Category Archives: Labor Laws/Legislation

Why unions are good for workers—especially in a crisis like COVID-19: 12 policies that would boost worker rights, safety, and wages

Source: Celine McNicholas, Lynn Rhinehart, Margaret Poydock, Heidi Shierholz, and Daniel Perez, Economic Policy Institute, August 25, 2020

From the summary:
What this report finds: The COVID-19 pandemic has underscored both the importance of unions in giving workers a collective voice in the workplace and the urgent need to reform U.S. labor laws to arrest the erosion of those rights. During the crisis, unionized workers have been able to secure enhanced safety measures, additional premium pay, paid sick time, and a say in the terms of furloughs or work-share arrangements to save jobs. These pandemic-specific benefits build on the many ways unions help workers. Following are just a few of the benefits, according to the latest data:

• Unionized workers (workers covered by a union contract) earn on average 11.2% more in wages than nonunionized peers (workers in the same industry and occupation with similar education and experience).
• Black and Hispanic workers get a larger boost from unionization. Black workers represented by a union are paid 13.7% more than their nonunionized peers. Hispanic workers represented by unions are paid 20.1% more than their nonunionized peers.

OSHA’s Next 50 Years: Legislating a Private Right of Action to Empower Workers

Source: Michael C. Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor and Katie Tracy, Center for Progressive Reform, July 2020

From the executive summary:
Over the last several decades, through a concentration of economic and political power by corporate executives and their allies in government institutions, workers have been systematically disempowered and silenced. Two important results of this dynamic are that the nation’s workplaces are not nearly as safe or healthy as they need to be to protect all workers, and workers lack the power they deserve to speak up against exploitation without fear of significant retaliation….

….As the 50th anniversaries of the Occupational Safety and Health Act (OSH Act) and OSHA approach in December 2020 and April 2021, respectively, it is time to address the law’s and agency’s shortcomings and chart a course of action to revolutionize worker health and safety for the next 50 years.

Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority. In addition, this private right of action should cover the millions of workers who are currently unprotected by OSHA, including misclassified independent contractors, agricultural workers, and public sector workers in states under federal OSHA’s jurisdiction. Congress should also ban mandatory arbitration as a condition of employment, since the purpose of such arbitration requirements is to disempower workers by denying access to the courts. Finally, Congress should require that all states and territories that operate their own occupational safety and health programs in lieu of federal OSHA incorporate a private right of action into their state plans.

Promoting laws and regulations that safeguard workers physically and financially and that rebalance the power dynamic between employers and workers is a necessary and vital step in building strong, resilient families and communities. Providing a private right of action, a common tool in a variety of other laws, is a long overdue measure that would empower workers to ensure safer and healthier workplaces when the agency tasked with protecting them is unwilling or unable to do so. Engaging workers more meaningfully in the enforcement of health and safety standards will not only improve their immediate conditions but also disrupt the cycle of worker disempowerment that contributes to unsafe and unhealthy working conditions, giving workers a voice to achieve lasting improvements in the workplace.

Labor’s Legacy: The Construction of Subnational Work Regulation

Source: Daniel J. Galvin, ILR Review, OnlineFirst, First Published: August 5, 2020
(subscription required)

From the abstract:
In recent decades, much of the authority to regulate the workplace has shifted from national-level labor law to state-level employment law. What contributions, if any, did labor unions make to this historic shift in workplace governance? The author uses quantitative and qualitative analyses to test hypotheses and move incrementally closer toward drawing causal inferences. In the first part, he finds a strong statistical relationship between union density and state employment law enactments. Next, analyzing the cases the model identifies as “deviant” (Pennsylvania and Maine), he uses systematic process tracing to test the hypothesis that labor unions were integral players in legislative campaigns for stronger employment laws. Strong evidence supports the hypothesis that labor unions, even as they declined, contributed to the construction of this new system of subnational work regulation—arguably one of their most significant and durable legacies.

Why is the American South Poorer?

Source: Regina S Baker, Social Forces, Volume 99, Issue 1, September 2020
(subscription required)

From the abstract:
While American poverty research has devoted greater attention to poverty in the Northeast and Midwest, poverty has been persistently higher in the U.S. South than in the other regions. Thus, this study investigates the enduring question of why poverty is higher in the South. Specifically, it demonstrates the role of power resources as an explanation for this regional disparity, yet also considers family demography, economic structure, and racial/ethnic heterogeneity. Using six waves (2000–2016) of U.S. Census Current Population Survey data from the Luxembourg Income Study (N = 1,157,914), this study employs a triangulation of analytic techniques: (1) tests of means and proportion differences, (2) multilevel linear probability models of poverty, and (3) binary decomposition of the South/non-South poverty gap. The comparison of means associated with the power resource hypothesis yields the largest substantive differences between the South and the non-South. In the multilevel models, adjusting for power resources yields the largest declines in the South coefficient. Binary decomposition results indicate power resources are the second most influential factor explaining the South/non-South poverty gap. Overall, power resources are an important source of the South/non-South poverty gap, though economic structure and other factors certainly also play a role. Results also suggest an important interplay between power resources and race. Altogether, these results underscore the importance of macrolevel characteristics of places, including political and economic contexts, in shaping individual poverty and overall patterns of inequality.

….Beyond these factors, this study focuses on the role of politics and policy via power resources theory (PRT). Here,power resources refer to class-based collective political actors, such as labor unions and parties, and the social policies they are able to institutionalize…

October 2019 pre-print version

To the Victor Goes the Spoils: How the 2020 Presidential Election Could Reshape Labor and Employment Law

Source: Scott A. Budow, Employee Relations Law Journal, Vol. 46, No. 2, Autumn 2020
(subscription required)

From the abstract:
The 2020 presidential election has the potential to significantly upend labor and employment law. If there is a change in administration, employers should expect a sharp departure from rules issued over the past four years, particularly with respect to overtime, joint employment, and independent contractors. Employers may additionally expect renewed scrutiny of non-compete agreements. These changes may redefine the relationship between employers and workers in vast segments of the economy.

Notes On: Spotlighting Potential Coronavirus Wage-and-Hour Woes

Source: Lisa Milam, Labor Law Journal, Vol. 71, Issue No. 2, Summer 2020
(subscription required)

From the abstract:
…Employers are forced to make difficult decisions, often at warp speed, as they operate during the pandemic and resulting economic downturn. But making tough decisions without consulting legal counsel can invite costly litigation, and wage and hour suits—particularly class actions—are among the most expensive for employers.

In a recent Seyfarth Shaw LLP webinar on “Litigation Trends in the Post COVID-19 World,” Lynn A. Kappelman, a partner in the firm’s Boston office, discussed the wage-hour issues that arise as employers look to control payroll costs while maintaining operations, and also as they look ahead to reopening as the crisis abates. Kappelman followed up with Labor and Employment Law Daily about the common wage-hour traps that can befall employers during this unprecedented crisis.

Center for Progressive Reform Report: Protecting Workers In A Pandemic–What The Federal Government Should Be Doing

Source: Thomas McGarity, Michael C. Duff, Sidney A. Shapiro, Center for Progressive Reform Report, June 17, 2020

The “re-opening” of the American economy while the coronavirus that causes COVID-19 is still circulating puts workers at heightened risk of contracting the deadly virus. In some blue-collar industries, the risk is particularly acute because of the inherent nature of the work itself and of the workplaces in which it is conducted. And the risk, for a variety of reasons, falls disproportionately on people of color and low-income workers. With governors stay-at-home orders and other pandemic safety restrictions, Center for Progressive Reform Member Scholars Thomas McGarity, Michael Duff, and Sidney Shapiro examine the federal government’s many missed opportunities to stem the spread of the virus in the nation’s workplaces, and make recommendations for what needs to happen next to protect employees on the job.

New federal sick leave law – who’s eligible, who’s not and how many weeks do you get

Source: Elizabeth C. Tippett, The Conversation, March 19, 2020

On March 18, President Donald Trump signed the Families First Coronavirus Response Act into law. The legislation is an emergency intervention to provide paid leave and other support to millions of workers sidelined by school closures, quarantines and caregiving.

An obvious question you’re probably wondering is, “How will it affect me?”

The bad news is that the law does not provide blanket coverage for all workers. Instead, it’s a confusing mess – legislative Swiss cheese, full of exceptions and gradations that affect whether you are covered, for how long and how much pay you can expect to receive.

I study employment law and have combed through the bill to make sense of it. The law also provides emergency funding for unemployment insurance and subsidizes some employer health care premiums, but my focus here is on the core elements pertaining to sick and family leave.

Here’s what I learned.

The Aftermath of Janus v. AFSCME: An Ongoing Assault on Public Sector Unions

Source: Ann Hodges, American Constitution Society, ACS Issue Brief, March 2020

From the summary:
With the Supreme Court having overruled precedent and declared public sector “fair share” fees unconstitutional in Janus v. AFSCME, anti-union forces now have a new target: repayment of the fees paid to unions prior to the 2018 decision. Arguing that Janus should be retroactive, these advocates are seeking “millions of dollars from public sector unions, money collected in compliance with existing laws and already spent on representing employees.”

In a new ACS Issue Brief, Ann Hodges, Professor Emerita at the University of Richmond School of Law, explains the history of these restitution claims and why they are legally dubious. Hodges also questions whether “the employee plaintiffs in these cases [are] acting out of moral conviction and righteous motives or [if] they [are] being used by powerful interests to defeat the efforts of working people to join together collectively to combat the power of wealthy individuals and corporate actors.”

Disability revealed during termination talk—should the employee stay or go?

Source: Maureen Minehan, Employment Alert, Vol. 37 no. 3. February 5, 2020
(subscription required)


Sarah, a marketing manager, is chronically late. She also leaves early and her coworkers complain that she doesn’t respond to emails, calls, or texts even when she is in the office. You place her on a 60-day performance improvement plan and she promises to do better. Two months later, when nothing has changed, you schedule a termination meeting. When you tell her she is fired, she suddenly claims she has a disabling condition that is causing her performance problems. Do you have to rescind the termination and look for accommodations to be in compliance with the Americans with Disabilities Act (ADA)?