Recently in Labor Laws/Legislation Category

Source: Human Rights Watch, September 2, 2010

From the summary:
This 130-page report details ways in which some European multinational firms have carried out aggressive campaigns to keep workers in the United States from organizing and bargaining, violating international standards and, often, US labor laws.
See also:
Press release

Source: Office of Special Counsel, July 27, 2010

In light of the many questions the Office of Special Counsel (OSC) has received concerning Social Media, OSC provides the following guidance on the issue, in the form of frequently asked questions concerning less restricted and further restricted federal employees (see questions one through eleven) as well as federal agencies (see questions twelve through fourteen).

Note: This guidance refers primarily to Facebook and Twitter in the following questions due to the popularity of those sites for social networking, but the advice provided in response to these questions applies equally to all other social media, such as Myspace, Linkedin, etc.

Source: Rachel S. Arnow-Richman, Connecticut Law Review, Vol. 42, 2010

From the abstract:
Prepared for the University of Connecticut Law Review's Conference, "Implications of the Four-Day Workweek," this Paper examines the significance of a four-day, forty-forty work week to caregivers in need of individualized workplace accommodation. Employer interest in "four/forty" and other alternative work structures demonstrates that the current organization of market work is not inevitable and that its re-organization in ways that facilitate full participation by caregivers can sometimes be mutually beneficial. Yet it is unlikely that employers act optimally in responding to individual accommodation requests. Well-known limits on rational choice theory can impede supervisors' ability to determine whether a particular accommodation will effectively enable the caregiver to perform her job and whether the costs entailed in adopting the accommodation will be outweighed by other savings. Thus, it is likely that some number of viable, cost-effective accommodations are not being implemented by employers.

The Paper argues that the law should play a role in facilitating optimal, individualized accommodation of working caregivers. Drawing on existing and pending legislation, it argues for the creation of a statutory "right to request" that would protect workers from retaliation for seeking accommodations and would require employers to consider such requests in good faith. By encouraging workers to come forward with their requests and requiring parties to engage in an "interactive process," the law can potentially reduce some of the biases and informational gaps that currently plague discretionary employer decisions about accommodation requests. In this way, such a law may ultimately inspire mutually beneficial changes to work structure that would not have been achieved absent legal intervention

Source: National Labor Relations Board, Press Release, August 5, 2010

The National Labor Relations Board today issued its first decisions in cases that were returned to it by the federal courts of appeals following a Supreme Court ruling that the Board was not authorized to decide cases when it had only two members, Chairman Wilma Liebman and Member Peter Schaumber.

Also today, the Agency made public a database of all contested cases that were decided by the two-member Board. The list of cases, available here and via the Agency website at www.nlrb.gov, includes links to original documents and case status updates that will be refreshed daily. A full data set of all the cases is also available in xml format for download.

From January 2008 to April 2010, the Board operated with three of its five seats vacant. During that 27-month period, the two remaining members issued nearly 600 decisions. On June 17, a divided Supreme Court ruled that the two-member Board was not authorized to issue decisions.

Source: David Weil, Boston U. School of Management Research Paper No. 2010-20

From the abstract:
This report draws on research that examines how industry structures affect the way employers behave and, in particular, their likelihood to comply with the important provisions of the Fair Labor Standards Act (FLSA), the primary federal workplace law regulating minimum wage and overtime standards. The research examines how structural features of the industries employing large numbers of vulnerable workers create incentives or disincentives for compliance. Insight into these relationships provides opportunities to increase compliance through different approaches to enforcement.

Employment relationships in many sectors with high concentrations of vulnerable workers has become "fissured" as major companies have shifted the direct employment of workers to other business entities that often operate under extremely competitive conditions. Fissuring of employment increases the incentives for employers at lower levels of industry structures to violate workplace policies, including the FLSA. These changes require that enforcement policies must act on higher levels of industry structures in order to change behavior at lower levels where violations are most likely to occur.

This paper provides detailed analysis of the impact of fissuring in three major industries. It then provides a detailed set of recommendations regarding the implications of these findings on enforcement policy.

Source: Richard E. Biddle and Daniel A. Biddle, Labor Law Journal, Vol. 61 no. 2, Summer 2010
(subscription required)

On June 29, 2009, the United States Supreme Court handed down the first Title VII ruling answering the difficult question: "Under what circumstances can an employer subject to Title VII implement otherwise prohibited disparate-treatment discrimination to avoid disparate impact liability?" Ricci v. DeStefano answered this difficult question and, in so doing, presented some additional layers to the Title VII framework relevant to both disparate impact and disparate treatment cases that must be applied in the future by federal courts. This article discusses these implications. The Supreme Court in Ricci adopted a "strong-basis-in-evidence standard" as a matter of statutory construction for courts to use as a means of resolving conflicts between Title VII's disparate-treatment and disparate-impact provisions - "allowing violations of one in the name of compliance with the other only in certain, narrow circumstances." This article introduces the concept of a "Croson Study," for 20 years limited in its application to contracting issues in the public sector, for employment issues to assist employers meet the Ricci-set "strong-basis-in-evidence standard." The second part of this article, appearing in the next issue, will provide some specific applications of Croson Studies.

Source: Robert N. Roberts, Public Administration Review, Volume 70, Issue 4, July/August 2010
(subscription required)

From the abstract:
What has been the impact of the U.S. Supreme Court's 2009 decision in Ricci v. Destefano on the selection and promotion practices of public employers?; Relying solely on circumstantial evidence, the Supreme Court held that the Civil Service Board of New Haven, Connecticut, had engaged in Title VII disparate treatment discrimination by refusing to certify the results of a promotion examination that led, in turn, to a disparate impact on African American firefighters. To limit the discretion of public employers to disregard such selection and promotion exam results, the Ricci majority held that a public employer must "have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to the take the race-conscious discriminatory action." This article argues that the decision effectively prohibits public employers from rejecting the results of selection and promotion instruments, even though there is evidence that screening instruments inequitably affect protected groups. It also forces public employers to become more careful in developing selection and promotion examinations or face the possibility of costly Title VII litigation.

Source: Thomas Kochan, David B. Lipsky, Mary Newhart, and Alan Benson, Industrial & Labor Relations Review, Vol. 63, No. 4, July 2010
(subscription required)

From the abstract:
The authors examine debates about the effects of mandatory interest arbitration on police and firefighters in New York State under the Taylor Law from 1974 to 2007. Comparing experience with interest arbitration in the first three years after the law was adopted with experiences from 1995 to 2007, the authors find that no strikes occurred under arbitration and that rates of dependence on arbitration declined considerably. Moreover, the effectiveness of mediation prior to and during arbitration remained high, the tripartite arbitration structure continued to foster discussion of options for resolution among arbitration panel members, and wage increases awarded under arbitration matched those negotiated voluntarily by the parties. Econometric estimates of the effects of interest arbitration on wage changes in a national sample suggest wage increases differed little in states with arbitration from those without it. The authors therefore propose a role for interest arbitration in national labor policy.

Source: Jeffrey M. Hirsch, Vanderbilt Public Law Research Paper No. 10-07, 2010

From the abstract:
The problems facing individuals who attempt to act together are considerable. Yet in perhaps no other area are these collective-action problems more acute than the workplace. This reality creates a serious issue for labor law, which guarantees employees the right to engage in collective action. As conditions in the modern workplace increasingly erect barriers to employees' ability to act together, this right has become threatened. Rather than knocking down these barriers, however, labor law over the last several decades has instead reinforced them. A key factor in this failure is the refusal of the courts and the National Labor Relations Board to recognize the substantial role that discourse plays in promoting employee collective action. Relying on public choice theory, game theory, and psychological research, this Article demonstrates the importance of employee discourse and shows that labor law has not given it the respect it is due. Indeed, employee discourse should be a major player in today's most high-profile labor law debates - including the Employee Free Choice Act and employees' right to use e-mail and the Internet at work - but, to date, it has been rarely acknowledged. Accordingly, this Article argues that employee discourse must be given far more consideration and protection, as the failure to do so will undermine even the most ambitious labor reforms' ability to expand employee collective action.

Source: By the National Employment Law Project for the Just Pay Working Group, July 2010

In this toolkit, we encourage community groups, worker centers, labor unions, and the public interest and private bar to reach out to local offices of the WHD and the SOL to build relationships and enter into collaborations. These arrangements can be mutually beneficial, helping both the agency and advocates fulfill their shared mission of protecting workers.

More specifically, this toolkit provides some helpful resources for advocates including: a brief overview of the roles and function of the WHD and the SOL; direction on how to set up a meeting with the agency; and some examples of historical collaborations between advocates and state and federal enforcement agencies. The Appendices contain talking points to use in meetings, additional examples of collaboration between community organizations and state and federal agencies, contact and key personnel information for WHD and SOL offices around the nation, a sample outreach letter to these agencies, and a scorecard for keeping track of progress around the country.