Category Archives: Labor Laws/Legislation

Deprofessionalizing State Governments: The Rise of Public At-Will Employment

Source: Paul R. Verkuil, Public Administration Review, Vol. 75 Issue 2, March/April 2015
(subscription required)

A trend that bears watching is the state expansion of at-will employment in the public sector. There are 28 states that now fall into that category to various degrees, and the number may be growing. The purpose of at-will employment is to import business practices into the public sector, which is not a bad idea in itself, but in application, salient differences between the two sectors can be lost or ignored. While reasonable grievances against public employment need to be addressed, there are also values that need to be preserved. …. That said, states and the federal government could certainly improve their respective civil service systems. Take two disparate examples: teacher tenure in two years or less and removal of nonperforming officials that takes two years or more. These are unacceptable situations. The system can and should be fixed, but it should not be eliminated. Doing so would send us back to a time when politics trumped administration and public sector incompetence was business as usual. ….

Walmart, Lowe’s, Safeway, and Nordstrom Are Bankrolling a Nationwide Campaign to Gut Workers’ Comp

Source: Molly Redden, Mother Jones, March 26, 2015

America’s biggest employers want to pick and choose the benefits they give their injured workers.

Nearly two dozen major corporations, including Walmart, Nordstrom, and Safeway, are bankrolling a quiet, multistate lobbying effort to make it harder for workers hurt on the job to access lost wages and medical care—the benefits collectively known as workers’ compensation.

The companies have financed a lobbying group, the Association for Responsible Alternatives to Workers’ Compensation (ARAWC), that has already helped write legislation in one state, Tennessee. Richard Evans, the group’s executive director, told an insurance journal in November that the corporations ultimately want to change workers’ comp laws in all 50 states. Lowe’s, Macy’s, Kohl’s, Sysco Food Services, and several insurance companies are also part of the year-old effort.

Laws mandating workers’ comp arose at the turn of the 20th century as a bargain between employees and employers: If a worker suffered an injury on the job, the employer would pay his medical bills and part of his wages while he recovered. In exchange, the worker gave up his right to sue for negligence.
ARAWC’s mission is to pass laws allowing private employers to opt out of the traditional workers’ compensation plans that almost every state requires businesses to carry. Employers that opt out would still be compelled to purchase workers’ comp plans. But they would be allowed to write their own rules governing when, for how long, and for which reasons an injured employee can access medical benefits and wages….
Related:
Special Series – Insult To Injury: America’s Vanishing Worker Protections
Source: NPR and ProPublica, 2015

Over the past decade, states have slashed workers’ compensation benefits, denying injured workers help when they need it most and shifting the costs of workplace accidents to taxpayers.

Stories include:
* Injured Workers Suffer As ‘Reforms’ Limit Workers’ Compensation Benefits
* Federal Regulators Link Workers’ Comp Failures To Income Inequality
* ‘Grand Bargain’ In Workers’ Comp Unravels, Harming Injured Workers Further
* As Workers’ Comp Varies From State To State, Workers Pay The Price
* How Much Is A Limb Worth?
* Workers’ Compensation Reforms By State
* California Auditing Insurance Company That Took Away Home Health Aide
* ‘I Lost A Hand And This Is Workman’s Comp. … I Didn’t Lose A Hook!’
* Alabama Bill Would Increase Workers’ Comp Benefits For Amputees
* Employers And Insurers Gain Control In Workers’ Compensation Disputes
* Reddit Ask Me Anything

FLSA facts no. 2: Growing home care industry can afford basic labor protections for workers

Source: Paraprofessional Healthcare Institute (PHI), April 2015

From the abstract:
Explains a lawsuit filed by the home care industry that has temporarily stalled the implementation of a federal rule change extending minimum wage and overtime protections to home care workers. The fact sheet shows that the highly profitable, rapidly growing home care industry can afford those basic labor protections. It also argues that investing in the home care workforce is a necessary step in building an adequate home care workforce.
Related:
Blog post

Reflections on the State of Workers’ Compensation and Occupational Health & Safety in the United States and Canada

Source: Terence G. Ison, Compensation Benefits Review, vol. 47 no. 1, January/February 2015
(subscription required)

From the abstract:
When an article similar to this one was published in Canada, it reflected primarily knowledge derived from firsthand experience in several provinces and territories, and empirical research in Ontario and British Columbia. Since that article was published in 2013, this new article reflects my research on recent publications in the United States on Workers’ Compensation. The article begins by explaining the damaging and overwhelming significance of experience rating. To enhance an understanding of current situations, the article then explains the legal history of Occupational Health & Safety and Workers’ Compensation. Then the role of physicians is discussed, particularly the difficulties they often have in distinguishing questions of law from questions of medicine. The article then deals with how decisions are made in the claims department of a Workers’ Compensation Board and by appeals tribunals. The practice of actuaries is explained, including the problems that their role creates. The limited role of judicial review is then mentioned, and finally the significance of the North American Free Trade Agreement and the World Trade Organization. The article concludes with conclusions and comments.

“Right-to-Work” States Still Have Lower Wages

Source: Elise Gould and Will Kimball, Economic Policy Institute, Raising America’s Pay, Briefing Paper #395, April 22, 2015

From the introduction:
Wages in “right-to-work” (RTW) states are 3.1 percent lower than those in non-RTW states, after controlling for a full complement of individual demographic and socioeconomic factors as well as state macroeconomic indicators. This translates into RTW being associated with $1,558 lower annual wages for a typical full-time, full-year worker.

U.S. Labor: Satisfying Foreign Investors’ Needs

Source: Steve Stackhouse-Kaelble, Area Development, Location USA, 2015

Although the labor environment varies from state to state, foreign companies choosing a U.S. location are finding competitive wage rates, quality training resources, and workers eager to join their labor forces….

… Unionization and Right-to-Work Laws
That understanding begins with the acknowledgment that the United States is a collection of 50 states, with widely varying characteristics and regulatory environments. That’s not a bad thing, of course, because global site selectors have just as widely varying requirements. Consider the subject of unionization. “Some want to have an open shop, some like to have unions, and some are neutral and have to bring that neutrality here,” Thuston says….

….“Right-to-work” laws tend to drive down unionization rates, which may in turn lead to lower wage rates. Be that as it may, cheaper labor isn’t everything, he says. “What companies are looking for is not necessarily the lowest labor cost, but dependability and the capability of delivering quality.”
Lewin adds that while many companies — including many of the non-U.S. automakers that have sought U.S. sites in recent years — instinctively seek to avoid unionization, others feel less threatened by organized labor. “You can run a unionized operation and do very well in business. In some industries the highest-performing companies are highly unionized.” …

Workplace Bullying Is On the Rise

Source: Amanda Cuda HR News, Vol. 81 no. 3, March 2015
(subscription required) (scroll down)

Ask a public sector human resource professional if they think workplace bullying is a problem and chances are many will say yes. Getting them to specify what constitutes workplace bullying and how to stop it, however, is a little trickier. …. United States is one of the few Western countries that does not have a national law that defines and prohibits bullying. ….

Related:
How to Prevent Workplace Bullying From Becoming Lawsuits
Source: Kelly Petrocelli and David B. Ritter, HR News, Vol. 81 no. 3, March 2015
(subscription required) (scroll down)

You cannot scan a news site without spotting an article about bullying involving teens or young adults. With increased frequency, however, bullying has become a problem in the workplace, so much so that California recently passed a law mandating that employers provide training and education to supervisors on preventing “abusive conduct” in the workplace….

Symposium Issue – Reimagining Labor Law

Source: UC Irvine Law Review, Volume 4: Issue No. 2, May 2014

Articles include:
Reimagining Collective Rights in the Workplace
Catherine L. Fisk
…. A group of eminent and rising scholars were invited to address fundamental questions: What are the alternatives to the Wagner Act model of majority unions, workplace collective bargaining, and the current regime of social welfare provision on which it depends? What institutional structures could be created to provide dignity, opportunity, and protection to work? Rather than focusing on the current regime, the authors were challenged to explore alternatives and not to take anything for granted, including the existing divisions between or structures of labor law and employment law.

The articles explore a variety of alternative legal and social regimes based in existing practice in the United States—including the hybrid union-community worker organizations like Our Walmart and Fast Food Forward, sector-based worker groups like the National Day Laborer Organizing Network, Occupy initiatives, workers’ centers, national progressive organizations like the National Employment Law Project, and community organizations like the Asian Pacific American Legal Center. Some are based on comparative studies, examining possibilities of creating in the United States institutional structures that show promise elsewhere in the world. Some generalize from careful studies of particular campaigns or organizations, with an eye toward scaling up successful efforts. Some examine different legal regimes—the First Amendment freedom of assembly clause, for example—and some examine different forms of representation and institutional structures, including worker centers. Some explore feasible legal strategies to address the marginalization of unauthorized migrant workers. Others propose legal reforms to invigorate private membership organizations that protect the interests of people at work, such as by reducing restrictions on the collection of voluntary political contributions through payroll deduction and liberating unions from some of the restrictions imposed by state right-to-work legislation. …

….The articles in this symposium collectively argue three important propositions. First, collective activism will be crucial to any revitalization of labor. Labor law reform should aspire to enable the organizing that is essential to effective collective activism. Each of the papers proposes a different way that law can either facilitate such organizing and activism or avoid thwarting it. Second, and related, institutional design matters a great deal to whether worker activism will occur and, if it does occur, whether it will be effective in improving working conditions. Third, legal rules should be crafted to facilitate collective worker action by making worker collectives sustainable and scalable institutions; by giving them crucial roles in existing legal regimes to empower worker voice in many important legal and political forums; by leveraging power at the local, state, and national level; and by thwarting efforts to use legal doctrines like preemption or legal bureaucracies like criminal justice to eviscerate organizing gains.

The third step of the argument is where the authors strike out on four different but intersecting paths. The paths are: (1) empowering collectives, especially at the local level; (2) creating mechanisms to enhance leverage through local, national, and international frameworks; (3) improving access to information to enhance worker power; and (4) strengthening the institutional power of unions by protecting the ability of unions and worker collectives to fund their operations. The first two of these offer macro perspectives on how law facilitates and thwarts worker activism. The third and fourth examine the ways that law creates (or destroys) the institutional frameworks that empower workers to act collectively in organizing, in negotiating and administering agreements over conditions of employment, and in political action. ….

Latin America’s “Third Left” Meets the U.S. Workplace: A Promising Direction for Worker Protection?
Chris Tilly & Marie Kennedy

Beyond Unions, Notwithstanding Labor Law

Marion Crain & Ken Matheny

Not Dead Yet: Preserving Labor Law Strengths While Exploring New Labor Law Strategies
Lance Compa

Riding the Wave: Uplifting Labor Organizations Through Immigration Reform
Jayesh M. Rathod

Policing Wage Theft in the Day Labor Market
Stephen Lee

Productive Unionism
Matthew Dimick

Organizing with International Framework Agreements: An Exploratory Study
César F. Rosado Marzán

Extending the Case for Workplace Transparency to Information About Pay
Cynthia Estlund

Automatic Elections
Michael M. Oswalt

Restoring Equity in Right-to-Work Law
Catherine L. Fisk & Benjamin I. Sachs

Note
Paycheck Protection or Paycheck Deception? When Government “Subsidies” Silence Political Speech
Brian Olney