Category Archives: Labor Laws/Legislation

Second Circuit Decision in Sexual Harassment Case Shows Heightened Risk for Health Care Employers

Source: Frank C. Morris, Jr., Jonathan K. Hoerner, and Katherine Smith, Employee Relations Law Journal, Vol. 44, No. 1, Summer 2018
(subscription required)

Health care employers should be aware that a recent holding from the U.S. Court of Appeals for the Second Circuit may indicate that courts and juries are beginning to weigh in on the dramatic sexual harassment developments, such as the #MeToo and #Time’sUp movements addressing workplace harassment, by holding employers to heightened standards, including as to “last chance” agreements. In MacCluskey v. University of Connecticut Health Center ( MacCluskey), the Second Circuit upheld a jury verdict awarding plaintiff Mindy MacCluskey $125,000 in damages after finding that she was subject to a hostile work environment where she was repeatedly sexually harassed by a coworker, dentist Michael Young, who was subject to a last-chance agreement from 10 years earlier. The bottom line in the MacCluskey holding is that it is not enough for employers to merely maintain a policy prohibiting sexual harassment, they must also take reasonable care to enforce the policy.

The Employment Doctrine That Screws Over Workers

Source: Moshe Z. Marvit, Jacobin, August 7, 2018

It’s called “at-will employment.” But for workers, it simply means employers hold all the cards.

Last week, over a hundred Latino workers mounted a wildcat strike at a UPS facility to protest the actions of a racist supervisor. One of their coworkers, Antoine Dangerfield, took out his phone and began filming the walkout, his excitement growing as he realized what he was witnessing. Dangerfield posted the video online, where it quickly netted millions of views. Shortly after, his employer offered Dangerfield $250 to take the video down. Dangerfield explained to them that that’s not how the internet works, and that he couldn’t remove the video. So, they fired him.

This may seem like a bad reason to fire someone, and Dangerfield’s employer may even admit that it was a bad reason to fire him — but it is still probably legal. That’s because the US, for the most part, follows the at-will rule of employment, where an employee can be terminated for good cause, bad cause, or no cause at all. (Montana is the only state that has some form of just-cause rule.)

…. An employee’s right to quit her job stems from her right to be free from involuntary servitude. An employer may be inconvenienced when an employee up and leaves, but rarely is the whole enterprise put in jeopardy. When an employee is pink-slipped, on the other hand, they lose their livelihoods, their health insurance, and potentially their homes and other assets. Far from creating a balance in the relationship, the at-will rule tilts things toward the employer — who already has outsized power. ….

….The other major exception to the at-will rule is contractually negotiated just-cause. This largely exists for two groups of employees: unionized workers and high-level executives…..

Why the Janus Decision Matters to Library Unions

Source: Carrie Smith, American Libraries, July 24, 2018

On June 27, the Supreme Court delivered a blow to public sector unions that could affect many library workers. The 5–4 decision in Janus v. American Federation of State, County, and Municipal Employees (AFSCME) declares it unconstitutional for public sector unions to collect agency fees from nonmember employees based on free speech grounds.

Library workers in public, school, academic, and other libraries who are employed through state and local governments in the 22 states that are not already right-to-work states are affected by this decision. Those who are not union members will no longer have agency fees deducted from their paychecks. More than a quarter of librarians (26.2%) and around one-fifth of library technicians (19.3%) and library assistants (22.7%) are union members nationwide, according to statistics compiled by the AFL-CIO Department for Professional Employees…..

The Demise of Fair Share Fees: ‘Janus’ and Its Impact

Source: Adam Santucci and Langdon Ramsburg, Legal Intelligencer, August 2, 2018
(subscription required)

Recently, the U.S. Supreme Court issued a landmark decision, which may ultimately prove to alter the landscape of public sector labor relations and undermine the political clout of public sector labor unions throughout the United States.

Recently, the U.S. Supreme Court issued a landmark decision, which may ultimately prove to alter the landscape of public sector labor relations and undermine the political clout of public sector labor unions throughout the United States. The court’s holding in Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), was clear: requiring public sector employees to pay “fair share fees” (sometimes referred to as “agency fees”) violates the First Amendment.

The road to Janus was long and took some interesting twists and turns. To fully understand Janus and its impact, it is necessary to start at the beginning—the court’s 1977 holding in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

Viewpoint: Boss Can’t Be Janus Fix

Source: Chris Brooks, Labor Notes, July 25, 2018

In the wake of the Supreme Court’s Janus decision, a new approach to financing unions called “direct reimbursement” is gaining traction with Democratic politicians, academics, and even the New York Times editorial board.

It boils down to this: rather than public sector workers paying dues, their government employer would pay an equivalent amount directly to the union.

Proponents claim this approach will neutralize the impact of the Janus decision and shore up union budgets.

The idea has legs. New York’s most senior Democratic Assemblyman Richard Gottfried is sponsoring a bill to allow public sector unions to negotiate this scheme into their contracts. Hawaii is entertaining a version too.

Backed into a corner and fearful for the future, some unions might jump at this quick fix. It’s a big mistake.

Trump Launches War on Federal Unions

Source: Jim Campana, Labor Notes, July 26, 2018

Federal employees are at war with a presidential administration that’s bent on busting their unions. They rallied around the country July 25, their day in court as federal unions sue to halt three anti-union executive orders. …. AFGE, the Treasury Employees (NTEU), and other federal unions have filed suit in federal district court against the three executive orders that Trump signed on May 25, a Friday afternoon that will live in infamy.

Corporate Impunity – “Tough on Crime” Trump Is Weak on Corporate Crime and Wrongdoing

Source: Rick Claypool, Taylor Lincoln, Michael Tanglis and Alan Zibel, Public Citizen, July 2018

From the press release:
During President Donald Trump’s first year in office, enforcement against corporate crime and wrongdoing declined dramatically, with total penalties for such violations plummeting from the final year of the Obama administration, according to a new report from Public Citizen.

In almost every federal agency under control of a Trump appointee – and most notably at the U.S. Department of Justice (DOJ), the nation’s lead law enforcement agency – enforcement against corporations dropped, often plunging to just a small fraction of what it had been.

Public Citizen’s report “Corporate Impunity” tracked enforcement activities against corporate violators by 12 federal agencies overseen by a Trump administration official for the majority of Trump’s first year in office. The report was co-released with Violation Tracker, a corporate enforcement database produced by the Corporate Research Project of Good Jobs First.

In 11 of the 12 agencies, the amount of penalties imposed on corporate violators declined, in many cases drastically. In 10 of the 12 agencies, the number of individual enforcement actions against corporate violators also declined significantly.

Related:
OSHA Broke the Law by Refusing Worker Injury and Illness Data – Timely Data Is Needed to Protect Workers From Threats to Health and Safety
Source: Public Citizen, Press release, July 25, 2018

The U.S. Occupational Safety and Health Administration (OSHA) broke the law by suspending parts of its electronic recordkeeping rule, Public Citizen, the American Public Health Association and the Council of State and Territorial Epidemiologists said in a lawsuit filed today with the U.S. District Court for the District of Columbia. To help the agency monitor and prevent workplaces injuries and illnesses, the rule requires covered workplaces to submit certain 2017 work-related injury and illness data to the agency by July 1. OSHA recently announced that it would not accept the data.

Instead of following notice-and-comment rulemaking procedures required by the Administrative Procedure Act, OSHA simply announced on its website that it was suspending the July 1 deadline, that it would neither require nor accept the data and that it intended to revise the rule. In the lawsuit, the groups explain that OSHA lacks the legal authority to suspend the deadline without first providing public notice and an opportunity to comment, and that OSHA’s stated reason for the suspension is arbitrary and capricious. The groups are asking the court to order OSHA to require and accept the workplace injury and illness data, as required by the rule.

Public Citizen’s Corporate Presidency Project

After Janus, How to Tilt the Balance of Power Back to Workers

Source: Jessica Stites and Aaron Tang, In These Times, August 2018
This is the first of a four-part series on rebuilding labor after the Supreme Court’s Janus ruling. The second part will debut online Tuesday. You can read all four pieces, as well as an exclusive interview with Bernie Sanders on the future of the labor movement, in the August issue of In These Times magazine.

There’s a simple fix to Janus’s “free-rider” problem. …

…. The labor and employment protections that do exist have been eroded for decades, often on the Democrats’ watch. But unions and workers weary of broken promises from corporate-captured legislators may find a glimmer of hope in the current rise of progressive Democrats. To those candidates and legislators looking for strong pro-labor proposals, we invited labor experts to offer four concrete policies to bolster workers’ rights. You can find the first proposal, by Aaron Tang, below, and the rest on InTheseTimes.com over the course of the week.

We offer these with one caveat: Legislative change won’t happen without a groundswell of worker action, rooted in the conviction that we do not shed our rights when we clock in to work. ….

Late Retirements + Lawsuits = Need For Vigilance

Source: Maureen Minehan, Employment Alert, Vol. 35 No. 14, July 11, 2018
(subscription required)

If a recent survey is right, employers need to be extra vigilant about their attitudes and practices related to older workers. According to online recruiting site CareerBuilder, even though the economy is improving many U.S. workers are still putting their retirement plans on hold. In the survey, more than half of workers aged 60+ (53%) said they are postponing retirement. Four in 10 (40%) said they don’t think they will be able to retire until they are 70 years of age or older. …. Employers should take steps now to review their age discrimination policies with managers and shore up any gaps they find in their practices. Lawsuits aimed at big companies invariably receive media attention, which in turn can spark reflection among employees at other organizations about their own experiences. ….

Could An Emoji Bring You Down?

Source: Maureen Minehan, Employment Alert, Vol. 35 No. 14, July 11, 2018
(subscription required)

An employee complains a manager is making sexual overtures to her. When you ask her what he has said, she tells you it’s not what he’s said, it’s what he’s sent. She pulls out her phone and shows you an email exchange in which he included an emoji with a winking eye. While many people use that particular emoji as an indicator of humor, she has interpreted it as flirtatious and now you have a problem…..