Category Archives: Labor Laws/Legislation

The Labor Movement’s Role in Gaining Federal Safety and Health Standards to Protect America’s Workers

Source: Deborah Weinstock and Tara Failey, New Solutions: A Journal of Environmental and Occupational Health Policy, Vol. 24 No. 3, 2014
(subscription required)

From the abstract:
In the United States, unions sometimes joined by worker advocacy groups (e.g., Public Citizen and the American Public Health Association) have played a critical role in strengthening worker safety and health protections. They have sought to improve standards that protect workers by participating in the rulemaking process, through written comments and involvement in hearings; lobbying decision-makers; petitioning the Department of Labor; and defending improved standards in court. Their efforts have culminated in more stringent exposure standards, access to information about the presence of potentially hazardous toxic chemicals, and improved access to personal protective equipment—further improving working conditions in the United States.

Organized Labor and the Origins of the Occupational Safety and Health Act

Source: Robert Asher, New Solutions: A Journal of Environmental and Occupational Health Policy, Vol. 24 No. 3, 2014
(subscription required)

From the abstract:
New Solutions is republishing this 1991 article by Robert Asher, which reviews the history of organized labor’s efforts in the United States to secure health and safety protections for workers. The 1877 passage of the Massachusetts factory inspection law and the implementation of primitive industrial safety inspection systems in many states paralleled labor action for improved measures to protect workers’ health and safety. In the early 1900s labor was focusing on workers’ compensation laws. The New Deal expanded the federal government’s role in worker protection, supported at least by the Congress of Industrial Organizations (CIO), but challenged by industry and many members of the U.S. Congress. The American Federation of Labor (AFL) and the CIO backed opposing legal and inspection strategies in the late 1940s and through the 1950s. Still, by the late 1960s, several unions were able to help craft the Occupational Safety and Health Act of 1970 and secure new federal protections for U.S. workers.

The Anti-Bottleneck Principle in Employment Discrimination Law

Source: Joseph Fishkin, University of Texas School of Law, Public Law Research Paper No. 617, May 27, 2014

From the abstract:
State legislatures and the Equal Opportunity Employment Commission (EEOC) have moved in parallel in recent years to provide new protections for the employment prospects of some surprising groups: people who are unemployed, people who have poor credit, and people with past criminal convictions. These new protections confound our usual theories of what antidiscrimination law is about. These groups are disanalogous in a variety of respects to groups defined by such characteristics as race, sex, and national origin. But the legislators and regulators enacting these new protections were responding to pervasive problems they observed in the opportunity structure of our society — problems of a particular kind that I call bottlenecks. Essentially, these legal actors judged that poor credit, unemployment, and past criminal convictions were having too outsized an effect on a person’s employment prospects. If many or most employers demand good credit, then good credit becomes a serious bottleneck: a narrow place through which workers must pass to reach a wide range of opportunities on the other side.

This Article argues that the anti-bottleneck principle — the principle that the law ought to ameliorate severe bottlenecks in the opportunity structure where it can feasibly do so — is not only a way of understanding these new, cutting-edge protections, but also a way of understanding much of the project of Title VII and our existing body of antidiscrimination law. This Article explores the role the anti-bottleneck principle plays in legislators’ decisions to enact antidiscrimination laws and in decisions by judges and by the EEOC about how to interpret and enforce such laws. The Article argues that the anti-bottleneck idea is at the heart of both disparate treatment law and disparate impact law — and that it should cause us to think differently about the function of disparate impact law. The EEOC lawyers who started down the path that led to Griggs v. Duke Power understood that general ability tests were becoming a major bottleneck in the opportunity structure. By limiting the use of those tests, Griggs ameliorated a bottleneck that had arbitrarily constrained the opportunities of many whites as well as blacks.

Finally, turning from the positive to the normative, this Article defends the central — if previously unacknowledged — role that the anti-bottleneck principle plays in our law of equal employment opportunity. It is a profound challenge for any legal system to promote “equal opportunity” in a world of pervasive difference and inequality, where the mechanisms that perpetuate inequality shift over time. The anti-bottleneck principle turns out to be a strong and surprisingly practical response to these challenges.

Policing Wage Theft in the Day Labor Market

Source: Stephen Lee, University of California Irvine School of Law Research Paper No. 2014-70, November 25, 2014

From the abstract:
In recent years, workers’ rights advocates have turned to a novel tactic in the fight against employer exploitation: pushing for the criminalization of wage theft. In a growing number of jurisdictions, advocates have persuaded lawmakers to pass laws imposing criminal sanctions — hefty fines and the possibility of imprisonment — onto employers for engaging in these bad acts. In this Essay, I focus on the challenges of enforcing wage theft laws within those industries dependent on unauthorized immigrant labor. I argue that federal immigration enforcement programs — ranging from funding inducements to information-sharing schemes to collateral penalties — dampen the promise of turning to the police as allies in the effort to eradicate wage theft. Specifically, local law enforcement agencies (LEAs) that consider protecting unauthorized immigrants (through the enforcement of wage theft laws) must do so amid competing pressures to identify and detain unauthorized immigrants (through the enforcement of federal immigration laws). The structure and design of these federal immigration enforcement programs make it difficult for LEAs to fully withdraw from the larger enterprise of identifying and removing immigrants, which is necessary to effectively enforce wage theft laws in immigrant-dominated communities. My point here is not to dissuade labor rights advocates from ever turning to the criminal justice system for help in the fight against workplace exploitation. But assessing whether the police can solve the problem of wage theft in the day labor market requires further study. Thus, I conclude the Essay with a research agenda of sorts in which I lay out further research trajectories to help answer the question of when policing wage theft can be both effective and desirable.

Realizing Innovation and Opportunity in WIOA – A Playbook for Creating Effective State Plans

Source: Bryan Wilson and Brooke DeRenzis, National Skills Coalition, November 2014

From the blog post:
National Skills Coalition released its latest report, Realizing Innovation and Opportunity in WIOA: A Playbook for Creating Effective State Plans. The report provides recommendations on how states can use their Workforce Innovation and Opportunity Act (WIOA) state plan to establish strategies that close the skill gap and help workers and businesses succeed.

NSC also hosted a webinar that covered the report’s recommendations and provided an overview of WIOA’s timeline and opportunities for stakeholders to weigh in on the federal regulatory and guidance process. Watch the recording.

The writing of a new state workforce development plan is a major opportunity for states. WIOA emphasizes sector partnerships, career pathways, cross-program data and measurement, and job-driven investments. It is written in a way that allows visionary leaders to use it as a lever for strategies that support economic growth and help a wide range of workers succeed in the labor market. The state plan need not be limited to federal programs under WIOA’s four titles or to minimum federal planning requirements. Instead, states are free to use their plans to describe the workforce development system they truly want, and to explain how they will use WIOA and other state and federal programs to achieve that vision. Broad and authentic stakeholder engagement during the planning process will help ensure that the plan is supported both by those who will implement it and by those intended to benefit from it.
National Skills Coalition offers the following recommendations for policymakers, practitioners, advocates, employers, and labor to consider as they work to create a state plan that takes full advantage of the skill strategies promoted by WIOA:
– The Planning Process: The state planning process should use different techniques to provide multiple opportunities for a broad set of stakeholders to offer input on the state plan. In determining whether to be an early implementer, states should consider how to balance the early implementation timeline with the process necessary to create a strong plan with broad stakeholder support.
– Plan Structure and Format: The state plan should clearly describe the state’s vision and goals for preparing a skilled workforce that meets employer needs. It should articulate the major strategies the state will use to achieve its vision and should explain the “who, what, and when” of action steps to implement those strategies.
– Sector Partnerships: The state plan should describe the state’s criteria for local or regional sector partnerships, and it should explain how the state will provide support and funding to those partnerships.
– Career Pathways: The state plan should describe how state programs will collaborate with each other, local programs, and other stakeholders to create career pathways. They should also describe how states will use effective adult education approaches, wrap-around support services, and sector partnerships as part of their career pathway approach.
– Cross-Agency Data and Measurement: The state plan should describe a comprehensive cross-agency data and performance measurement system that covers all major workforce development programs. This includes how the state will use supply-demand reports, dashboards, and cross-agency credential measurement to develop policies to close the skill gap; how it will link data to measure outcomes; and how it will provide training program performance scorecards for students and workers.

The $10.10 Minimum Wage Proposal: An Evaluation across States

Source: Andrew Hanson, Zackary Hawley, Journal of Labor Research, Volume 35 Issue 4, December 2014
(subscription required)

From the abstract:
This paper offers state-level estimates of job loss from increasing the federal minimum wage to $10.10 per hour in 2016. Given the vast differences in nominal wages across geography, a federal increase in minimum wage that is not indexed to local wage levels will have a differential impacts across states. The proposed minimum wage would be binding for between 17 and 18 % of workers nationally. We estimate coverage rates ranging from just 4 % in Washington D.C. to as high as 51 % in Puerto Rico, with 13 states having at least 20 % of the employed population covered by the proposal. Using labor demand elasticities from previous empirical work, these coverage rates imply national employment losses between 550,000 and 1.5 million workers. The range of state estimates shows that states are differentially impacted, with high-end loss estimates ranging between 2.8 % of covered employees in Arkansas to over 41 % in Puerto Rico. Sensitivity analysis highlights that using even a simple methodology with relatively few assumptions for estimating employment loss from minimum wage changes is subject to a high degree of uncertainty.

Retaliatory Capital Allocation or Defensive Dual Sourcing; the Boeing Dreamliner Case

Source: Michael Harper, Boston University School of Law, Public Law Research Paper No. 14-63, October 17, 2014

From the abstract:
The General Counsel’s decision to file a complaint in the Boeing case was an appropriate response to a major industrial decision that posed new questions about how to resolve a central tension in the National Labor Relations Act, the protection of concerted activity by employees to enhance their wages and working conditions on the one hand, and the maintenance of the freedom of employers to make important capital allocation decisions on the other hand. This tension cannot be resolved by holding the Act cannot prohibit retaliatory capital allocations that assign work to new locations whenever old work is not directly and immediately diminished. Resolution instead requires drawing a fine line, on the basis of a series of Supreme Court decisions, between legal capital allocations that are implemented to protect the employer from the effects of future strikes and illegal capital allocations that are implemented to retaliate against employees for engaging in past strikes in order to discourage future strikes.

The Supreme Court’s 2013-2014 Labor and Employment Law Decisions: Consensus at the Court

Source: Jeffrey M. Hirsch, University of North Carolina School of Law Legal Studies Research Paper No. 2517334, October 31, 2014

From the abstract:
This Article is a review of the Supreme Court’s 2013-2014 labor and employment law decisions. Among the cases discussed are Harris v. Quinn, Lane v. Franks, Lawson v. FMR, Fifth Third Bancorp v. Dudenhoeffer, Heimeshoff v. Hartford Life & Accident Insurance Co., Sandifer v. United States Steel Corp., NLRB v. Noel Canning, and Burwell v. Hobby Lobby Stores. The Article notes the relative lack of sharp divisions among the Justices — a result that appears to largely be the result of a less controversial labor and employment docket. However, as some of even this year’s decisions show, sharp divisions on the Court still exist, and we’re likely to see a return to the usual ideological decisions in later terms.

Whatever Happened to Overtime?

Source: Nick Hanauer, Politico Magazine, November 17, 2014

It’s one reason we’re poorer than our parents. And Obama could fix it—without Congress. …

…If you’re in the American middle class—or what’s left of it—here’s how you probably feel. You feel like you’re struggling harder than your parents did, working longer hours than ever before, and yet falling further and further behind. The reason you feel this way is because most of you are—falling further behind, that is. Adjusted for inflation, average salaries have actually dropped since the early 1970s, while hours for full-time workers have steadily climbed.

Meanwhile, a handful of wealthy capitalists like me are growing wealthy beyond our parents’ wildest dreams, in large part because we’re able to take advantage of your misfortune.

So what’s changed since the 1960s and ’70s? Overtime pay, in part. Your parents got a lot of it, and you don’t. And it turns out that fair overtime standards are to the middle class what the minimum wage is to low-income workers: not everything, but an indispensable labor protection that is absolutely essential to creating a broad and thriving middle class. In 1975, more than 65 percent of salaried American workers earned time-and-a-half pay for every hour worked over 40 hours a week. Not because capitalists back then were more generous, but because it was the law. It still is the law, except that the value of the threshold for overtime pay—the salary level at which employers are required to pay overtime—has been allowed to erode to less than the poverty line for a family of four today. Only workers earning an annual income of under $23,660 qualify for mandatory overtime. You know many people like that? Probably not. By 2013, just 11 percent of salaried workers qualified for overtime pay, according to a report published by the Economic Policy Institute. And so business owners like me have been able to make the other 89 percent of you work unlimited overtime hours for no additional pay at all. ….