, with a four-to-four split, no explanation, and nothing settled definitely. The one-sentence result in Friedrichs v. California Teachers Association will leave intact, but on an uncertain legal foundation, a system of “agency fees” for non-union teachers in California — with the legal doubts for public workers’ unions across the nation probably lingering until a ninth Justice joins the Court at some point in the future.

The practical effect was to leave undisturbed a ruling by the U.S. Court of Appeals for the Ninth Circuit, which had simply found itself bound by a prior Supreme Court precedent upholding such fees against constitutional challenge. The Ninth Circuit had before it a case specifically filed as a test of that precedent, and only the Supreme Court could revisit that prior ruling, binding on all lower courts…..

Related:
Friedrichs Opinion
Source: Juhyung Harold Lee, OnLabor blog, March 29, 2016

In case you missed it, the Supreme Court has handed down a 4-4 affirmance of the lower court’s opinion in Friedrichs v. California Teachers Association. The Court’s 1977 opinion in Abood v. Detroit Board of Education thus remains good law, and public-sector unions may continue to collect agency fees from nonmembers.

A Narrow Escape for Public-Sector Unions
Source: Matt Ford, The Atlantic, March 29, 2016

The justices split 4-4 in Friedrichs v. CTA, leaving a pro-union ruling in the lower courts intact. …. Tuesday’s deadlock means that the Ninth Circuit’s ruling in favor of the teachers’ union will stand. But it also signaled that Justice Anthony Kennedy, who almost certainly joined Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas on one side of the split, would be willing to overrule Abood v. Detroit Board of Education, the decision that became the basis for public-employee contracts. That tosses the precedent’s ultimate fate to the next justice who serves on the Court. ….

Supreme Court Deadlocks On Challenge To Union Fees
Source: Nina Totenberg, NPR, March 29, 2016

Split Supreme Court Means A Win For Public Sector Unions
Source: Chris Geidner, BuzzFeed News, March 29, 2016

The Supreme Court split 4-4 on a case over public union fees for non-members, leaving in place a lower court decision that allows the fees to continue.

Mandatory Union Fees Survive as U.S. Supreme Court Deadlocks
Source: Greg Stohr, Bloomberg, March 29, 2016

BREAKING: The Biggest Legal Attack On Unions In Decades Is Dead
Source: Ian Millhiser, ThinkProgress, March 29, 2016

Supreme Court deadlocks over public employee union case; Calif. teachers must pay dues
Source: Robert Barnes, Washington Post, March 29, 2016

SCOTUS 4-4 decision hands public sector unions a victory
Source: Ariane de Vogue, CNN, March 29, 2016

Unions Win Fee Victory as Supreme Court Ties 4-4
Source: Adam Liptak, New York Times, March 29, 2016

The Labor Prospect: How Garland Would (and Would Not) Be a Pro-Labor Justice

Source: Justin Miller, American Prospect, March 22, 2016

Predicting how Garland would rule on labor cases, Trump’s working class appeal, and measuring the “gig economy.”
Related:
Merrick Garland’s Nomination to the Supreme Court: Initial Observations
Source: CRS Reports & Analysis, Legal Sidebar, March 17, 2016

On March 16, 2016, President Obama nominated Merrick Garland of the federal Court of Appeals for the District of Columbia Circuit to fill the vacancy on the Supreme Court created by the unexpected death of Justice Antonin Scalia in February. As noted in an earlier Sidebar posting, the vacancy has significant implications for the Court, Congress, and the nation as a whole. The scope and nature of those implications depend on who ultimately succeeds Justice Scalia. As a follow up to the previous Sidebar, this posting—one of several CRS projects on Justice Scalia and the Court vacancy—discusses the potential implications of Judge Garland’s confirmation as the newest Justice, were he to be confirmed. It is presently unclear whether, when, or how the Senate might act on Judge Garland’s nomination….

The Supreme Court Vacancy and Labor: Merrick Garland
Source: Hannah Belitz, OnLabor blog, February 23, 2016

This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

On February 13, 2016, Justice Scalia unexpectedly passed away. In the aftermath of his passing, the legal and news worlds have been abuzz with talk of prospective replacements. Included on numerous shortlists of potential Supreme Court nominees is Merrick Garland, Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. Judge Garland has served on the D.C. Circuit since 1997, when he was appointed by then-President Bill Clinton and confirmed by the Senate in a 76-23 vote.

Judge Garland has an extensive record and while generalizations about his opinions are difficult to make, certain themes do emerge. An analysis focusing on his opinions in cases involving the NLRB reveals one particular theme: agency deference. This deference to the NLRB has had favorable consequences for labor and unions…..

How to transform workers’ campaign rage into better jobs and wages

Source: Thomas Kochan, The Conversation, March 24, 2016

The presidential campaigns deserve some credit for finally voicing some of the deep frustrations and anger felt by American workers who have lived for decades in an economy that works for those at the top but not for them and their families. …. But angry rhetoric will not put the economy on a path that works for the disaffected and disenfranchised. Instead we need to address the root causes of workers’ frustration and their economic decline. And to do that, I would argue, we need to fix our broken labor policy. ….

Illinois HB 580: The Political Battle Over Interest Arbitration

Source: Kelsey Bleiweiss, On Labor blog, March 23, 2016

When it comes to labor news in Illinois, most attention is on the Chicago Teachers Union and its likely strike in April. But HB 580, a labor bill pending in Illinois, merits attention as well, as it has ignited fierce debate in the state for over a year. Though the future of the bill is uncertain, it raises important questions about public sector unions that have little choice but to engage with partisan politics.

Arizona Has a Plan to Get Revenge on Its Pro-Worker Cities

Source: Josh Eidelson, Bloomberg Businessweek, March 15, 2016

Inspired by decisions in cities like Tacoma, Wash., and Elizabethtown, N.J., to require companies to offer paid sick leave, Lauren Kuby, a City Council member in Tempe, Ariz., began pushing a year ago for her city to do the same. …. Then Kuby and her colleagues heard that Arizona’s Republican-controlled state legislature was considering punishing cities that tried to set their own codes for worker benefits. Arizona’s House passed a bill on March 1 specifying that cities aren’t allowed to require private employers to provide paid sick leave or vacation. The state Senate has passed companion legislation that would cut state funds, used to pay for services like police and firefighting, for cities that try to supersede state laws. …. Arizona is one of several states where legislators have moved to stop local officials from trying to pass minimum wage increases or paid leave policies that have no chance in the statehouse. In Alabama, state lawmakers invalidated a Birmingham minimum wage increase to $10.10, from $7.25, in February by passing a law denying cities such authority. Idaho’s legislature passed a similar law in March. …. The current fracas is the latest round in a two-decade tug of war between Arizona’s cities and its legislature over labor rules. Legislators first banned cities from passing their own minimum wage increases in 1997. Voters overrode that law with a 2006 referendum authorizing cities to pass minimum wage and benefits laws of their own. Legislators passed another law in 2013 banning cities from regulating wages and employee benefits, which activists successfully challenged in court, citing the 2006 referendum. If legislators’ latest proposals become law, Democrats including Phoenix Mayor Greg Stanton are already promising more lawsuits…..
Related:
Minimum wage ban headed to governor’s desk
Source: Associated Press March 11, 2016

Idaho’s local governments would be banned from increasing the minimum wage under legislation headed to the governor’s desk. The Idaho Senate voted 27-8 on Thursday to prohibit cities and counties from instituting ordinances to raise the minimum wage, while also banning similar ballot initiatives.

An Update on Paid Sick Leave and Family Leave in 2016

Source: Abbey Q. Keister, OnLabor blog, March 11, 2016

In recent years, we’ve seen progress in the battle for paid leave. However, such progress has occurred almost exclusively at the state and local government levels, and almost all of the advances have been on the sick leave front. The family leave front, by contrast, lags significantly behind. OnLabor examined the state of sick leave (here) and family leave (here) in 2014. This post will serve as an update, examining where we are now, how that compares to other developed countries, and why it matters.

Truth and Lies in the Workplace: Employer Speech and the First Amendment

Source: Helen L. Norton, Minnesota Law Review, Forthcoming, February 26, 2016

From the abstract:
Employers’ lies, misrepresentations, and nondisclosures about workers’ legal rights and other working conditions can skew and sometimes even coerce workers’ important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers’ rights or other working conditions as well as by requiring employers to disclose truthful information about these matters.

These governmental efforts, however, are now increasingly vulnerable to constitutional attack in light of the recent antiregulatory turn in First Amendment law, in which corporate and other commercial entities seek — with growing success — to insulate their speech from regulation in various settings. This Article examines this trend’s significant but underexplored implications for the workplace, exploring how First Amendment law now may be changing in ways that undercut the government’s efforts to inform and empower workers by casting doubt on its ability to require truth or prohibit lies in certain contexts. It then considers the circumstances under which we should instead understand the First Amendment to permit the government to require employers to tell the truth about workers’ legal rights and other working conditions.

To this end, this Article draws from First Amendment theory and doctrine in other settings in which listeners have less information or power than speakers, and thus where governmental efforts to inform and empower listeners by prohibiting lies and requiring truthful disclosures can improve the communicative discourse. The Article then explains how employer speech similarly occurs within a communicative relationship riddled by information and power asymmetries: employers not only control workers’ economic livelihood but they also know more than workers about the terms and conditions of employment, about industry and economic projections, and — as repeat players with greater resources — about available legal protections.

The Article thus urges a First Amendment theory of employer speech that addresses these dynamics by treating workers’ interests as listeners as paramount. Because these interests are frustrated by employers’ lies and nondisclosures, it concludes that the First Amendment should be understood to permit government to require employers to disclose objectively verifiable information about workers’ rights and other working conditions as well as to prohibit employer lies or misrepresentations about these matters that threaten to coerce or manipulate workers’ choices.