Category Archives: Labor Laws/Legislation

Where Minimum Wage Workers Will Earn More This Year

Source: Jake Grovum, Stateline, January 6, 2015

The minimum wage increased in 20 states at the beginning of this year, and later in 2015 it will go up in Alaska, New York and Delaware. As a result, at least 3.1 million workers will get raises. For the first time, a majority of states — 29 plus the District of Columbia — have minimum wages above the federal minimum, which is $7.25. The federal floor hasn’t increased since July 2009 and few expect Congress to enact a hike anytime soon, although President Barack Obama has called for an increase….

Introduction to The Workplace Constitution from the New Deal to the New Right

Source: Sophia Z. Lee, University of Pennsylvania Law School, Public Law Research Paper No. 14-37, 2014

From the abstract:
Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to quite different ends: African Americans wanted access to unions, while right-to-work litigants wanted to be free of them. Although the civil rights movement went on to dismantle Jim Crow laws, and the right-to-work movement had the support of some of the nation’s most prominent politicians and opinion makers, their conflicting purposes sapped support for the workplace Constitution and ultimately led to its collapse.

The Workplace Constitution tells for the first time the story of anti-New Deal conservatives’ legal campaigns, recovers overlooked civil rights and labor advocacy, and moves constitutional history into little-explored venues such as administrative agencies. In recounting the civil rights and right-to-work movements’ surprising successes and explaining their ultimate failure, the book provides a fresh perspective on postwar conservatism and liberalism, emphasizing how law intertwined their fates and how that entanglement in turn shaped the law. Those interested in the history of the United States’ conservative, labor, and civil rights movements; its Constitution and political institutions; and the legal rights of its workers will find much of interest here. In the twenty-first century, the workplace Constitution has all but vanished. This book illuminates what has been gained and lost in its demise, both in the workplace and beyond.

National Employment Policies: A guide for workers’ organisations

Source: International Labour Organization (ILO), Employment and Labour Market Policies Branch (EMPLAB), January 8, 2015

Please note that this guide is available by its individual parts listed below. Click on each part separately as needed.

About this guide

What is a national employment policy?
Part 1 explains what national employment policies are and looks at the current context that has brought employment back on top of national and international agendas. It explains how the ILO developed its approach to effective engagement in the policy process.

What has to be in place for trade unions to successfully take part in national employment policy?
Part 2 talks about what it means for trade unions to have this new role as a key stakeholder. It describes the social structures and conditions for dialogue that need to be in place in a country for trade unions to successfully contribute to a national employment policy.

The role of trade unions in the policy cycle.
Part 3 is a detailed, stage-by-stage description of the national employment policy-making process. There are seven stages: preparation, issue identification, formulation, adoption, action planning, implementation, and monitoring and evaluating. Trade unions need to strengthen their ability to participate in all stages of the policy cycle. Part 3 provides some practical suggestions on how to handle the most challenging aspects of employment policy development. It details the possible ways that trade unions can engage at each of the stages.

Gathering and analysing labour market data.
Part 4 introduces the basics of collecting and analysing labour market data – essential skills for trade unions that want to be credible and informed stakeholders. It explains where to find good data and when trade unions might want to collect it themselves. It explains labour force concepts and the indicators we use to measure them. Trade unions need to be able to interpret employment numbers so that they can make policy arguments and monitor policy results.

How do macroeconomic and sectoral policies affect employment?
Part 5 arms trade unionists with the main elements of debate around economic policy. The choice of public policies is influenced by theory and analysis. We look at macroeconomics, the study of the economy as a whole, and how policies at this level can influence the creation of decent jobs. We explain and look at the impact of monetary policy, exchange rate policy, and fiscal policy. We discuss why and how it is important for trade unions to influence these macroeconomic policies, as well as policies in particular sectors.

Policy responses to the informal economy.
Part 6 talks about the informal economy – that area of the labour market that is largely unregulated, where workers are unprotected and often exploited. Trade unions should be equipped and ready to engage in discussions about national policy responses to the informal economy. These policy responses should be embedded in every social and economic policy. We also talk about the ways that organized trade unions in many countries are helping informal workers to bring their voices to the table.

Labour institutions, social protection and employment.
Part 7 discusses the role of labour institutions – the rules, practices and policies that affect how the labour market works. We focus on two important labour market institutions – employment protection legislation and minimum wages. We look at the theoretical arguments for and against them and at what the research says. We also look at the linkages between employment and social protection systems, such as social security, pension plans and unemployment benefits. Our key message is that national employment policies and social protection systems have to be closely linked. Trade unions need to be able to argue for these connections in policy design in order to frame solutions grounded in long-term, sustainable, employment-centred growth.

Some key terms and what they mean.
Part 8 is a glossary or list of key words that we use in this guide, with reminders about what they mean. These words appear in blue the first time you see them.

Re-Assembling Labor

Source: Marion G. Crain, John D. Inazu, Washington University in St. Louis. Legal Studies Research Paper No. 14-11-01, November 5, 2014

From the abstract:
Organized labor’s judicial, political, and public image is often associated with violence and anarchy. These descriptions are not spun out of whole cloth: violent uprisings that challenged the political and economic order were common in the early days of American labor unionism. But the assumptions underlying past judicial rhetoric and labor law doctrine have outlived their original context. Historical antecedents applied to modern protests like Fast Food Forward, OUR Walmart and the Occupy Movement yield troubling and inconsistent results.

Although these tensions have not gone unnoticed, scholarly commentary to date has overlooked the important connection between the collective, group-based nature of labor activism and the First Amendment’s right of assembly. We seek to draw the lessons of assembly squarely into contemporary labor law — to re-assemble labor law around the theory and doctrine of assembly that formed its early core. We begin in Parts I and II by situating the historical relationship between labor and assembly. Part III develops three theoretical insights reinforced by the connections between assembly and labor, and obscured by the contemporary focus on the rights of speech and expressive association. First, collective activity represents more than simply an aggregation of individual voices. Second, groups are not one-dimensional but have many functions, purposes, and messages, which are developed and negotiated through collective expression and existence. Third, expression depends on the context in which it unfolds, and current doctrine too easily obscures that context, with significant ramifications for both public perception and group efficacy. Part IV applies these theoretical insights, suggesting how the gains of assembly might facilitate a richer understanding of labor unionism and its connections to the rest of First Amendment jurisprudence.

Harris v. Quinn and the Contradictions of Compelled Speech

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.

Preparing for 2015: Key Priorities for States

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.

What Do Right-to-Work Laws Do? A Case Study Analysis Using Synthetic Control Method

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.

Judicial Review of the EEOC’s Duty to Conciliate

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.

Zero-Hour Contracts: The Newest Way Workers Are Getting Screwed

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?

Choice at Work: Young v. United States Parcel Service, Pregnancy Discrimination, and Reproductive Liberty

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.
Related:
The Court heard oral argument in Young v. UPS, and the transcript is now available on the Court’s website.