Category Archives: Labor Laws/Legislation

Malpractice by the Labor Movement: Relinquishing the Fight for Occupational Health and Safety in California

Source: Garrett Brown, New Labor Forum, Vol. 24 no. 1, January 2015
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An underlying theme of California’s most prominent union organizing campaigns in recent years—among warehouse workers east of Los Angeles, carwasheros in Los Angeles proper, and recycling workers in Oakland and Southern California—has been worker concerns about unsafe and unhealthy conditions at work. As labor visionaries like Tony Mazzocchi predicted, workers are deeply concerned about and can be successfully organized around workplace health and safety issues. Rank-and-file concerns about health and safety, however, have not been taken up by union officials or lobbyists who view health and safety as a lower priority than labor legislation or gubernatorial appointees. ….

….What Cal/OSHA (along with the Fed OSHA and other state plans) needs is the political will on the part of politicians and their appointees to make worker health and safety a priority, ensure worker safety agencies have the staffing and resources they need to enforce the law, and withstand inevitable employer campaigns against effective worker protection regulations and their implementation. Creating this political will depends on the labor movement making workplace safety a “non-negotiable demand,” along with its other priorities in both contract talks and political campaigns. The labor movement needs to return to the campaigning of the 1960s and 1970s that made worker health and safety a cause célèbre—and established the Occupational Safety and Health Administration and Mine Safety and Health Administration under Republican President Nixon—not only for unions but also for OHS professional organizations, for the environmental movement concerned that toxic exposures inside the plant will generate toxic exposures outside the plant, and for the working public as a whole.

Among the campaigns labor could lead, and win support from other working-class and community organizations, are efforts to ensure OSHA agencies have the staffing and resources needed to effectively protect workers on the job; to undertake special efforts to protect particularly vulnerable workers such as immigrants and Latino workers in general who suffer higher rates of injury, illness, and death; and to reduce or eliminate the use of toxic chemicals that poison workers, surrounding communities, and even consumers. ….

‘Those Who are Used’: A Commentary on the Employee: A Political History, by Jean-Christian Vinel

Source: Christopher Tomlins, University of California – Berkeley, Public Law Research Paper No. 2546331, January 7, 2015

From the abstract:
This paper is a critical commentary on Jean-Christian Vinel’s 2013 book, The Employee: A Political History. In substance, Vinel’s book addresses the history and consequences of the failure of American unions to organize supervisory employees. However, as befits a book published in a series created “to reverse the fragmentation of modern U.S. history and to encourage synthetic perspectives on social movements and the state,” it ranges rather more broadly. Thus, the book is a legal and political history of a word (“employee”). It also attempts an intellectual history of American industrial relations theory, and of the course of labor relations law from the New Deal into the twenty-first century. It is also a brave effort to synthesize the distinct “critical” and “industrial realist” strains of labor relations history that spent the better part of the 1980s and 1990s, amid the unfolding, never-ending, crisis of American trade unionism, arguing over how to interpret the legacy of the New Deal’s collective bargaining policy. And it is an effort at a critique of both those positions (although Vinel’s sympathies are ultimately with the realists.) Finally, while indubitably an American history, The Employee is intermittently comparative. This commentary assesses sympathetically Vinel’s efforts, but parts company from his conclusions.

NLRB Elections: Ambush or Anticlimax?

Source: Jeffrey M. Hirsch, University of North Carolina School of Law, UNC Legal Studies Research Paper No. 2551118, January 15, 2015

From the abstract:
The basic procedures of the National Labor Relations Board’s election process has been largely stable for decades. That stability, however, camouflaged great dissatisfaction with the election process, particularly among unions. The primary criticism is that parties, especially employers, are able to delay elections and unduly coerce employees before casting their ballots. Many of these problems are out of the NLRB’s hands, as they result from statutory or judicial limits. But others were well within the Board’s control, particularly delays in holding elections and certifying the results, which can substantially reduce employees’ support for a union.

With these problems in mind, the NLRB engaged in a comprehensive rulemaking process to revise its election rules. Employers have strongly criticized the election rules, primarily because they reduce the amount of time to run and certify an election. According to these critics, the new “ambush” elections will infringe employers’ free speech interests and employees’ right to make an informed choice about unionization. In contrast, unions have reacted positively, although though many thought the rules did not go far enough.

In this symposium essay, I argue that the rules appear to be fairly modest. We should see quicker elections, but not to the degree that they can be characterized as “ambush.” Moreover, even with faster elections, it seems unlikely that unions’ fortunes will improve dramatically — the hurdles to unionization are far too great for improved election procedures to overcome. In short, the NLRB is to be commended for eliminating many sources of unnecessary delay, but the rules’ critics and supporters seem to be exaggerating their effect.

Worker Collective Action in the Digital Age

Source: Jeffrey M. Hirsch, University of North Carolina School of Law, UNC Legal Studies Research Paper No. 2551117, December 25, 2014

From the abstract:
This article explores some of the ways in which employees have used electronic communications to seek better working conditions and argues that this medium will continue to grow in importance. However, several factors currently exist that limit the effectiveness of electronic collective action. In addition to natural limitations on workers’ ability to use electronic media and the effectiveness of those communications, this paper discusses the legal protections that might help to reduce employer resistance to digital collective action. This issue illustrates the Catch-22 of electronic communications: as digital collective action strategies become more accessible and useful, they also become more of a target for employers seeking to thwart employee attempts to improve their working conditions. As described in the article, the legal protections for workplace electronic communications has been in a state of flux. There have been some recent legal gains for employees’ ability to use electronic communications (including the NLRB’s new Purple Communications decision, which is discussed in detail), but those protections still fall short in some areas. As workers’ use of electronic communications becomes more widespread and more effective, the need for legal protection will grow. Yet, pressure from employers to resist an increasingly effective tool for employees will grow as well. How this tension ultimately develops will depend on the ability of legislators, regulators, and judges to balance these competing interests.

The Supreme Court Case That Could Decimate American Public Sector Unionism

Source: Moshe Z. Marvit, In These Times, Working in These Times blog, February 3, 2015

Last week, an appeal was sent to the U.S. Supreme Court for a case that could prove to be the most damaging case to labor in decades. Friedrichs v. California Teachers Association aims to overturn a nearly 40-year precedent which allows the use of “fair share” fees for public sector unions, wherein all union members must pay for the costs associated with collective bargaining and contract administration. …. If the Supreme Court accepts this case, the decision could have enormous impacts on public sector workers by either allowing agency fees to remain but requiring all workers to opt in, or eliminating fair-share fees all together. That the agency fee in its current form could remain is possible, but unlikely—otherwise, the court would not have agreed to hear the case.

The Job Ahead: Advancing Opportunity for Unemployed Workers

Source: Claire McKenna, National Employment Law Project (NELP), February 2015

…This paper presents a menu of state policy options that respond to the continued crisis of long-term unemployment and the nation’s growing reliance on part-time and temporary work. It highlights tried-and-true policy responses as well as new innovations that address the needs of the current workforce. Key steps for state lawmakers to take are as follows…

Preventing Long-Term Unemployment
1. Prioritize funding for comprehensive reemployment services, to offset declining federal commitment. ….
2. Encourage part-time employment while claimants look for full-time jobs by amending state partial unemployment insurance rules. ….
3. Prevent job losses during recessions by enacting work-sharing programs. ….
4. Prohibit hiring discrimination against jobless workers and enlist businesses to recruit qualified unemployed job applicants. ….

Expanding Unemployment Insurance Access for Lower-Wage Workers
1. Extend eligibility to part-time workers and anyone who wants to reduce their schedules for compelling reasons. ….
2. Strengthen state partial unemployment insurance rules to supplement earnings for underemployed workers. ….
3. Eliminate arbitrary temporary worker disqualifications. ….
4. Broaden good-cause rules for workers who voluntarily quit their jobs. ….

Providing Greater Help for Long-Term Unemployed Jobseekers
1. Establish subsidized work programs for long-term jobless workers, including unemployment insurance exhaustees. ….
2. Provide up to 26 weeks of additional unemployment benefits for jobless workers receiving training. ….
3. Better connect long-term unemployed workers and families with government support programs. ….
4. Provide 26 weeks of unemployment insurance benefits to jobless workers. ….

Shoring Up Unemployment Insurance Infrastructure
1. Adopt responsible financing measures to ensure preparation for the next recession. ….
2. Dedicate greater resources to state unemployment insurance program administration. ….
3. Reduce access barriers for low-income workers and workers with language and literacy limitations. ….

A $15 U.S. Minimum Wage Without Job Losses Can Work

Source: Robert Pollin, Jeannette Wicks-Lim, University of Massachusetts-Amherst, Political Economy Research Institute, Working Paper Series, no. 373, January 2015

From the abstract:
This paper considers the extent to which U.S. fast-food businesses could adjust to an increase in the federal minimum wage from its current level of $7.25 per hour to $15 an hour without having to resort to reducing their workforces. We consider this issue through a set of simple illustrative exercises, whereby the U.S. raises the federal minimum wage in two steps over four years, first to $10.50 within one year, then to $15 after three more years. We conclude that the fast-food industry could absorb the increase in its overall wage bill without resorting to cuts in their employment levels at any point over this four-year adjustment period. Rather, we find that the fast-food industry could fully absorb these wage bill increases through a combination of turnover reductions; trend increases in sales growth; and modest annual price increases over the four-year period. Working from the relevant existing literature, our results are based on a set of reasonable assumptions on fast-food turnover rates; the price elasticity of demand within the fast-food industry; and the underlying trend for sales growth in the industry. We also show that fast-food firms would not need to lower their average profit rate during this adjustment period. Nor would the fast-food firms need to reallocate funds generated by revenues away from any other area of their overall operations, such as marketing.
How to raise the minimum wage 107 percent without losing jobs or profit
Source: Simone Pathe, PBS Newshour, MAKING SEN$E blog, January 28, 2015

Reimagining Collective Rights in the Workplace

Source: Catherine Fisk, University of California – Irvine School of Law, UC Irvine School of Law Research Paper No. 2015-06, January 5, 2015

From the abstract:
This symposium, jointly sponsored by UC Irvine Law School and the Labor Law Group, consists of 12 papers proposing alternatives to the Wagner Act model of majority unions and workplace collective bargaining as ways to ensure decent working conditions. Taken together articles demonstrate three propositions. First, collective activism will be essential to any revitalization of labor. Each of the articles proposes different ways that law can facilitate organizing. Second, institutional design matters to whether work activism will occur and, if it occurs, whether it will be effective in improving working conditions; each article proposes different features of organizational design to facilitate organizing. Third, legal rules can make worker collectives sustainable and scalable institutions by giving them crucial roles in existing legal and political forums, by leveraging power at the local, state, and national level, by thwarting efforts to use legal doctrines like preemption or legal bureaucracies like criminal justice to eviscerate organizing gains, by improving access to information to enhance worker power, and by protecting the ability of worker collectives to raise money.

A Wage Floor Forces Employers To Pay Better

Source: Oren M. Levin-Waldman, January 22, 2015

…If wages are supposed to rise with productivity, then why haven’t they? By all accounts the economy is improving. In December 2014, total nonfarm payroll employment rose by 252,000, and the unemployment rate dropped to 5.6 percent, which is the lowest it has been since the end of the Great Recession in 2009. At the same time, since the end of the Great Recession, productivity has been increasing, but those productivity gains have not been shared with the workers….

“Right to Work” Is the Wrong Answer for Wisconsin’s Economy

Source: Gordon Lafer, Economic Policy Institute, January 23, 2015

From the summary:
Wisconsin lawmakers considering a right-to-work (RTW) law should weigh the consequences, specifically the impact on wages, against the unsubstantiated claims that RTW laws attract new businesses to locate in a state.

Four years after Wisconsin severely restricted public employees’ right to collective bargaining, state legislators may soon consider whether to make Wisconsin a so-called right-to-work (RTW) state.

RTW laws have nothing to do with anyone being forced to be a member of a union, or forced to pay even a penny to political causes they do not support; that’s already illegal under federal law. What RTW laws do is to make it illegal for a group of unionized workers to negotiate a contract that requires each employee who enjoys the benefit of the contract to pay his or her share of the costs of negotiating and policing it. By making it harder for workers’ organizations to sustain themselves financially, RTW laws aim to restrict the share of employees who are able to represent themselves through collective bargaining, and to limit the effectiveness of unions in negotiating higher wages and benefits for their members.

A range of national evidence shows why Wisconsin lawmakers should reject RTW:
∙ RTW is associated with lower wages and benefits for both union and nonunion workers. In a RTW state, the average worker makes 3.2 percent less than a similar worker in a non-RTW state.
∙ Through weakening unions, RTW hurts the middle class. As union membership has declined in recent decades, the share of overall income received by the middle class is essentially at a 45-year low.

Additional evidence further demonstrates why RTW is the wrong answer for Wisconsin’s economy:
∙ The strong performance of Wisconsin’s manufacturing industry indicates that the state’s manufacturers do not need RTW.
∙ Through cutting wages, RTW may undermine Wisconsin’s small businesses, which depend on the state’s residents having wages to spend. Additionally, through reducing the number of people with health insurance, RTW may endanger the state’s health care industry.
∙ According to multiple quality-of-life measures, Wisconsin significantly outperforms the states with RTW laws. Thus, it appears RTW states should be trying to become more like Wisconsin, instead of Wisconsin becoming more like RTW states.

In short, Wisconsin lawmakers considering a RTW law should weigh the consequences, specifically the impact on wages, against the unsubstantiated claims that RTW laws would boost the state’s economy and attract new businesses to locate in the state…..