Category Archives: Labor Laws/Legislation

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. ….

Delivering $15: Community-Centered Wage and Hour Enforcement in Seattle

Source: Diego Rondón Ichikawa, Rebecca Smith, National Employment Law Project, October 2014

…This report, based on data and enforcement models from Washington State and around the country, is intended to present a vision of an efficient, strategic enforcement plan that compensates workers for wage violations and ensures a level playing field and fair competition for businesses that comply with the law. It is intended to supplement, not supplant, the excellent work of the Mayor’s Labor Standards Advisory Group, which developed the outlines of an enforcement strategy, anchored in the new Division of Labor Standards Enforcement (DLSE).

Building on this outline and learning from the experience of other jurisdictions and from experts who have studied minimum wage enforcement, Seattle can create a fair, strategic, and realistic enforcement system that ensures that workers are not cheated out of the city’s promise of an increased minimum wage. That system should include at least four parts: (1) a robust worker and employer education program; (2) an efficient and strategic enforcement plan that employs a combination of complaint-driven and agency-directed investigations to restore minimum wages to all affected workers in a company and protect law-abiding businesses; (3) penalties and compensation that meaningfully protect workers from retaliation, deter violations, and enlist the help of the private bar; and (4) strong partnerships that take advantage of the best skills of government and of community organizations.

While Seattle’s DLSE will enforce its Paid Sick and Safe Time, Job Assistance, Wage Theft and Minimum Wage Ordinances, this paper focuses on the Minimum Wage Ordinance as the newest and most complex of the city’s labor standards….

Key findings:
· Violation of wage laws is a huge national problem.
· Existing resources are not up to the task.
· Seattle’s enforcement strategy should include both complaint-based and agency-initiated directed investigations.
· The city should draw on the experience and trust of community groups for smart enforcement.
· Seattle needs additional enforcement tools to be effective.

Out of the Shadows: Shedding Light on the Working Conditions of Immigrant Women in Tucson

Source: Nina Rabin, Tiana O’Konek, Arizona Legal Studies Discussion Paper No. 14-27, September 3, 2014

From the abstract:
This report on the working conditions of immigrant women in Tucson, Arizona, is based on one year of field research, between April 2012 and March 2013. Researchers collected ninety surveys from low-wage immigrant women workers and conducted twenty-nine interviews of workers, government officials, and community leaders. The survey respondents capture a wide range of experiences and backgrounds. The women labored in a range of workplaces, including private homes, residential care facilities, hotels, offices, restaurants, factories, and retail stores.

This report identifies five concerns repeatedly described by the women surveyed and interviewed: they are underpaid, overworked, unsafe, abused, and exploited. Section I of the report describes why these findings are hardly surprising. After describing methodology and findings in Sections II through IV, the final section of this report offers three types of reforms to address the concerns identified. First, the data reveal the need to expand the coverage of employment laws, so that the workers described in this report are no longer excluded from many of the existing legal protections from workplace abuse. Second, this research illustrates the need to enforce existing laws, as many of the incidents described in this report are currently illegal, yet the law on the books is not enforced on the ground. Finally, the surveys and interviews document the need to improve the laws on the books, so that the legal system itself does not perpetuate poverty and exploitation of low-income and immigrant workers.

Removing Barriers to Work for People with Criminal Records

Source: Liam Julian, Council of State Governments, Capitol Ideas, November/December 2014

About 65 million Americans of working age have criminal records. Finding a job isn’t easy for anyone, but it’s especially difficult for them. States and cities are making a concerted effort to get employers to “ban the box” and remove questions about criminal history from the initial job application.

Employment Discrimination Based on Sexual Orientation and Gender Identity in Georgia

Source: Christy Mallory, Brad Sears, Williams Institute, October 2014

From the abstract:
Approximately 7,500 LGBT workers in Georgia are vulnerable to employment discrimination due to a lack of state legal protections. At least 35 localities and many private corporations based in Georgia have personnel policies that prohibit employment discrimination based on sexual orientation and gender identity. While Georgia law protects state workers from discrimination based on personal characteristics including race, religion, national origin, sex, disability, and age, it does not include sexual orientation or gender identity. In response to a 2013 survey, 79% of voters surveyed in Georgia said that it should be, or probably should be, illegal for government employers in the state to discriminate against their employees based on sexual orientation or gender identity.

Findings from the Georgia report are consistent with national data. A 2013 Pew Research Center survey found that 21 percent of LGBT respondents had been treated unfairly by an employer in hiring, pay, or promotions. In 2010, 78 percent of respondents to the largest survey of transgender people reported having experienced harassment or mistreatment at work.
Related:
Press release

Missing the Mark: How FMLA’s Bonding Leave Fails Mothers

Source: Rona Kaufman Kitchen, Duquesne University School of Law Research Paper No. 2014-10, September 9, 2014

From the abstract:
In the two decades since it was adopted, the Family and Medical Leave Act (hereinafter “FMLA” or “the Act”) has been consistently criticized for its failure to achieve its stated goal of enabling workers “to balance the demands of the workplace with the needs of families.” Since it was signed into law in 1993, legal scholars and women’s rights groups, while applauding the accomplishments of the Act, have expressed their dissatisfaction with the status of family and medical leave law in the United States. It has been argued that the FMLA should be expanded to cover more workers, for more reasons, for longer periods of time, and to provide for income replacement and a right to return to work on a part-time basis.

I echo the calls for more comprehensive job-protected leave. However, in this article, I focus exclusively on how FMLA’s bonding leave fails mothers. Specifically, FMLA bonding leave poses several primary and subsidiary problems for mothers, mother-infant bonding, and attachment. First, the FMLA poses accessibility problems through its stringent coverage limitations, eligibility requirements, and lack of income replacement. Due to these accessibility issues, the FMLA excludes most mothers from accessing its job-protected bonding leave, frustrating the primary congressional intention behind the bonding leave provision. Second, the FMLA poses subsidiary applicability problems due to the length, inflexibility, and vulnerability of the leave. The inflexible twelve-week bonding leave entitlement is therefore substantively lacking. It falls short of providing an environment that would facilitate healthy parent-infant bonding as intended by the Act. As a result of these primary and subsidiary dilemmas, FMLA’s bonding leave fails to address the bonding and attachment needs of mothers and infants.

Codes in Context: How States, Markets, and Civil Society Shape Adherence to Global Labor Standards

Source: Michael W. Toffel, Jodi L. Short, Melissa Ouellet, Harvard Business School Technology & Operations Management Unit Working Paper No. 13-045, September 8, 2014

From the abstract:
Transnational business regulation is increasingly implemented through private voluntary programs – like certification regimes and codes of conduct – that diffuse global standards. But little is known about the conditions under which companies adhere to these standards. We conduct one of the first large-scale comparative studies to determine which international, domestic, civil society, and market institutions promote supply chain factories’ adherence to the global labor standards embodied in codes of conduct imposed by multinational buyers. We find that suppliers are more likely to adhere when they are embedded in states that participate actively in the ILO treaty regime and that have stringent domestic labor law and high levels of press freedom. We further demonstrate that suppliers perform better when they serve buyers located in countries where consumers are wealthy and socially conscious. Taken together, these findings suggest the importance of overlapping state, civil society, and market governance regimes to meaningful transnational regulation.