Category Archives: Labor Laws/Legislation

Which Parts of Their Collective Bargaining Agreements Do the Friedrichs Plaintiffs Oppose?

Source: Andrew Strom, OnLabor blog, November 24, 2015

The theory of the Friedrichs case is that requiring the plaintiffs to pay fair share fees imposes a “severe and ongoing infringement” of their rights to free speech. Their Complaint asserts that each plaintiff “objects to many of the unions’ public policy positions, including positions taken in collective bargaining.” The fair share fees that are at issue in the case do not go to fund the unions’ public policy initiatives. Instead, they only fund activities that are germane to collective bargaining. And because of the way the case has been litigated, the plaintiffs have not identified which specific provisions in their collective bargaining agreements they oppose.

In their Supreme Court brief, the Friedrichs plaintiffs argue that wages and benefits for teachers can be controversial, and they assert that collective bargaining involves matters relating to education policy, but they never assert that they personally oppose their union on any issues addressed by their own collective bargaining agreements. While the brief is full of generalized assertions about collective bargaining agreements, it never addresses any of the specific collective bargaining agreements that apply to the plaintiffs. ….

….The unwillingness of the Friedrichs plaintiffs to identify the specific collective bargaining activities that they find objectionable is at odds with the heated rhetoric in their lawyers’ Supreme Court brief. While their lawyers assert that the Friedrichs plaintiffs are being forced to contribute money “for the propagation of opinions which [they] disbelieve[],” in fact, it appears that their agency fees are going to fund negotiation and enforcement of collective bargaining agreements that directly benefit them…..

Political Entrenchment and Public Law

Source: Daryl Levinson & Benjamin I. Sachs, Yale Law Journal, Vol 125 no. 2, November 2015

Courts and legal scholars have long been concerned with the problem of “entrenchment”—the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and scholarship has focused nearly exclusively on formal entrenchment: the legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the composition of the political community, or by altering the structure of political decision making, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that raise red flags. Recognizing the continuity of formal and functional entrenchment forces us to consider why public law condemns the former while ignoring or pardoning the latter. Appreciating the prevalence of functional entrenchment also raises a broader set of questions about when impediments to political change should be viewed as democratically pathological and how we should distinguish entrenchment from ordinary democratic politics. ….

…..[P]olitical actors intent on entrenching their preferred parties or policies need not resort to manipulating the formal rules of the Constitution, elections, or legislation. Consider recent changes to public-sector labor law. Labor unions generally provide support to Democratic candidates, mobilizing pro-Democratic voters and funding the logistical and organizational infrastructure of Democratic campaigns. Seeking to defend their hold on power against Democratic challengers, Republican officeholders have enacted restrictive labor legislation for the purpose of weakening unions. In 2011, for instance, the Republican-dominated Wisconsin legislature overhauled the state’s collective bargaining laws to profoundly curtail unions’ ability to participate effectively in politics. In case the purpose of these measures was not apparent, the new restrictions exempted all the unions that had endorsed the Republican Governor in the previous election. The goal, it seems, was to selectively incapacitate the Republicans’ political opponents, and not just at the state level: as Wisconsin’s Republican senate majority leader put it at the time, “[I]f we win this battle, and the money is not there under the auspices of the unions . . . President Obama is going to have a . . . much more difficult time getting elected . . . .” Wisconsin Republicans intent on undermining their political opposition and entrenching their party in office did not need to resort to disfranchisement or gerrymandered electoral districts. They used labor law instead……

Department of Labor Issues Proposed Rule to Amend Overtime Regulations

Source: Brett E. Coburn and Kandis Wood Jackson, Employee Relations Law Journal, Vol. 41 no. 3, Winter 2015
(subscription required)

The U.S. Department of Labor recently published a proposed rule that would significantly change the “white collar” exemptions from the minimum wage and overtime pay requirements of the Fair Labor Standards Act (FLSA). The authors of this article discuss the proposed changes, as well as the challenges and opportunities they create for employers.

The Perfect Storm for Labor Reform: Past, Present, and Possibilities for the National Labor Relations Act

Source: Kevin L. Burton, Employee Relations Law Journal, Vol. 41 no. 3, Winter 2015
(subscription required)

In this article, the author discusses why it is imperative that the National Labor Relations Act (NLRA) be amended to resolve the issue of employers purposely employing undocumented workers with no threat of penalty, to rectify the inability to punish for proven unfair labor practices, and to add minimum percentage requirements for American citizens in the workplace. Part one of the article lays out the legislative history and economic climate which gave rise to both the NLRA and the Taft-Hartley Amendments. Part two provides an in-depth analysis of the judicial and structural weaknesses of the Act. Part three offers detailed solutions, including a draft bill, to eradicate the weaknesses and a step-by-step plan to turn the solutions into law. Part four will discuss the proposal from a public policy perspective.

Legal Challenges to Interest Arbitration: Evidence From Canada

Source: Joseph B. Rose, Labor Law Journal, Vol. 66 no. 3, Fall 2015
(subscription required)

Although interest arbitration in Canada is used in a variety of contexts, its widest application involves the settlement of disputes in essential services. For groups such as police, firefighters and hospital workers compulsory interest arbitration is a substitute for the right to strike. In some sectors of the economy where strikes are permitted, but could potentially pose a hardship or significant inconvenience, senior governments have intervened or threatened to intervene to preempt strike action or order striking workers back to work. In these circumstances, the disputes are usually referred to binding arbitration.

As in the United States, economic and political pressures have posed a threat to the efficacy of interest arbitration and contributed to calls to reform interest arbitration schemes in Canada. This paper examines recent legal developments involving the regulation of interest arbitration and assesses the relative strengths and weaknesses of these approaches to dispute resolution. The first section examines some attributes of an effective interest arbitration system and briefly reviews several controversies surrounding interest arbitration. Next, we assess the impact of recent legislation on interest arbitration. The ascendancy of government austerity policies following the global economic crisis has led to restrictive labor laws regulating public sector bargaining and limitations on the right to strike in the private sector. The impact of government intervention focuses first on temporal limits (wage restraint laws and policies) and permanent changes to interest arbitration statutes. This is followed by referrals to interest arbitration associated with ad hoc, back-to-work laws. Changes affecting interest arbitration have included format (conventional arbitration or final offer selection), the selection process for arbitrators and arbitral criteria. In the final section, we consider both the potential and future of interest arbitration….

Words Mean Everything: The National Labor Relations Act and Employer Social Media Policies

Source: Jon D. Bible, Labor Law Journal, Vol. 66 no. 3, Fall 2015
(subscription required)

…To protect their brand, employers have long regulated what employees can say and do and courts have largely given them free rein to do so. Like most employees, moreover, these two worked at-will and thus could be fired for any reason not based on a protected class or in violation of an exception to the at-will doctrine. What the owners overlooked was the fact that the National Labor Relations Act [NLRA or Act] applies to non-union employers like Triple Play; in this respect, they had a lot of company, for many employers are unaware of this. Since it got involved in this area a few years ago, moreover, the National Labor Relations Board [NLRB or Board] has aggressively enforced the right of employees to use social media to discuss, and try to change, their working conditions. Had they known all of this, the owners might have considered whether the Facebook colloquy in which the two employees engaged was protected by the Act, so that discharging them was illegal….

Repeal Section 14(b) of Taft-Hartley: A Strategy to Counter the Attacks on American Labor Unions

Source: Raymond L. Hogler, Labor Law Journal, Vol. 66 no. 3, Fall 2015
(subscription required)

… The time is now to repeal Section 14(b). As the 2016 national elections gear up, conservative candidates will run on platforms of weakening labor unions. Wisconsin governor Scott Walker attracted considerable attention when he boasted that facing down union activists qualified him to deal with international terrorists. In fact, Walker’s performance in Wisconsin has yielded abysmal results in terms of economic growth as the state’s enactment of a right to work law and generous corporate subsidies did not lead to improved job creation. Overwhelming empirical evidence disproves the basic claims of right to work proponents about economic development. What such laws do accomplish is lower union density and lower wages. Over the past four decades, American workers have experienced greater immiseration and a declining share of productive wealth. Through the power of collective bargaining, those trends can be reversed. The starting point is to correct the fundamental flaw of right to work…

Source: Center for Law and Social Policy (CLASP), 2015

Launched in 2015, provides state and local governments with tools and resources to effectively implement earned sick days laws. is an extension of CLASP’s peer-to-peer advising work with earned sick days enforcement agencies. In 2014 and 2015, CLASP organized a series of conference calls in which enforcement agencies across the country discussed shared challenges and best practices in implementing earned sick days laws. This was followed by a live convening co-hosted by CLASP and the City of New York in October 2015. In addition to enforcement agencies, the convening welcomed advocates from five states and the District of Columbia. Building on this peer learning model, provides a library of resources for effectively implementing earned sick days.

Sections include:
Laws and Regulations – Texts of ESD laws, rules, and regulations
Education – Websites, PSAs, posters, and more to educate employers, employees, and the public about the law
Enforcement Operations – Complaint forms, audit reports, and more to conduct investigations and evaluate your success

Employment Protections for Workers Who Are Pregnant or Nursing

Source: U.S. Department of Labor, 2015

Workers in all states and territories are protected by federal employment laws, including the laws described below the map. States may also pass laws that give specific protections and rights to workers, but they may not reduce or limit the protections provided by federal laws. The map shows which U.S. States have laws, statutes and/or interpretative case law that specifically prohibit pregnancy discrimination and/or that mandate support of nursing mothers expressing milk in the workplace.