Category Archives: Labor Laws/Legislation

Public Sector Unions Under Siege – Solidarity in the Fight Back

Source: Richard W. Hurd, Tamara L. Lee, Labor Studies Journal, Vol. 39 no. 1, March 2014
(subscription required)

From the abstract:
The 2011-2013 assault on public sector collective bargaining rights is unprecedented in its breadth and depth. Legislative proposals that would roll back bargaining, limit unions’ ability to negotiate security arrangements, stop payroll deduction of union dues, and constrain labor’s political activity have been introduced in a majority of states. This coordinated attack from the Republican right has spurred an aggressive, unified response from a broad cross section of unions. Through labor unity tables at the national and state levels, unions are demonstrating a rare level of solidarity in the fight back. This ongoing experiment in movement building is encouraging, but challenges remain.

The National Labor Relations Board: Perspectives on Social Media

Source: Christine Neylon O’Brien, Symposium on Social Media & the Law, Charleston Law Review, Vol. 8, 2014 May 27, 2014

From the abstract:
This article provides an update to the NLRB’s viewpoint on employees’ social media posts concerning work-related matters that impact the employment relationship. Work time and private lives are blurring further than ever, as employees post updates and comments on an astonishing range of matters, to sites including Youtube, Google , Facebook, Twitter, Snapchat, Instagram, Linkedin, their Tumblr blogs, and more. For example, in just a log-in moment, typing a mere 140 characters, employees apprise the world of their perspectives on what just transpired at the office, point of view (pov) included. Employees’ social media use has increased workplace pressures. The tensions between employers’ reputational rights, along with efforts to maintain workplace decorum and productivity, are increasingly conflicting with employees’ expressions of workplace frustrations and more in their online activities.

The National Labor Relations Act protects private sector employees’ regardless of union affiliation, to the extent their communications cover protected concerted activity – matters of shared concern relating to: wages, hours and working conditions, or mutual aid and protection. The National Labor Relations Board has taken advantage of the popularity of social media to educate the public about the protections afforded to employees by Section 7 of the National Labor Relations Act, and over the past five years has issued a number of reports, advice memoranda, and decisions to reinforce its role as administrative authority on employee’s employment-related social media use. The NLRB has signaled its readiness to respond to unfair labor practice charges filed by employees or unions against employers to the extent the employers have policies or act unlawfully to interfere with employees’ Section 7 rights. To get a sense of the nuances of these cases and the wide scope of employee communications that trigger NLRB scrutiny, this article summarizes a recent top ten cases and adds to these several recent additions.

The author recommends for employees to more closely manage and edit their posts so as to avoid workplace-related communications that are not protected by the NLRA. Furthermore, employers are advised to conform to the NLRA when reacting to employee posts that raise issues of concern, and further, to understand how the NLRB will construe their responses. To the extent employees reasonably construe employers are prohibiting protected concerted activities, such actions will be found to be unlawful. Finally, employers should create social media policies that provide specific guidance and examples for employees, managers, and even C-level officers, on the types of communications that are covered, and not covered. In this way, employees’ and employers’ interests are both well-served.

How Much Leave is Enough? Reasonable Accommodation, Undue Hardship, and the Intersection of the FMLA and the ADA

Source: John F. Wymer, III and Bryan A. Stillwagon, Employee Relations Law Journal, Vol. 40 no. 1, Summer 2014
(subscription required)

The authors of this article discuss leave-of-absence requests and why almost every accommodation request should be evaluated by applying an is-it-reasonable, as opposed to an undue-hardship, standard.

New ITUC Global Rights Index – The world’s worst countries for workers

Source: International Trade Union Confederation (ITUC), May 2014

A global leaderboard in the race to protect workers’ rights was released today at the ITUC World Congress in Berlin. The ITUC Global Rights Index ranks 139 countries against 97 internationally recognised indicators to assess where workers’ rights are best protected, in law and in practice. …

…The ITUC Global Rights Index rates countries from one to five according to 97 indicators, with an overall score placing countries in one to five rankings.
1 – Irregular violations of rights: 18 countries including Denmark and Uruguay
2 – Repeated violations of rights: 26 countries including Japan and Switzerland
3 – Regular violations of rights: 33 countries including Chile and Ghana
4 – Systematic violations of rights: 30 countries including Kenya and the USA
5 – No guarantee of rights: 24 countries including Belarus, Bangladesh and Qatar
5+ – No guarantee of rights due to breakdown of the rule of law: 8 countries including Central African Republic and Somalia….

Courts vs. Unions: Speech and Association Rights under Fire

Source: Catherine Fisk, New Labor Forum, Vol. 23 no. 2, May 2014
(subscription required)

In 2012, the Supreme Court held in Knox v. Service Employees International Union, Local 1000 that a union representing government employees may assess money from the employees whom it represents to support political activity only if those employees first opt in to supporting political expenditures. The Court decreed that public sector employees have a First Amendment right to refuse to contribute money to support the political speech of their union and that states are required to allow such assessments only if the employees first opt to make a financial contribution. Knox, brought by the National Right to Work Legal Defense Foundation (NRTW), is one in a long series of Supreme Court cases delineating when a union selected by the majority of employees violates the First Amendment rights of dissenting employees. A case currently pending in the Supreme Court, Harris v. Quinn, brought by NRTW on behalf of a dissenting worker against the state of Illinois, asks whether state home care workers have a First Amendment right to refuse to pay for the services the union is statutorily obligated to provide them. Harris may enable the Court to overrule decades of precedent and declare that all government employment must be on a “right-to-work” basis.

Harris v. Quinn may enable the Supreme Court to declare that all government employment must be on a “right-to-work” basis.

The case has tremendous significance for the future of the labor movement. Historically, unions have found it difficult to survive in right-to-work states because employees—like everyone else—are reluctant to pay for services they can get for free. Moreover, while no one seriously expects it to decide that collective bargaining violates the First Amendment rights of non-union employees, if the Court finds it unconstitutional to require employees to contribute money to support union speech on behalf of employees whom the union represents, it may be hard-pressed to explain why allowing a union to bargain on behalf of dissenting employees is not also unconstitutional.

Big Brother Unionism? The Landrum-Griffin Act and the Fight for AFSCME’s Future, 1961 – 1964

Source: Joseph E. Hower, Labor: Studies in Working-Class History of the Americas, Vol. 11 no. 2, Summer 2014
(subscription required)

From the abstract:
In this article, Joseph Hower examines the regulation of union elections by the Labor-Management Reporting and Disclosure Act (commonly known as the Landrum-Griffin act) through a case study of the American Federation of State, County, and Municipal Employees (AFSCME). Drawing on local and national union records and oral history transcripts, he reconstructs Jerry Wurf’s campaign for the union presidency (1961–64) and shows how Wurf and his dissident caucus were reluctant to invoke Landrum-Griffin’s protections, even in the midst of a fiercely contested election campaign, for fear that it would legitimize the anti-union intentions of the law’s architects. Instead, Wurf and the other dissidents turned the law to their own ends, holding out the threat of legal action to force incumbent president Arnold Zander to curb his worst excesses, while using his administration’s misdeeds to underscore their broader case for union reform. Narrowly defeated in 1962, Wurf managed to unseat Zander at the union’s 1964 convention. The successful challenge, a rarity in twentieth-century labor history, ratified a more militant vision of the union, setting the stage for AFSCME’s impressive growth during the second half of the twentieth century.

Winning with Ballot Initiatives

Source: Judy Ancel, Labor Notes, May 5, 2014

….In state legislatures, corporate interests tend to block any and all reforms. Minimum wage boosts and paid sick days run into the power of retail and restaurant associations. Initiatives let us do an end-run around them on these issues—which tend to be overwhelmingly popular with voters, even when bushels of corporate cash are spent opposing them…..

Federal Minimum Wage, Tax-Transfer Earnings Supplements, and Poverty

Source: Gene Falk, Thomas Gabe, David H. Bradley, Congressional Research Service, CRS Report, R43409, February 28, 2014

Pending before Congress is legislation (S. 1737 and H.R. 1010) that would raise the federal minimum wage from its current $7.25 per hour to, ultimately, $10.10 per hour. The minimum wage would be adjusted for inflation thereafter. Whether the minimum wage or alternative policies, namely government-funded earnings supplements such as the Earned Income Tax Credit (EITC), are more effective in addressing poverty has been long debated. … The impact of an increase in the minimum wage on the well-being of minimum wage workers depends in great part on whether the wage increase would cause a loss in employment. Some economic studies have found that increases in minimum wages cause job loss; other economic studies have found no such job loss. A previous consensus that increasing the minimum wage reduces employment, at least among teenagers, has been challenged by numerous recent studies suggesting little or no dis-employment effects of minimum wage increases. However, the debate over the employment effects of the minimum wage is likely to continue. There are also some considerations to expanding government-funded earnings supplements, such as the EITC, child tax credit, and SNAP. Expanding these earnings supplements would result in costs to the federal budget. In addition, these programs too might affect the labor market, albeit in ways different from a minimum wage increase. Research has provided evidence that the EITC has increased the number of workers in the labor market. Through the operation of supply and demand, this could suppress wage rates. Since all workers do not qualify for earnings supplements through the EITC, the child tax credit, or SNAP, lower-wage workers who do not receive them might be harmed economically. There has been some recent attention to considering minimum wage policies and earnings supplements as complementary, rather than alternative, policies. ….

The drive to ban mandated paid sick days

Source: Amy B. Dean, Al Jazeera America, May 6, 2014

Most Americans support sick days off, but corporate lobbyists are working hard to change their minds. …. Eleven states have enacted paid-sick-day pre-emption laws since 2011. New research from the National Partnership for Women and Families (NPWF) shows that six more states are considering kill-shot bills. The NPWF has found that some of these bills have even more extreme consequences than just banning paid-sick-day requirements: They would also prohibit local governments from increasing the minimum wage, imposing stiffer penalties for wage theft and enacting laws that could help employees assert their rights on the job. (An NPWF map of these pre-emption bills and laws is here.) It’s a game of legislative one-upmanship that could have serious public health consequences…..

State Employment Trends: Does a Low Tax/Right-to-Work/Low Minimum Wage Regime Correlate to Growth?

Source: Menzie Chinn, Econbrowser, April 21, 2014

It’s interesting how “pro-business” policies do not appear to be conducive to rapid employment growth. Employment in Governor Walker’s Wisconsin, as in Governor Brownback’s Kansas, has lagged behind that of the United States (and behind that of Governor Dayton’s Minnesota and Governor Brown’s California). …