Category Archives: Labor Laws/Legislation

Coming Soon to the Big Apple – Paid Sick Days, as New York City Council Overrides Bloomberg Veto

Source: Elise Gould and Doug Hall, Economic Policy Institute (EPI), Working Economics blog, June 28, 2013

Early Thursday, the New York City council successfully overrode Mayor Bloomberg’s veto of a bill giving New York workers access to paid sick leave, at long last. The bill phases in over two years, beginning in April 2014 for businesses with 20 workers or more.

An Analysis of the U.S. Supreme Court’s Decision in Ricci v. DeStefano: The New Haven Firefighter’s Case

Source: Charles E. Mitchell, Public Personnel Management Vol. 42 no. 1, March 2013
(subscription required)

From the abstract:
Almost 6 months after winning their U.S. Supreme Court case, a group of New Haven, Connecticut, firefighters celebrated their victory in grand style. The decision in Ricci v. DeStefano proved that the City of New Haven erred when it denied promotions to White firefighters who fared better on promotional examinations than did minority applicants. This article (a) examines the thrust of the Ricci decision, which involved two competing facets of the same equal employment opportunity (EEO) statute; (b) discusses the mistakes inherent in the testing procedures of the City of New Haven, Connecticut; (c) addresses the involvement of Justice Sonya Sotomayor in the decision; and (d) examines the implication of the decision for public-sector employers using testing procedures of the nature found in Ricci v. DeStefano. The author concludes that the decision underscores the need for use of alternative testing procedures and suggests that Ricci v. DeStefano is but a precursor to further litigation designed to render use of disparate-impact analysis unconstitutional.

Silent Workers, Disappearing Rights: Confidential Settlements and the Fair Labor Standards Act

Source: Elizabeth Wilkins, Berkeley Journal of Employment and Labor Law, Vol. 34 no. 1, 2013
(subscription required)

The Fair Labor Standards Act (“FLSA”) sets minimum wages and maximum hours for the nation’s workers. Nevertheless, employers steal billions of dollars each year from low-wage workers. This article argues that a faithful reading of the FLSA requires courts to bar confidential settlements of claims brought under the statute. A rule against confidentiality would make public a significant amount of information about wage theft. That information is a prerequisite to encouraging individual workers to enforce their rights and to generating broader public awareness about the epidemic of wage theft that low-wage workers face.

Help Wanted: 23.5 Million Unemployed Americans Need Not Apply

Source: E. Ericka Kelsaw, Berkeley Journal of Employment and Labor Law, Vol. 34 no. 1, 2013
(subscription required)

Fifteen years ago, a Note in the Harvard Law Review presented a thought-provoking discussion on the jobless and their place, or lack thereof, in discrimination theory. The Note advocated that “being jobless makes one a member of a large and disparate social class, one that has heretofore often gone unrecognized.” In the ensuing fifteen years, no additional articles have considered whether the jobless deserve a place in discrimination theory, eerily confirming that the “invisibility of the jobless causes them to be virtually disregarded.”

This Article extends that investigation into the current controversy surrounding employers’ refusal to hire unemployed workers in the midst of a massive unemployment crisis. Although the unemployed as a class have historically experienced covert discrimination, in 2010, employers across the country began to boldly include in jobs ads that candidates “must be currently employed.” As a result of this alarming practice, federal, state, and local legislatures across the country responded by proposing legislation prohibiting unemployment discrimination.

Looking at unemployment discrimination through the lens of cognitive psychology, this Article supports the notion that unemployment discrimination should be prohibited. Employment status is an arbitrary and unfair hiring criterion and current antidiscrimination law fails to adequately protect the unemployed, a vulnerable and powerless group. The Article argues that federal, state, and local governments should amend their employment discrimination laws to include protection for the unemployed.

Noel Canning, the NLRB, and Industry Campaign Contributions

Source: Public Campaign, July 1, 2013

From the summary:
In January, the U.S. District Court for the District of Columbia threw American labor law into chaos in its Noel Canning v. NLRB decision that rejected President Barack Obama’s recess appointments to the National Labor Relations Board (NLRB), a federal agency in charge of conducting elections for labor union representation as well as investigating and remedying unfair labor practices.

The recess appointments, a practice that has been employed for decades by presidents from both major parties, were made after Senate Republicans blocked the nominees from going through the normal appointment process. As the Senate prepares to once again take up the NLRB appointments and other stalled nominations after the July 4th recess, it’s important to look at one factor that often looms large in voting decisions by certain senators—campaign cash.

Since the January ruling, many companies have used the Noel Canning decision to challenge NLRB rulings relating to their labor practices. According to analysis of campaign finance data, at least 38 of these have donated to Senate Republicans opposing an operable NLRB.

In fact, the 45 Senate Republicans who signed a “friend of the court” brief in the Noel Canning case1 and the National Republican Senatorial Committee (NRSC) have received a combined $6 million in campaign contributions over the years from the owners, executives and PACs of companies and trade groups that have used the ruling to dispute NLRB decisions and organizations that have been players in the litigation.

Top 15 Contributors Among Companies/Litigants:
US Chamber of Commerce
General Motors
Target Corp
Caterpillar Inc.
DirecTV Group
GEO Group
Sanderson Farms
Nestle USA
Embarq Corp
Enterprise Rent-A-Car
Meredith Corp
Laboratory Corp of America
Murphy Oil
National Assn. of Manufacturers

See also:
National Labor Relations Board Uncertainty Benefits Big Corporate Donors: Report
Source: Dave Jamieson, Huffington Post, July 2, 2013

Community Workforce Agreements: A Tool to Grow the Union Market and to Expand Access to Lifetime Careers in the Unionized Building Trades

Source: Maria Figueroa, Jeff Grabelsky, and J. Ryan Lamare, Labor Studies Journal, Vol. 38 no. 1, March 2013
(subscription required)

From the abstract:
This paper profiles and explores variations in the nature and extent to which community workforce provisions have been effectively negotiated into Project Labor Agreements (PLAs). Community Workforce Agreements broadly aim to advance employment and career models for demographic groups underrepresented in the construction industry but have implications for coalition building and may facilitate a broader role for labor in long-term economic development. These arrangements are the focus of intense policy and research debate, where the issue of using PLAs on publicly funded projects has long been considered. However, the types of provisions regularly included in these PLAs, and the manner in which these provisions vary by geography, time, and size of the Building and Construction Trades Council, are not well understood. This paper profiles the most common provisions and their variability and briefly touches on outcome effects of these agreements to communities, using a content analysis of 185 negotiated agreements over fourteen years, a survey of over 300 building trades councils, and three case studies from projects in Washington, D.C., Cleveland, and New York.

What Public-Sector Employers Need to Know About Promotional Practices, Procedures, and Tests in Public Safety Promotional Processes: After Ricci v. DeStefano

Source: Richard E. Biddle and Daniel A. Biddle, Public Personnel Management, Vol. 42 no. 2, June 2013
(subscription required)

From the abstract:
In June 2009, the Ricci v. DeStefano case was decided by five of the nine U.S. Supreme Court judges. This case impacts public-sector employers by expanding on the rule called a “strong basis in evidence.” Under this rule, a public-sector employer cannot engage in certain activities for the asserted purpose of avoiding or remedying unintentional disparate impact, unless the employer has a “strong basis in evidence” to believe it will be subject to disparate-impact liability. The evidence for this rule must be in place before a public-sector employer takes a race-conscious action to minimize adverse impact. This article critically evaluates the test validity discussion that occurred in the Ricci case; addresses topics relevant to the new rule not covered by the decision, such as the cutoff used, weights used, differentiating requirements of the rank-ordered list, and the rule of three; and describes guidelines for conducting a particular kind of study in an employment context, called a Croson Study, that can be used to gather a “strong basis in evidence.” This article identifies circumstances under which a Croson Study is needed, and how to do it that will allow public-sector employers to evaluate whether they may be justified—using the Supreme Court’s “strong-basis-in-evidence” rule—to institute race-conscious remedies under Title VII.

State, Local Policies Make Important Steps Forward for Workplace Flexibility

Source: Liz Ben-Ishai, Center for Law and Social Policy (CLASP), June 2013

…Last month, the state of Vermont passed the country’s first law that includes a provision giving workers the “right to request” a flexible work schedule. And on the heels of Vermont’s exciting victory, earlier this month, San Francisco Board of Supervisors President David Chiu introduced a proposed ballot measure for rules that would give workers who are caregivers a “right to request” flex work. Such laws allow employees to file requests with their employers to telecommute, job share, work part time, or adjust their schedules – all options that can greatly reduce the burden parents and other caregivers face when trying to meet the demands of their jobs and care for their families….

Countries at risk: 2013 Report on Violations of Trade Union Rights

Source: International Trade Union Confederation (ITUC), 2013

…The ITUC is responding to violations of trade union rights wherever they occur. Trade unions in a number of countries are under extreme risk and thus the ITUC is engaged in a comprehensive and intensive campaign to support their struggle for fundamental rights. Severe attacks on trade unions in Burma/Myanmar, Fiji, Georgia, Guatemala, Bahrain, Swaziland and Zimbabwe have put the existence of trade unions and democratic institutions at extreme risk. Political, trade, corporate and organising campaigns are taking place in these countries. National and international mechanisms are used to achieve changes in law and policy. As a result, the Georgian government is currently reforming its labour code to realise freedom of association and collective bargaining rights. This will allow the Georgian Trade Union Confederation to organise and protect more workers. The Federation of Trade Unions-Myanmar organised more than 18,000 new members within 6 months and the government of Guatemala is now engaging with the ITUC to agree on a comprehensive reform package to improve trade union rights. Nevertheless, major challenges and difficulties remain which are highlighted in the following section in more detail….

…United States:

Prohibition of demonstrations:
Workers in the U.S. are restricted in their ability to engage in picketing and other forms of protest on employers’ property. The law also prohibits secondary picketing and limits picketing which has the object of organising workers or obtaining recognition from the employer. In January 2013, the United Food and Commercial Workers Union and its community affiliate, Our Walmart, which had engaged in nationwide demonstrations at Walmart stores protesting about the retaliatory action taken against Walmart workers who had spoken out for better pay, fair schedules and affordable health care, had to disavow any intent to represent Walmart workers and promise not to picket for a period of 60 days to forestall the government from going to court to obtain an injunction to stop the demonstrations

Prohibition of publications:
Under U.S. law unions have no right to maintain their own bulletin boards in employer workplaces and the employer is not required to allow the union to post notices on its bulletin boards unless it permits workers to use the bulletin boards to post other, non-work-related material. Employers may also establish rules prohibiting the distribution of union literature in work areas, even if the employer itself distributes materials in those areas. Although workers generally have the right to distribute news and leaflets in non-work areas, these rights are frequently violated during union organising campaigns

Exclusion of workers from the right to freedom of association and collective bargaining:
In the private sector, managerial and supervisory employees, independent contractors and domestic workers have no right to form or join a union, nor do agricultural workers except in a small number of states. These excluded categories of workers constitute approximately 15 per cent of the private sector workforce. In the public sector, workers cannot be prevented from or punished for forming or joining organisations of their own choosing, including unions. However, as noted below, more than 7 million federal, state and local government employees, representing more than a third of the public sector workforce, do not have the right to bargain collectively —an essential corollary of the right to form unions.

Employers threaten workers who want to join unions:
A recent academic study found that in 57 per cent of the campaigns surveyed, workers were threatened that their workplace would shut down if they chose to be represented by a union, and that in 47 per cent of campaigns they were threatened with a loss of wages or benefits. 64 per cent of campaign workers were interrogated about how they and other workers were going to vote and 14 per cent were put under surveillance by their employer. To intimidate workers, 21 per cent of employers called in police to do walkthroughs in the work place, and 14 per cent bring in security guards or put up security fencing. Most egregiously, workers were dismissed in 34 per cent of the campaigns.

Employers refuse to bargain with representative unions:
Under U.S. law, even after a majority of workers have voted for union representation, an employer can challenge the results of the election by refusing to bargain and thereby obtaining a court review of the election. Employers commonly use this tactic in first contract situations to delay bargaining even
where there is no meritorious basis for challenging the election results.

Home Economics: The Link Between Work-Life Balance and Income Equality

Source: Stephen Marche, Atlantic, Vol. 311 no. 6, July/August 2013

The central conflict of domestic life right now isn’t men versus women or mothers versus fathers; it’s the family against money…

…The question for most American women, and for most families, is much simpler: “How do I survive?”…The success of Lean In can be attributed, at least in part, to its comforting espousal of an obviously false hope: that hard work and talent alone can now take you to the top. This is pure balderdash, for women and men. Class structures have seized to the point where Denmark has more social mobility than the United States. The last myth to die in America will be the myth of pluck; Lean In is the most recent testament to its power…

…The solution to the work-life conundrum is not “enlisting men” (as Slaughter puts it) in the domestic sphere. The solution is establishing social supports that allow families to function. The fact is, men can’t have it all, for the same reason women can’t: whether or not the load is being shared 50-50 doesn’t matter if the load is still unbearable. It will not become bearable once women lean in, or once the consciousness is raised, or once men are full partners, always, in domestic life. It will become bearable when decidedly more quotidian things become commonplace—like paid parental leave and affordable, quality day care (which Sandberg and Slaughter both advocate)….