Category Archives: Labor Laws/Legislation

Paid Family Leave and Sick Days in the U.S.: Findings from the 2016 Kaiser/HRET Employer Health Benefits Survey

Source: Nisha Kurani, Usha Ranji, Alina Salganicoff, and Matthew Rae, Kaiser family Foundation, Data Note, December 2016

From the introduction:
Workplace benefits are an important part of balancing work, family, and medical needs. So called “fringe benefits” such as paid family leave and sick days can help employees meet their personal and family health care needs, while also fulfilling work responsibilities. Yet there is no federal requirement for paid leave or sick days, which leaves many individuals, particularly low-income workers, to face tradeoffs such as taking time off while forgoing wages, going to work while sick, or paying for caretakers for their children and family members.

The federal Family and Medical Leave Act (FMLA) passed under the Clinton administration requires eligible employers to provide unpaid family leave. However, unlike most other developed nations, the U.S. does not have national standards on paid family or sick leave.1 In recent years, there have been a number of local and state initiatives to expand access to paid family leave and sick days in the U.S. Employees not covered by these local laws must rely on voluntary employer policies, which can vary considerably. This is particularly salient for women, who are often the primary caretakers for children and also comprise nearly half of the nation’s workers.2 Approximately seven in ten women with children under age 18 were in the labor market in 2015.3 The issue of paid leave received some attention during the 2016 election, but the incoming administration has not yet signaled any plans.

This data note summarizes state and local policies on paid family leave and sick days and presents new data from the 2016 Kaiser/HRET Employer Health Benefits Survey on the share of firms that offer paid parental leave and paid sick days benefits.

The Declining Fortunes of American Workers: Six Dimensions and an Agenda for Reform

Source: Stephen F. Befort, University of Minnesota Law School, Minnesota Legal Studies Research Paper No. 16-28, September 27, 2016

From the abstract:
At the turn of the century, I undertook an assessment of the then current state of workplace rights and obligations. I concluded that the balance of power between employers and workers was “badly skewed” in favor of employers. This article revisits that topic for the purpose of assessing twenty-first century trends through the lens of six workplace dimensions. They are: workforce attachment, union-management relations, employment security, income inequality, balancing work and family, and retirement security. An examination of these dimensions reveal that the status of U.S. workers has significantly declined during the first sixteen years of the twenty-first century. This article then sets out a proposed agenda for reform designed to recalibrate the current imbalance in the respective fortunes of employees and employers.

Direct and Indirect Employment Under Title VII

Source: Charlotte Alexander, Georgia State University College of Law, Legal Studies Research Paper No. 2016-16, 2016

From the abstract:
This short essay, prepared for the New York University School of Law’s 68th Annual Conference on Labor, outlines the law of direct and indirect employment under Title VII of the Civil Rights Act of 1964. The essay then notes confusion in the case law surrounding indirect employment, where a plaintiff seeks to extend Title VII liability to an entity other than her nominal employer. Many courts appear to be importing the common law agency test from the direct employment context, where there is a dispute over whether a worker is properly an independent contractor or an employee. This mixing of separate standards effectively requires plaintiffs to prove a direct employment relationship as to all defendants, eliminating the possibility of an indirect, de facto, or joint, employment relationship. The essay ends by advocating for courts to consider the economic realities of the relationship between a worker and her putative employer(s) in assessing claims of indirect employment.

Workplace Information Forcing: Constitutionality and Effectiveness

Source: Charlotte Alexander, American Business Law Journal, Vol. 53, 2016

From the abstract:
“Know-your-rights” posters are ubiquitous in the American workplace, as employers are required by statute or regulation to display numerous notices about workers’ rights on the job. These posters were relatively uncontroversial until a recent set of lawsuits by employer groups attempted, on statutory and constitutional grounds, to block rules that would require notices about workers’ rights to form a union and bargain collectively. The lawsuits have produced mixed results in the courts. Using these recent cases, as well as the few prior cases that challenged other notice posting rules, this article addresses the constitutionality of workplace notice posting requirements. It then examines the effectiveness of notice posting rules, considering how such rules might best be structured to accomplish their first-order goals of informing workers about their rights and their second-order goals of spurring enforcement action to improve the conditions of work.

21 States & Localities Approved Minimum Wage Increases in 2016

Source: National Employment Law Project (NELP), Press Release, December 15, 2016

The Fight for $15 continued to accelerate in 2016 – just four years after it began – winning major minimum wage victories from coast to coast. The movement, led by fast-food and other low-wage workers, grew in scale and influence in 2016, with 21 states, cities and counties raising pay for 11.8 million workers. New campaigns seeking to raise pay for 8 million more workers in at least 13 states and cities are teed up for 2017 and 2018.

When combined with increases approved in recent years, on New Year’s Day 2017, workers in at least 40 states, cities and counties will receive raises – followed later in 2017 by raises for workers in another 19 states and cities. Below are highlights of 2016’s minimum wage wins and new campaigns moving forward in 2017 and 2018:

In 2016, a total of 21 states and localities approved minimum wage increases (see Table 1)…..
On or about New Year’s Day, 40 states and localities will increase their minimum wages (Table 3)…..
21 cities and counties will raise their wage floors on New Year’s Day…..
Later in 2017, 19 additional states and cities will increase their minimum wages (Table 4)….
At least 13 more states, cities and counties are launching or continuing campaigns for minimum wage increases of up to $15 over the next two years (Table 5)…..

Do Politicians Use Policy to Make Politics? The Case of Public-Sector Labor Laws

Source: Sarah F. Anzia and Terry M. Moe, American Political Science Review, Vol. 110 no. 4, November 2016
(subscription required)

From the abstract:
Schattschneider’s insight that “policies make politics” has played an influential role in the modern study of political institutions and public policy. Yet if policies do indeed make politics, rational politicians have opportunities to use policies to structure future politics to their own advantage—and this strategic dimension has gone almost entirely unexplored. Do politicians actually use policies to make politics? Under what conditions? In this paper, we develop a theoretical argument about what can be expected from strategic politicians, and we carry out an empirical analysis on a policy development that is particularly instructive: the adoption of public-sector collective bargaining laws by the states during the 1960s, 1970s, and early 1980s—laws that fueled the rise of public-sector unions, and “made politics” to the advantage of Democrats over Republicans.

Firefighters protect us. Who protects them?

Source: Mike Hendricks and Matt Campbell, Kansas City Star, 2016

….Tough luck sums it up well on both the regulatory and legal fronts, The Star found in an investigation of shortcomings in firefighter safety. In most occupations, there are rules to follow and legal consequences for flouting them.

Not necessarily with firefighters.

Because local fire departments are subject to no federal workplace safety rules and scant state regulation in much of the country, firefighters cannot count on government to help correct unsafe practices.

“OSHA cannot come in and do nothing for us, because we are not under OSHA,” Waycross, Ga., firefighter Bill Jordan said.

And because the survivors of fallen firefighters generally cannot file wrongful-death lawsuits against fire departments in Missouri, Kansas and most other states, the fear of shelling out big damage awards won’t spur departments to exercise more caution.

That lack of accountability, especially on the regulatory front, officials inside and outside government say, hampers efforts to prevent injuries and line-of-duty deaths…..
Related:
Fatal Echoes

About this series:
The Star set out to examine how and why U.S. firefighters die on the job after Kansas City firefighters John Mesh and Larry Leggio were killed in October 2015.

Reporters Mike Hendricks and Matt Campbell interviewed scores of experts on fire behavior and firefighter safety. Hendricks and photographer/videographer Joe Ledford visited Texas, Georgia, New York, Maryland and Washington, D.C., to speak with firefighters and survivors, visit the National Fire Fighters Memorial and observe a federal rule-writing committee in action.

The reporters analyzed hundreds of federal and state fatality investigative reports, five years’ worth of federal workplace safety inspection records and reams of meeting transcripts of an advisory board that recently proposed the first new federal safety regulations governing the fire service in decades.

Family and Medical Leave Act (FMLA): Proposed Legislation in the 114th Congress

Source: Sarah A. Donovan, Congressional Research Service, CRS Report, R44693, November 21, 2016

The Family and Medical Leave Act of 1993 (FMLA; P.L. 103-3, as amended) entitles eligible employees to unpaid, job-protected leave for certain family and medical needs, with continuation of group health plan benefits. The 114th Congress is considering several bills to amend the FMLA. These proposals seek to create new entitlements (i.e., provide additional leave time); expand categories of permissible leave by creating new FMLA-qualifying uses of leave and by expanding the circumstances under which existing leave categories may be used; and modify employee eligibility requirements, generally and for specific worker groups…..

Transforming Labor: A Comprehensive, Nationwide Comparison and Grading of Public Sector Labor Laws

Source: Priya Abraham, Commonwealth Foundation, Policy Report, November 13, 2016

From the summary:
In the last five years, Americans have seen an unprecedented sweep of public sector labor reforms across several states. Wisconsin, Michigan, Indiana—and most recently, West Virginia in July 2016—have all become right-to-work states. Other states have limited the scope of collective bargaining, increased the transparency of union contract negotiations, and created stronger protections for individual workers who do not want to be union members. For the first time since states enacted public sector collective bargaining laws in the mid-to-late twentieth century, right-to-work states outnumber forced-union states 26 to 24.