Category Archives: Labor Laws/Legislation

Clean Slate for Worker Power: Building a Just Economy and Democracy

Source: Sharon Block and Benjamin Sachs, Labor and Worklife Program, Harvard Law School, January 2020

From the summary:
Since the founding of the country, concentration of power in the hands of a small minority has been recognized as a threat to the viability of American democracy. Today, the struggle to preserve democracy in the face of extreme wealth concentration is acute because we live in a historical moment when vast disparities of economic power have been translated into equally shocking disparities in political power.

With this report, we offer an intervention that promises to help stop the self-reinforcing cycle of economic and political inequality. By proposing a fundamental redesign of labor law, our aspiration is to enable all working people – including those who have been excluded by systemic racism and sexism – to create the collective economic and political power necessary to build an equitable economy and politics.

Inclusiveness
Labor law reform should expand protections of the law to address systemic racial and gender oppression.

Universal Representation
Pathways to worker power should track corporate power and be universal, providing multiple forms of voice for all workers without employer interference.

Sectoral Bargaining
We recommend creating a system of sectoral bargaining in which agreements are binding on all firms in the sector.

The Progressive Labor Platform is Popular

Source: Kevin Reuning, C. M. Lewis, Data for Progress and Strikewave, October 3, 2019

From the summary:
Data for Progress surveyed key components of Bernie Sanders’s “Workplace Democracy Plan” and Elizabeth Warren’s “Empowering American Workers and Raising Wages” and found that the platform’s policies are broadly supported by voters. The policies tend to have broad support from Democrats, but many also have net positive support among independents and Republicans. In addition, we find that there is a potential key bloc of voters that either did not vote in 2016 or voted for Trump that support components of the platform, making them potential targets for 2020 election efforts. One caveat is important: many of these policies also showed high rates of voters having no strong opinion, meaning the numbers could change.

The highlights:
– A federal “Just Cause” law, which would radically change employee-employer relations and is included in Sanders’s plan, is somewhat or strongly supported by 56 percent of voters and opposed by 30 percent of voters. Even among Republicans, “Just Cause” is two percent underwater (42 percent support, 44 percent oppose).
– Expanding federally protected union rights to farm and domestic workers has bipartisan support and is included in both plans. Democrats support it at 66 percent to 21 percent, and Republicans support it at 41 percent to 38 percent.
– A ban on forced arbitration, which is included in Warren’s plan, is supported by 45 percent of voters and opposed by only 27 percent.

The Recent Evolution of Wisconsin Public Worker Unionism since Act 10

Source: David Nack, Michael Childers, Alexia Kulwiec, Armando Ibarra, Labor Studies Journal, OnlineFirst Published July 30, 2019
(subscription required)

From the abstract:
This paper examines the experience of four major public sector unions in Wisconsin since the passage of Wisconsin Act 10 in 2011. The four unions are the American Federation of State, County and Municipal Employees (AFSCME), the American Federation of Teachers (AFT-Wisconsin), the Service Employees International Union (SEIU), and the Wisconsin Education Association Council (WEAC), an affiliate of the National Education Association. Wisconsin’s prior legal framework for public sector collective bargaining is explained and compared to the new highly restrictive framework established by Act 10. That new framework, established by state legislation, is analyzed, as are its impacts on the membership, revenues, structures, and practices of the four unions. In general, we find the impacts to have been very dramatic, with a loss of active union membership averaging approximately 70 percent overall, and concomitant dramatic losses in union revenues and power. These shocks have engendered the restructuring of two of the unions examined, the downsizing of the third, and the de facto exiting from the state’s public sector in another. There have also been significant changes in representation practices in one union, but less so in the others. We conclude by discussing best union practices based on this experience, as well as considering what the recent public sector union history in Wisconsin may portend for public worker union membership nationwide, since the issuing of the Janus Decision by the U.S. Supreme Court.

Valuing Our Time: Strengthening New Jersey’s Overtime Law

Source: Nicole Rodriguez, New Jersey Policy Perspective, October 24, 2019

From the introduction:
A prosperous New Jersey depends on the livelihood of all our workers. In fact, the state economy benefits most when workers are able to earn fair pay for all the hours they work while balancing employment responsibilities with family obligations. However, millions of people across the nation, including hundreds of thousands in New Jersey, are not covered by overtime protections and risk being exploited for their time. This is a direct result of federal overtime laws that have eroded over time—and the lack of a strong state overtime law—where far too many workers are exempt from the right to earn time-and-a-half when they work over 40 hours a week.

Currently, some salaried white-collar workers who earn more than $23,660 a year can be legally denied overtime pay. These exempted workers (1) are considered “highly compensated,” earning at least $455 per week ($23,660 per year), (2) have primary office or non-manual duties, and (3) pass the “duties test,” a complicated test of employees’ tasks and responsibilities that establish them as a bona fide executive, manager, or highly trained professional. The federal overtime salary threshold for these exempted workers will increase to $35,568 in 2020, but this still falls significantly short of historical standards.

Most salaried workers are not covered by federal overtime law. Share of full-time workforce who ear less than the federal overtime threshold: 1975 - 62.8%, 2016 - 6.8%. Source: EPI analysis of Current Population Survey Outgoing Rotation Group microdata.

A Modest Blueprint for Representing Working People and Labor Unions in Fraught Times

Source: Jonathan Harkavy, Patterson Harkavy LLP, Date Written: September 9, 2019

From the abstract:
This article suggests approaches to dealing with the current anti-union climate in the American workplace. Building on examples of what union-side lawyers did when faced with the challenge of representing labor unions in Southern textile mills, the article makes a number of specific suggestions to counter what observers have termed a relentless assault on labor involving unchecked corporate power accompanied by income inequality and a decline in the well-being of working Americans. The article recommends, among other things, imposition of employer fiduciary responsibility for workers, a more clarion collective voice in the Supreme Court for working people, and increased use of state laws and federal antitrust laws to combat inequities in the workplace.

2019 Supreme Court Commentary: Employment Law

Source: Jonathan Harkavy, Patterson Harkavy LLP, Date Written: September 9, 2019

From the abstract:
This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2018 Term (2018-2019) that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on the Supreme Court’s regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2019 Term and concludes with brief commentary on justice in the American workplace.

For Public Employees, Speech Is Free, But Is Anyone Listening?

Source: Dina Kolker, Employee Relations Law Journal, Vol. 45, No. 1, Summer 2019
(subscription required)

In the current political environment many groups feel that “government” is not listening to their needs and issues, but most would be surprised to discover that the government has no legal obligation to listen to any of us. This legal “secret” is of particular import to the long-run wrestling match between the public sector labor movement and their right-wing opponents, where the so-called “right to work,” presented as a positive, often translates into the right to be ignored, a decided negative.

The “Right to Work” movement often touts its focus on empowering workers through the First Amendment. The name itself is designed to indicate a right to a job and implies some individual control over the terms of that employment. “Give yourself a raise,” and other variations of that sentiment, are declared on mass mailings targeting public employees in the wake of the Supreme Court’s decision in Janus v. AFSCME, overturning a four-decades old precedent that had permitted unions to collect fair share fees from nonmembers. The decision is praised by some as a win for worker free speech, but what does it mean for a public employee’s right to be heard? Anyone who has ever repeated the same request multiple times to a distracted child knows that there is a world of difference between speaking and being heard.

Indeed, the admittedly catchy invitation only thinly veils the reality of what was won and what was at risk of being lost in Janus. The mailing does not say call your boss and demand a raise higher than the one your union was able to negotiate for everyone in the last contract. Yet, individual negotiation of terms and conditions of employment is implicit (if not explicit) in the employee-facing rhetoric of Right to Work groups. The implication is that by turning down the volume knob on public sector unions you somehow inherently amplify the voices of individual workers. Nothing could be further from the legal — and practical — truth. The simple fact is that, absent collective bargaining laws, the government, neither as employer nor as sovereign, has any obligation to listen. In fact, government generally has no obligation to listen to any citizen, from the president on down…..

Cessation Of Dues Checkoff Was Lawful

Source: Kimberly Kemper, Employment Alert, Volume 36 Issue 12, June 13, 2019
(subscription required)

Following Wisconsin’s enactment of a right-to-work law that curtailed dues checkoff, 2015 Wisconsin Act 1, employer Metalcraft of Mayville, Inc. ceased deducting union dues from its unit employees’ paychecks and remitting those dues to the union, District Lodge No. 10, International Association of Machinists and Aerospace Workers of America, AFL-CIO. The employer also communicated with its employees regarding this action, the state right-to-work law, and its understanding of employees’ rights under the National Labor Relations Act (NLRA). An administrative law judge found that by failing to deduct and remit dues to the Union for several months in 2016, Metalcraft modified its collective bargaining agreement with the Union within the meaning of § 8(d) of the NLRA, in violation of § 8(a)(5) and (1). In addition, the judge found that the employer’s related communications to employees undermined the Union in violation of § 8(a)(1). The National Labor Relations Board (NLRB) reversed. It held that because Metalcraft reasonably believed that the dues-checkoff authorizations in its possession did not conform to Wisconsin’s recently enacted right-to-work law, its cessation of dues checkoff was lawful. The NLRB also found that the employer’s communications to employees about the matter were lawful.

Exposing Wage Theft Without Fear: States Must Protect Workers from Retaliation

Source: Laura Huizar, National Employment Law Project, June 2019

From the press release:
Social justice movements, such as the Fight for $15, #MeToo, and striking Uber drivers, rely on workers to come forward to assert their rights—but workers who dare challenge an employer’s policies or misconduct know that they will almost certainly face retaliation. Even highly-paid Google workers have been forced to protest retaliation following a mass walkout criticizing Google’s handling of sexual harassment. A new NELP survey of laws in all 50 states and the District of Columbia shows, however, that state laws overwhelmingly fail to provide workers with essential retaliation protections.

In Exposing Wage Theft Without Fear: States Must Protect Workers from Retaliation, NELP offers a first-of-its-kind analysis focusing on how state laws protect—or fail to protect—workers when they challenge wage theft by lodging complaints with employers or government agencies, filing lawsuits, or engaging in public actions, for example…..