Source: Catherine Fisk, Margaux Poueymirou, University of California, Irvine School of Law, Research Paper No. 2014-72, December 8, 2014
From the abstract:
In Harris v. Quinn, the Supreme Court held that unionized home care workers have a First Amendment right to refuse to pay their fair share of the cost of services that the union is statutorily required to provide. The Court thus transformed what had been a legislative debate about so-called right-to-work laws, which about half of states have adopted, into a constitutional requirement for one narrow category of public sector employees. The problem with transforming this policy argument into a First Amendment requirement is that treating fair share payments to a union as compelled speech raises First Amendment rights of both supporters and opponents of the union. If expenditures on union representation are speech – as the majority in Harris thinks they are – then the union’s obligation to provide free representation compels speech by the union and its members. While, in our view, the requirement to pay for legal services is not compelled speech, the Court’s entire agency fee jurisprudence, including Harris, insists that it is. On the Court’s analysis, then, laws and contracts that require unionized employees to pay for union representational services compel speech of dissenters exactly to the same extent that their prohibition compels speech of unions and their members. Moreover, to the extent that a union must rely on member dues that it would otherwise spend on political activities to cover the costs of services for free riders, the duty of fair representation owed to nonpayers would violate the First Amendment rights of the union by siphoning off money that would otherwise be used to support these activities. Accordingly, the Court must alter its usual analysis of the constitutionality of agency fee agreements and recognize that union representation requires balancing competing freedom of speech and association interests. Once the First Amendment rights of unions and union members are recognized, agency fee or fair share provisions emerge as a constitutionally sound accommodation of the interests of dissenters, unions, and union members.
Source: Kate Murray, Mollie Murphy, and Suzanne Crisp, National Resource Center for Participant-Directed Services, December 2014
The NRCPDS is excited to release this helpful guide for states getting ready for new compliance requirements, including compliance with the FLSA Home Care Rule. This resource lists key priorities for 2015, including ensuring that FLSA costs are included in state budgets.
Source: Ozkan Eren, Serkan Ozbekliky, Louisiana State University and Claremont McKenna College, no date.
Using the case study of Oklahoma and a recently developed econometric technique, we examine the impact of right-to-work laws on state-level labor market outcomes. Having eliminated the potential time variant and invariant confounding effects, our results show that the passage of right-to-work laws in Oklahoma decreased the private sector unionization rates. Several other state outcomes, on the other hand, were not affected by right-to-work laws. The Öndings for the private sector generally carry over to the manufacturing sector.
Source: Stephanie M. Greene, Christine Neylon O’Brien, Boston College Law School Legal Studies Research Paper No. 340, November 17, 2014
From the abstract:
Fifty years after the enactment of Title VII of the Civil Rights Act of 1964, the federal courts remain unsettled on a variety of issues involving the Equal Employment Opportunity Commission’s pre-suit obligations. Courts currently disagree on: whether the EEOC’s conciliation efforts are subject to judicial review; what the standard of judicial review should be; what the remedy should be if a court finds the EEOC failed to fulfill its pre-suit obligations; and whether the EEOC may bring suit on behalf of unidentified individuals under Section 706. In EEOC v. Mach Mining, LLC, the Court of Appeals for the Seventh Circuit was the first circuit court of appeals to hold that conciliation efforts are a matter of agency discretion and are not subject to judicial review. Other courts have reviewed the conciliation process and have required that the EEOC demonstrate at least good faith efforts to conciliate. On June 30, 2014, the Supreme Court granted Mach Mining’s petition for certiorari and a decision is expected in the upcoming term. The Court’s decision will resolve some of the differences between the circuits and may indicate how courts should resolve related issues. This article maintains that the Supreme Court should affirm the Seventh Circuit’s decision. Supreme Court precedent emphasizes that the EEOC’s efforts should be focused on resolving the merits of discrimination claims and supports the conclusion that judicial review should be denied because it results in delays and distractions from Title VII’s objectives. If the Court decides that judicial review of the conciliation process is required, the EEOC will face a new landscape that will disturb Title VII’s mandate that the conciliation process be informal, confidential, and a matter of agency discretion.
Source: Workplace Prof blog, December 6, 2014
zero-hour contract is a “contract” of employment creating an on-call arrangement between employer and employee and in which the employer asserts it has no obligation to provide any work for the employee. It’s become common in the United Kingdom, and apparently is being “offered” to employees by many American-owned companies including McDonald’s and Burger King. In many ways, it’s similar to just-in-time scheduling that has become increasingly common in the U.S. retail/fast-food economy, except that in some weeks an employee many receive zero work hours.
Ewan McGaughey (King’s College London) has just posted on SSRN his essay Are Zero Hours Contracts Lawful? Here’s the abstract:
Are zero hours contracts lawful? This note responds to the DBIS consultation on banning exclusivity clauses (August 2014). It asks the following: what is a zero hours contract? To what extent are zero hours contracts legal? Why have zero hours contracts spread? And finally, what is the right thing to do?
Source: Mary Ziegler, Florida State University – College of Law, Public Law Research Paper No. 721, November 13, 2014
From the abstract:
In granting cert in Young v. United Postal Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion. More ambitiously, some feminists suggested that the State may have to act to affirmatively support some fundamental rights.
A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the federal Pregnancy Discrimination Act (PDA). For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.
The history of the meaningful choice principle calls into doubt contemporary judicial interpretations of the PDA, including the Fourth Circuit opinion in Young. When employers accommodate non-pregnant workers, as Young suggests, courts often find no violation of the PDA so long as a policy is “pregnancy-blind” — that is, so long as an employer does not explicitly categorize employees on the basis of pregnancy. This history strengthens the argument against pregnancy-blind policies made in Young by petitioners and amici under a variety of legal theories, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here counsels that legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women.
The Court heard oral argument in Young v. UPS, and the transcript is now available on the Court’s website.
Source: Mitch Teich, Audrey Nowakowski & Michelle Maternowski, WUWM, December 10, 2014
Mitch Teich and Marquette professor Paul Secunda discuss right-to-work.
The next battle lines over labor in Wisconsin have apparently been drawn.
Republican leaders in the state’s Senate and Assembly have signaled that they plan to commence debate over right-to-work legislation that could further reduce the clout of labor unions in Wisconsin.
Following the announcement, Governor Scott Walker commented that he thinks such a debate would be a distraction from other issues, but he stopped short of saying he would veto or otherwise block right-to-work laws from taking effect.
Wisconsin would follow other Midwest states in that regard – examples that labor law expert Paul Secunda has watched carefully. Secunda is a Professor of Law and Director of the Labor and Employment Law Program at Marquette University Law School, and he spoke with Lake Effect’s Mitch Teich about potential right-to-work changes.
Source: U.S. Government Accountability Office (GAO), GAO-15-12, December 17, 2014
From the summary:
The Department of Labor’s (DOL) Home Care Rule is expected to increase the number of home care workers who qualify for minimum wage and overtime protections under the Fair Labor Standards Act of 1938, as amended (FLSA). The Home Care Rule narrows the definition of companionship services and limits who may claim the companionship services exemption, among other changes. It is scheduled to go into effect in January 2015, although a challenge to the rule is currently pending in federal court. When developing the rule, DOL considered several factors, including the growth and specialization of the home care workforce, as well as the amount of time needed to make adjustments. … GAO examined (1) changes DOL made in the Home Care Rule and factors it considered during the rulemaking process, (2) the potential effects of the rule identified by key stakeholders, and (3) steps DOL has taken to help state Medicaid agencies and other stakeholders understand and comply with the Home Care Rule. GAO visited six state Medicaid programs selected in part for variation in state Medicaid program design; reviewed relevant federal regulations; and interviewed government officials and representatives from 14 national organizations representing the spectrum of home care stakeholders, including workers and consumers.
Source: Sandra Sperino, Suja A. Thomas, Stanford Journal of Civil Rights and Civil Liberties, No. 10, 2014
From the abstract:
There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information suggests the opposite conclusion. Third, a change to the substantive law will not prevent spurious claims. Fourth, the fakers and floodgates arguments could become accepted and embedded in judicial doctrine. Finally, it shows that Nassar is symptomatic of the broader issue that courts use procedure and substance to impede factually intensive civil rights claims.
Source: Judy Conti, National Employment Law Project (NELP), Policy Brief, December 2014
America’s middle-class workers are spending more hours at work than ever before, and yet are still falling behind. The erosion of overtime pay is a key factor in the deterioration of middle-class wages and living standards. Reform of the nation’s overtime rules is much needed and long overdue. The U.S. Department of Labor (DOL) has the authority to update regulations governing to whom overtime must be paid, and President Obama recently issued a Presidential Memorandum directing DOL to do just that. The stories of middle-class Americans that follow reveal how sorely needed an update is….