Category Archives: Labor Laws/Legislation

This Florida Stealth Offensive Against Unions Could Preview GOP Onslaught in 2018

Source: Michael Arria, In These Times, December 22, 2017

Florida Republicans are pushing a bill designed to deal the state’s unions a death blow. House Bill 25, which was introduced by Longwood state Rep. Scott Plakon, would decertify any union in which 50 percent of the workers don’t pay dues, thus preventing them from being able to collectively bargain. Despite the fact that unions negotiate for the benefit of all their workers, no employee is forced to pay dues in Florida, because it’s a “Right to Work” state. ….

The Supreme Court Case That Could ‘Overturn the Heart of the New Deal’

Source: Simon Lazarus, American Prospect, January 4, 2018

As the Supreme Court gets back to work this Friday, January 5, media coverage of its potentially momentous 2017-2018 term has focused on several high-profile cases that deal with gerrymandering, cell phone privacy, religiously cloaked anti-gay discrimination, and the future of public-employee unions. But one sleeper has received less attention than it deserves. Argued on October 2, this case could strip foundational safeguards in place for over 80 years, essential to ensuring millions of low-wage and non-union workers of their right to fair pay, job security, workplace safety, nondiscrimination, and other guarantees protected by state and federal law. The case gives the Roberts Court, with its newly reconstituted 5-4 conservative majority, a chance to escalate its pro-corporate activism to levels unmatched even by the famously anti-regulatory pre-New Deal Court of a century ago. If the Court reaches the result sought by business advocates, this would, as elaborated by two Seton Hall professors in a 2014 law review article, “effectively end the labor laws.” ….

…. The case—actually three lawsuits, Epic Systems v. Lewis, from Wisconsin; National Labor Relations Board v. Murphy Oil U.S.A., from Alabama; and Ernst & Young LLP v. Morris, from California; consolidated by the Court—involves employees’ claims that employers denied them overtime pay and other required benefits, by misclassifying their jobs and other illegal devices. Such claims are anything but rare. On the contrary, one 2009 study showed that in three major U.S. cities, “76 percent of 4,387 full-time low-wage workers in large and small companies across a variety of industries faced unpaid or underpaid overtime and 26 percent reported being paid less than minimum wage.” Court decisions have documented “extensive and systematic wage theft” from workers in construction, garment manufacturing, nursing homes, agriculture, poultry processing, and restaurants…..

Employment Authorization, Alienage Discriminiation and Executive Authority

Source: Leticia M. Saucedo, Berkeley Journal of Employment & Labor Law, Volume 38 Issue 2, 2017

Employees, regardless of immigration status, have rights and protections that come from employment and labor laws. This proposition, while established doctrinally, continues to be highly contested and questioned, in part because it seems to contradict congressional intent to control the flow of undocumented labor in the workplace. As history suggests, however, Congress intended to make employers accountable for pulling undocumented workers into the labor market, and the protections in employment and labor laws were meant to continue to apply to all who are eligible for the status of employee. This Article calls for a doctrinal shift in employment law that removes considerations of immigration status in enforcement. Not only does keeping immigration status out of issues of employment protection benefit all workers, but the separation of immigration status from employment enforcement adheres to long-held principles of equal protection based on alienage, and to congressional intent to hold employers accountable for exploitative treatment of the most vulnerable workers. The Obama administration’s attempt to provide employment authorization to undocumented individuals can be viewed as an attempt to use its authority under the immigration statute to keep faith with these alienage anti-discrimination principles and to ensure equal treatment by providing legal status in the workplace. As the Trump administration uses this authority in its immigration policy, it should heed the same anti-discrimination principles….

Friedrichs v. California Teachers Association

Source: Diana Liu, Berkeley Journal of Employment & Labor Law, Volume 38 Issue 2, 2017

During the 2016 term, the Supreme Court heard Friedrichs v. California Teachers Association, which presented two questions to the court. First, should public sector “agency shop” arrangements be invalidated under the First Amendment? Second, does requiring public employees to affirmatively object, rather than affirmatively consent, to subsidizing nonchargeable speech by public-sector unions violate the First Amendment? In a non-precedential per curiam opinion that offered no explanation on the merits of the argument, the evenly-split Court affirmed the decision of the Ninth Circuit. The subsequent rehearing petition was denied, leaving the Ninth Circuit decision to stand.

In affirming the Ninth Circuit’s decision, the Supreme Court left in place its previous decision in Abood v. Detroit Board of Education. In Abood, the Court upheld the constitutionality of compelling employees to pay agency fees to their collective bargaining representative. As a result, “agency shop” arrangements remain valid under the First Amendment. The Court also upheld the constitutional validity of requiring public employees to affirmatively object to funding non-collective bargaining related activities. With the divided Court’s per curiam opinion, Friedrichs has for now reaffirmed the controlling power of Abood, leaving undisturbed the future abilities of public employee unions to raise funds to support their collective bargaining activities. ….

Facing Wisconsin-Style Attack, Iowans Stick to the Union

Source: Dave Kamper, Labor Notes, November 16, 2017

Never let a good crisis go to waste. Iowa’s Republican legislative majorities assumed that an aggressive anti-union law would persuade public employees to abandon their unions. Instead they created a backlash, sparking unions to reconnect with members and their communities.

So far 29,552 people have voted to stay union, and just 651 have voted against.

House File 291, passed in February, defangs public sector bargaining and requires a vote, one year before the contract expires, on whether members still want a union at all. The union pays for this election—an anti-union tax set at $1 per member this year, which can be increased at the whim of Iowa’s labor board.

The kicker is, the union must win a majority of all eligible voters, not just of votes cast. Even if nobody votes no, but half the members don’t vote, the union will be decertified. Unions have pointed out that none of the law’s backers could win reelection under these skewed terms.

The law also eliminates public sector unions’ right to collect dues through payroll deduction. And unions can no longer negotiate over insurance, hours of work, professional development, or retirement benefits.

A similar law in Wisconsin, Scott Walker’s infamous Act 10, has decimated public sector unions. Most of the Wisconsin bargaining units that decertified right off the bat in 2011 had a majority of voters opting to keep the union—they just couldn’t get a majority to cast ballots…..

What Unions Do for Regulation

Source: Alison D. Morantz, Annual Review of Law and Social Science, Vol. 13, 2017
(subscription required)

From the abstract:
The question of how organized labor affects the content, enforcement, and outcomes of regulation is especially timely in an era in which protective laws and regulations are being scaled back or minimally enforced and union membership is in decline. This article surveys literature from a wide array of regulatory domains—antidiscrimination, environmental protection, product quality, corporate governance, law enforcement, tax compliance, minimum wage and overtime protection, and occupational safety and health—in an effort to identify common findings on what unions do for regulation. Literature on the topic has taken up five questions: how labor unions affect the passage of protective laws and regulations; how they affect the outcomes that regulators target; how they affect the intensity of regulatory enforcement; the specific activities and channels of influence they use to influence regulated outcomes; and the role they play in self-regulation. Drawing on empirical literature from the domains listed, I review and analyze literature on each of these questions and offer several conclusions and suggestions for future research.

A Vision for a High-Wage America

Source: Michael McCormack and Jeff Madrick, The Century Foundation, October 16, 2017
From the summary:
America has deliberately chosen to be a low-wage society since the 1970s. This status was not thrust upon it inevitably by technological change or globalization, but instead was the result of deliberate policy choices made over the years. America likewise has the ability to reverse course, pursuing a policy agenda that would put it back on the path toward a high-wage economy. ….

…. This report provides an overview of the current state of the U.S. economy, characterized by a sluggish recovery, stagnant living standards, inequality, increasingly volatile and uncertain incomes, especially for low-income Americans, persistent poverty, and declining benefits. Our review below of the economic data and literature will demonstrate the persistence of reduced opportunity and a low-wage America for millions since the 1970s.

The report also explores the deliberate policy choices that led to the low-wage economy that developed in the late 1970s and was solidified by the 1980s and 1990s. There was only a brief reprieve during the full-employment economy of the late 1990s, when wage growth lifted wages for all income levels; even during this time, anti-inflationary monetary policy reduced the bargaining power of workers relative to capital.

After reviewing the political and academic influences that created a low-wage America, the report proposes alternative policy choices to build a high-wage America that extends prosperity to a broader range of workers. The three main pillars of a high-wage economy identified in this report—public investment and industrial policy, education and training, and labor standards and social supports—will guide the Rediscovering Government Initiative’s research and event agendas in the coming months, as it seeks to build an agenda that can return American workers to prosperity…..

What You Should Know

  • Between 1973 and 2015, productivity increased by 73.4 percent, but hourly compensation increased by only 11.1 percent. And that meager wage growth has happened mostly at the top of the income scale. Since the late 1970s, wage growth has stopped for the eightieth percentile of earners on down, and for much of the wage distribution, earnings have actually fallen.
  • Deliberate policy choices since the 1970s have contributed to this wage stagnation, including the attack on labor unions, cuts to social programs, tight monetary policy, tax cuts and free-market economic policies.
  • U.S. manufacturing work is particularly underpaid when compared to other nations. Manufacturing workers in the United States ranked eighteenth out of twenty-seven OECD nations with available data.
    The high-wage agenda requires new approaches to directly confront underemployment and unemployment that may include government acting as an employer of last resort and support for labor organizing, which is now actively thwarted.
  • Rebuilding the nation’s apprenticeship system that still only reaches less than half a million workers, and translating promising high school career academies into respected vocational and career education system that, among other things, can create inclusive access to well-paid skilled blue collar jobs.
  • White Lawmakers Are Using Alabama’s Racist State Constitution To Keep Black Wages Down

    Source: Bryce Covert, In These Times, November 2017

    Alabama wrote its 1901 constitution to “establish white supremacy.” Workers in a majority-black city say it’s Jim Crow all over again. ….

    Just two years ago, these Fight for $15 workers and their allies won a minimum wage increase to $10.10 in Birmingham. It was short-lived. State lawmakers intervened before the law took effect, passing a preemption bill that undid the work of the City Council and the will of its constituents. Since Alabama doesn’t even have its own minimum wage, minimum-wage workers still make the federal wage of just $7.25 an hour.

    “We want $10.10, we gonna do it again,” the crowd chanted.

    The workers are using protests to pressure corporate employers and state legislators to raise their pay. But they’re not counting on it happening voluntarily. On April 28, 2016, workers in Birmingham filed a lawsuit accusing the state of racial animus and violating the U.S. Constitution’s 14th Amendment guarantee of equal protection.

    The lawsuit offers a novel approach in a struggle taking place across the country as blue cities battle red states for self-determination. Republicans often extoll the virtue of local governmental control, but not, it seems, when it comes to progressive change…..

    Fighting Back, Fighting Forward: An Agenda for State & Local Pro-Worker Reforms

    Source: Judith M. Conti, National Employment Law Project (NELP), Legislative Brief, October 2017

    From the introduction:
    Though it is easy to look at what is happening in Congress and our federal government these days and feel despair, now is the time for advocates across the country to double-down on their efforts to fight for progressive reform at the state and local level wherever possible. In states with leadership open to progressive reforms, advocates should be looking for every opportunity to introduce and work toward passing either this year or in the near future the kinds of reforms that will help low-wage workers gain a foothold in the economy and be more economically secure.

    Even in states where the policy terrain is less favorable, finding legislators to champion progressive policies is both a messaging victory demonstrating to the electorate what is possible, but also can be an effective weapon to fight off ill-advised proposals aimed at taking power and rights away from workers and giving more to corporate employer interests.

    The fact is that our nation’s low-wage and middle class workers are more vulnerable than they have been in most of our lifetimes, and this is particularly true for immigrant workers and people of color. The tone and tenor of so much of the national dialogue these days is deeply negative and divisive. But bringing together community-based organizations, their members, advocates and legislators at the state level can help turn the tide toward the positive. We can work together to present an alternative vision of what this nation should be about and how it should value its working people.

    The legislative proposals discussed in this brief present advocates with a menu of options they can explore with state legislators and allies. Any one of them would represent a significant step forward to marginalized and low-income workers, and NELP staff are able to provide campaigns with technical assistance to help get off the ground and build for success.

    How So-Called “Right to Work” Laws Aim to Silence Working People

    Source: Amy Traub, Dēmos, 2017

    From the introduction:
    In America, working people have the freedom to band together with their co-workers to negotiate for a fair return on our work. We have the freedom to act together so can we speak with a more powerful voice. We have the freedom to join and form unions. Yet today, powerful interests want to take away that freedom. Corporate lobbyists have pushed federal and state-level policies deceptively named “Right to Work” laws that strip away the freedom to negotiate for a fair return on our work. These laws are designed to drain workers’ collective resources by requiring unions to provide representation to people who make no contribution to sustain the union. In essence, so-called “right to work” laws aim to silence working Americans, which causes their wages and working conditions to deteriorate, making it more difficult to sustain a family. Economists find that in states that have adopted these laws, the typical full-time worker is paid $1,500 a year less than their counterpart in a state that has not undermined workers’ rights.

    This Demos Explainer clarifies what misleadingly named “right to work” laws do, how they silence workers’ collective voice, and what their impact has been in states that adopt them. We also explore the roots of this anti-worker policy in efforts to cut wages and solidify racial divisions among workers in the Jim Crow South. Today, as “right to work” laws are promoted in a growing number of states and in the U.S. Congress, Demos aims to ensure that elected leaders, the media, and ordinary Americans understand the true nature of this policy.