Category Archives: Labor Laws/Legislation

The new overtime rule will benefit millions of workers across the country

Source: Ross Eisenbrey, Economic Policy Institute, Economic Snapshot, November 17, 2016

The Department of Labor’s new overtime rule, which takes effect on December 1, significantly increases the number of people who qualify for time-and-a-half pay for any hours they work beyond 40 in a week. Under the old, outdated rule, workers paid a poverty level salary of $23,660 per year could be considered exempt executives or professionals and be denied overtime pay. Under the new rule, salaried employees making less than $47,476 a year must be paid overtime.

In total, 12.5 million people (or 23.3 percent of salaried workers) will benefit — most of them because their right to overtime pay has been clarified and strengthened. But millions will for the first time receive time-and-a-half pay for any hours worked over 40 in a week, have their hours scaled back to 40 hours a week while still taking home the same pay, or get a raise to put them above the threshold….

The Limits of Comprehensive Peace: The Example of the FLSA

Source: Lonny Hoffman, Christian J. Ward, Yetter Coleman, University of Houston Law Center No. 2016-A-19, August 6, 2016

From the abstract:
Normally, cases can be settled on broad terms that release all related claims. Although there are added protections that must be satisfied when a settlement is proposed in the class action context (which are provided by insisting on judicial approval of the proposed deal), even then the class representatives and defendant can usually agree to compromise the class’s ability to later bring all transactionally-related claims. But how should the law deal with cases that involve multiple claims with different claim-vindication procedures? In this paper we consider the FLSA, which is one of the most important examples of such a law. For decades, courts have consistently held that workers aggrieved by an employer’s statutory violations may not use modern opt-out class action procedures to vindicate their rights. A frequently litigated, but unsettled question is whether a class action brought alleging state law wage and hour claims can be settled on terms that require absent class members to release both state and federal claims, even though the federal claims could not have been asserted through the class suit. We argue that this form of settlement is not permitted by the statutory text and that our construction is consistent with the legislative history.

The New Labor Law

Source: Kate Andrias, Yale Law Journal, Vol. 126, No. 2, 2016

From the abstract:
Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals don’t solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the old regime, the potential for a new labor law is emerging.

In this Article, I describe and defend the nascent regime, which embraces a form of social bargaining long thought unattainable in the United States. The new labor law rejects the old regime’s commitment to the employer-employee dyad and to a system of private ordering. Instead, it locates decisions about basic standards of employment at the sectoral level and positions unions as political actors empowered to advance the interests of workers generally. This new labor law, though nascent and uncertain, has the potential to salvage and secure one of labor law’s most fundamental commitments — to help achieve greater equality, both economic and political — in the context of the twenty-first century economy.

Why the Supreme Court matters for workers

Source: Michele Gilman, The Conversation, October 31, 2016

…..Almost five decades of a conservative Court majority have sharply limited the rights of workers to unionize, form class actions and fight discrimination. The results have been profound and help explain the deterioration of the working class and the rise of economic inequality in recent decades.

The court is now in a 4-4 split between liberal and conservative justices. The Senate’s refusal to confirm President Barack Obama’s nominee to replace Scalia means it’s likely the next occupant of the Oval Office will get to pick who fills that seat – and possibly several more. That will determine the kind of court Americans have for years or even decades to come.

Conservative appointments by a President Trump would likely continue the decimation of workplace justice, particularly collective efforts to improve working conditions and pay. As I have documented, a look back at some of the court’s recent rulings shows how…..
Workers, the Courts, and the Election
Source: Andrew Strom, OnLabor blog, November 3, 2016

….When it comes to the courts, the media has a tendency to focus on gun control, abortion rights, and to a lesser extent, LGBTQ rights. While these issues are important to many voters including workers, the media pays far less attention to a set of issues of major relevance to all workers; namely, worker protection laws. And when it comes to worker protection, it matters enormously which party controls judicial appointments. While there are, of course, plenty of cases where judges appointed by Republican Presidents rule in favor of workers, there are also many close (and sometimes not so close) cases where judges make value judgments, and in doing so, they can either view a case from the perspective of a worker or an employer……

Non-Standard Work and Limits on Freedom of Association: A Human Rights-Based Approach

Source: Valerio De Stefano, Industrial Law Journal, Advance Access, First published online: October 19, 2016
(subscription required)

From the abstract:
The debate on how to adjust existing regulation to keep pace with the rise and spread of the non-standard workforce worldwide has mainly concentrated on individual employment law. This article means to draw attention to some collective labour regulation issues that have a significant impact on the labour protection of non-standard workers. Without subscribing to the idea that the standard employment relationship is an outmoded model of regulation, this article argues that some existing restrictions on collective rights are failing to keep pace with transformations of labour markets that occurred in recent decades and in particular with the growth in the number of non-standard workers. Consequently, these workers are legally or practically denied access to the meaningful exercise of collective rights. Some of these restrictions, such as antitrust bans on collective bargaining, regulations imposing strike ballots, limitations of secondary action and the distinction between political and economic strikes, are called into question since they disproportionately affect non-standard workers and are at odds with the recognition of collective rights, and in particular the right to strike, as human rights.

Redefining Employment for the Modern Economy

Source: Brishen Rogers, American Constitution Society (ACS), ACS Issue Brief, October 2016

From the blog post:
The explosive growth of Uber and other on-demand labor platforms has brought public attention to a longstanding issue facing workers in this country: the fissuring of employment. Fissuring comes in many forms, including misclassification of employees as independent contractors, subcontracting and franchising arrangements.

Such strategies can deprive workers of their rights under our employment laws, most of which define employment per the common law “right to control test.” That definition is narrow, failing to reflect the economic realities of modern work relationships. It is also notoriously difficult to apply in practice, which increases litigation costs and disempowers low-wage workers.

This is not a small problem. Wage and Hour Administrator David Weil estimates that there are “over 29 million workers in just five industries affected … including in the construction, hospitality, janitorial, personal care and home health care industries.”

Unfortunately, some prominent reform proposals—such as to create a new legal category of worker that would slot between “employee” and “independent contractor,” with limited employment rights—would move us backwards rather than forwards. Ethically speaking, workers in fissured relationships are no less deserving of basic protections than standard employees. Creating a third category of worker would also make employment status litigation even more complicated and more expensive.

In a new issue brief for ACS, I propose an omnibus employment status bill to address such challenges. The central reform would redefine employment under the core federal labor/employment statutes per the broad “suffer or permit” test from the federal Fair Labor Standards Act. In misclassification cases under that test, courts’ and agencies’ task is not to determine whether the putative employer enjoys a right to control the performance of the work, but rather “to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor).”

Friedrichs and the Move Toward Private Ordering of Wages and Benefits in the Public Sector

Source: Maria O’Brien Hylton, Boston University School of Law, Public Law Research Paper No. 16-34, August 29, 2016

From the abstract:
In its recent Harris v. Quinn opinion the U.S. Supreme Court (in particular Justice Alito) seemed to welcome a future opportunity to reconsider the 1977 landmark Abood decision in which public sector closed shop employees were not required to join a union but could be subject to fees that cover the costs of “collective bargaining, contract administration, and grievance adjustment purposes.” Supporters of the Abood approach argue that it is a reasonable compromise that prevents non-members from free riding on the union’s efforts (i.e. enjoying the wages and benefits negotiated by the union without sharing the costs incurred.) Detractors and the plaintiffs in Friedrichs argue that free riding concerns are insufficient to overcome serious First Amendment objections. The central idea is that all bargaining in the public sector is inherently political. Public sector pay, tenure and benefits (especially expensive retiree health care and pension promises), it is claimed, now profoundly affect the ability of state and local governments to function in many jurisdictions. This article briefly reviews the major claim in Friedrichs — that public sector agency agreements violate the First Amendment — and considers the implications of a decision that, but for Justice Scalia’s unexpected death almost certainly would have overturned Abood. What would this mean for financially strapped state and local governments? To understand what a victory for the Friedrichs plaintiffs would mean, this paper looks at recent data from Wisconsin which dramatically constrained public sector agency agreements a few years ago and has seen public union membership, union revenue and political power plunge as a result. If Friedrichs had overturned Abood during the 2016 term, we would now expect to see national patterns similar to those observed in Wisconsin. In many places around the country a drop in public sector union political power would be expected to translate into a climate more supportive of reduced future expenditures on public pensions and health care.

The Gig Economy & The Future of Employment and Labor Law

Source: Orly Lobel, University of San Diego School of Law, San Diego Legal Studies Paper No. 16-223, 2016

From the abstract:
In April 2016, Professor Orly Lobel delivered the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. Lobel asks, what is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? She proposes four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others. The first path is to clarify and simplify the notoriously malleable classification doctrine; the second is to expand certain employment protections to all workers, regardless of classification, or in other words to altogether reject classification; the third is to create special rules for intermediate categories; and the fourth is to disassociate certain social protections from the work.

The Future of Worker Voice and Power

Source: David Madland, Center for American Progress, October 2016

From the introduction:

….Increasing worker voice and power so that workers can join together to advocate for themselves should be the top economic priority for progressives, but getting to where America needs to go will require a comprehensive reimagining of our labor system. Existing proposals such as the Workplace Action for a Growing Economy, or WAGE, Act are an important part of this modernization, but they should be understood as part of a broader effort.

There is a need and an opportunity for a bold agenda that delivers both higher wages and greater productivity. This agenda would restructure our labor system so that it promotes growth and helps firms expand while ensuring that workers have a voice on the job and get paid for their contributions. Boosting productivity is a big deal because making more with the same or less resources is what allows for improvements in our standard of living over time, as well as what is necessary to protect the environment.

These are goals that progressives, and indeed all Americans, should support. To get there, we will have to modernize U.S. labor law…..