Sexual Harassment and our Undemocratic Workplaces

Source: Andrew Strom, On Labor blog, November 27, 2017

…. In many cases there are no witnesses to the offending conduct, and rank-and-file workers generally have little reason to believe that top management will take their word over the word of a supervisor. A union grievance procedure at least gives workers an opportunity to appeal to a neutral decision maker. But in a non-union setting, it is rare, if not unheard of, for an internal process to end with the equivalent of a truly independent judge or jury.

Providing training about “dos” and “don’ts” is not going to end sexual harassment unless employers also take steps to democratize the workplace. At-will employment, the norm in most workplaces, creates an environment that makes harassment more likely. If workers can be disciplined or fired for any reason, they know that workplace survival depends upon currying favor with their boss. ….

…. If we wanted to stop a dictator from abusing the citizens of his country, we wouldn’t just give him a lecture about human rights. Instead, we would work to build democratic institutions in the country. But the basic elements of democracy that we take for granted in this country – the right to free speech, one person, one vote, the right to due process – are absent in most workplaces. If we as a society are committed to addressing the problem of sexual harassment in the workplace, it’s time to change that. ….

Poverty and educational achievement in the US: A less-biased estimate using PISA 2012 data

Source: David Rutkowski, Leslie Rutkowski, Justin Wild & Nathan Burroughs, Journal of Children and Poverty, Published online: November, 23 2017
(subscription required)

From the abstract:
In the current paper, we employ the most recent Programme for International Student Assessment (PISA) data to calculate a less-biased estimate of poverty on US achievement. The PISA was specifically chosen as it is an assessment removed from a specific curriculum and instead focuses on concepts that students should know in order to participate in a global economy. Using a propensity score matching approach, our findings suggest that US students in poverty have notable educational attainment deficiencies compared to a matched group of students who are not in poverty. In other words, when we select two students who have a great deal in common but for the fact that one comes from a poverty background, the student in poverty is expected to perform nearly 28 points, or about a quarter of a standard deviation lower, on the PISA assessment. In real terms, this puts math achievement for children not in poverty on-par with the Organisation for Economic Co-operation and Development (OECD) average, while children in poverty are well below the OECD average.

Want to stop sexual abuse in the workplace? Unionize.

Source: Jeff Spross, The Week, November 27, 2017

….Harassment occurs at all levels of the economy precisely because it’s bound up with economic hierarchy. Women (and sometimes men) are targeted because they’re dependent on someone else — be it a boss or customer — for an income, a job, a promotion, a career path, etc. Women in low-wage work also often face retaliation for trying to fight back: not merely the loss of a career, but the loss of a viable income of any form.

We need to confront the workplace hierarchy directly. That means unions and labor organizing. It means demands for more democratic workplaces, and established institutions and practices for dealing with sexual harassment. Many companies already have human resource departments, and labor movements can and should force the creation of more. But even these can wind up focusing more on the business’ bottom line than the interests of owners. All of these demands must be backed by workers’ ability to threaten protests, work stoppages, and strikes…..

Race, Law, and Inequality, 50 Years After the Civil Rights Era

Source: Frank W. Munger and Carroll Seron, Annual Review of Law and Social Science, Vol. 13, October 2017
(subscription required)

Over the last several decades, law and social science scholars have documented persistent racial inequality in the United States. This review focuses on mechanisms to explain this persistent pattern. We begin with policy making, a mechanism fundamental to all the others. We then examine one particularly important policy, the carceral state, which can be described as the most important policy response to the civil rights era. A significant body of scholarship on employment discrimination presents a site for explaining the transformation of law on the books into the law in action. Finally, we review scholarship on the persistence of segregation and concentrated neighborhood disadvantage and their attendant impact on racial inequality. We conclude with two themes that deserve special emphasis: the need for theory drawing these fields together and our need, above all at this moment in our history, for public scholarship changing the discourse, politics, and law perpetuating racial inequality.

Don’t Dismantle Public Pensions Because They Aren’t 100 Percent Funded

Source: National Conference on Public Employee Retirement Systems, NCPERS Research Series, November 2017

From the press release:
State and local pension plans have consistently been able to meet their benefit and other payment obligations over the past quarter century, according to a data analysis published November 16 by the National Conference on Public Employee Retirement Systems.

Between 1993 and 2016, contributions and investment earnings by 6,000 public pension plans exceeded benefit obligations in all but four years. And during those four years – 2002, 2008, 2009, and 2012 – all plans met their obligations in the aftermath of recessions because they had built up cushions during normal times, according to the analysis conducted by Michael Kahn, director of research for NCPERS.

The findings offer a striking counterpoint to initiatives under way in some states and municipalities to dismantle public pensions because they are considered under-funded, said Hank H. Kim, NCPERS’ executive director and counsel. ….

Critics of public pensions often cite funding ratios of less than 100% as evidence of pressing financial problems, but this is faulty logic, Kim said. Contributions and earnings continue to flow into plans even as benefits are being paid out, he noted. ….

Kahn found that individual states – regardless of whether their pension plans were underfunded or fully funded – had between five and eight years in which income fell short of obligations, and had to draw on their cushion to pay benefits. Far from being a cause for concern, “this is exactly what public pensions are designed to do – to provide a steady income over the long haul,” Kahn noted. “Pension assets typically are invested over a 30-year time horizon, so plans aren’t blown off course by short-term market shifts.”

NCPERS offered four recommendations for public pension plans:
– Stop dismantling plans on grounds that they are not fully funded.
– Improve funding by determining the appropriate levels of required employer contributions.
– Establish a pension stabilization fund that can set aside money from a certain revenue stream to be used in special circumstances such as a recession.
– Implement a mechanism to ensure that full employer contributions are made on a timely basis, perhaps by making employer contributions a nondiscretionary part of the budget.

Reconciling Agency Fee Doctrine, the First Amendment, and the Modern Public Sector Union

Source: Courtlyn G. Roser-Jones, University of Wisconsin, Legal Studies Research Paper No. 1423, Last revised: September 14, 2017

From the abstract:
Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay “fair share,” or “agency” fees. In public unions “when the employer is the government” this arrangement creates tension between two important values: the First Amendment’s protection against compelled expression, and the collective benefits of worker representation. When confronted with this tension nearly forty years ago in Abood v. Detroit Board of Education, the Supreme Court struck an uneasy compromise, allowing public sector unions to recoup expenses for collective bargaining, but not for political activity. For decades, the decision has been a lightning rod, with some scholars calling for its reversal and others insisting on its preservation. In the meantime, the realities of modern public sector collective bargaining have changed, and First Amendment jurisprudence has evolved. The Supreme Court has recently signaled an interest in revisiting the issue, and test cases are making their way through the circuit courts. The time has come to reconsider Abood’s fragile compromise. This Article offers a new way forward within the First Amendment, one that honors the importance of both union activity and free expression. It proposes a way to reconcile these twin interests while also updating the doctrine to account for state legislative efforts, modern union realities, and First Amendment jurisprudential developments. Specifically, the Article argues that agency fees should be brought into step with current political contribution and campaign finance jurisprudence. Under this approach, some agency fees “but only those that are “closely drawn” to avoid unnecessary expressive infringement” will remain lawful. This approach, a middle ground, may not satisfy those who ardently oppose agency fees of any kind, or those who want Abood’s rule fully upheld. Still, it emerges as the best way forward through a difficult terrain: It avoids the false dichotomy between union and political activities, respects state legislatures that craft innovative collective bargaining statutes, and grounds public sector agency fees with other coherent aspects of First Amendment jurisprudence.

Is it Time for a New Free Speech Fight? Thoughts on Whether the First Amendment is a Friend or Foe of Labor

Source: Catherine Fisk, University of California, Berkeley – UC Irvine School of Law, Research Paper No. 2017-27, May 30, 2017

From the abstract:
The First Amendment, at least in the Supreme Court, hasn’t been much of a friend to labor unions. Among the few First Amendment rights that the Supreme Court has expanded in the labor union context recently is the right of union represented employee to refuse to pay fees to the union that represents them. Notwithstanding reasons to believe the contemporary First Amendment is more likely to be foe than friend of labor, history suggests the contrary. This essay explains why, making three arguments. First, social movements exist only where and when there is a robust commitment to free speech, and workers have real power only when labor has the capacity to be a social movement. Second, labor gained power as a social movement by engaging in protest and it started down the path to losing power when, in a series of cases decided between 1941 and 1960, the Supreme Court largely eliminated constitutional rights to picket and boycott. In the early 1960s, just when the Court finished creating the labor protest exception to the free speech clause, it extended First Amendment protection to civil rights and antiwar protest. Just as civil rights protesters drew on the sit down strike pioneered by labor in the 1930s, the Supreme Court found a First Amendment right to engage in civil rights protest by drawing on the cases that labor unions had won in 1939 and 1940. Third, the literature on the role of lawyers for social movements between the 1930s and now suggests the importance of law to how lawyers advise their clients. The only hope for the future of the labor movement is in cultivating a spirit of protest. Without the right to engage in robust protest, labor lawyers are in a difficult place when they advise their clients, and can do little to create the legal space to enable workers and social justice activists to launch a new round of free speech fights of the sort that brought the labor movement into power in the 1930s.

Employment Authorization, Alienage Discriminiation and Executive Authority

Source: Leticia M. Saucedo, Berkeley Journal of Employment & Labor Law, Volume 38 Issue 2, 2017

Employees, regardless of immigration status, have rights and protections that come from employment and labor laws. This proposition, while established doctrinally, continues to be highly contested and questioned, in part because it seems to contradict congressional intent to control the flow of undocumented labor in the workplace. As history suggests, however, Congress intended to make employers accountable for pulling undocumented workers into the labor market, and the protections in employment and labor laws were meant to continue to apply to all who are eligible for the status of employee. This Article calls for a doctrinal shift in employment law that removes considerations of immigration status in enforcement. Not only does keeping immigration status out of issues of employment protection benefit all workers, but the separation of immigration status from employment enforcement adheres to long-held principles of equal protection based on alienage, and to congressional intent to hold employers accountable for exploitative treatment of the most vulnerable workers. The Obama administration’s attempt to provide employment authorization to undocumented individuals can be viewed as an attempt to use its authority under the immigration statute to keep faith with these alienage anti-discrimination principles and to ensure equal treatment by providing legal status in the workplace. As the Trump administration uses this authority in its immigration policy, it should heed the same anti-discrimination principles….

Friedrichs v. California Teachers Association

Source: Diana Liu, Berkeley Journal of Employment & Labor Law, Volume 38 Issue 2, 2017

During the 2016 term, the Supreme Court heard Friedrichs v. California Teachers Association, which presented two questions to the court. First, should public sector “agency shop” arrangements be invalidated under the First Amendment? Second, does requiring public employees to affirmatively object, rather than affirmatively consent, to subsidizing nonchargeable speech by public-sector unions violate the First Amendment? In a non-precedential per curiam opinion that offered no explanation on the merits of the argument, the evenly-split Court affirmed the decision of the Ninth Circuit. The subsequent rehearing petition was denied, leaving the Ninth Circuit decision to stand.

In affirming the Ninth Circuit’s decision, the Supreme Court left in place its previous decision in Abood v. Detroit Board of Education. In Abood, the Court upheld the constitutionality of compelling employees to pay agency fees to their collective bargaining representative. As a result, “agency shop” arrangements remain valid under the First Amendment. The Court also upheld the constitutional validity of requiring public employees to affirmatively object to funding non-collective bargaining related activities. With the divided Court’s per curiam opinion, Friedrichs has for now reaffirmed the controlling power of Abood, leaving undisturbed the future abilities of public employee unions to raise funds to support their collective bargaining activities. ….

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Source: IssueVoter, 2017

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