Category Archives: Labor Laws/Legislation

2017 Supreme Court Commentary: Employment Law

Source: Jonathan Ross Harkavy, Patterson Harkavy LLP, August 15, 2017

From the abstract:
This article, the author’s longstanding annual review of the Supreme Court’s work in the employment area, examines in detail every decision of the 2016-2017 term relating to employment and labor law, with commentary on each case and additional observations about the Court’s work in this term and the upcoming one. In particular, the author uses the latest term’s decisions as a lens for examining broader aspects of the Court’s jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself

Newly available wage theft data shows nearly 130 Colorado employers with violations

Source: Adrian D. Garcia, Denverite, August 24, 2017

The state of Colorado is starting to name companies that steal wages from their employees, ending decades of businesses being able to shield their identities under claims of trade secret protections.

Nearly 130 employers have been ordered to pay employees $547,780.90 in back pay and penalties since April 13. The companies were also ordered to pay the state another $170,750 in fines in connection with wage-law violations, according to the data shared Monday by the Colorado Department of Labor and Employment.

City governments are raising standards for working people—and state legislators are lowering them back down

Source: Marni von Wilpert, Economic Policy Institute, August 26, 2017

From the press release:
Progressive cities are raising their labor standards, but conservative state legislatures are preempting them

A new report by EPI Associate Labor Counsel Marni von Wilpert analyzes the recent wave of preemption laws that have swept across the country in the last decade. State governments use preemption laws to supersede city or county laws, or prevent local governments from legislating in certain areas at all—including blocking local governments’ efforts to raise labor standards. The paper explores the rise of preemption in five key areas of labor and employment: minimum wage, paid leave, fair work schedules, prevailing wages, and project labor agreements.

Deadly Picket-Lines in US Labour History

Source: Paul F. Lipold and Larry W. Isaac, International Union Rights, Vol. 24 No. 2, 2017
(subscription required)

Dead men tell no tales; that is, until the living give them voice. From 1870 to 1970, a veritable victims’ chorus of no fewer than 1160 fatalities was amassed during labour dispute confrontations within the United States of America. Each was simultaneously an expression of and catalyst within the dialectical evolution of US labour-management relations. …. Between 1877 to 1947, the US labour movement experienced the most violent and bloody era of and Western industrialized nation: strikers, organisers, and their sympathizers comprised nearly two-thirds of the classifiable victims. ….

The Contested Origins and Future of ‘Right to Work’ Laws

Source: Moshe Z. Marvit, International Union Rights, Vol. 24 No. 2, 2017
(subscription required)

Everything about so-called ‘right to work’ is contested. Its history, purpose, promoters, effects, even its name all remain unsettled. Contrary to how it may sound to one not steeped in the nuances of American labour history or law, ‘right to work’ is not a reference to the right to one’s job or the right to employment, or a rebuke to the norm of American at-will employment. Rather ‘right to work’ means the right of a workers to be represented by a union, but not pay any union dues or fees. Though it is a relatively obscure issue, especially now that private sector labour density is at its lowest since joining a union became a protected right in 1935, it has become a central tenet of American conservatism and one of the primary battlefields of labour law.

The Cure Worse than the Disease: Expelling Freeloaders in an Open-Shop State

Source: Chris Brooks, New Labor Forum, August 24, 2017

…..Right-to-work laws create two interlocking problems for labor unions. First, unions are legally required to represent all workers in a bargaining unit that the union has been certified to represent. In open shops, the “duty of fair representation” requires unions to expend resources on nonmembers who are covered by the union contract. This is known as the free-rider problem. Union activists often refer to workers who opt out of paying for the benefits of unionization as “freeloaders.” This leads to the second problem created by right-to-work laws: They undermine solidarity on the job by pitting workers who pay their fair share to support the union against workers who do not. This is the divide-and-conquer problem. In my use of these terms, the free-rider problem is institutional — the union has to expend resources protecting and fighting on behalf of workers who are not members and do not pay dues. The divide-and-conquer problem is interpersonal — when workers can opt out of supporting the union, this results in union and nonunion workers developing adversarial attitudes and behaviors toward one another, diminishing their unity on the job and their capacity for collective action.

Some on both the left and the right have argued that labor should deal with the free-rider problem by kicking out the freeloaders…..

…. In 2011, the newly elected Republican majority in the Tennessee legislature targeted the state’s collective bargaining law for teachers, eliminating exclusive representation and creating a negotiating process between teachers and local school boards that allowed for multiple organizations, including a “yellow” union—one that claims to represent teachers while advancing broader corporate interests — to represent teachers simultaneously at the bargaining table. Based on my experience as an organizer for the Tennessee Education Association (TEA), it is clear that jettisoning exclusive representation might have solved the free-rider problem for the union, but it exacerbated the divide-and-conquer problem. An examination of the Tennessee law—its implementation and the broader national context—reveals how the push by pro-union advocates to kick out freeloaders easily plays into the right’s strategies to diminish union power. ….

How noncompete clauses clash with US labor laws

Source: Raymond Hogler, The Conversation, August 23, 2017

Most Americans with jobs work “at-will”: Employers owe their employees nothing in the relationship and vice versa. Either party may terminate the arrangement at any time for a good or bad reason or none at all.

In keeping with that no-strings-attached spirit, employees may move on as they see fit – unless they happen to be among the nearly one in five workers bound by a contract that explicitly forbids getting hired by a competitor. These “noncompete clauses” may make sense for CEOs and other top executives who possess trade secrets but seem nonsensical when they are applied to low-wage workers such as draftsmen in the construction industry.

As a scholar of employment law and policy, I have many concerns about noncompete clauses – such as how they tend to make the relationship between workers and bosses too lopsided, suppress wages and discourage labor market mobility. In addition to tracing their legal and legislative history, I have come up with a way to limit this impediment to worker mobility.

The Conservative Case for Unions

Source: Jonathan Rauch, The Atlantic, July/August 2017

How a new kind of labor organization could address the grievances underlying populist anger. ….

…. Even before getting my small taste of what working-class Americans are experiencing in horse doctors’ doses, I had come to see the decline of unions as one of the country’s most pressing problems—and at least as much a social and political problem as an economic one. Old-style, mid-20th-century industrial unions had their flaws, unquestionably. But when unions work as they should, they serve important social functions. They can smooth the jagged edges of globalization by giving workers bargaining power. They are associated with lower income inequality, as the accompanying graph shows. Perhaps most important, they offer workers a way to be heard. “Unions provide a mediating function,” Matthew Dimick, a labor-law expert at suny Buffalo’s law school, told me. “Their social-capital function creates ties that reduce anomie and the sense of being abandoned and forgotten.” No other social institution, or at least none yet discovered, can serve that mediating function for workers. ….

…. In America, the modern conservative movement was founded on anticommunism and antiunionism. Senator Barry Goldwater (“Mr. Conservative”) built his career bashing unions. President Ronald Reagan, although a former union leader himself, made his bones by breaking the air-traffic controllers’ union. Just this past February, Republicans succeeded in their long push for a right-to-work law in Missouri. But the conservative war on unions is beginning to look like a Faustian bargain. If 2016 taught us anything, it was that miserable workers are angry voters, and angry voters are more than capable of lashing out against trade, immigration, free markets, and for that matter liberal democracy itself…..