Category Archives: Labor Laws/Legislation

Symposium: Public Sector Labor Law At The Crossroads

Source: University Of Toledo Law Review, Vol. 43 no. 3, Spring 2012

Articles include:
The Rise and Fall of SB-5: The Rejection of an Anti-Union Law in Historical and Political Context, by Joseph E. Slater

Privatizing Government Services in the Era of ALEC and the Great Recession, by Ellen Dannin

Compensation, Employment Security, and the Economics of Public Sector Labor Law, by Matthew Dimick

Teaching for America: Unions and Academic Freedom, by Charlotte Garden

The Chill of a Wintry Light? Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment, by William A. Herbert

Southern Solutions for Wisconsin Woes, by Anne C. Hodges

Binding Arbitration as a Means of Settling Public Sector Union Contracts: A Process with an Image Problem?, by Michelle T. Sullivan

Federal Labor Relations Statutes: An Overview

Source: Alexandra Hegji, Congressional Research Service, R42526, July 16, 2012

Since 1926, Congress has enacted three major laws that govern labor-management relations for private sector and federal employees. An issue for Congress is the effect of these laws on employers, workers, and the nation’s economy. The Bureau of Labor Statistics estimates that, nationwide, 9.2 million employees are represented by unions. In the 112th Congress alone, more than 30 bills have been introduced to amend federal labor relations statutes. The proposals range from making union recognition without a secret ballot election illegal to further modifying runoff election procedures. This legislative activity, and the significant number of employees affected by federal labor relations laws, illustrate the current relevance of labor relations issues to legislators and their constituents.

The three major labor relations statutes in the United States are the Railway Labor Act, the National Labor Relations Act, and the Federal Service Labor-Management Relations Statute. Each law governs a distinct population of the U.S. workforce. This report provides a brief history and overview of the aims of each of these statutes. It also discusses key statutory provisions for each statute.

Why Employment Discrimination Matters: Well-Being and the Queer Employee

Source: Trevor G. Gates, Journal of Workplace Rights, Volume 16, Number 1, 2011-2012
(subscription required)

From the abstract:
Queer people experience poor well-being in many workplaces, yet employment non-discrimination legislation providing comprehensive federal protection from employment discrimination based upon sexual orientation has failed to materialize over the last three decades. Current proposals for a federal Employment Non-Discrimination Act (ENDA) do not fully protect lesbian, gay, bisexual, transgender, and queer (LGBTQ) workers, especially in states that already have better protections. This conceptual article considers the well-being of queer employees within the context of human rights, the impact of historic queer employment discrimination cases, and the impact of historic legislative action. Current strategies for protecting queer employees at the federal level have failed. Suggestions for creating change in the workplace will be explored.

Making Sure a Strike Centers On Unfair Labor Practices

Source: Robert M. Schwartz, Labor Notes, August 8, 2012

Positioning a walkout as an unfair labor practice strike is one of the key tasks for any union on the verge of a labor battle. Under the rules of the National Labor Relations Act, and the laws of many states that permit public employee strikes, ULP strikers cannot be permanently replaced.

When the employer hires replacements during a ULP strike, and the union later submits an unconditional offer to return, the employer must reinstate all strikers. The rule holds even if replacements must be dismissed.

A Hopeful Outlook on Privacy Rights for Public Sector Employees

Source: Alan M. Klinger, Stroock Reports – Public Employee Law, Summer 2012
(registration required)(scroll down)

The mantra is often repeated that public employees have a greatly diminished privacy interest while on the job. Recent events brought renewed focus on the scope of such rights, possibly evidencing (even in the face of an adverse decision) a shift in how these rights will be viewed going forward. First, this article discusses the controversy sparked by the publication of Teacher Data Reports (“TDRs”) by the Board of Education of the City School District of the City of New York (“BOE”), and the recent willingness of state representatives and courts to consider the privacy interest of public employees in policy decisions. It will also address American Federation of State County and Municipal Employees (” AFSCME”) Council 79 v. Scott, a recent Florida case where a federal judge struck down – as a Fourth Amendment violation – a program that would have required many state employees to undergo random drug testing.

Triborough and interest arbitration: a balanced approach to collective negotiations

Source: Alan M. Klinger, Stroock Reports – Public Employee Law, Summer 2012
(registration required)

…New York, long a bastion of public sector strength, proved not immune to anti-union sentiment with the recent legislative adoption of Tier 6 limits on pension levels for new hires. Now, labor’s opponents are targeting the Taylor Law, the statute enacted to maintain balanced labor relations throughout the state. Critics seem particularly intent on repeal, or at least reform, of the Triborough Amendment. This provision of the Taylor Law forbids public employers from unilaterally changing the terms and conditions of employment during negotiations after the existing contract has expired, allowing workers to “benefit” from the terms of the previous contract until a new one is reached. (As discussed below, absent from the discourse regarding the Triborough Amendment has been what unions agreed to forego in return for this protection.) Critics also are opposed to a provision of the Taylor Law that compels police officers, firefighters, and other uniformed personnel to resolve impasse via interest arbitration. They not only object to the provision’s interaction with Triborough, which ensures that employers cannot compel unions to enter into arbitration before there is genuine impasse, but also argue that interest arbitration should be more favorable to employers….

…These critics, however, ignore the delicate balance at the heart of the Taylor Law: protecting the public against the disruption of public services while simultaneously protecting the rights of public employees. They “forget” that the Taylor Law strips public employees of their essential democratic right to strike, making Triborough and interest arbitration essential protections during the bargaining process. They further fail to account for empirical evidence of how collective negotiations actually function. Ultimately, their myopic focus on making bargaining outcomes less expensive threatens to destabilize labor relations throughout the state….

PSN 2012 Workers' Rights Session Roundup: Surviving Another Round of Attacks… and Bracing for 2013

Source: Tim Judson, Progressive States Network, July 30, 2012

An historic wave of attacks on workers that defined 2011 state legislative sessions largely continued this year. But just as significantly, widespread efforts to advance basic labor standards — especially the minimum wage — gained momentum this year by harnessing the country’s concerns about economic security and inequality….

Time Off with Baby: Who Gets It, and Who Doesn't

Source: Edward Zigler, Susan Muenchow, and Christopher J. Ruhm, Zero to Three, July 2012
(subscription required)

Nearly 20 years after the passage of the Family and Medical Leave Act (FMLA), it is time to take stock of U.S. policy on parental leave, particularly as it affects infant care and child development. While the FMLA has certainly expanded access to job-protected leave, large sectors of the workforce are left out and, in the absence of paid leave, cannot afford to use it even if they are eligible. Time Off With Baby explores the lessons learned from the many nations that offer paid parental leave as well as from a relatively new part-paid leave policy in California. Drawing on research across the fields of maternal and child health, child development, and economics, the authors conclude that paid family leave for infant care is a wise investment. The authors see little downside to offering a modest paid leave policy for infant care and great cost to having the United States continue to be the only advanced industrialized nation without such a policy.

The War Against Public Sector Collective Bargaining in the US

Source: Richard B. Freeman and Eunice Han, Journal of Industrial Relations, Vol. 54 no. 3, June 2012
(subscription required)

From the abstract:
The 2008-2009 recession created major budgetary problems in US cities and states. Conservative Republicans who had triumphed in many state elections in 2010 introduced laws to weaken or eliminate public sector bargaining on the grounds that it contributed to the deficits and hampered government responses to the crisis. Unions and their allies fought back in an effort to preserve collective bargaining and unionism in its last stronghold in the country. This article finds that states with public sector bargaining laws have higher debt-to-state gross domestic product (GDP) ratios and slightly higher deficits than states without such laws, but that the dominant cause of the budgetary problem was the recession, and that unions gave sizable wage and benefit concessions to deal with the crisis. The main motivations for the attack appear to be political opportunism and ideological opposition to governments bargaining with their employees. The majority of citizens favored maintaining public sector bargaining. The backlash from unions and their supporters to the attack in two key states, Ohio and Wisconsin, was sufficiently vigorous to suggest that the long-run effects of the war on collective bargaining may boomerang against the opponents of unionization.

Labor Regulation as Family Regulation: Decent Work and Decent Families

Source: Arianne Renan Barzilay, Berkeley Journal of Employment and Labor Law, Vol. 33, No. 1, 2012
(subscription required)

It is due time that we understood that regulating the family has been a longstanding goal of labor regulation. This article presents the trajectory of labor regulation as family regulation. It provides a history of the “decent standards” discourse pertaining to wage and hour regulation, and reveals its double meanings: to provide “decent work” and to promote “decent families.” It terms the goal of providing decent standards of work and wages as “productive decency” and the goals pertaining to family decency, proper gender norms, and sexual purity as “repressive decency.” It shows how labor regulation surprisingly began in the Progressive Era as a means to lower divorce rates by fighting prostitution and address concerns over maternal functions and domestic roles in the family at the beginning of the 20th century, and how it culminated in the New Deal as reproducing the husband-as-breadwinner family model in the Fair Labor Standards Act of 1938. Despite the notion that federal law does not interfere in the personal relationship between husband and wife in such mundane and private issues as “who does the dishes,” regulating the family has, in fact, been a longstanding goal of labor regulation. Understanding labor regulation as regulating the family allows scholars and lawmakers to revisit the family model as established through existing labor law and to redesign the law for the twenty-first century. The article concludes by suggesting that the 2010 amendments to the Fair Labor Standards Act should be understood as a new “entering wedge” toward a re-working of the relationship between the labor market, husbands, wives, and families, and that additional reform is highly merited in light of both the historically-conscious trajectory put forth, and contemporary ideologies about gender and the family.