Category Archives: Labor Laws/Legislation

NCSL 50-State Legislative Tracking Web Resources

Source: National Conference of State Legislatures, June 2008

At the request of NCSL’s Legislative Research Librarians (LRL) staff section, NCSL has developed this resource of 50-state compilations covering various issues that concern state legislators and legislative staff. Here you will find a topical, alphabetical listing of legislative and statutory databases, compilations and state charts/maps.

[NOTE: Some of these tracking services are currently out of date. PLEASE NOTE THE DATE of the item you are reviewing].

Labor & Employment

At-Will Employment
Day Laborer Laws (statutes)
Drugtesting in the Workplace
State Divestment Legislation
Equal Pay (statutes and legislation)
Family/Medical Leave Laws (statutes)
Living Wage (legislation)
Medical Donar Leave Laws (statutes)
Minimum Wage Laws (legislation and chart)
Minors – Employment Laws (statutes)
Non-compete Agreements (statutes)
Overtime Laws (statutes)
Sick Leave Laws (statutes)
Telecommuting (statutes and legislation)
Whistleblowers (statutes)
Workforce Development (legislation and resources)

The Perfect Compromise: Bridging the Gap between At-Will Employment and Just Cause

Source: Nicole B. Porter, Nebraska Law Review, (Forthcoming)

From the abstract:
Many scholars have criticized the harshness of the employment at-will presumption, which allows an employer to terminate an employee for good reason, bad reason, or no reason at all. Other scholars defend at-will employment and criticize the just cause standard. This Article does not take sides in this debate; but instead, attempts to bridge the gap between the two by proposing a compromise statute, which I call the Employment Termination Equity Act (ETEA). Under ETEA, employers would remain free to terminate without having the difficult burden of proving just cause. However, certain enumerated reasons for termination would be unlawful. In determining which termination decisions should warrant protection, my goal was two-fold: (1) to make unlawful egregious termination decisions that have previously been unremedied despite the many exceptions to at-will employment and (2) to provide some overlap protection with current employment statutes by using a procedural process that will be more easily accessible by employees. Yet, in the spirit of true compromise, ETEA will provide fewer types of remedies than other employment statutes or common law claims, and will force plaintiffs to choose between suit under this proposed termination statute and other statutory remedies. As with any compromise, lines had to be drawn and line-drawing never satisfies everyone. My goal in this article is to convince the reader to view my line drawing optimistically – as a necessary means of bridging the gap between at-will employment and just cause.

The Fair Labor Standards Act: Continuing Issues in the Debate

Source: William G. Whittaker, Congressional Research Service, Order Code RL34510, May 28, 2008

On May 25, 2007, the President signed into law changes in the minimum wage under the Fair Labor Standards Act (FLSA): P.L. 110-28. Although the wage issue may now have been momentary settled, the act includes other provisions that have been subject to legislation through the years and may again become the focus of legislative consideration. Examples include the following issues.

• A youth sub-minimum wage, instituted in 1996, was not included in the 2007 amendments, and is $4.25 per hour.
• The cash wage employers of ‘tipped employees’ must pay, last updated in 1996, is $2.13 per hour.
• In 1989, the ‘small business exemption’ was restructured to exempt from minimum wage requirements qualifying firms with an income of under $500,000; but, as administered, exemptions have only been available for employees not involved in interstate commerce.
• In 2001, the Clinton Administration proposed restructuring of the ‘companionship exemption’ under the FLSA; in 2002, the measure was withdrawn. The issue has recently been the subject of a Supreme Court ruling (2007) and of proposed legislation (H.R. 3582 and S. 2061).
• Through nearly a century, some economists (and, later, some Members of Congress) have proposed, in various formats, indexation of the federal minimum wage — an issue that still sometimes arises.
• In 1986, Section 14(c) of the act was amended to remove any specific minimum wage floor for handicapped workers, replacing it with a negotiated wage ‘commensurate’ with the worker’s productivity. It has been contested through the years.
• In 2003, a proposal was issued dealing with overtime pay for persons classified as ‘executive, administrative, or professional’ employees under Section 13(a)(1) of the act. At that time, the issue was extremely contentious. How has it worked out in practice?
• Industry has threatened to leave American Samoa and the Commonwealth of the Northern Mariana Islands were the full FLSA to be made applicable there, as it would be under P.L. 110-28. What will be the impact upon those islands?
• Increasingly, the states (now 34 in number) have moved to provide minimum wage rates higher than the federal rate. What implications can be expected, both in economic and political terms?

This report will be updated as the need may arise

Law Reform, Collective Bargaining, And The Balance Of Power: Results Of An Empirical Study

Source: Ellen Dannin, Michelle Dean, Gangaram Singh, WorkingUSA, Volume 11 Issue 2, June 2008
(subscription required)

From the abstract:
Despite Congress’ having made clear policy statements in the National Labor Relations Act that the law was intended to promote equality of bargaining power between employers and employees, to promote the practice and procedure of collective bargaining as the method of setting workplace terms and conditions of employment, and forbidding construing the law “so as to either interfere with or impede or diminish in any way the right to strike,” by early 1940, the courts had given employers the right to permanently replace strikers and implement their final offer at impasse. Judges have often justified these doctrines as promoting balance in bargaining. Critics contend that the doctrines have the capacity to destroy the right to strike, unbalance bargaining power, and divert parties from the process of bargaining collectively. Some have proposed allowing temporary but not permanent striker replacement. We use a bargaining simulation followed by a survey and debriefing comments to test these opposing claims.

Bush Budget Spends 100 Times More to Regulate Unions

Source: Ross Eisenbrey, Economic Policy Institute Snapshot, June 4, 2008

President Bush wants to spend approximately $2,500 per union to make sure they comply with the law. By contrast, his budget proposes only $26.08 per employer to make sure they comply with labor standards law, including overtime rules, child labor laws, and the Family and Medical Leave Act, among others.

In the Shadow of Antilabor Law: Organizing and Collective Bargaining 60 Years after Taft-Hartley

Source: Working USA, March 2008

The essays and commentary in this issue mark six decades since an overwhelming majority of Congressional Republicans and Democrats joined forces to vilify and castigate the specter of “big labor” haunting the postwar economy. In June of 1947, the U.S. had a new labor policy when both houses of Congress handily overrode Harry Truman’s presidential veto to pass the Taft-Hartley Act amending the national Labor Relations Act of 1935. Future amendments to federal labor law have not mitigated the fundamental antilabor impact of Taft-Hartley. Despite tumultuous shifts in the U.S. and world economy and the precipitous decline in private-sector union membership, Taft-Hartley’s amendments to the NLRA remain integral to the legal framework for twenty-first-century labor relations. This regime of antilabor law provides the thematic backdrop for the essays and commentary in this special issue of Working USA.

Articles include:
Labor Law Inside Out by Wilma Liebman
Preemption and Civic Democracy in the Battle Over Wal-Mart by Catherine Fisk and Michael Oswalt
More Democratic Than a Secret Ballot? The Case for Majority Sing-Up by Gordon Lafer
Labor’s New Opening to International Human Rights Standards by Lance Compa
The Employee Free Choice Act and a long-Term Strategy for Winning Workers’ Rights by James Pope, Peter Kellman and Ed Bruno

Not a Limited, Confined, or Private Matter–Who Is an “Employee” Under the National Labor Relations Act

Source: Ellen Dannin, Labor Law Journal, Spring 2008

The issue of who is an employee is now before the National Labor Relations Board in New York New York Hotel, LLC. The importance of this case is signaled by the Board’s decision to hold oral argument and invitation to file amicus briefs. Briefly, the case raises the question whether employees of a subcontractor, the Ark Las Vegas Restaurant Corporation, who perform their work for Ark on the premises of the New York New York Hotel and Casino, have a statutory right to distribute handbills to guests and customers while on New York New York’s property during the Ark employees’ off-duty hours. The handbills protested the Ark’s nonunion status and wages.

A Major Setback for Pay Equality: The Supreme Court’s Decision in Ledbetter v. Goodyear Tire & Rubber Company

Source: Norma M. Riccucci, Review of Public Personnel Administration, Vol. 28, no. 1, March 2008
(subscription required)

Pay inequities based on gender continue to pervade the public and private sector landscapes. Although Title VII of the Civil Rights Act of 1964 as amended and the Equal Pay Act of 1963 proscribe unequal pay for equal work, the newly formed U.S. Supreme Court has issued a ruling in Ledbetter v. Goodyear Tire & Rubber Company (2007) that ignores Court precedents as well as provisions of the Civil Rights Act of 1991, making it more difficult for employees to file suit for pay inequities. Ultimately, the problem of pay disparities in the workplace can only worsen.
See also:
S. 1843 Fair Pay Restoration Act

Beyond Justice: Bush Administration’s Labor Department Abuses Labor Union Regulatory Authorities

Source: Scott Lilly, Center for American Progress, December 10, 2007

From the summary:
The problem of unfair and unequal application of the law, however, extends well beyond the Justice Department. Failure by a wide range of regulatory agencies to enforce federal law has benefited some segments of society at the expense of others. There is ample evidence that in recent years the laws protecting the public against air and water pollution, workers against health and safety risks, and consumers against unsafe foods, drugs, and commercial products have all been laxly enforced to the significant financial benefit of certain businesses and at the expense of those whose health and safety those laws were designed to protect.

Lax regulatory enforcement, however, has not been a government-wide policy. In at least one instance, rigorous and in fact pernicious regulatory enforcement was the course chosen by the Bush administration. That instance involved the regulatory authorities of the U.S. Department of Labor under the Landrum-Griffin Act aimed at improving the governance of the nation’s organized labor organizations.

Rather than relax these regulatory responsibilities, the Bush administration shoveled significantly more federal tax dollars into the department’s Office of Labor-Management Services so that key political operatives in OLMS could expand and exercise regulatory authority to:

• Impose costly and confusing new reporting requirements
• Attempt to increase the number of criminal prosecutions
• Disclose the results to the public in seriously misleading ways
• Mischaracterize the published data through a variety of false analyses

The underlying purpose, of course, is to undermine the reputation of the labor union movement through a classic political misinformation campaign–all under the supervision of a lifelong partisan political operative whose career has been dedicated to the destruction of his political opponents.