Category Archives: Labor Laws/Legislation

Right-to-Work Takes Us in the Wrong Direction

Source: Karla Walter & Jackie Odum, Center for American Progress, May 14, 2015

State and local governments are moving to enact right-to-work laws that harm all workers, regardless of union status, and do not result in the job growth promised by proponents. Policymakers can help working families by pursuing policies to uphold workers’ ability to join together in unions.

What is Due Process in Federal Civil Service Employment?

Source: U.S. Merit Systems Protection Board, May 2015

From the press release:
The reasons why agencies must follow due process when removing Federal employees are explained in a new report issued by the U.S. Merit Systems Protection Board, What is Due Process in Federal Civil Service Employment? The report discusses the current civil service laws that apply to adverse actions and the history behind their formation. It also describes the constitutional requirements such laws must comply with, namely due process. According to Chairman Susan Tsui Grundmann, “The Constitution requires due process in any system where the Government must have just cause to act against an individual.”

The report explains that, in the Federal employment context, due process is: (1) a meaningful opportunity – before an adverse action takes place – for the individual to know the charges and penalty and present a defense; and (2) the ability to appeal a serious adverse action – such as a lengthy suspension, demotion, or removal – before an impartial adjudicator. …

The report walks the reader through a history of how and why the Government moved from a spoils system to a merit system; a discussion of court decisions explaining what due process the Constitution requires in a merit system; and an explanation of what the current statutes instruct agencies to do. The report also includes an appendix that discusses some misperceptions about adverse actions in the civil service and provides thoroughly documented corrections to clarify how the system actually operates today.

Electronic Monitoring in the Workplace

Source: Kevin J. Smith, Rachel J. Tischler, Employment Relations Today, Volume 42 Issue 1, Spring 2015
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Employers and employment attorneys alike have been concerned about the legal limits of electronic monitoring since before many of us had personal e-mail accounts. And since that time, the amount of work done “online”—through the Internet, intranet, e-mail, remote computing, and personal devices—has increased exponentially. This shift has been accompanied by an equal increase in the availability of monitoring technology, making employer surveillance of employees cheaper and more accessible. In the past decade, this has been further complicated by the proliferation of employees’ use of personal electronic devices to conduct business. Accordingly, there are widespread concerns about employee efficiency, focus, and information, as well as product security. Employees’ telephone, computer, mobile device, e-mail, voice mail, and social media accounts, in addition to all of the files and data stored therein, have all found themselves under employer scrutiny at one time or another, and often the results of that surveillance have been used in termination decisions or employment litigation. One form of conflict emerges when trying to balance the safety and integrity of an employer’s data and computer systems with employees’ expectations of and rights to privacy. Another conflict can arise when an employer’s enforcement of its policies on personal electronic devices, computer and Internet usage, and employees’ use of the devices for nonbusiness purposes—however innocent—leads to disciplinary action.

The Definition of Work and When Health Care Benefits Vest

Source: Harold M. Brody and Cody S. Lonning, Employment Relations Today, Volume 42 Issue 1, Spring 2015
(subscription required)

This term, the Supreme Court’s docket includes several employment-law cases that are significant for employers. This article highlights two. In Integrity Staffing Solutions, Inc. v. Busk, the Court attempted to clarify the definition of compensable work. In M&G Polymers USA, LLC v. Tackett, the Court resolved a circuit split over the vesting of health care benefits in collective bargaining agreements.

Religion and Employment Antidiscrimination Law: Past, Present, and Post Hosanna-Tabor

Source: Jennifer Ann Drobac, Jill L. Wesley, Indiana University Robert H. McKinney School of Law Research Paper 2015-24, 2014

From the abstract:
This Article summarizes the history of and recent trends for two aspects of the law regarding the intersection of religion and U.S. employment. Part I surveys laws and case precedent that protect working religious adherents who claim discrimination, harassment, or a failure to accommodate. Adherents now bring most of their claims under Title VII of the Civil Rights Act of 1964 or equivalent state fair employment practice statutes. However, isolated legislation, some arguably politically as well as religiously motivated, offers additional protections. Recently passed “refusal clauses,” also known as “conscience clauses,” relate to the sale of contraceptives or the provision of pregnancy termination services. They highlight the importance of targeted and specific statutes. Burwell v. Hobby Lobby Stores, Inc. addresses whether for-profit, private corporations enjoy the same protections afforded by the Religious Freedom Restoration Act of 1993 (RFRA) that religious persons may claim against governmental interference. Part II covers the protections for religious institutions that also operate as employers. The Supreme Court’s 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC indicates that the legal debate concerning the separation of church and state remains lively — at least where religious employers operate. The future direction of court interpretation of that precedent remains obscure. Some analysts suggest that the Court limited Hosanna-Tabor’s reach, while others contend that its influence may be quite extensive. Finally, this Article concludes by making several observations about the evolution of religion and employment law.

First Amendment Speech Rights of Teachers and Other Public University Personnel: Down But Apparently Not Out

Source: Ralph Gerstein, Lois Gerstein, Campus Safety & Student Development, Vol. 16 no. 2, Winter 2015
(subscription required)

From the abstract:
Universities are a marketplace for ideas, and teachers, student affairs professionals, and other university personnel often deal with controversial subjects. Sometimes, their expression of views antagonizes administrations, boards, or state office holders who have decision-making authority regarding tenure or promotion. Do staff and faculty have protection against adverse personnel actions if their viewpoints clash with university administrators or governing bodies? This article explores several relevant speech cases that have important implications for faculty and staff.

Intermediate Approaches to Unfair Dismissal Protection

Source: Guy Davidov and Edo Eshet, Industrial Law Journal, Advance Access, First published online: May 6, 2015
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From the abstract:
‘Employment at will’ systems, in which employers have a right to dismiss employees for any reason or no reason at all, have been (rightly) criticised for allowing the arbitrary imposition of significant harms. ‘Just cause’ arrangements, in which employers bear the burden of showing a justified reason for dismissals, in a process which often gives unions significant involvement, have been strongly resisted for causing inflexibility. Israeli labour law, which is relied upon here as an example, suffers from a combination of both extremes. UK law, which could be seen to offer a middle ground, is seen by labour law critics as offering too little protection for workers, and by the government as offering too much. This article searches for other intermediate solutions. Four are discussed: the flexicurity system which is based on broader security provided by the State, rather than job security; a default (rather than mandatory) job security rule, powered by ‘soft law’ regulations; a prohibition on ‘bad faith’ dismissals, requiring the employee to prove a ‘bad’ cause; and finally, a system based on ‘rich’ procedural guarantees to ensure just cause. This article focuses on the last one, offering a case study of a new model recently adopted in some collective agreements in Israel. In this model, a detailed process has to be followed to ensure that dismissals are not arbitrary, but at the end of the day, the decision is left solely with the employer. We will discuss the experience with this model so far and whether it offers a balanced solution for employers, workers and society at large. Our discussion is based, among other things, on an empirical analysis of job security perceptions as learned from questionnaires we administered to several groups of Israeli employees.

Total Recall: The Rise and Fall of Teacher Tenure

Source: Laura R McNeal, University of Louisville School of Law Legal Studies Research Paper Series No. 2015-10, May 4, 2015

From the abstract:
This article will examine the evolution of tenure in K-12 public schools and explore new pathways of protecting teachers from unfair labor practices while advancing education reform. In this article, I argue that the Reauthorization of the Elementary and Secondary Education Act should include an increased federal role in teacher quality through the creation of a uniform teacher evaluation system. Additionally, I will propose a collaborative framework for teachers and school districts that will maintain teacher rights while employing an evaluation system that affords school districts a means for removing ineffective teachers, regardless of their seniority. The larger ambition of this article is to help illustrate that we can create laws that achieve education equity without unfairly targeting or infringing on teachers’ employment rights. Part I will explore the evolution of teacher tenure in K-12 schools and the impact on teachers’ employment rights. Part II will examine the intersection of school reform and teacher tenure, with a particular emphasis on how reform measures have contributed to the erosion of teacher tenure. Part III will highlight the recent wave of antitenure legislation and discuss the implications for teacher rights in K-12 schools. Part IV will synthesize the current labor law landscape for teachers and argue that the Reauthorization of the Elementary and Secondary Education Act should include procedural safeguards such as a uniform teacher evaluation system to ensure that teacher’s employment rights are not violated. Part V will conclude with discussion of the future of teacher tenure in K-12 public schools and the implications for school reform.

Implementing Home Care Reforms

Source: National Employment Law Project, 2015

Today, two million home care workers are excluded from the basic minimum wage and overtime protections of the federal Fair Labor Standards Act (FLSA)—protections that almost every other worker has depended on for decades. Home care workers provide the vital care that allows older adults and persons with disabilities needing care to remain in their own homes. Yet this critical workforce is shut out of basic federal wage laws as the result of overly broad U.S. Department of Labor (DOL) regulations, issued in 1974, which converted what Congress intended to be a very limited exemption for workers providing certain “companionship” services into a wholesale exclusion. The Department of Labor aimed to rectify this historic injustice by issuing revised rules in 2013. NELP is working to ensure that states are prepared to implement and enforce this new law. You can help. ….