Category Archives: Labor Laws/Legislation

When Bosses Recruit Employees into Politics – Evidence from a New National Survey

Source: Alexander Hertel-Fernandez, Scholars Strategy Network, Key Findings, April 2015

In 2012, journalists reported that Georgia Pacific, Cintas, and other large companies were sending election campaign endorsements to their workers and predicting job losses or plant closures if favored candidates lost in that year’s election. Are similar efforts by bosses and managers happening in the run up to the 2016 election? Results from a new national survey reveal that one in four American employees has been contacted by his or her boss about politics. Detailed findings suggest the need for reforms to protect a small but significant minority of U.S. workers who are subject to inappropriate political pressures in the workplace….

Managing for Social Change: Improving Labor Department Performance in a Partisan Era

Source: Seth D. Harris, West Virginia Law Review, Vol. 17, 2015

From the abstract:
This article tells the story of the successful effort to turn around the Labor Department’s performance during the first five years of the Obama Administration. The Labor Department leadership team, largely chosen for its policy expertise rather than any management experience, used common-sense performance measurement and management to improve workers’ lives and the nation’s economy. The article critiques the two principal laws that purport to structure and guide the executive branch’s performance planning and explains how the Labor Department succeeded in improving its performance despite these laws and Congress’ lack of interest in implementing them or holding agencies accountable for compliance or good performance. The article also offers a reform agenda for improving federal government performance both through congressional action and activist stakeholder engagement.

The ‘Zero-Hours Contract’: Regulating Casual Work, or Legitimating Precarity?

Source: Abi Adams, Mark R. Freedland, Jeremias Prassl, Oxford Legal Studies Research Paper No. 11/2015, February 1, 2015

From the abstract:
Zero-Hours Contracts have become one of the most high-profile employment law issues of recent years. In this article, we analyse the legal and empirical evidence of work under Zero-Hours arrangements and suggest that whilst a legal engagement with Zero-Hours Contracts as an unresolved labour market problem is long overdue, the current discourse surrounding these work arrangements is fundamentally flawed: there is no such thing as the Zero-Hours Contract as a singular category; the label serves as no more than a convenient shorthand for masking the explosive growth of precarious work for a highly fragmented workforce. Ongoing attempts at regulating Zero-Hours Contracts thus constitute a significant shift towards the normalisation of all but the most extreme forms of abusive employment arrangements, leaving a rapidly increasing number of workers without recourse to employment protective norms. In concluding, we indicate ways towards a more coherent approach to the de-normalisation and progressive regulation of this large and growing set of casual work arrangements.

Introduction: Employment Law and the Evolving Organization of Work – A Commentary

Source: Emily A. Spieler, Northeastern University Law Journal, Vol. 6 No. 2, 2014

From the abstract:
In 2013, Northeastern University Law Journal hosted a symposium, titled “Employed or Just Working?,” to address issues of legal protections for workers in the United States, regardless of their official classifications.

This article introduces the symposium’s resultant articles. It places the specific topics addressed by issue contributors in the context of the history of workers’ rights being defined and redefined as courts and legislatures responded to complex social, political and economic forces.

This contextualization touches on several periods: the post-Lochner depression era; the era of civil rights activism that gave rise to basic notions of dignity and rejected discrimination based on status; and the emergence of concern in the 1970s regarding the status of at-will employees when their claims collided with matters of public concern – resulting in various anti-retaliation provisions both under the common law and under a myriad of whistleblower statutes. Reflecting an assumption that the employee-employer relationship was amenable to simple analysis and definition, none of the 20th century federal statutes attempted to include even a reasonably useful definition of the key terms of “employee” or “employer.” In fact, the statutory definitions are tautological: employees are individuals employed by employers; employers are entities that employ employees. Despite this statutory assumption, the courts have repeatedly been called upon to apply each statute to nonstandard employment relationships. The definitional problems have never been solved, as the articles in this symposium illustrate.

The author finds that the four contributed articles draw a troubling picture, reminding us that there are inadequate legal protections for misclassified workers and workers in nonstandard and evolving work arrangements.

In Major Anti-Labor Case, Union-busters No Longer Even Pretend Unions Don’t Benefit Workers

Source: Moshe Z. Marvit, In These Times, Working In These Times blog, April 29, 2015

…To object and become a non-member, Bain would simply have to write to her union during an open window and state her desire to quit the union. However, if she did so, she would not receive liability insurance, which is a benefit of union membership, or have the right to vote in union elections. Therefore, with the backing of education reformer and former Washington, D.C., schools chancellor Michelle Rhee’s anti-teachers union group StudentsFirst, Bain and several other teachers have filed a federal lawsuit against the California Teachers Association, the National Education Association, the California Federation of Teachers, the American Federation of Teachers, United Teachers Los Angeles, United Teachers of Richmond and various school superintendents. Through that suit, Bain seeks to accrue all the benefits of union membership while paying a reduced dues rate and becoming a non-member. Bain v. California Teachers Association is in some ways little more than a rehash of previous attacks on labor, but it repackages those attacks’ allegations with a pro-union façade. In doing so, this case represents the high-water mark of perverting the First Amendment as a tool against labor…. At issue in Bain is not that teachers may choose to opt out of membership with their union and pay a reduced dues rate while still receiving all the benefits of the contract. Those fair share fee cases, such as the seminal Beck v. Communication Workers of America, focus on the process of opting out of membership and the types of fees that would be refundable. At issue are those teachers who choose not to be members of the union and do not receive the members’ benefits from the union, such as being able to vote in union elections and access to any union-sponsored insurance programs. Bain and other teachers in the suit argue that it is unfair and unconstitutional for them to be denied any benefits of membership as a result of their decision to opt out of membership and pay a reduced amount in union dues. They want to be able to both opt out of membership in the union and a significant portion of union dues, but to still be able to vote for union officers and direct the union (which they’ve chosen not to join). In other words, they want the full benefits of a union without having to pay for them. And they are asking the federal courts to intercede and say that the First Amendment guarantees them that right….

The Whiteness of Wisconsin’s Wages: Racial Geography and the Defeat of Public Sector Labor Unions in Wisconsin

Source: Hannah Walker & Dylan Bennett, New Political Science, Volume 37 Issue 2, 2015
(subscription required)

From the abstract:
In 2011, the passage of Wisconsin Act 10 eliminated substantive collective bargaining rights for public employees in Wisconsin. How did politicians in Wisconsin invoke racial symbolism in the policy contest over public sector collective bargaining rights? To what extent did this policy battle reconstruct racial identities of blackness and whiteness? In this analysis, we leverage a multi-method approach to speak to these questions. We use a historical analysis of race in Milwaukee and current public opinion around support for public sector cuts to frame a discourse analysis of political rhetoric employed by the Walker campaign. We join critical race perspectives to examine how politicians play on existing inequalities as a method of gaining political and electoral legitimacy and achieving a retrenchment of the modern state. Moreover, we build a case supporting the claim that Governor Walker and his allies activated the racial animus of white workers.

Roll Back Low Wages – Nine Stories of New Labor Organizing in the United States

Source: Sarah Jaffe, Rosa Luxemburg Stiftung, March 2015

From the summary:
In this study, labor journalist Sarah Jaffe, whose writing has appeared in The Washington Post, The Atlantic, The Guardian, The Nation, and In These Times and who works as co-host of Dissent magazine’s Belabored podcast, examines this series of low-wage workers’ movements that has gained strength in recent years. Including fast food strikes and the fight for a $15 minimum wage; retail, grocery store, restaurant, and taxi workers; Carwasheros, domestic and home care workers, and those living in the U.S. under guestworker visas; Jaffe explores how these movements overlap and connect. She also analyzes their flaws and setbacks in order to better appreciate and learn how to reproduce their often-unreported victories. While, because of Washington gridlock, it might be a while before these campaigns impact federal legislation, they are already having a notable impact on policy in municipalities across the country: winning minimum wage increases; helping to pass employment-specific regulations and ordinances in cities and states that require businesses to give workers paid sick days; and forming legally recognized collective bargaining units and winning concessions from employers through direct action.

Perhaps more importantly, low-wage workers’ movements are playing a crucial role in revitalizing labor, and indeed much of the left, creating alliances and waging offensive battles at a time when too much of the progressive community has been stuck playing defense. They are doing everything they can to ensure that the defeat of precarity, and not its continuance, will be the most important trend in the U.S economy in the years to come.
German version

It’s Time to Raise the Minimum Wage

Source: National Employment Law Project (NELP) and Economic Policy Institute (EPI), Fact Sheet, April 23, 2015

The minimum wage in 2014 was 24 percent below its 1968 level despite the fact that U.S. productivity more than doubled over that period and low-wage workers now have much more experience and education than they did back then. Now is the time to address this historic weakness in the minimum wage by raising it and lifting the earnings of low-wage workers.

Across the country, there is overwhelming momentum in favor of raising wages for our nation’s lowest-wage workers. Twenty-nine states and the District of Columbia, as well as 21 cities and counties, set their minimum wages above the inadequate federal rate of $7.25. The Fight for $15 campaign has galvanized workers across the country to demand the kind of living wages that they are entitled to receive. As a result of their actions, cities such as Seattle and San Francisco have raised their minimum wages to $15, and some of the nation’s largest employers have raised wages even in the absence of federal action.

On Election Day in November 2014, in Arkansas, Alaska, South Dakota, and Nebraska, voters by very wide margins approved ballot initiatives to raise their state minimum wages. And a national poll released in January 2015 showed that 75 percent of Americans—representing all demographics—support raising the federal minimum wage to over $12 per hour.2 These facts demonstrate that a substantial increase in the minimum wage is needed and enjoys overwhelming support across political lines. The Raise the Wage Act measures proposed by Senator Patty Murray and Representative Robert “Bobby” C. Scott will take important and long-overdue steps to address the national crises of wage stagnation and income inequality.

Water Flowing Uphill: National Implications of State Civil Service Movements

Source: Donald F. Kettl, Public Administration Review, Vol. 75 Issue 2, March/April 2015
(subscription required)

….That federal proposal builds on the at-will movement flowing uphill from the states. State-inspired movements are nothing new. After all, much of the progressive government reform movement of the late 1800s, from changes reining in corruption to strategies increasing the efficiency of government operations, bubbled up from state and local governments to Washington. In the 2000s, the local Tea Party movement generated enormous government-cutting energy—as well as candidates carrying its ideas to Washington. To a degree many Washington insiders do not recognize, the “flowing uphill” movement is generating a strong push toward ideas like transforming the SES into an at-will employment system.

There is little doubt that the government’s personnel systems have become ossified, trapped in mid-twentieth thinking at a time when government needs twenty-first century entrepreneurial energy. Government performance surely suffers if government employment becomes a barrier to flexibility, innovation, and energy, and there is an overwhelming consensus that the civil service system needs fundamental reform (Partnership for Public Service 2014). But at-will employment in the government reminds us of Wallace Sayre’s famous—and perceptive—observation that “business and public administration are alike only in all unimportant respects”. It raises enormous questions about how to balance the often-competing goals of accountability, flexibility, innovation, and expertise that lie at the core of the public service. The at-will movement deserves—indeed, requires—careful examination before its untested assumptions subtly reshape governmental practice…..

Deprofessionalizing State Governments: The Rise of Public At-Will Employment

Source: Paul R. Verkuil, Public Administration Review, Vol. 75 Issue 2, March/April 2015
(subscription required)

A trend that bears watching is the state expansion of at-will employment in the public sector. There are 28 states that now fall into that category to various degrees, and the number may be growing. The purpose of at-will employment is to import business practices into the public sector, which is not a bad idea in itself, but in application, salient differences between the two sectors can be lost or ignored. While reasonable grievances against public employment need to be addressed, there are also values that need to be preserved. …. That said, states and the federal government could certainly improve their respective civil service systems. Take two disparate examples: teacher tenure in two years or less and removal of nonperforming officials that takes two years or more. These are unacceptable situations. The system can and should be fixed, but it should not be eliminated. Doing so would send us back to a time when politics trumped administration and public sector incompetence was business as usual. ….