Recently in Labor Laws/Legislation Category

Source: Anne Marie Lofaso, Employee Rights and Employment Policy Journal, Vol. 14, No. 1, 2010

From the abstract:
"Talking is worthwhile" - or so preached Clyde Summers. Using that idea as my springboard, I trace the various incarnations of the law's treatment of job security in circumstances of economic distress. In addition to providing unemployment or other post-termination benefits, I demonstrate that the law can have various pre-termination roles that range from least to most cooperative between the parties. These roles include the following: do nothing to notify workers of an impending layoff to furnish workers with information relevant to an impending layoff to compel employers to consult or bargain with employees' representatives with a view to(ward) reaching agreement to compel the parties to co-decide what to do in these situations. After comparing United States federal law (which in many cases mandates advance notification, information exchange, effects bargaining, and sometimes even bargaining) with the European Union's collective redundancies directive (which compels pre-decisional consultation among the parties with a view to reaching agreement), I reason why "talking [before the layoff] is worthwhile." I conclude by showing how my preferred solution - to extend mandatory, pre-decisional bargaining (or at least consultation) over mass layoffs and plant closings to nonunionized workers - effectuates national labor policy as Professor Summers understood it. My simple solution - to give employees voice - also empowers workers to take control of their destinies by helping them to save their jobs and the businesses that employ them when both worker and firm are most vulnerable. Accordingly, my solution both dignifies workers and encourages them to become autonomous agents of their working lives - foundational values in a human-rights approach to labor and employment law.

Source: Ronald Turner, Berkeley Journal of Employment and Labor Law, Vol. 30 no. 1, 2009
(subscription required)

From the Lexis Nexis summary:
With this analytical move, Justice Alito set the stage for the Court's rejection of Ledbetter's arguments that Goodyear violated Title VII when the company issued paychecks to her during the 180 days preceding the filing of her March 25, 1998 EEOC questionnaire (that period began to run on September 26, 1997), and when she was denied a salary increase in 1998. ... In Justice Ginsburg's view Ledbetter's claim, "resting not on one particular paycheck, but on the cumulative effect of individual acts," resembled and had "a closer kinship to hostile work environment claims than to charges of a single episode of discrimination." ... Once the Court distinguished Bazemore and gave it no precedential power relative to Ledbetter's pay discrimination claim, her case turned on the Court's view of the reasonableness of her proposed construction of Title VII which would commence a new charge-filing limitations period upon the issuance of each paycheck reflecting the current and continuing effects of a discriminatory act occurring several or many years ago. ... Valuing the protection of the employee's right to sue, Justice Ginsburg's analysis is consistent with her reading of Title VII's text and Court precedent, with her determination that employers may invoke the laches defense against unreasonably delayed EEOC charges, and with her focus on the realities and dynamics of pay discrimination (more on this below). ... By contrast Justice Ginsburg argued that pay decisions and disparities in compensation are "often hidden from sight," and that applying Title VII without taking into account the "realities of wage discrimination" deprives employees of the protections, and strips away the remedial objectives, of the statute.

Source: Eli Naduris-Weissman, Berkeley Journal of Employment and Labor Law, Vol. 30 no. 1, 2009
(subscription required)

From the Lexis Nexis summary:
This Article explores how traditional labor laws, primarily the National Labor Relations Act (NLRA) and the Labor Management Reporting and Disclosure Act (LMRDA), should apply to worker centers. ... According to Fine's study, fifty-six percent of worker centers engage in industry-specific organizing, meaning that they build organizations of workers and engage in campaigns intended to improve wages and working conditions in a particular industry in some geographic area. ... The study also found that most day-laborer worker centers do the following: (1) provide a defined space for workers to assemble, as well as a job-allocation system (either a lottery, list of available workers, or some other selection mechanism) that imposes order or a hiring queue on the day-laborer hiring process; (2) require job seekers and employers to register with center staff, which helps workers identify employers and hold them accountable to labor standards; (3) set minimum wage rates; and (4) monitor labor standards, employer behavior, and worker quality.

Source: Curtis L. Mack, Mark L. Keenan and Brennan W. Bolt, Labor Law Journal, Vol. 60 no. 4, Winter 2010
(subscription required)

Given the democrats' campaign promises to organized labor in the 2008 election, it was no surprise that just days into President Obama's presidency he signed four pro-labor executive orders affecting federal contractors and their labor relations. It is also no surprise that the Democrats still support, over the business sector's objections, the Employee Free Choice Act (EFCA), which would enact the most radical change to the National Labor Relations Act (NLRA) since its inception in 1935. However, President Obama may have overstepped his authority in executing the executive orders, and EFCA may render the NLRA unconstitutional. This article examines potential legal challenges to both those executive orders and EFCA.

Source: Kieran Dosanjh Zucker and Bruce Zucker, Labor Law Journal, Vol. 60 no. 4, Winter 2010
(subscription required)

This article discusses the executive orders and legislation affecting labor and employment rights that have been signed by President Obama, describes potential legislative action, and analyzes whether the convergent forecasts offered to labor and employers and reliable indicators of the Obama administration's actual and potential impact on labor and employment law.

Source: Paul M. Secunda, Marquette Law School Legal Studies Paper No. 10-03, February 19, 2010

From the abstract:
Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known impact of this watershed case might have a significant impact in the workplace: It may permit employers to hold political mandatory captive audience meetings with their employees.

To eliminate this danger, and consistent with the First Amendment framework for election law issues post-Citizen United, this Article urges Congress to consider language similar to that enacted by the Oregon Worker Freedom Act Law, SB 519 (effective Jan. 1, 2010). SB 519 prohibits termination of employees for refusing to attend mandatory political, labor, or religious meetings held by their employers.

Such a federal law would constitute permissible employment standards legislation and also would not run afoul of the First Amendment speech rights of employers under Citizens United. Employers would still able to communicate their views about political candidates and parties with their employees as the First Amendment now contemplates, but they will not be able to force them to listen to such speeches at the risk of losing their jobs or other benefits of employment.

Source: Ben Sachs, Harvard Law Review, Vol. 123, 2010

From the abstract:
The proposed Employee Free Choice Act (EFCA) has led to fierce debate over how best to ensure employees a choice on the question of unionization. The debate goes to the core of our federal system of labor law. Each of the potential legislative designs under consideration -- including both "card check" and "rapid elections" -- aims to enhance employee choice by minimizing or eliminating managerial involvement in the unionization process. The central question raised by EFCA, therefore, is whether enabling employees to limit or avoid managerial intervention in union campaigns is an appropriate goal for federal law.

This Article answers this foundational question in the affirmative. It reaches this conclusion by conceptualizing federal labor law in terms of legal default rules, drawing in particular on the preference-eliciting default theory of statutory interpretation and the reversible default theory from corporate law. Doing so leads to the argument that card check, rapid elections, and similar mechanisms are best understood as "asymmetry-correcting altering rules" -- means of mitigating the impediments that block departure from the nonunion default. Understanding EFCA in this way also requires that we ask how such an altering rule should be constructed. This Article addresses this institutional design question by arguing that card check's open decisionmaking process is flawed and that rapid elections, while an improvement over the status quo, are an insufficient method of mitigating the relevant impediments to employee choice. Accordingly, this Article offers two new designs -- alternatives to both card check and rapid elections -- that would accomplish the legitimate function of minimizing managerial intervention while at the same time preserving secrecy in decisionmaking.

Source: Sam Estreicher, ABA Journal of Labor & Employment Law, Vol. 25 no. 1, Fall 2009

A great deal of discussion and controversy surrounds whether Congress will enact the proposed Employee Free Choice Act (EFCA), a measure that would establish union bargaining authority without elections and allow arbitrators to impose first-time collective bargaining agreements where the parties are unable to. Comparatively little attention is being paid to what can be done under existing law. Whether or not EFCA becomes law, attention needs to be drawn also to how the National Labor Relations Board (NLRB), the agency responsible for enforcing our labor law, can better organize its resources to minimize the serious problem of administrative delay in holding elections and seeking court injunctions, use forms of rulemaking and advisory opinions to give parties better notice, and opportunity to participate in the formulation, of legal chance, and recast existing approaches to give unions better access to the employee electorate once it is clear an election will be held and improve available remedies under existing law to deter employer violations. This paper develops an agenda for regulatory change at the NLRB.

Source: Rachel S. Arnow-Richman, University of Denver Sturm College of Law, February 11, 2010

From the abstract:
This Article proposes a fundamental shift in the movement to reform employment termination law. For forty years, there has been a near consensus among employee advocates and worklaw scholars that the current doctrine of employment at will should be abandoned in favor of a rule requiring just cause for termination. This Article contends that such calls are misguided, not (as defenders of the current regime have argued) because it grants workers too much protection vis-à-vis management, but because it grants them too little.

A just cause rule provides only a weak cause of action to a narrow subset of workers - those able to prove their firing was for purely arbitrary reasons. It fails to account for the justifiable, but still devastating, termination of workers for economic reasons, by far the most common reason for job loss today. In this way, the rule is not only inadequate, but anachronistic. Just cause protection is consistent with a mid-twentieth century view of the social contract of employment, which anticipates a long-term, symbiotic relationship between employer and employee in an economy dependent on internal labor markets. Under such a system, the just cause rule gave legal force to parties' social contract of employment.

Source: Catherine Fisk, Adam R. Pulver, UC Irvine School of Law Research Paper No. 2010-4

From the abstract:
One provision of the proposed Employee Free Choice Act (EFCA) would address the catastrophic underenforcement of the statutory right of employees to bargain, which results in half of all newly certified or recognized unions failing to secure a first collective bargaining agreement. It is an important reform for a seriously dysfunctional aspect of federal labor law and it will be a substantial improvement over the status quo. While political and media conversation surrounding EFCA has largely focused on the changing the process by which unions are selected, the provision for first contract arbitration is as important to the protection of the right to unionize.

This Article argues that some form of mandatory interest arbitration for first contract disputes is an appropriate means of stabilizing employee-management relations given the extraordinary difficulties that unions currently experience in negotiating first contracts, the weakness of current NLRB and economic remedies, and the rippling effects of these difficulties on nascent unions. The Article surveys the empirical literature on the operation of interest arbitration in the public and private sector in the United States and in Canada and demonstrates that interest arbitration would increase the incentive for employers to negotiate in good-faith and make reasonable proposals. The Article shows that none of the alternative reforms to the law of collective bargaining and to NLRB procedures for protecting the right to bargain will be effective in addressing failures to bargain to a first contract. The Article also demonstrates that a statutory requirement of first contract arbitration is well within Congress' power and does not represent an unconstitutional delegation of legislative authority.