Category Archives: Labor Laws/Legislation

The Invisible Web at Work: Artificial Intelligence and Electronic Surveillance in the Workplace

Source: Richard A. Bales, Katherine V.W. Stone, Berkeley Journal of Employment and Labor Law, Vol. 41 no. 1, 2020
(subscription required)

From the abstract:
Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. With these tools, employers can record their workers ’ every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (AI) algorithms into a permanent electronic resume that can identify and predict an individual’s performance as well as their work ethic, personality, union proclivity, employer loyalty, and future health care costs. The electronic resume produced by AI will accompany workers from job to job as they move around the boundaryless workplace. Thus AI and electronic monitoring produce an invisible electronic web that threatens to invade worker privacy, deter unionization, enable subtle forms of employer blackballing, exacerbate employment discrimination, render unions ineffective, and obliterate the protections of the labor laws.

This article describes the many ways AI is being used in the workplace and how its use is transforming the practices of hiring, evaluating, compensating, controlling, and dismissing workers. It then focuses on five areas of law in which AI threatens to undermine worker protections: antidiscrimination law, privacy law, antitrust law, labor law, and employee representation. Finally, this article maps out an agenda for future law reform and research.

Manage Political Messaging Through Dress Codes

Source: Maureen Minehan, Employment Alert, Vol. 37 no. 18, September 1, 2020
(subscription required)

From the abstract:
During every presidential election, employers contend with employees who want to express support for their candidate through hats, buttons, t-shirts, and other apparel emblazoned with candidates’ names or slogans. Add in a new option for expression this year—face masks meant to protect workers and customers from COVID-19—and employers will need to decide what they are willing to permit.

“When Do You Plan on Having a Baby?” and Other Questions Not to Ask

Source: Melissa Torres, Employee Benefit Plan Review, Vol. 74, No. 5, July-August 2020
(subscription required)

From the abstract:
Employers interviewing women of child-bearing age may be tempted to ask about plans for having a baby, but doing so poses risks. While an employer might be concerned about staffing coverage, the Pregnancy Discrimination Act prohibits employers with 15 or more employees from discriminating against a woman based on her potential or capacity to become pregnant. Taking adverse action against a pregnant employee because of her pregnancy is equally unlawful.

Nonetheless, an article in The New York Times not too long ago bore the striking headline: “Pregnancy Discrimination Is Rampant Inside America’s Biggest Companies.” The article indicated that, notwithstanding the law, many pregnant women were either passed over for promotions or fired when they complained.

Yet another Times headline focused on the failure of employers to provide light duty to pregnant women: “Miscarrying at Work: The Physical Toll of Pregnancy Discrimination.”

Employment Law Implications of a Refusal to Work Due to Fear of COVID-19

Source: Phillips L. McWilliams, Employee Benefit Plan Review, Vol. 74, No. 5, July-August 2020
(subscription required)

From the abstract:
During the height of the COVID-19 pandemic in America, one healthcare worker told the press: “Every day when I go to work, I feel like a sheep going to slaughter.” As states continue to reopen and businesses bring employees back to work, it is likely that some employees will feel this same way and refuse to return to work due to a fear of contracting COVID-19. When this occurs, employers need to know their obligations under various federal, state, and local laws – some of which have just recently been enacted. Failure to properly account for this patchwork of laws when faced with an employee refusing to work could expose a company to legal liability.

As an initial matter, before bringing the full workforce back, employers should analyze their workspace and determine which guidelines from the Centers for Disease Control and Prevention (“CDC”) and similar agencies they should implement. Employers should also communicate the new safety measures and procedures to the workforce prior to reopening. This will help alleviate concerns employees have about contracting COVID-19 while at work. Still, there will likely be employees who refuse to return to work. Discussed below are the laws employers must keep in mind when such a scenario presents itself.

Why unions are good for workers—especially in a crisis like COVID-19: 12 policies that would boost worker rights, safety, and wages

Source: Celine McNicholas, Lynn Rhinehart, Margaret Poydock, Heidi Shierholz, and Daniel Perez, Economic Policy Institute, August 25, 2020

From the summary:
What this report finds: The COVID-19 pandemic has underscored both the importance of unions in giving workers a collective voice in the workplace and the urgent need to reform U.S. labor laws to arrest the erosion of those rights. During the crisis, unionized workers have been able to secure enhanced safety measures, additional premium pay, paid sick time, and a say in the terms of furloughs or work-share arrangements to save jobs. These pandemic-specific benefits build on the many ways unions help workers. Following are just a few of the benefits, according to the latest data:

• Unionized workers (workers covered by a union contract) earn on average 11.2% more in wages than nonunionized peers (workers in the same industry and occupation with similar education and experience).
• Black and Hispanic workers get a larger boost from unionization. Black workers represented by a union are paid 13.7% more than their nonunionized peers. Hispanic workers represented by unions are paid 20.1% more than their nonunionized peers.

OSHA’s Next 50 Years: Legislating a Private Right of Action to Empower Workers

Source: Michael C. Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor and Katie Tracy, Center for Progressive Reform, July 2020

From the executive summary:
Over the last several decades, through a concentration of economic and political power by corporate executives and their allies in government institutions, workers have been systematically disempowered and silenced. Two important results of this dynamic are that the nation’s workplaces are not nearly as safe or healthy as they need to be to protect all workers, and workers lack the power they deserve to speak up against exploitation without fear of significant retaliation….

….As the 50th anniversaries of the Occupational Safety and Health Act (OSH Act) and OSHA approach in December 2020 and April 2021, respectively, it is time to address the law’s and agency’s shortcomings and chart a course of action to revolutionize worker health and safety for the next 50 years.

Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority. In addition, this private right of action should cover the millions of workers who are currently unprotected by OSHA, including misclassified independent contractors, agricultural workers, and public sector workers in states under federal OSHA’s jurisdiction. Congress should also ban mandatory arbitration as a condition of employment, since the purpose of such arbitration requirements is to disempower workers by denying access to the courts. Finally, Congress should require that all states and territories that operate their own occupational safety and health programs in lieu of federal OSHA incorporate a private right of action into their state plans.

Promoting laws and regulations that safeguard workers physically and financially and that rebalance the power dynamic between employers and workers is a necessary and vital step in building strong, resilient families and communities. Providing a private right of action, a common tool in a variety of other laws, is a long overdue measure that would empower workers to ensure safer and healthier workplaces when the agency tasked with protecting them is unwilling or unable to do so. Engaging workers more meaningfully in the enforcement of health and safety standards will not only improve their immediate conditions but also disrupt the cycle of worker disempowerment that contributes to unsafe and unhealthy working conditions, giving workers a voice to achieve lasting improvements in the workplace.

Labor’s Legacy: The Construction of Subnational Work Regulation

Source: Daniel J. Galvin, ILR Review, OnlineFirst, First Published: August 5, 2020
(subscription required)

From the abstract:
In recent decades, much of the authority to regulate the workplace has shifted from national-level labor law to state-level employment law. What contributions, if any, did labor unions make to this historic shift in workplace governance? The author uses quantitative and qualitative analyses to test hypotheses and move incrementally closer toward drawing causal inferences. In the first part, he finds a strong statistical relationship between union density and state employment law enactments. Next, analyzing the cases the model identifies as “deviant” (Pennsylvania and Maine), he uses systematic process tracing to test the hypothesis that labor unions were integral players in legislative campaigns for stronger employment laws. Strong evidence supports the hypothesis that labor unions, even as they declined, contributed to the construction of this new system of subnational work regulation—arguably one of their most significant and durable legacies.

Why is the American South Poorer?

Source: Regina S Baker, Social Forces, Volume 99, Issue 1, September 2020
(subscription required)

From the abstract:
While American poverty research has devoted greater attention to poverty in the Northeast and Midwest, poverty has been persistently higher in the U.S. South than in the other regions. Thus, this study investigates the enduring question of why poverty is higher in the South. Specifically, it demonstrates the role of power resources as an explanation for this regional disparity, yet also considers family demography, economic structure, and racial/ethnic heterogeneity. Using six waves (2000–2016) of U.S. Census Current Population Survey data from the Luxembourg Income Study (N = 1,157,914), this study employs a triangulation of analytic techniques: (1) tests of means and proportion differences, (2) multilevel linear probability models of poverty, and (3) binary decomposition of the South/non-South poverty gap. The comparison of means associated with the power resource hypothesis yields the largest substantive differences between the South and the non-South. In the multilevel models, adjusting for power resources yields the largest declines in the South coefficient. Binary decomposition results indicate power resources are the second most influential factor explaining the South/non-South poverty gap. Overall, power resources are an important source of the South/non-South poverty gap, though economic structure and other factors certainly also play a role. Results also suggest an important interplay between power resources and race. Altogether, these results underscore the importance of macrolevel characteristics of places, including political and economic contexts, in shaping individual poverty and overall patterns of inequality.

….Beyond these factors, this study focuses on the role of politics and policy via power resources theory (PRT). Here,power resources refer to class-based collective political actors, such as labor unions and parties, and the social policies they are able to institutionalize…

October 2019 pre-print version

To the Victor Goes the Spoils: How the 2020 Presidential Election Could Reshape Labor and Employment Law

Source: Scott A. Budow, Employee Relations Law Journal, Vol. 46, No. 2, Autumn 2020
(subscription required)

From the abstract:
The 2020 presidential election has the potential to significantly upend labor and employment law. If there is a change in administration, employers should expect a sharp departure from rules issued over the past four years, particularly with respect to overtime, joint employment, and independent contractors. Employers may additionally expect renewed scrutiny of non-compete agreements. These changes may redefine the relationship between employers and workers in vast segments of the economy.

Notes On: Spotlighting Potential Coronavirus Wage-and-Hour Woes

Source: Lisa Milam, Labor Law Journal, Vol. 71, Issue No. 2, Summer 2020
(subscription required)

From the abstract:
…Employers are forced to make difficult decisions, often at warp speed, as they operate during the pandemic and resulting economic downturn. But making tough decisions without consulting legal counsel can invite costly litigation, and wage and hour suits—particularly class actions—are among the most expensive for employers.

In a recent Seyfarth Shaw LLP webinar on “Litigation Trends in the Post COVID-19 World,” Lynn A. Kappelman, a partner in the firm’s Boston office, discussed the wage-hour issues that arise as employers look to control payroll costs while maintaining operations, and also as they look ahead to reopening as the crisis abates. Kappelman followed up with Labor and Employment Law Daily about the common wage-hour traps that can befall employers during this unprecedented crisis.